Xi v Queensland Building Services Authority

[2013] QCAT 124

CITATION: Xi v Queensland Building Services Authority [2013] QCAT 124

PARTIES:	Xiaohong Xi (Applicant)
v
Queensland Building Services Authority (Respondent)

APPLICATION NUMBER: GAR012-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Susan Gardiner, Member

DELIVERED ON: 19 March 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application of the Authority filed 11 February to strike out the review application is dismissed.

CATCHWORDS:

BUILDING MATTER – Where decision under statutory insurance policy made by QBSA posted to applicant on a particular day – Where applicant out of country at the time – Where review application filed out of time if taken from date of receipt by applicant – Where applicant said time should run from date of her return to Australia and her receiving the decision – Where consideration of interpretation of word ’receives‘ under insurance policy

Act Interpretations Act 1954
Queensland Building Services Authority Act 1991 pt 5

Ross, S.G. v QBSA & Raymond, G [2006] QCCTB 170 followed

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. Xiaohong Xi filed a review application on 10 January 2013 reviewing a decision of the QBSA to refuse her claim under the Queensland Home Warranty Scheme under Part 5 of the Queensland Building Services Authority Act 1991 and in particular under the QBSA Insurance Policy Edition 7.

2. The decision was dated and posted to Ms Xi on 7 December 2012. Allowing two working days for delivery, it was nominally received by her on 11 December 2012.

3. Ms Xi was overseas at the time and did not arrive back in Australia until 30 December 2012. On her return, Ms Xi posted the decision to her solicitor. That office opened again for business after the Christmas break on 8 January 2013.

4. Ms Xi’s instructions were to file a review application and this happened two days after the solicitor returned to work.

5. The QBSA says that Ms Xi‘s time period to file her review application ran out on 8 January 2013. The Authority says this because it starts the 28 day period required under the terms of the insurance policy running from when Ms Xi would have received the decision posted to her – 11 December 2012.

6. Ms Xi says the time should run from when she actually received the notice (30 December 2012) when she arrived back in Australia.

7. The insurance policy issued to Ms Xi governs the statutory claims process and both parties are bound by its terms and conditions. 

8. So, what does the policy say? Clause 8.2.(b) says:

   An application to review a decision of the BSA must be made within 28 days after the Insured receives written notice of the decision. (my emphasis added)

9. The QBSA urges me to interpret the work “receives” using the provisions of the Act Interpretations Act 1954, Part 10. This Act is meant to assist the interpretation of pieces of legislation and in some cases, statutory instruments. 

10. This insurance policy endeavours to be written in plain English and to be a readable document to people who may not have come into contact with the statutory scheme before. The note to the opening of the policy under ’Insurance Policy Conditions‘ states that in the policy, certain words and phrases used throughout are defined in Part 9 and are shown in italics when uses. The example given is ‘Insured‘. The term “receives” is not defined under Part 9 of the policy.

11. Guidance in giving meaning to this word is provided in the matter of Ross, S.G. & K.M. v QBSA & Raymond, G[1] before Mr McMeekin SC (as he then was). In referring to the statutory scheme, the observation of the then learned Member was:

    (a)this is an insurance policy. Whilst the general rule is that the terms of the policy are construed against the interests of the insurer (being the person responsible for the terms of the policy) and in favour of the insured if there is ambiguity or doubt I accept that the principle has limited application where the policy is one set up by statute: Kodak (Aust.) Pty Ltd v Retail Traders Mutual Indemnity insurance Assocn. (1942) 42 SR (NSW) 231; Green v Windman [1964] VicRp 42; (1964) VR 297;

    (b)to the extent that the meaning of the policy is determined from its statutory source I consider that the statute is plainly intended to be remedial in nature Undoubtedly, the intent in establishing a statutory insurance scheme is to provide protection to home owners (the scheme is limited to residential construction work) who suffer a loss by reason of the actions of licensed builders;

    (c)the words used in the policy ought to be given their ordinary and natural meaning unless the context signifies otherwise.

    [1] [2006] QCCTB 170 at [26].

12. I am satisfied I should take a “plain English” or ordinary and natural meaning of the term used. On a plain reading of the term, Ms Xi “received” the decision when it came to her attention on her return to Australia on 30 December 2012. Once her solicitor’s office re-opened after the Christmas break, the review application was quickly filed.

13. In my view, the review application was filed within the 28 day period required by the policy and the Authority’s application to strike out should be dismissed.

14. An order is made in those terms.