Walker v Queensland Building and Construction Commission - [2021] QCAT 32

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Walker v Queensland Building and Construction Commission [2021] QCAT 32

PARTIES: MARIE WALKER

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR 267-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

27 January 2021

HEARING DATE:

27 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

1. The decision of the Queensland Building and Construction Commission made on 28 June 2019 to disallow the claim made under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME - where a claim was made upon the Queensland Home Warranty Scheme more than three months after the owner became aware of defects in residential construction work – where the claim was disallowed – where the fairness of the legislative provisions was discussed

Queensland Building and Construction Commission Act 1991 (Qld) s 71C, s 72(5)

Queensland Building and Construction Commission Regulation 2018 (Qld) Sch 6 s 15 and s 16

Auret v Queensland Building Services Authority & Anor [2013] QCAT 623
Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189

Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127

Hiettecorp Pty Ltd atf Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105

Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 042

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

C. Low - QBCC Legal Services

REASONS FOR DECISION

This is an application to review a decision of the Queensland Building and Construction Commission (QBCC) made on 28 June 2019 to disallow a claim made under the Queensland Home Warranty Scheme.
The QBCC filed an application on 13 January 2020 to dismiss or strike out the application to review a decision. A direction was given by the Tribunal on 22 January 2020 that the application would be considered at the hearing of the matter.
Marie Walker (the owner) owned a house at Godwin Beach in Queensland. She wanted an extension built which comprised a roofed deck and stairs.
She engaged Mr Paul Staveley (the builder) to conduct the work. He held a QBCC licence No. 72756 in the classes of builder – medium rise, carpentry and joinery. He traded as Suncoast Carpentry.
The owner and the builder signed a ‘QBCC Level 2 renovation, extension and repair contract’ for the work for a contract price of $27,000 on 30 October 2017. The starting date was 6 November 2017, and the date for practical completion was 25 December 2017.
The builder proceeded to conduct the work in November 2017. The owner paid the full amount of $27,000.
An officer of the Moreton Bay Regional Council conducted an inspection of the premises on 5 December 2017, and identified that a roofed patio deck had been constructed on the property without an associated building development approval.
A Show Cause Notice under the Planning Act 2016 (Qld) was issued by the Moreton Bay Regional Council to the owner on 13…

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: [2021] QCAT 32
Decision Date

CaseChat Overview and Summary

Marie Walker engaged Paul Staveley to construct an extension of her home. The work was completed in November 2017. The owner paid the full amount of $27,000. An officer of the Moreton Bay Regional Council conducted an inspection of the premises on 5 December 2017, and identified that a roofed patio deck had been constructed on the property without an associated building development approval. The Show Cause Notice noted that the work was 'assessable development' and required an associated building development approval from a private building certifier, and that the council’s records indicated that such approval had not been obtained. The owner states that she immediately contacted a building certifier, the designer (AMR Design) and engineer (E.N.G. Engineering) after she received the Show Cause Notice. The owner states that the certifier conducted an inspection, and verbally pointed out to her that the stairway, railings, supporting structures, roof bearings, and other matters, were areas of concern. The owner states that she contacted the builder and advised what had transpired, and was told by him 'not to worry, they will probably just tell me to put a couple of extra bolts in', and that the builder attended the property a short time later, and she discussed with him what the certifier had mentioned to her as to the requirements of the building code. The owner states that she contacted the certifier for guidance. She was advised by her to contact the QBCC immediately and lodge a complaint. Marie applied for the application on the 22/05/2018 and the application was issued on the 14/06/2018. The building approval has a 24 month completion date. Marie advised, that the builder was coming back to commence rectification work but was unable to come back till November as he was booked out, so that the deck would be built in accordance with the engineering. Marie got in touch to let the QBCC that she had the QBCC involved as the deck builder would not come back without further payment to make the deck comply with the engineering. Marie was also in close contact with Duncan Haynes from the MBRC Building and Development compliance team. She advised the QBCC inspector had been to site and issued a notice to rectify to the builder. The QBCC notes that the owner lodged a ‘Residential and Commercial Construction Complaint Form’ on 5 December 2018 which consisted of 16 alleged defective items, and comprised the following documents. The QBCC notes that the owner first became aware, or ought reasonably to have become aware of the defects between November 2017 and December 2017. The owner also submitted with her Internal Review Application that the defects became evident in November 2017, after being notified of the defects by Mr Haines. The owner further states that the defects were notified to her on 11 December 2017 by Ms Harvey. However, it appears that QBCC was not notified of the defects until lodgement of the Complaint Form was received on 5 December 2018.Whilst I take into account the owner’s reasoning for the delay between noticing the complaint items and notifying the QBCC, the Owner’s Terms of Cover do not allow discretion to be applied when considering a claim that was made outside of the timeframes as stated in Schedule 6, section 16 (3) of the QBCC regulation. In light of the above, I therefore must decline the owners [sic] claim for assistance under the statutory insurance scheme.The QBCC contends that the owner first became aware, or ought reasonably to have become aware of the defects between November 2017 and December 2017, and that a three month time limit for her to make a claim on the statutory insurance scheme ran from that time. The owner was obviously aware of defects in the work in December 2017, as she was so advised by an officer of the Moreton Bay Regional Council. The owner did not submit a complaint form to the QBCC until 2 December 2018, which was about 12 months after she was aware of defects in the work. The reason why the owner did not make a complaint to the QBCC until almost a year had passed after she became aware of the defects is explained by her as follows: (a)Immediately when she received the show cause notice from the Council, in March 2018, she contacted a certifier, designer, engineer, and the builder, none of whom alerted her to a need to make a complaint to the QBCC at that time; (b)the builder told her in March 2018 that he would come back and rectify the work in November 2018, which she accepted, and believed would occur; and (c)when the builder did not rectify the work she again contacted the certifier, who then advised her to lodge a complaint with the QBCC, which she did soon after. The central issue in this matter is the question of time. The QBCC contends that time is not ‘reset’ by the builder conducting rectification work, and submits that if strict statutory time frames under the Terms of Cover were reset whenever rectification work was attempted, that this would result in the unsustainable administration of the scheme. The consequence is that the decision of the QBCC to decline cover under the policy must be confirmed, notwithstanding that I consider there to be an inherent injustice in that outcome as a result of the legislative provisions. The decision of the QBCC made on 28 June 2019 to disallow the claim made under the Queensland Home Warranty Scheme is confirmed.

Orders