Yang v Queensland Building and Construction Commission
[2024] QCAT 493
•6 November 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Yang v Queensland Building and Construction Commission [2024] QCAT 493
PARTIES:
JING TAO YANG (applicant)
v
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent)
APPLICATION NO/S:
GAR358-23
MATTER TYPE:
General administrative review matters
DELIVERED ON:
6 November 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Traves
ORDERS:
1. The application for leave to be represented filed by the applicant on 6 November 2023 is refused.
2. The application for miscellaneous matters (strike out) filed on 22 August 2023 is granted.
3. The application to review filed on 26 May 2023 is dismissed.
CATCHWORDS:
ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where application to strike out application to review – statutory insurance scheme under the Queensland Building and Construction Commission Act 1991 (Qld) – where claim for incomplete work – whether work commenced – where claim made out of time - whether assistance available under the terms of the statutory insurance scheme
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 24, s 43, s 47
Queensland Building and Construction Commission Act 1991 (Qld), s 67WA, s 67WC, s 67Y, s 68I, s 71F, s 87
Queensland Building and Construction Commission Regulation2018 (Qld), s 43, Schedule 6.
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
On 26 May 2023 Jin Tao Yang (the applicant) filed an application to review a decision seeking to review two decisions made by the Queensland Building and Construction Commission (the Commission) on 28 April 2023: not to give a direction to rectify to Gac Building Group Pty Ltd and to wholly disallow a claim under the statutory insurance scheme.
On 13 October 2023 the Commission wrote to the applicant asking her to clarify which decision she was seeking to review.
On 22 October 2023 the applicant advised the Commission and the Tribunal in writing that, given only one decision could be the subject of the application to review, that the decision to disallow a claim was the decision sought to be reviewed.
On 22 August 2023 the Commission filed an application to strike out the proceedings on the grounds the application to review:
(a)is misconceived pursuant to s 47(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act); and/or
(b)is lacking in substance pursuant to s 47(1)(b) of the QCAT Act.
Application for leave to be represented
On 6 November 2023 the applicant filed an application seeking leave to be represented by her daughter. I will deal with this application at the outset.
The applicant by her application does not seek legal representation but rather to have her daughter assist her due to the applicant’s limited comprehension of the English language; her daughter’s familiarity with the matter; and the applicant’s inability to handle the review application herself due to medical issues. The application states that her daughter is not a solicitor.
Section 43 of the QCAT Act says that the starting point is for parties to represent themselves unless the interests of justice require otherwise. Section 43(3) sets out circumstances the Tribunal may consider as supporting the giving of leave. Of those factors the complexity of the matter is a factor in support of the giving of leave.[1] However, under s 43(4)(b) a party cannot be represented in a proceeding by a person who is not ‘an Australian legal practitioner or government legal officer, unless the tribunal is satisfied the person is an appropriate person to represent the party’.
[1]QCAT Act, s 43(3)(b).
I note the Commission’s submission that while it opposes the application for representation, it does not object to the applicant having her daughter assist her in the manner contemplated by s 29(2)(b) of the QCAT Act. While I agree with that submission, for the reasons below, however, I will refuse the application for leave to be represented.
Background
On 29 December 2020 the applicant entered into a contract with Gac Building Group Pty Ltd (the contractor) for the construction of a new dwelling in Pallara. The works did not commence. A deposit that had been paid was refunded by the contractor in full by 9 December 2022.
On 31 March 2023 the applicant lodged a complaint with the Commission in the following terms:
I signed a HIA contract with Gac Building Group on 29th Dec 2020. In Nov 2021, they verbally advised me to pay additional $40000+, and I refused to pay. Then they did not commence any building work. I had to terminate the contract. Now I am seeking damages.
On 28 April 2023 the Commission made the decision to disallow a claim under the scheme.
On 26 May 2023 the applicant filed an application to review the decision and seeking compensatory damages from the contractor.
Relevant statutory provisions
Section 47 of the QCAT Act gives the Tribunal power to make an order to dismiss or strike out a proceeding where it is:
(a)frivolous, vexatious or misconceived; or
(b)lacking in substance; or
(c)otherwise an abuse of process.
If the Tribunal is satisfied that the applicant’s review is ‘so obviously untenable’ that it cannot succeed and that to let it continue would involve useless expense and waste the tribunal’s finite resources, then the application to review should be struck out under s 47.
The Tribunal, in exercising its review jurisdiction, must decide the review in accordance with the QCAT Act and the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and has all the functions of the decision-maker for the reviewable decision being reviewed.[2] The Tribunal, in effect, steps into the shoes of the decision-maker and exercises the same powers as the decision-maker under the enabling Act to produce the correct and preferable decision. The Tribunal on review can make the orders set out in s 24 of the QCAT Act, that is, to confirm or amend the original decision, to set it aside and substitute its own decision or to set it aside and return it to the decision-maker with directions.
[2]QCAT Act, s 19.
The QBCC Act in force at the date of the contract, 29 December 2020, was the reprint of 2 October 2020. The relevant Queensland Building and Construction Commission Regulation 2018 (QBCC Regulation) is the version current as at 1 October 2018.
Part 5 of the QBCC Act establishes the statutory insurance scheme, sections 67WA to 71F (inclusive). Under s 68I(1) of the QBCC Act cover under the statutory insurance scheme comes into force on the earliest of the following to happen –
(a)a licensed contractor pays the appropriate insurance premium for the work under s 68B(2);
(b)the consumer enters into the contract with a licensed contractor for the carrying out of the work; or
(c)a licensed contractor starts carrying out the work.
Section 67Y provides that the terms of cover under which a person is entitled to assistance under the scheme are prescribed by the QBCC Regulation. The prescribed terms are contained in Schedule 6 of the Regulation entitled ‘Terms of cover for statutory insurance scheme’.
Section 5 of Schedule 6 of the Regulation[3] provides:
5 Assistance if work not started
(1) This section applies to a consumer for residential construction work if—
(a) the work is to be carried out under a fixed price residential contract; and
(b) the contract ends within 2 years after the day the contract is entered into; and
[3]Queensland Building and Construction Commission Regulation 2018 (current as at 1 October 2020).
(c) work under the contract has not started before the contract ends.
Note—
See section 43 of the regulation for when residential construction work is taken to start.
(2) The consumer is entitled to claim assistance for the amount of the insurable
deposit for the contract that is not otherwise refunded to the consumer under the contract.
(3) However, no assistance can be given to the consumer unless the consumer
makes the claim before the day that is 3 months after the day the contract ends.
(4) In this section—
deposit, for a fixed price residential contract, includes any payment for residential construction work received by the licensed contractor prior to work under the contract starting at the place where the work is to be completed under the contract, including, for example, any insurance premium paid.
insurable deposit, for a fixed price residential contract, means the least of the following amounts—
(a) the deposit paid by the consumer to the licensed contractor under the contract;
(b) if the insurable value of the off-site work is more than 50% of the contract price—20% of the contract price;
(c) if the contract price is less than $20,000—10% of the contract price;
(d) if the contract price is $20,000 or more—5% of the contract price.
off-site work, for a fixed price residential contract, means work under the contract performed at a place that is not the place where the residential construction work is to be completed under the contract.
Section 71F of the QBCC Act provides that a regulation may prescribe when residential construction work is taken to start for the purpose of this part. The note to s 5(1) of Schedule 6 refers to s 43 of the Regulation for when residential construction work is taken to start.
Section 43 of the Regulation provides:
43 When work is taken to have started—Act, s 71F
(1) For section 71F of the Act, residential construction work is taken to start
when—
(a) if the work includes the erection or construction of a footing system or slab or the provision of sewerage or drainage on a site—the erection or construction of the footing system or slab, or the provision of sewerage or drainage, physically starts on the site; or
(b) otherwise—work for the renovation, alteration, extension, improvement or repair of an existing building on a site physically starts on the site.
(2) In this section—
physically starts, for residential construction work, does not include starting any of the following—
(a) the preparation of plans or specifications for the performance of the work;
(b) design work;
(c) administration services;
(d) earthmoving or excavating;
(e)site work related to the residential construction work.
Consideration
Cover under the statutory insurance scheme came into force on the contract date of 29 December 2020, pursuant to s 68I(1)(b) of the QBCC Act. The terms of cover contained in schedule 6 of the QBCC Regulation therefore apply.
The applicant is a consumer for the purposes of the statutory insurance scheme, as defined in ss 67WA and 67WC of the QBCC Act: she contracted with the contractor, who is licensed to carry out the construction of a residence at the Property, the construction of the residence being residential construction work. The Works, being the construction of a residence is building work and therefore primary insurable work as it was more than the regulated amount of $3,300.
Part 2 of Schedule 6 is headed Incomplete residential work. Division 1 applies where work has not started and Division 2 where it has. For the reasons below, I find that work had not started and therefore that Division 1 applies.
Division 1 is headed ‘Assistance if work has not started’. Section 5, the only provision in Division 1, applies where:
(a)work was to be carried out under a fixed price residential contract; and
(b)the contract ended within 2 years after the day the contract was entered into; and
(c)work under the contract had not started before the contract ended.
I am satisfied those elements are met: the contract was for a fixed amount of $300,000 for the construction of a residence; the contract was terminated on 6 October 2022 which is within 2 years from 29 December 2020, the date the contract was entered into; and the works under the contract had not started before the contract ended.
Relevantly, pursuant to s 43 of the Regulation, the works are taken to have started, if the work includes the erection or construction of a footing system or slab or the provision of sewerage or drainage, when that work physically starts. In this matter, the only step that had been taken was the payment by the applicant of a deposit. Even if, as the applicant submits, a ‘covenant approval’ had been obtained,[4] this is not physical work on the site as contemplated by s 43. I add, contrary to the applicant’s submissions, that the test as to whether work had started for the purposes of the scheme is not whether the work reached practical completion. Further, I do not accept the applicant’s submission to the effect that because the definition of “building work” in Schedule 2 of the QBCC Act includes the preparation of plans or specifications, that work had started for the purposes of the scheme. Under the scheme, as I have outlined above, the issue is whether work had physically started on the site as defined in s 43 of the Regulation. The definition of “building work” in Schedule 2 is not relevant in this respect to the terms of the statutory insurance scheme which are contained in Schedule 6.
[4]Applicant’s submissions filed 6 March 2024 at [3].
It follows, pursuant to s 5(2) of Schedule 6, the only assistance the applicant was entitled to claim was the amount of the ‘insurable deposit’[5] provided it had not otherwise been refunded to the consumer under the contract. The deposit was refunded by the contractor to the applicant in full by 9 December 2022. The assistance provided under the scheme does not extend to the compensatory damages relief sought by the applicant and is, accordingly, outside the scope of the orders the Tribunal can make in this review proceeding.
[5]QBCC Regulation, Schedule 6, s 5(4)(a).
Further, and in any event, s 5(3) provides that no assistance can be given to the consumer unless the consumer makes the claim before the day that is 3 months after the day the contract ends. The applicant did not lodge her complaint, which is the equivalent of making a claim under the scheme, until 31 March 2023 which was more than 3 months after the contract ended.
For the reasons above, the application for review of the decision to disallow the claim lacks substance and is dismissed pursuant to s 47 of the QCAT Act. Accordingly, I make the following orders:
(a)The application for leave to be represented filed by the applicant on 6 November 2023 is refused.
(b)The Application for miscellaneous matters filed on 22 August 2023 is granted; and
(c)The review application is dismissed.
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