Small v Queensland Building and Construction Commission - [2025] QCAT 270

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Small & Anor v Queensland Building and Construction Commission [2025] QCAT 270

PARTIES:

CHRISTINE SHEREE SMALL
AARON ANDERSON

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO:

GAR603-23

MATTER TYPE:

Building matters

DELIVERED ON:

30 June 2025

HEARING DATE:

13 March 2025

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

The decision-maker for the internal review decision is invited to reconsider the decision under section 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – general administrative review – where the applicants purchase a property – where the applicants obtained an inspection report on the property – where defects identified – where the applicants made complaints of building defects – where the respondent decided not to direct the owner to rectify the defects but may be entitled to assistance under the statutory insurance scheme – where the respondent decided to wholly disallow the claim under the statutory insurance scheme – where the respondent decided to confirm the original decision on the ground it was unable to identify the builders – whether the application for the building disputes is out-of-time – where there is a dispute about the future conduct of the proceeding

Building Regulation 2006 (Qld), s 17, 18

Statutory Declarations Act 1959 (Cth), s 11
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 71H, s 71J, s 72, s 72A, s 86, s 86E, s 87, sch 2
Queensland Building and Construction Commission Regulation 2018 (Qld), sch 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 23, s 24, s 39, s 40, s 42

AB (a pseudonym) v Independent Broad-based Anti-corruption Commission [2024] HCA 10

Ahmet v Queensland Building and Construction Commission [2022] QCAT 417
Ainsworth & Anor v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78
Italiano v Carbone [2005] NSWCA 177
Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290
Karamaroudis v Queensland Police Service & Ors [2023] QCA 217
King and McDonald v Queensland Building and Construction Commission [2024] QCAT 138

Kioa v West (1985) 159 CLR 550

APPEARANCES & REPRESENTATION:

Applicants:

Self-represented

Respondent:

Mr A Tindall of Counsel, instructed by Holding Redlich Lawyers

REASONS FOR DECISION

Application to review

On 25 August 2023 the applicants (‘Ms Small’ and ‘Mr Anderson’ individually and ‘applicants’ together) made application to the Tribunal for review of an internal review decision of the respondent (‘QBCC’) made 1 August 2023 to confirm a decision of QBCC to wholly disallow a claim by Ms Small and Mr Anderson under the statutory insurance scheme made 14 June 2023 (‘application to review’).
Brief background
On about 1 July 2015 Deleje Pty Ltd (‘Deleje’) as building owner entered into a contract with Megalo Constructions Pty Ltd (‘Megalo’) for the construction of a three story dwelling…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCAT 270
Decision Date: 30 June 2025

CaseChat Overview and Summary

The applicants, Ms Small and Mr Anderson, sought external review of a decision by the Queensland Building and Construction Commission (QBCC) to wholly disallow their claim for assistance under the statutory insurance scheme. The applicants purchased a property with identified defects and lodged complaints against the builder. The QBCC initially declined to direct the builder to rectify the defects but considered the applicants might be entitled to assistance under the statutory insurance scheme. However, the QBCC ultimately decided to wholly disallow the claim, a decision which the applicants sought to have reviewed. The legal issues included whether the claim was out of time and who was responsible for the defective work. The QBCC argued the applicants' claim was out of time and that the defects might not have been performed under the relevant contract or policy of insurance. The applicants argued that the QBCC failed to properly consider the evidence and the terms of the statutory insurance scheme. The court considered the nature of the QBCC's powers and its capacity to affect the applicants' rights and interests, referencing the High Court's decision in AB v Independent Broad-based Anti-corruption Commission. The court concluded that the QBCC had not satisfied the duty of procedural fairness and invited the decision-maker to reconsider the decision under section 23(1) of the Queensland Civil and Administrative Tribunal Act 2009. This invitation allows for a fresh review that properly considers the evidence and the statutory provisions.

Orders

Orders of the court

The decision-maker for the internal review decision is invited to reconsider the decision under section 23(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Background

Background to the litigation

On 25 August 2023 the applicants (‘Ms Small’ and ‘Mr Anderson’ individually and ‘applicants’ together) made application to the Tribunal for review of an internal review decision of the respondent (‘QBCC’) made 1 August 2023 to confirm a decision of QBCC to wholly disallow a claim by Ms Small and Mr Anderson under the statutory insurance scheme made 14 June 2023 (‘application to review’).Brief background On about 1 July 2015 Deleje Pty Ltd (‘Deleje’) as building owner entered into a contract with Megalo Constructions Pty Ltd (‘Megalo’) for the construction of a three story dwelling (‘building work’) at 229 Birdwood Terrace, Toowong (‘property’) (‘Megalo contract’). On 25 August 2017 Deleje terminated the Megalo contract. On 22 September 2017 the members of Megalo resolved to wind up the company. It was deregistered on 25 August 2019. On 7 February 2022 the applicants entered into a contract to purchase the property from Deleje. The applicants engaged Ironside Building, Pest & Pool Inspections to provide an inspection report on the property (‘prepurchase inspection report’). The inspection was carried out on 14 February 2022. The report is undated. The defects identified included those summarised in paragraph [15] of these reasons for decision. On about 8 April 2022 the applicants’ purchase of the property from Deleje settled. On 9 June 2022 the applicants lodged a complaint with QBCC against Megalo in respect of five items of alleged defective work at the property. The items are set out in paragraph [16] of these reasons for decision. On 2 June 2023 QBCC decided not to direct Megalo to rectify any of the complaint items but may be entitled to assistance under the statutory insurance scheme. On 14 June 2023 QBCC decided to wholly disallow the claim under the statutory insurance scheme (‘original decision’). On about 10 July 2023 the applicants applied to QBCC for a review of the original decision in respect of complaint items 1 – 3 and 5 but not complaint item 4. On 1 August 2023 QBCC decided to confirm the original decision (‘internal review decision’). On 25 August 2023 the applicants made application to the Tribunal for external review of the internal review decision. The reasons why they assert the internal review decision is wrong and the orders sought by them are set out in paragraph [20] of these reasons for decision. On 5 December 2023 QBCC filed in the Tribunal amended reasons for the internal review decision. They are summarised in paragraph [23] of these reasons for decision.Prepurchase inspection report The defects identified in the prepurchase inspection report include:(a)water stains on the eave lining;(b)high moisture readings on the lower walls of the hallway;(c)mould growth on the walls of the hallway;(d)water stains on the ceiling stans above the stairwell;(e)water stains on the ceiling in the lounge room; and(f)water stains on the ceiling in the kitchen and meals area.Complaint items

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The decision continues:26. Having regard to the voluntary administration and submissions provided concerning the stage of works under which Megalo ceased work at the Property, I am not satisfied that the defective work has been performed under relevant contract and/or policy of insurance taken out by Megalo.27. Having regard to the Third Party Quotation[1], I am not satisfied that the relevant defective work has been performed by the third party licensed contractor. Accordingly, any policy of insurance which was required to be taken out by the third party licensed contractor would not have extended to the defective work identified.28. Having regard to the Form 16 and Statutory Declaration provided by David Grice, I am not satisfied that any works were performed by David Grice at the Property and/or that a policy of insurance would have come into force.29. Upon review of the information on file, and the investigation made by the QBCC, I am not satisfied that a policy of insurance has come into force which covers the defective work identified in the Inspection Report.30. Accordingly, I have decided to refuse the Owner’s claim for defective work under the Statutory Insurance Scheme with respect to items 1, 2, 3 and 5 of the Complaint.The reasons why the applicants assert the internal review decision is wrong and the orders sought by them[1]The third party is not identified in the internal review decision. In their application to review, the applicants assert the decision-maker for the internal review decision erred in finding no policy of insurance under the statutory insurance scheme was in force in respect of the defective work. With respect to complaint items 1, 3 and 5, they assert, the decision-maker:(a)relied on a quotation by TopCat Constructions Pty Ltd[2] (‘TopCat’) in finding the waterproofing was excluded from the building work to be carried by TopCat. However, the decision-maker did not obtain a copy of a contract for the carrying out of the work to determine whether, in fact, it included waterproofing at the property;(b)did not give any, or any adequate, consideration to whether TopCat ‘carried out’ the waterproofing consistent with the broad definition of the expression in the dictionary in schedule 2 to the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), which is in the following terms:carry out, for building work (other than for part 4A) means any of the following:(a)carry out the work personally;(b)directly or indirectly cause the work to be carried out;(c)provide building work services for the work;(c)erred in not giving any, or any sufficient, weight to the form 16 relating to the completion of the waterproofing at the property;(d)otherwise failed to properly apply the terms of the scheme as it applied to work required to be carried by a licensed contractor, namely the waterproofing the subject of complaint items 1, 3 and 5.[2]The unidentified third party in the internal review decision. With respect to complaint item 2, the applicants assert, the decision-maker:(a)did not give any, or any adequate, consideration to the building work carried out by Megalo and TopCat as licensed builders and whether the defective work was carried out by either party under the terms of their contractual arrangements with Deleje;(b)otherwise failed to properly apply the terms of the scheme the subject of the complaint.

Ratio Decidendi

Legal Principle Established

He later added the statement by Mr Johnson, ‘I believe the roofing, excluding the roofing on the garage, had been completed prior to Megalo’s contract being terminated by Deleje …’ is incorrect.Consideration The touchstone for the future conduct of the proceeding turns on the duty to act fairly in the circumstances of the particular case. The applicants press for a decision by the Tribunal on the application to review. QBCC now asks that the decision-maker be invited to reconsider the decision under section 23(1) of the QCAT Act. The nature of a decision-maker’s powers and the decision-maker’s capacity to affect a person’s rights and interests was recently considered by the High Court of Australia in AB (a pseudonym) v Independent Broad-based Anti-corruption Commission[5] (‘AB’). They not only bear on the existence and informs the content of any duty of procedural fairness, but also informs the proper construction of statutory provisions that create analogous rights and obligations in that ‘… all statutes are construed ... against a background of common law notions of justice and fairness …’[6][5][2024] HCA 10.[6]AB, [26]. See also Annetts v McCann (1990) 170 CLR 596, per Mason CJ, Deane and McHugh JJ at 598 ; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, per Mason CJ, Dawson, Toohey and Gaudron JJ at 576 ; Gribbles Pathology (Vic) Pty Ltd v Cassidy (2002) 122 FCR 78, per Weinberg J at [117]; Kioa v West (1985) 159 CLR 550 (‘Kioa’), per Brennan J at 609; Italiano v Carbone [2005] NSWCA 177, per Basten JA at [80]. QBCC, at the conclusion of the hearing, filed submissions in closing pressing the Tribunal to confirm the internal review decision. Subsequently, in accordance with directions given by the Tribunal, it filed supplementary written submissions asking that the Tribunal invite the decision-maker to reconsider the decision under section 23(1) of the QCAT Act. The applicants ask that the Tribunal set aside the internal review decision and provide assistance for the defective work under the statutory insurance scheme.Respondent’s first written submissions in closing QBCC filed two written submissions. They were filed prior to the applicants filing written submissions. The first submissions were filed at the conclusion of the hearing. It addresses who carried out the defective work and whether the applicants’ claim against the statutory insurance scheme was made within time. The later submissions focus on who carried out the defective work. QBCC accepts complaints one, two, three and five are defective work. Conveniently in the context of the complaints, they are described as waterproofing and flashing defects. The first issue to be decided by the Tribunal is which party or parties carried out the defective work. QBCC identifies conflicting evidence between that given by Mr Butler (Megalo) and that given by Mr Johnson (Delege). Mr Butler deposes to the home being at the bare frame stage on Megalo terminating the work on 2 August 2017. Mr Johnson deposes to the work being carried out by Mr Gerard (Frank) Cartella or Cartella Services Pty Ltd.