Van Dorssen v QBCC

Case [2025] QCAT 69

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Van Dorssen & Ors v QBCC [2025] QCAT 69

PARTIES:
JILL VAN DORSSEN

(first applicant)
DAVID BRUCE VAN DORSSEN

(second applicant)
KYLIE JANE HOULIHAN

(third applicant)
CARL DOMINIC HOULIHAN

(fourth applicant)

v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR382-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 February 2025

HEARING DATE:

12 September 2024

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

1.     The decision of the Queensland Building and Construction Commission made 11 September 2019 revoking the approval of the applicants’ claim under the Statutory Insurance Scheme is set aside.

2.     In lieu the Tribunal substitutes a decision that no action be taken purporting to revoke the approval of the applicants’ claim under the Statutory Insurance Scheme allowed 28 May 2019.

3.     Any application for costs by a party be made with supporting submissions and be filed in the Tribunal with a copy to the other party, by:

4:00pm on 26 February 2025.

4.     The responding party file submissions in response in the Tribunal with a copy to the applying party, by:

4:00pm on 12 March 2025.

5.     Submissions must not exceed five (5) pages in length and must address both the assessment and fixing of costs.

6.     Any decision about costs shall be determined on the papers.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where a claim was made by homeowners under the statutory insurance scheme – where a direction to rectify defective work was given to the builder – where the claim under the statutory insurance scheme was allowed – where the builder sought review of the direction to rectify in the Tribunal – where the Tribunal determined the homeowners may have contributed to the defective work – where the Commission revoked its earlier decision to allow the claim for insurance and refused the claim for insurance in reliance on the implied power to revoke administrative decisions found in s 24AA of the Acts Interpretation Act1954 (Qld) – where the Commission refused the claim for insurance – where the refusal to allow the insurance was confirmed on internal review – where the homeowners applied to the Tribunal to review the decision to disallow the claim under the statutory insurance scheme

Acts Interpretation Act 1954 (Qld) s 4, s 23, s 24AA

Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 328

Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37

Firearm Distributors P/L v Robert James Carson & Ors [2000] QSC 159

JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502Lee v RACQ Insurance Ltd [2015] QSC 120

Martinez v Minister for Immigration and Citizenship and Another (2009) 256 ALR 32

Minister for Indigenous Affairs v MJD Foundation Ltd [2017] FCAFC 37

Re 56 Denton Road Twickenham [1953] 1 Ch 51

Rootkin v Kent County Council [1981] 1 WLR 1186

Yang v WorkCover Queensland [2021] QSC 274

APPEARANCES & REPRESENTATION:

Applicants:

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Details
AGLC
Van Dorssen v QBCC [2025] QCAT 69
Case
[2025] QCAT 69
Decision Date

CaseChat Overview and Summary

In the case of Van Dorssen v QBCC, homeowners brought a claim under the statutory insurance scheme against a builder for defective work. The Queensland Building and Construction Commission (QBCC) initially allowed the claim but later revoked its decision, relying on an implied power of revocation under section 24AA of the Acts Interpretation Act 1954 (Qld). The homeowners sought review of this decision in the Queensland Civil and Administrative Tribunal (QCAT). The primary issue before the Tribunal was whether QBCC had the authority to revoke its earlier decision to allow the claim under the statutory insurance scheme. QBCC argued that the absence of a time limit to allow or disallow a claim and the inclusion of a reconsideration provision in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) supported the implication of such a power. The Tribunal, however, found that section 24AA does not extend to allow QBCC to withdraw a decision already made, as the intention of the relevant legislation must be considered. The Tribunal noted that the reconsideration provision in the QCAT Act is a dispute resolution tool and not a grant of power to QBCC to withdraw its earlier decisions. The Tribunal also found that the passing reference to section 24AA in Kline Industries International Pty Ltd v QBCC [2020] QSC 243 did not support QBCC's position, as the court in that case did not explore the power in detail. The Tribunal concluded that QBCC did not have the power to revoke its earlier decision and set aside the revocation, substituting a decision that no action be taken to revoke the approval of the claim.

The Tribunal further directed that any application for costs be made with supporting submissions and filed in the Tribunal, with a response to be filed by a specified date. The submissions must not exceed five pages and address both the assessment and fixing of costs, with the decision about costs to be determined on the papers. The Tribunal's decision highlights the importance of considering the intention of the relevant legislation when determining the scope of implied powers and the need for clear statutory provisions to support such powers.

Orders

Orders of the court

1. The decision of the Queensland Building and Construction Commission made 11 September 2019 revoking the approval of the applicants’ claim under the Statutory Insurance Scheme is set aside.

2. In lieu the Tribunal substitutes a decision that no action be taken purporting to revoke the approval of the applicants’ claim under the Statutory Insurance Scheme allowed 28 May 2019.

3. Any application for costs by a party be made with supporting submissions and be filed in the Tribunal with a copy to the other party, by:

4:00pm on 26 February 2025.

4. The responding party file submissions in response in the Tribunal with a copy to the applying party, by:

4:00pm on 12 March 2025.

5. Submissions must not exceed five (5) pages in length and must address both the assessment and fixing of costs.

6. Any decision about costs shall be determined on the papers.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Lacking specific provision to set aside a claim already admitted, QBCC relied on the implied power of revocation contained in s 24AA of the Acts Interpretation Act 1954 (Qld) (‘AIA’), which provides:24AAPower to make instrument or decision includes power to amend or repeal If an Act authorises or requires the making of an instrument or decision— (a)the power includes power to amend or repeal the instrument or decision; and(b)the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision. Whether that power to revoke or withdraw an earlier decision is to be implied however, depends on the intention of the relevant legislation. By s 4 of the AIA, the provisions of the AIA may be displaced, wholly or partly, by a contrary intention appearing in any Act. In support of the contention that the power is implied, QBCC points to no time limit being set under the Act to allow or disallow an insurance claim. That is true. QBCC then suggest that s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) contemplates a reconsideration of a decision by QBCC. Any such reconsideration however is not instigated by QBCC. The Tribunal may invite QBCC to reconsider its decision. It need not do so. The purpose of s 23 of the QCAT Act is to allow QBCC to reconsider, usually following the benefit of a compulsory conference or the filing of statements of evidence by the applicant, its decision with a view to early and simple resolution of a dispute in light of new information and therefore perspective. Section 23 of the QCAT Act is a dispute resolution tool used by the Tribunal, not any form of extension of power granted QBCC to withdraw an earlier decision and replace it with a new decision. QBCC then cites the decision of Kline Industries International Pty Ltd v QBCC [2020] QSC 243 (‘Kline’) where it says s 24AA was found to apply to permit QBCC to withdraw a direction to rectify. Kline offers little support to QBCC’s position. In that matter, in the course of outlining the factual chronology of the case, mere passing comment was made that a direction to rectify issued to a builder had been withdrawn by QBCC and that QBCC had relied on s 24AA to do so. Nothing more than that was said and the claimed power to act in that way was not explored by the Court, it not being necessary to do so. QBCC’s final submission is that the decision to allow a claim under the statutory insurance scheme not only affects the claimant, but the building contractor who may be required to repay monies paid out on a successful claim. QBCC submits, if it is discovered that, for whatever reason, an insurance claim that was allowed was not in fact “a claim under the statutory insurance scheme”, QBCC would not be entitled to recover any payment out under the insurance from the building contractor. It is therefore appropriate for QBCC to have the power to reconsider a decision allowing a claim, if it is later discovered that the claim should not have been allowed.

Ratio Decidendi

Legal Principle Established

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