Van Kampen v Queensland Building and Construction Commission

CITATION: Van Kampen v Queensland Building And Construction Commission [2017] QCAT 163

PARTIES:	Annette Van Kampen (Applicant)
v
Queensland Building And Construction Commission (Respondent)

APPLICATION NUMBER:	GAR090-16
MATTER TYPE:	General administrative review matters

HEARING DATE: 7 December 2016

HEARD AT: Maroochydore

DECISION OF:	Member McLean Williams
DELIVERED ON:		24 May 2017

DELIVERED AT: Brisbane

ORDERS MADE:

Application for review dismissed.

CATCHWORDS:

Review of decision of Queensland Building and Construction Commission to disallow a claim under the statutory insurance scheme – where claim made outside timeframe in statutory insurance scheme – where claim made outside time limit for making claim – meaning of ‘became evident’ in policy

Orlanski v QBSA [2011] QCAT 35

APPEARANCES and REPRESENTATION (If any): 

Applicant:                Annette Van Kampen, In person

Respondent:          Jodie Stroud, Legal Officer

Queensland Building and Construction Commission

REASONS FOR DECISION

Introduction

1. On 11 April 2016 Ms Van Kampen filed an Application to Review a Decision seeking review before QCAT of an internal review decision by the Queensland Building and Construction Commission (‘QBCC’) made on 15 October 2015. By that internal review decision the QBCC declined Ms Van Kampen’s application seeking further review of a decision made by the QBCC on 17 August 2015, declining Ms Van Kampen’s claim under the statutory insurance (‘Home Warranty’) scheme.

2. Pursuant to s.86(1)(h) of the Queensland Building and Construction Commission Act 1991 (the QBCC Act), internal review decisions such as that made on 15 October 2015 under s.86C of the QBCC Act may be subject to further review, as a ‘reviewable decision’ before QCAT. When exercising its review jurisdiction QCAT is required to decide the review in accordance with the provisions of the QCAT Act, and the QBCC Act, and has all the functions of the decision-maker for the decision being reviewed.[1] Under s.24 of the QCAT Act, the tribunal may:

   a.confirm or amend the decision; or

   b.set aside the decision and substitute its own decision; or

   c.set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.

   [1] QCAT Act, s 19.

Statutory Framework

1. Part 5 of the QBCC Act establishes the statutory insurance scheme known as the Queensland Home Warranty Scheme, in sections 67X to 71AC (inclusive).

2. The relevant insurance policy conditions in this instance arise under Edition 6 of the Home Warranty Scheme, in Part 2. 

1. Clause 2.1 specifies:

   “2.1       Payment for Defective Construction

   a.Subject to the terms of this policy, BSA agrees to pay the cost of rectifying defects in the residential construction work that is primary building work, other than for defects from subsidence or settlement referred to in Part 3 of this policy.”

2. Clause 2.4 provides:

   “2.4 Expiry of Cover

   a.Subject to clause 2.4(c), BSA is only liable to pay for loss under this Part for a category one defect where the defect first became evidence within six years and six months after:

   i.      the date of payment of the insurance premium, or the date of entering into the…