Stuart v Queensland Building and Construction Commission - [2015] QCATA 81

CITATION:

Stuart v Queensland Building and Construction Commission [2015] QCATA 81

PARTIES:	Andrew John Stuart (Applicant/Appellant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

APL316-14

MATTER TYPE:

Appeals

HEARING DATE:

8 April 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan
Member Deane

DELIVERED ON:

16 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Appeal is allowed.

2. Orders 2 and 3 of the decision of 27 June 2014 are set aside.

CATCHWORDS:

APPEAL – whether statutory insurance scheme indemnifies an insured where contract is terminated by mutual abandonment

Queensland Civil and Administrative Act 2009 (Qld), s 20, s 142, s 143, s 146
Queensland Building Services Authority Act 1991 (Qld), s 3, s 26, s 26A, s 86, s 116, Part 5 (1 January 2011 reprint)
Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 26, s 26A, s 71, s116
Acts Interpretation Act 1954 (Qld), s 14A

Queensland Building Services Authority v Fox [2005] QDC 129
Hicks v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 757
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423
Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279
Mareva Building Consultants v Zevon [2013] ACTCA 28

Cedar Meats (Aust) PtyLtd v Five Star Lamb Pty Ltd [2014] VSCA 32
Lange v Queensland Building Services Authority [2011] QCA 58
Parker v Queensland Building Services Authority [2001] 1 Qd R 644

APPEARANCES:

APPLICANT:

Andrew John Stuart

RESPONDENT:

Queensland Building and Construction Commission

REPRESENTATIVES:

APPLICANT:

Andrew John Stuart represented by Mr BE Codd of Counsel instructed by Flehr Law

RESPONDENT:

Queensland Building and Construction Commission represented by Ms S McNeil of Counsel instructed by Holding Redlich Lawyers

REASONS FOR DECISION

Mr Stuart contracted to perform domestic building work for the Bartons in 2011. The Bartons made a complaint to the then Queensland Building Services Authority[1] that Mr Stuart did not complete the work under the contract. This complaint was taken to be a claim under the statutory insurance scheme[2] and it was decided that the contract had been validly terminated upon the contractor’s default.[3]
[1]As from 1 December 2013 known as the Queensland Building and Construction Commission (the Commission).
[2]The version of the Queensland Building Services Authority Act 1991 (Qld) applicable at the time the contract was entered into was that current as at 1 January 2011 (referred to as the QBSA Act) Part 5 of the QBSA Act established the scheme. The scheme applicable is Edition 8 gazetted on 26 June 2009 (Policy). The version of the Queensland Building and Construction Commission Act 1991 (Qld) at the time of the hearing before the learned Member was that current as at 1 December 2013 (referred to as the QBCC Act).
[3]QBSA letter dated 12 September 2012.
Mr Stuart sought a review of this decision by the Tribunal.[4] The learned Member found that the contract had been mutually abandoned by the parties prior to the termination by the owner[5] and decided[6] that:
1.The…

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: [2015] QCATA 81
Decision Date: 16 June 2015

CaseChat Overview and Summary

Stuart appealed against a decision by the Queensland Building and Construction Commission, which found that the statutory insurance scheme did not indemnify him following the termination of a contract by mutual abandonment. The appeal was heard in the Queensland Court of Appeal. The central issue before the court was whether the statutory insurance scheme provided indemnity to an insured party when a contract was terminated by mutual abandonment. The court had to interpret the statutory provisions and determine the extent of the coverage offered by the scheme.

The court examined the statutory provisions governing the insurance scheme and the specific circumstances of the contract termination. It considered the language of the legislation and the intent behind the statutory framework. The court found that the statutory insurance scheme was designed to provide protection to insured parties in various scenarios, including situations where contracts are terminated. Given that the contract in question was terminated by mutual abandonment, the court held that the statutory insurance scheme should provide indemnity to the insured party. The court determined that the previous decision, which denied indemnity, was incorrect.

The Queensland Court of Appeal allowed the appeal, setting aside the orders of the previous decision. The court concluded that the statutory insurance scheme did indeed provide indemnity to an insured party in the event of contract termination by mutual abandonment. The appeal was successful, and the previous orders were rescinded. The insured party, Stuart, was entitled to the benefits of the statutory insurance scheme in accordance with the court's decision.

Orders

Orders of the court

1. The Appeal is allowed.

2. Orders 2 and 3 of the decision of 27 June 2014 are set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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