Tyas v Queensland Building and Construction Commission - [2025] QCAT 278

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tyas v Queensland Building and Construction Commission & Anor [2025] QCAT 278

PARTIES:

LARISSA THERESE TYAS

(first applicant)

JOHN TYAS

(second applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

NAILED IT CREATIONS PTY LTD

(second respondent)

APPLICATION NO/S:

GAR457-23

MATTER TYPE:

Building matters

DELIVERED ON:

15 July 2025

HEARING DATE:

26 March 2025

HEARD AT:

Brisbane

DECISION OF:

Member Bertelsen

ORDERS:

The decision of the Queensland and Construction Commission made 7 June 2023 disallowing a claim under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – STATUTORY INSURANCE SCHEME FOR CLAIMS FOR DEFECTIVE OR INCOMPLETE BUILDING WORK – where Queensland Building and Construction Commission refused to allow a claim for assistance under the Queensland Home Warranty Insurance Scheme – correct interpretation of time frame to make application for assistance – whether final building contract payment made and whether such payment disentitled applicants from scheme assistance

Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 6 s 16, s 59

Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290

APPEARANCES & REPRESENTATION:

Applicants:

Larissa Therese Tyas and John Tyas

Respondents:

Mr N Congram of Counsel with him Alicia Collett and Alena Taylor in house lawyers for the Queensland Building and Construction Commission

Mr J Hitchcock of AJ & Co Lawyers for Nailed It Creations Pty Ltd

REASONS FOR DECISION

By application filed 30 June 2023 the applicants Larissa Therese Tyas and John Tyas (‘Mr and Mrs Tyas’ or ‘consumers’ or ‘homeowners’) seek review of the decision of the Queensland Building and Construction Commission (‘Commission’) made 7 June 2023 to disallow their claim under the Queensland Home Warranty Scheme (‘Scheme’) with respect to building work performed by Nailed It Creations Pty Ltd (‘Nailed It’ or ‘builder’ or ‘contractor’) at 32 Murton Avenue, Holland Park (‘the site’).

Background and Evidence

At the outset it is of assistance to record a short chronology.
23 December 2020 Larissa and John Tyas as homeowners enter into a Master Builders Queensland Residential Renovation Contract.
Building work commenced on 8 February 2021.
12 October 2021 work ceased but not complete.
1 November 2021 Mr and Mrs Tyas lodged a complaint with the Commission about defective/incomplete work which was subsequently closed due to lack of response to a Commission enquiry.
16 December 2021 homeowners provided with form 21 final inspection certificate.
23 December 2021 the Commission informs Mr and Mrs Tyas of requirement to advise which complaints constituted defective renovation work by 4 January 2022.
24 December 2021 homeowners make a final payment.
7 January 2022 the Commission closed the complaint case.
8 February 2022 Mr and Mrs Tyas lodged a second complaint with the Commission about defective/incomplete work.
13 June 2022 Commission site inspection takes place.
16 January 2023 Commission issues a direction to rectify to Nailed It for rectification by 20 February 2023.
13 April 2023 Commission decision to disallow insurance claim.
7 June 2023 Commissions decision notice disallowing insurance claim.
On 1 November…

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 278
Decision Date: 15 July 2025

CaseChat Overview and Summary

In the matter of Tyas v Queensland Building and Construction Commission, the parties involved were the applicants, who sought assistance under the Queensland Home Warranty Insurance Scheme, and the Queensland Building and Construction Commission, which was responsible for administering the scheme. The applicants alleged that the building work performed by the builder was defective or incomplete, and they sought financial assistance to rectify these issues. The Commission, however, denied the applicants' claim, prompting the applicants to challenge the decision in court.

The primary legal issue before the court was the interpretation of the time frame within which the applicants were required to make their claim for assistance under the scheme. Specifically, the court had to determine whether the applicants had complied with the statutory requirement to make their claim within six months of receiving the final building contract payment. Additionally, the court needed to decide whether the receipt of the final payment from the builder constituted a bar to the applicants' claim for assistance under the scheme.

The court examined the relevant provisions of the Home Building Act 1975 (Qld) and the Home Building Regulation 2014 (Qld) to interpret the time frame for making a claim. The court found that the applicants had not made their claim within the required six-month period, as they had only done so after receiving the final payment. Furthermore, the court held that the receipt of the final payment did not disentitle the applicants from seeking assistance under the scheme. However, due to the applicants' failure to make their claim within the statutory time frame, the court confirmed the decision of the Queensland Building and Construction Commission to disallow the applicants' claim.

As a result of the court's decision, the order made by the Queensland Building and Construction Commission on 7 June 2023, disallowing the applicants' claim under the Queensland Home Warranty Insurance Scheme, was confirmed. The applicants' appeal was dismissed, and they remained responsible for the costs associated with rectifying the defective or incomplete building work.

Orders

Orders of the court

The decision of the Queensland and Construction Commission made 7 June 2023 disallowing a claim under the Queensland Home Warranty Scheme is confirmed.

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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