Stevens v Queensland Building and Construction Commission - [2018] QCAT 331

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Stevens v Queensland Building and Construction Commission [2018] QCAT 331

PARTIES:

PATRICIA ANN STEVENS
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR177-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 October 2018

HEARING DATE:

12 June 2018

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

1. The decision of the Commission made on 7 June 2017 is set aside;

2. A policy of insurance came into force in respect of the residential construction work set out in Cool in Sumer tax invoice No 0077 in accordance with s 69(2)(a)(iii) of the Queensland Building and Construction Commission Act 1991 (Qld);

3. A policy of insurance came into force in regard to the airconditioning supply and installation residential construction work and that work only set out in Cool in Summer tax invoice No 0084 in accordance with s 69(2)(a)(iii) of the Queensland Building and Construction Commission Act 1991 (Qld); and

4. A policy of insurance did not come into force in respect of balance of the work in Cool in Summer tax invoice No 0084 and in respect of the work in Cool in Summer tax invoice 0085 in accordance with s 69(2) of the Queensland Building and Construction Commission Act 1991 (Qld).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to review decision to claim under statutory insurance scheme – where contractor not licensed – whether contractor fraudulently claimed to be licensed – whether contract of insurance came into existence

Queensland Building and Construction Commission Act 1991 (Qld), s 69, s 86, s 87
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

BM Farage Pty Ltd as trustee for Farage Discretionary Family Trust v Queensland Building Services Authority [2003] QCCTB 11
Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87
Derry & Anor v Peek (1889) L.R. App. Cas. 337
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
Jorg v Queensland Building and Construction Commission [2016] QCAT 364

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

E Ward, legal counsel for the Queensland Building and Construction Commission

REASONS FOR DECISION

MS Stevens engaged an entity associated with Mr Zac Mar to perform building work for her at her own house and a unit owned by her daughter. She paid $60,390 for the work with the only contractual documents being Tax invoices. Mr Mar and his entities were subject to investigation by the Commission and they were eventually prosecuted. The work for Mrs Stevens was never completed and she brought a non-completion claim under the Commission’s home warranty scheme. The Commission determined in its original decision that she was not covered by the home warranty scheme as a policy of insurance had not come into force. This decision was confirmed by internal review and Mrs Stevens has now applied to the Tribunal for external review of the decision.
The Tribunal has jurisdiction upon an application being made to review…

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: [2018] QCAT 331
Decision Date: 3 October 2018

CaseChat Overview and Summary

In the matter of Stevens v Queensland Building and Construction Commission, the court was presented with a dispute involving the validity of insurance claims under a statutory scheme. The applicant, Stevens, sought to review a decision made by the Queensland Building and Construction Commission, which had determined that a policy of insurance did not exist for certain construction work completed by Stevens, who was not a licensed contractor. The crux of the dispute was whether the contractor had fraudulently represented themselves as a licensed contractor to claim insurance benefits under the statutory scheme.

The court had to decide several legal issues, primarily whether the contractor had fraudulently claimed to be a licensed contractor to obtain insurance coverage, and if such a fraudulent claim could nullify the existence of an insurance policy. Furthermore, the court needed to ascertain whether an insurance contract came into existence for specific parts of the construction work completed by Stevens.

In reaching its decision, the court found that the contractor had indeed made fraudulent representations regarding their licensing status. However, the court held that despite the fraud, an insurance policy did come into effect for certain specified works, as outlined in the Cool in Summer tax invoices. The court held that the fraudulent conduct of the contractor did not negate the formation of the insurance policy for the specified works, as the statutory scheme was designed to protect homeowners and subcontractors, and not to punish contractors who acted in bad faith. Consequently, the court set aside the decision of the Commission and clarified the scope of the insurance coverage under the statutory scheme.

The final orders of the court specified that the decision of the Commission made on 7 June 2017 was set aside. The court ruled that a policy of insurance came into force for certain residential construction works and airconditioning supply and installation works, as per the statutory provisions. Conversely, the court confirmed that a policy of insurance did not come into force for the remaining works outlined in the invoices. This ruling balanced the protection afforded to homeowners and subcontractors with the need to hold contractors accountable for fraudulent conduct within the statutory scheme.

Orders

Orders of the court

1. The decision of the Commission made on 7 June 2017 is set aside;

2. A policy of insurance came into force in respect of the residential construction work set out in Cool in Sumer tax invoice No 0077 in accordance with s 69(2)(a)(iii) of the Queensland Building and Construction Commission Act 1991 (Qld);

3. A policy of insurance came into force in regard to the airconditioning supply and installation residential construction work and that work only set out in Cool in Summer tax invoice No 0084 in accordance with s 69(2)(a)(iii) of the Queensland Building and Construction Commission Act 1991 (Qld); and

4. A policy of insurance did not come into force in respect of balance of the work in Cool in Summer tax invoice No 0084 and in respect of the work in Cool in Summer tax invoice 0085 in accordance with s 69(2) of the Queensland Building and Construction Commission Act 1991 (Qld).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Stevens v Queensland Building and Construction Commission [2018] QCAT 331
PARTIES:	PATRICIA ANN STEVENS (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:	GAR177-17
MATTER TYPE:	General administrative review matters
DELIVERED ON:	3 October 2018
HEARING DATE:	12 June 2018
HEARD AT:	Brisbane
DECISION OF:	Member Allen
ORDERS:	1. The decision of the Commission made on 7 June 2017 is set aside; 2. A policy of insurance came into force in respect of the residential construction work set out in Cool in Sumer tax invoice No 0077 in accordance with s 69(2)(a)(iii) of the *Queensland Building and Construction Commission Act* 1991 (Qld); 3. A policy of insurance came into force in regard to the airconditioning supply and installation residential construction work and that work only set out in Cool in Summer tax invoice No 0084 in accordance with s 69(2)(a)(iii) of the *Queensland Building and Construction Commission Act* 1991 (Qld); and 4. A policy of insurance did not come into force in respect of balance of the work in Cool in Summer tax invoice No 0084 and in respect of the work in Cool in Summer tax invoice 0085 in accordance with s 69(2) of the *Queensland Building and Construction Commission Act* 1991 (Qld).
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – application to review decision to claim under statutory insurance scheme – where contractor not licensed – whether contractor fraudulently claimed to be licensed – whether contract of insurance came into existence Queensland Building and Construction Commission Act 1991 (Qld), s 69, s 86, s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 BM Farage Pty Ltd as trustee for Farage Discretionary Family Trust v Queensland Building Services Authority [2003] QCCTB 11 Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87 Derry & Anor v Peek (1889) L.R. App. Cas. 337 Jensen v Queensland Building and Construction Commission [2017] QCAT 232 Jorg v Queensland Building and Construction Commission [2016] QCAT 364
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	E Ward, legal counsel for the Queensland Building and Construction Commission