Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Jorg v Queensland Building and Construction Commission

 

[2016] QCAT 364

CITATION:

Jorg v Queensland Building and Construction Commission [2016] QCAT 364

PARTIES:

Franz Jorg and Christina Jorg

(Applicants)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

GAR264-15

MATTER TYPE:

General administrative review matters

HEARING DATES:

22 July 2016 and 23 September 2016

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

DELIVERED ON:

12 October 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The decision of the Queensland Building and Construction Commission made on 23 April 2015 to decline Mr and Mrs Jorg’s claim under the statutory insurance scheme is confirmed.
  2. Mr and Mrs Jorg’s application for additional time to make written submissions (filed on 27 September 2016) is refused.
  3. Mr and Mrs Jorg’s application for further directions (filed on 30 September 2016) is refused.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – EXTERNAL REVIEW OF DECISION – statutory insurance scheme for residential construction work – whether contract was with licensed contractor – whether fraudulent claim made that a relevant licence was held

Queensland Building and Construction Commission Act 1991 (Qld) s 69(2)

B M Farage Pty Ltd as trustee for Farage Discretionary Family Trust v Queensland Building Services Authority [2003] QCCTB 11

REPRESENTATIVES:

APPLICANT:

Mr and Mrs Jorg appeared for themselves

RESPONDENT:

The Queensland Building and Construction Commission was represented by Mrs Kristie Joyce (in-house lawyer)

REASONS FOR DECISION

Introduction

  1. [1]
    This is a review of a decision made by the Queensland Building and Construction Commission (QBCC) to decline a claim by Mr and Mrs Jorg under the statutory insurance scheme for defective residential construction work.
  2. [2]
    There is no dispute that there was defective work done in relation to certain windows in the course of the construction of Mr and Mrs Jorg’s home. A number of windows have leaked. However, Mr and Mrs Jorg have run into various problems in trying to seek a remedy. At one point the QBCC directed the company which had supplied the windows to rectify the problems but that company went into liquidation. More recently the QBCC considered whether the defective work was covered under the statutory insurance scheme under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act) but the QBCC decided that the scheme did not apply.
  3. [3]
    The present QCAT matter is a review of the QBCC’s decision made on 23 April 2015 (as confirmed on internal review on 23 September 2015) to decline a claim under the statutory insurance scheme.
  4. [4]
    In a nutshell, the QBCC’s position is that the defective work was done under a contract between the Jorgs and the window manufacturer / installer. The window company, says the QBCC, did not have the requisite licence which would have given rise to a statutory insurance policy. Nor, according to the QBCC, did the window company fraudulently claim to hold such a licence.
  5. [5]
    The Jorgs’ position, on the other hand, is that the work was done by a licensed builder, Mr Douglas Rex Southern (known as Rex), and so their contractual relationship with Mr Southern gave rise to a statutory insurance policy. Alternatively, the Jorgs argue, the window company fraudulently claimed to hold a requisite licence and so a statutory insurance policy arose in that way.
  6. [6]
    A large quantity of documents was filed by the parties. Most of this material was admitted into evidence and marked as Exhibits 1 to 15. The material fills up around six lever arch binders.

The windows in question

  1. [7]
    There is no document which specifies the windows in question with particularity. Therefore at the hearing I ascertained that there is no dispute that the windows which were the subject of the insurance claim were:
  1. The windows depicted in the photographs on the second page of the Initial Inspection Report of Daniel Hayes[1] together with other windows that are situated above those windows but not captured in the photographs. I will refer to these as the dining and sitting room windows. They comprise louvres together with several large windows and some smaller paned windows.
  2. The six-paned window on the southern verandah, part of which is shown in the top photograph at page 216 of the attachments to Exhibit 4.[2] I will refer to this as the verandah window. A sketch of the verandah window is at item 4 of Impact’s quote 2890.[3]
  1. [8]
    I find that these are the windows which were the subject of the claim and therefore of the QBCC’s decision of 23 April 2015 and the subsequent internal review decision. Accordingly, the present QCAT review is limited to whether the statutory insurance scheme applies to defective work performed in respect of those windows.

The relevant history

  1. [9]
    The construction of the Jorgs’ house has, unfortunately, a chequered history. The outline below is confined to matters not in dispute.
  2. [10]
    The original builder was Good Living Constructions under a contract with the Jorgs dated 14 March 2010. For reasons which it is not relevant to explore, work ground to a halt after some months. The Jorgs were left with a partly-built house on which no further work was being done while the Jorgs negotiated a termination agreement with Good Living Constructions. In this endeavour they sought advice from Mr Southern. There was a written agreement dated 9 June 2011 between the Jorgs and Good Living Constructions to terminate the contract.
  3. [11]
    Mr Southern did rectification work in respect of the partly-built house, and he later completed the construction of the house. There were two contracts (or, at least, two main contracts) between the Jorgs and Mr Southern: a rectification contract dated 7 July 2011,[4] and a completion contract dated 20 November 2011.[5]
  4. [12]
    The windows in question were manufactured by a business known as Impact Aluminium Windows and Doors. That business was originally operated by Impact Aluminium Windows and Doors Pty Ltd (which I will refer to as Impact Mark 1) but at some point that company went into liquidation. In due course the liquidators sold the business to a company called SI Fabrications Pty Ltd (which I will refer to as Impact Mark 2). (Where it is not necessary to distinguish between Impact Mark 1 and Impact Mark 2, I will refer simply to Impact). The contract of sale of the business to Impact Mark 2 settled on 19 October 2011.
  5. [13]
    A contract was formed in or around September 2010 between Impact Mark 1 and Good Living Constructions for the manufacture of a large number of windows for the house and the installation of some of those windows. The contract appears to have been formed through an exchange of documents, or at least a signed quote, with the main contractual document being Impact Mark 1’s quote number 1793. Various versions of the quote were produced in or around August and September 2010. The quote included the dining and sitting room windows and indicated that Impact Mark 1 was to install those windows. (The verandah window was included in a later quote which will be discussed separately).
  6. [14]
    None of the windows had been delivered to the building site by the time Good Living Constructions ceased work.
  7. [15]
    Documents obtained by the QBCC include a letter dated 11 March 2011 from Impact Mark 1 to Mr and Mrs Jorg and an associated invoice.[6] The gist of the letter was that the account for the job was now in the name of Mr and Mrs Jorg; certain deposits were acknowledged; and it was noted that there was a significant sum (almost $56,000, including GST) still owing.  The circumstances of this correspondence will be discussed later but for present purposes it is sufficient to note that it is undisputed that by this time it was clear that Good Living Constructions would not be continuing work on the construction of the house.
  8. [16]
    In early October 2011 – on the 3rd and the 10th – Impact delivered many of the windows specified in quote 1793. The items delivered at that point included the louvres that formed part of the dining and sitting room windows, as well as frames for the larger dining and sitting room windows. These were to be glazed on site after the frames had been installed.
  9. [17]
    Impact sent an installer named Paul – his full name is not known to the Jorgs and is not evident in the material – to install the louvres and the frames for the other dining and sitting room windows on 14 and 19 October 2011. Paul had an offsider on one of those days. The installation work they did was defective.
  10. [18]
    Mr Southern removed and reinstalled the louvres and frames in question in the sitting and dining rooms, commencing on 27 October 2011. The circumstances in which Mr Southern did this work is of significance, and will be discussed later in these reasons. Impact Mark 2 then did the glazing on 7 November 2011.
  11. [19]
    The verandah window was ordered later. It was item 4 in quote 2890, dated 10 November 2011.[7] It was installed by Mr Southern on or about 17 December 2011.

Legislation

  1. [20]
    Subsection 69(2) of the QBCC Act provides, in summary, that a statutory insurance policy comes into force if a consumer enters into a contract for the performance of residential construction work and:
  • the contract bears the licence number of a licensed contractor whose licence allows the contractor to enter into contracts covered by the statutory insurance scheme; or
  • the contract is with a licensed contractor whose licence allows the contractor to enter into such contracts; or
  • the contract is with a person fraudulently claiming to hold such a licence.
  1. [21]
    It is therefore important to identify the particular contract under which any piece of defective construction work was done.

Licences

  1. [22]
    It is undisputed, and I find, that Good Living Constructions and Mr Southern held licences of the type envisaged by subsection 69(2) of the QBCC Act but that Impact Mark 1 and Impact Mark 2 did not.

Was defective work on the dining and sitting room windows done under a contract with a relevantly licenced contractor?

  1. [23]
    The QBCC argues that the defective installation work on these windows was pursuant to a contract between the Jorgs and Impact Mark 2, with Mr Southern’s installation work on these windows being merely by way of a subcontract between himself and Impact Mark 2.
  2. [24]
    The key pieces of evidence which tend to support this argument may be summarised as follows:
  • Although the contract based on quote 1793 was initially between Good Living Constructions and Impact Mark 1, the letter and invoice of 11 March 2011 from Impact Mark 1 addressed to the Jorgs suggest that the situation had changed by that time. The letter said that the account was now in the names of the Jorgs. This indicates, the QBCC submits, that the Jorgs had become the contracting party with Impact Mark 1 in place of Good Living Constructions.
  • It is undisputed that the outstanding sum stated in the invoice was subsequently paid but the payments were not made by Good Living Constructions (which by that time was no longer actively involved in the building project). Mrs Jorg acknowledged in her oral evidence that she and her husband were the source of the funds for those payments, though she was unsure whether they paid Impact (whether Mark 1 or Mark 2) directly or via Mr Southern.
  • It is undisputed that Impact Mark 2 took over responsibility for the completion of the contract based on quote 1793 when it acquired the business.
  • When Mr Southern performed installation work on the windows in question, the rectification contract between the Jorgs and Mr Southern was in force. The rectification contract provided that Mr Southern was to “install window and door openings to fit window sizes including at steel portal frames”[8] (emphasis added).
  • It is undisputed that it was agreed between the Jorgs, Impact Mark 2 and Mr Southern that Mr Southern was to step in to fix up and complete the unsatisfactory window installation work commenced by the installer called Paul and his offsider.
  • There is evidence that Mr Southern issued a quote to Impact Mark 2 to do the installation work on its behalf, though no copy of the quote has been produced. Mr Southern has not produced a copy because he says the computer he used at the time has crashed. However, there are references to a proposed or actual quote. In an email to the Jorgs on 24 October 2011, Impact’s representative said he would be happy for Mr Southern to “finish the installation” of the windows but he would require a quote from Mr Southern.[9] On 26 October 2011 Impact emailed a diagram with installation details to the Jorgs to pass on to Mr Southern.[10] In the invoice issued by Mr Southern to Impact Mark 2 dated 11 November 2011 there is reference to installing “Window Frames as per quote for windows supplied by Impact …”.[11] There is also an annotated copy of this invoice indicating that it was paid.[12]
  • Further, Mr Jorg’s diary entry for 27 October 2011 refers to a quote, saying that “Rex took frames out – works for Impact … Made quote and was accepted by Impact”.[13]
  1. [25]
    The key points made by the Jorgs against the QBCC’s analysis may be summarised as follows:
  • They did not receive a copy of Impact Mark 1’s letter and invoice dated 11 March 2011 at the time. Changing the account to their name was something done by Impact Mark 1 when it became aware that Good Living Constructions had dropped out of the project. Impact Mark 1 did not want to run the risk of one of their staff members who may not know the full situation refunding a deposit to Good Living Constructions should Good Living Constructions seek a refund.
  • Mr Southern performed installation work of the dining and sitting room windows. He was the builder who had taken over the house-building project and responsibility ultimately lies with him rather than Impact.
  • It is common ground that Mr Southern performed work on the dining and sitting room windows and frames on 27 October 2011, and that he invoiced the Jorgs (by invoice dated 28 October 2011) for a full day’s work on 27 October 2011.  This, the Jorgs submit, is further evidence that Mr Southern performed installation work of the windows under a contractual relationship with them.
  • Further, while the rectification contract may not have referred to installing windows, and the completion contract was signed only later, the terms of the completion contract had been decided in a meeting between the Jorgs and Mr Southern on 20 October 2011.
  • The quote said to have been given by Mr Southern to Impact Mark 2 has not been produced, either by Mr Southern or Impact.
  • Even if one is prepared to accept that Impact Mark 2 paid Mr Southern the $2,640 claimed in his invoice dated 11 November 2011, very little if any of that amount could relate to installation of the windows in question as the invoice must have also related to a number of other tasks and materials.
  • Reliance should not be placed on Mr Jorg’s diary entry because he was not well at the time, having sustained an injury earlier in the month. Also, he did not have direct knowledge of most details of the building project as Mrs Jorg handled matters of coordination. 
  1. [26]
    While I do not accept all of the arguments advanced by the Jorgs, I consider that they have raised some significant points. One, of course, is that the quote said to have been given by Mr Southern to Impact Mark 2 has not been produced. Further, an important point relates to work done by Mr Southern on 27 October 2011. Mr Southern’s work diary for that day[14] notes that he (“R”) did eight hours’ work and that his grandson (“C”, who was his apprentice) did seven hours’ work. The only description of the work in the diary entry is: “Took most windows out”. The Jorgs have produced an invoice from Mr Southern to them dated 28 October 2011 charging them for labour on a number of days including for eight hours work done by himself and eight hours work done by “Chris” (the grandson) on 27 October 2011.[15] The Jorgs say, and I accept, that they paid this invoice.
  2. [27]
    It should be added that Mr Southern’s evidence about the events of 27 October 2011 was unconvincing. Despite having provided other diary extracts prior to the hearing, he supplied the entry for 27 October 2011 only at the hearing. In his oral evidence he initially claimed to have spent most of the day working on other tasks, and only a small amount of time on the windows task. Under cross-examination by Mrs Jorg, where she put the contention that the day was devoted to the windows task, Mr Southern’s evidence about the time spent began to shift somewhat. Even making allowances for the fact that Mr Southern may have trouble remembering details from the past, when he has only scant records, I was left with the impression that he was being quite defensive in this aspect of his evidence. 
  3. [28]
    Of course Mr Southern’s discomfort may be attributable to the fact that on his ultimate version of events he charged the Jorgs for at least some work for which he also charged Impact Mark 2.
  4. [29]
    Despite these problems with Mr Southern’s evidence, overall I consider that the evidence strongly supports the analysis made by the QBCC. Even if the Jorgs were not privy to Impact Mark 1’s correspondence of 11 March 2011 at the time, it is apparent that the contractual relationship between Good Living Constructions and Impact Mark 1 was terminated in some fashion – perhaps essentially by conduct such as Impact Mark 1 changing the account name from Good Living Constructions to the Jorgs’ – well before the windows were installed in October / November 2011. By then there was no subsisting building contract between the Jorgs and Good Living Constructions. While there would have been a statutory insurance policy in force by virtue of the contract between the Jorgs and Good Living Constructions, which presumably would have covered the installation of the windows if that contract had remained in force, that policy would not extend to work done by others after the termination of the contract.
  5. [30]
    Further, while it may be that the Jorgs and Mr Southern had decided on the terms of the completion contract prior to 27 October 2011, that contract itself did not come into force until it was signed on 20 November 2011. I find that the only formal contract in force between the Jorgs and Mr Southern as at October / November 2011, when the window installation work in question was done, was the rectification contract. It envisaged that Mr Southern would install window openings only, not windows themselves. Of course the rectification contract could not have extended to rectifying the unsatisfactory installation work of Impact’s installers, as that had not yet occurred when the rectification contract was signed
  6. [31]
    The only substantial evidence suggesting any informal contract between the Jorgs and Mr Southern for the installation of the windows in question is the fact that he invoiced them for work done on 27 October 2011 which included work on the windows in question. However, it is undisputed that this was not all of the required installation work. The Jorgs in fact purchased many tubes of Sikaflex sealant late in the afternoon on 27 October 2011 for Mr Southern to use to fix up the windows. This must have been for Mr Southern to use on subsequent days, and the Jorgs do not dispute that Mr Southern did further work on the windows in question after 27 October 2011 (though they suggest it was less than Mr Southern says, and they query whether he used all of the Sikaflex that they purchased on their project). It is not suggested that Mr Southern invoiced the Jorgs for work done on days other than 27 October 2011 for the installation work in question.
  7. [32]
    Even if one accepts the Jorgs’ point that little if any of Mr Southern’s invoice to Impact Mark 2 can relate to the windows installation work in question, the fact remains that there is no evidence other than the invoicing for work done on 27 October 2011 of a contract between the Jorgs and Mr Southern for the installation of those windows.
  8. [33]
    On balance, I regard the invoice of 28 October 2011 – to the extent that it charged for windows work on 27 October 2011 – as unjustified, rather than as compelling evidence of a contract between the Jorgs and Mr Southern for installation of the windows in question.
  9. [34]
    While in light of the reservations I have expressed about an aspect of Mr Southern’s evidence there might be reason to doubt Mr Southern’s own evidence about having quoted Impact Mark 2 for the installation work, Mr Jorg’s own diary note of 27 October 2011 does provide some contemporaneous corroboration of the notion that a quote was provided. I have no reason to doubt that Mr Jorg was not well at the time, but his diary note is quite specific. It must have been based on the Jorgs’ understanding of events at the time. There were also the other couple of references earlier mentioned to a proposed or actual quote in October – November 2011. I find that a quote was given.
  10. [35]
    Further, the overall sequence of events points to Mr Southern performing the work on behalf of Impact Mark 2 rather than on behalf of the Jorgs. Impact Mark 1 had quoted for installation of the windows in question, and it is apparent that Impact Mark 2 was honouring the same quote. The circumstances point to a contractual relationship arising between the Jorgs and Impact Mark 1 at some point before the windows were delivered in early October 2011. It appears that this contract arose essentially through conduct. Even though the Jorgs may not have been given a copy of the 11 March 2011 Impact correspondence, it is apparent that at some point they must have become aware that Impact Mark 1 was prepared to continue honouring the quote (despite the exit of Good Living Constructions) and the Jorgs supplied the funds needed for the work to progress. I find that a contract arose between the Jorgs and Impact Mark 1 at some point prior to early October 2011. Further, when Impact Mark 2 took over the business, the Jorgs and Impact Mark 2 continued to conduct themselves on the basis that the original quote was to be honoured. I find that this gave rise to a contract, by conduct at least, between the Jorgs and Impact Mark 2 for the completion of the work under quote 1793. In late October 2011 Mr Southern was asked to step in to the installation work only when the installers that Impact had sent did an unsatisfactory job. It was clearly Impact Mark 2’s responsibility to ensure that proper installation occurred. It would not logically follow that the Jorgs would enter into a further contract with Mr Southern to do the installation on their behalf.
  11. [36]
    I should note that Mrs Jorg has explained that the events in October 2011 unfolded in a stressful period. The Jorgs were left with a semi-built house and they needed windows installed urgently to prevent rain damage to gyprock that had been fitted inside the house. In such circumstances, no doubt arrangements were hurriedly made, perhaps with inadequate documentation. Nonetheless, the overall weight of evidence does not point to any contractual relationship between the Jorgs and Mr Southern for the installation of the windows in question. I find that Mr Southern performed the work merely as subcontractor to Impact Mark 2.
  12. [37]
    Mrs Jorg has pointed to a glass cutting plan printout made by Impact on 13 October 2011:[16] it displays the name Good Living Constructions. Mrs Jorg submits that this is not consistent with a contract having been formed between the Jorgs and Impact. I do not accept this argument. Other compelling evidence shows that Good Living Constructions was well and truly out of the picture by that time. I infer that the reason for the name Good Living Constructions appearing on the glass cutting plan was simply that not all data fields had been corrected on Impact’s computer system.
  13. [38]
    As I have found that the installation work in question was not done under a contract between the Jorgs and a relevantly licensed builder – either Good Living Constructions or Mr Southern – a statutory insurance policy did not arise under either of the first two limbs of subsection 69(2) of the QBCC Act.

Was defective work on the verandah window done under a contract with a relevantly licensed contractor?

  1. [39]
    As mentioned earlier, the verandah window was supplied by Impact Mark 2 pursuant to quote 2890 dated 10 November 2011. That quote was addressed to Christina “Jord”, which clearly is a misspelling of “Jorg”. The quote is less than abundantly clear about whether it included installation of the window in question (item 4), though one might infer from the reference to “install by others” in the particulars for item 1 that it was intended that Impact Mark 2 would install the other items. Mrs Jorg says that she subsequently found out that the term “angle fix”, which is included in the particulars for item 4, carries the connotation that Impact Mark 2 was to install the item.
  2. [40]
    Despite that, it is undisputed that Mr Southern installed the verandah window and (according to his evidence) that he did not charge Impact Mark 2 for doing so. Why this eventuated is not clear but it would not be surprising that some confusion might arise in a situation where a builder has stepped in to complete a project begun by another and a supplier is invoicing the homeowner directly.
  3. [41]
    The Jorgs’ home has great views from its mountainous position but the downside is that it is very exposed to the elements. The evidence of the QBCC building inspector, Daniel Hayes, is that the problem with the verandah window is with its manufacture rather than its installation. Mr Hayes explained in his oral evidence that the required window rating – which affects the design of the window in terms of structural support and so on – will depend on the wind load for the particular location. Mr Hayes considers that Impact Mark 2 did not manufacture a suitable window for the site. Mr Hayes did not identify any defect in installation.
  4. [42]
    In the Jorgs’ affidavit of 27 September 2016, they say that there were  installation defects in addition to manufacturing defects. No explanation is given for this assertion.[17]
  5. [43]
    Mr Hayes has been a building inspector with the QBCC and its predecessor since 1992. He holds licences in building and residential building inspection. He has personally inspected the window in question. I see no reason to doubt his evidence. Accordingly I find that there was defective manufacturing but not defective installation work in relation to the verandah window.
  6. [44]
    There is no evidence that the manufacture of the window in question was pursuant to a contract between Mr Southern and Impact Mark 2. Rather, the fact that the quote was addressed to Mrs Jorg suggests that the manufacturing contract was between Mrs Jorg and Impact Mark 2. I find accordingly.
  7. [45]
    As I am not satisfied that there was any defective work done by Mr Southern in relation to the verandah window, I find that the defective work is not covered by the statutory insurance policy arising from a contract between the Jorgs and Mr Southern. The defective manufacturing work was done under a contract between Mrs Jorg and Impact Mark 2. As Impact Mark 2 was not relevantly licensed, a statutory insurance policy did not arise, unless as a result of a fraudulent claim (assuming without deciding that the work was residential construction work). This will be considered below.

If the relevant contracts were with Impact, does a statutory insurance policy arise through a fraudulent claim?

  1. [46]
    The Jorgs submit, in the event that I find (as I have) that the relevant contracts were with Impact, that a statutory insurance policy arose under the third limb of subsection 69(2) of the QBCC Act. This is on the basis that Impact fraudulently claimed to hold a licence under which it could enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme.
  2. [47]
    The Jorgs’ assertion of fraudulent claims by Impact is relatively recent. In a questionnaire they completed for the QBCC on 12 April 2015,[18] the Jorgs said that “we had no knowledge whether Impact was licensed”. The contentions that there were fraudulent representations have been advanced only after the QBCC decision notice which discussed the significance of the answers on the questionnaire. While this timing is significant, it is not conclusive because a person who has been alerted to the relevance of an issue might re-examine matters afresh and come to a new conclusion. 
  3. [48]
    The Jorgs submit that fraudulent claims were made by Impact in a number of ways.
  4. [49]
    The first way involves printed comments on Impact’s documents such as quotes that “NO Glazing statement issued until all money is paid” or other words to similar effect such as “Glazing Certificate will NOT be issued if Money is still outstanding”. The Jorgs argue that such comments amounted to representations that Impact was relevantly licensed as licensing is necessary to issue a glazing certificate.
  5. [50]
    Even assuming (without deciding) that a person or entity must hold a relevant licence before they can issue a glazing certificate, I do not accept that Impact’s printed comments amounted to a representation about its licensing status even in regard to issuing glazing certificates, let alone in regard to manufacturing and installing windows. There is no express reference to licensing in the comments, and any inference to be drawn about licensing would be very oblique. I am not satisfied that Impact intended the comments to be a representation about its licensing status or  that the Jorgs themselves saw the comments that way at the time. Further, I find that a reasonable person reading such comments would not regard them as being a representation about Impact’s licensing status. The comments simply served to impress upon customers that payment is required before a glazing certificate (which would be needed for building certification) will be issued.
  6. [51]
    The second way in which Impact made fraudulent claims, according to the Jorgs, was through verbal comments made by representatives of Impact, Ken O’Callaghan and Kevin Silver. Mrs Jorg says that on a site visit some time in October or November 2011 or possibly a little later, Mr O’Callaghan told her that the installer called Paul was licensed. Mrs Jorg also says that on 10 January 2012 Mr Silver, the manager of Impact Mark 2, advised the Jorgs that he was a builder, and they understood that this meant he was a licensed builder.
  7. [52]
    I have no reason to doubt that these comments were made. However, they were not, expressly, representations that Impact (as distinct from the individuals) was relevantly licensed. Nor am I satisfied that, subjectively or objectively, they constituted representations about Impact’s licensing status. Further, I find that the comments were made after the contract between the Jorgs and Impact for the dining and sitting room windows had been formed, and that Mr Silver’s comment at least was made after the contract between Mrs Jorg and Impact for the verandah window had been formed. I consider that a fraudulent claim will be relevant for the purposes of subsection 69(2) of the QBCC Act only if it was made up to the time of the formation of the relevant contract: the provision is clearly designed to protect consumers who enter into contracts in reliance on fraudulent claims. I note that the same view about the timing of fraudulent claims has been taken by the Commercial and Consumer Tribunal.[19]
  8. [53]
    The third way in which Impact made a fraudulent claim, according to the Jorgs, was in the glazing certificate issued by Impact on 14 May 2012.[20] Impact inserted an alphanumeric code in the box for “Licence or registration number (if applicable)”. It turns out that this code was for the course Business Management for Trade Contractors, which is mentioned in the same box, but the Jorgs argue that the insertion of the code was a representation that Impact was licensed.
  9. [54]
    I do not need to discuss the merits of that argument because even if the insertion of the code amounted to a fraudulent claim, it was made too late to be relevant. The glazing certificate was issued well after the contracts had been formed.
  10. [55]
    Accordingly, I find that a statutory insurance policy did not arise through a fraudulent claim. 

Other matters

  1. [56]
    Mrs Jorg has raised numerous other arguments and presented a mass of additional details. I do not intend to canvass most of this information because I regard the details as having minimal or no relevance and the arguments as lacking substance or relevance. I mean no disrespect to Mrs Jorg in saying this. She and her husband have found themselves in the most unfortunate position of facing expensive repair work that would presumably have been covered by the statutory insurance scheme had the original contract with Good Living Constructions proceeded according to plan. It is understandable that Mrs Jorg, who is not legally trained, has run a multitude of arguments.
  2. [57]
    I will comment on a few matters, however, which I think in fairness should be addressed briefly or which relate to applications brought since the conclusion of the hearing.
  3. [58]
    First, Mrs Jorg cited a number of previous cases as authorities.[21] I have read them but found them of minimal or no relevance to the issues to be decided in this case.
  4. [59]
    Second, Mrs Jorg has made submissions about any contract with Impact being a failed contract because of Impact’s unlicensed status. However, those submissions do not advance the matter. The failure of a contract with Impact would not serve to create another contract (between the Jorgs and Mr Southern).
  5. [60]
    Third, when called upon to make oral submissions after the conclusion of the oral evidence on 23 September 2016, Mrs Jorg asked instead for time to lodge written submissions to supplement the 38 page submission she handed up. By oral direction, confirmed in writing at the conclusion of the hearing, I allowed Mrs Jorg until 4 pm on 28 September 2016 to file any further written submissions. On 27 September 2016 the Jorgs filed an application to extend the time for those submissions until 4 pm on 5 October 2016. The Jorgs said that they needed extra time to respond to the “very complex legal submission” handed up by Mrs Joyce for the QBCC on 23 September 2016. The Jorgs’ application was not brought to my attention by QCAT’s registry until 7 October 2016. Even if it had been brought to my attention in a timely fashion, I would have refused the application. Mrs Joyce’s submission dated 23 September 2016 is 18 pages in length but the vast bulk of it is devoted to uncontentious matters of history and context. The QBCC had provided a statement of reasons well before the hearing and there is little in Mrs Joyce’s submission that could be described as novel material. Bearing in mind QCAT’s obligation to proceed quickly, as well as fairly and justly,[22] I am not satisfied that it would have been appropriate to allow Mrs Jorg additional time beyond the five days already allowed.
  6. [61]
    Fourth, the Jorgs have seen fit to file an affidavit (in place of submissions) dated 27 September 2016 including and attaching some additional evidence. I do not consider it appropriate to admit such additional evidence after the hearing has concluded, and so I have treated the affidavit as a submission to the extent that it constitutes one. The same applies to a further affidavit by the Jorgs dated 28 September 2016 and some corrections to that affidavit filed on 4 October 2016.
  7. [62]
    Fifth, the Jorgs criticise my decision to restrict the length of Mrs Jorg’s cross-examination of Mr Hayes, and to decline to allow her the opportunity to cross-examine the original QBCC decision-maker, Patrick Cupitt. I had allowed Mrs Jorg a degree of latitude in her cross-examination, but at some point the need to minimise the cost to the public caused by unnecessarily protracted hearings must be seriously taken into account. QCAT’s role in an administrative review such as the present one is to come to a fresh decision on the merits. I saw no value in providing Mrs Jorg with additional time to explore perceived shortcomings in the QBCC investigation and other matters (such as the contract of sale from the liquidators of Impact Mark 1 to Impact Mark 2) which have little or no bearing on the relevant issues. I can understand, however, why Mrs Jorg might think those matters are relevant as some of them have been addressed in great detail in the QBCC’s material.
  8. [63]
    Sixth, on 30 September 2016 the Jorgs filed an application seeking an opportunity to respond to submissions due to be lodged by the QBCC by 30 September 2016. In the directions I gave at the conclusion of the hearing, I directed that the QBCC file any submissions in response by 4 pm on 30 September 2016. As it has turned out, the QBCC elected not to lodge submissions in response, so it is unnecessary to consider the Jorgs’ arguments on this matter.

Conclusion

  1. [64]
    As I have found that a statutory insurance policy did not arise in respect of the works in question, I confirm the QBCC’s decision to refuse the Jorgs’ claim.

Footnotes

[1]Exhibit 11: statement of Daniel Hayes, attachments page 110.

[2]Page 216 is part of the Jorgs’ attachment J11.1.

[3]Exhibit 8: statement of reasons, attachments at page 110.

[4]Exhibit 12: statement of Mr Southern, attachments page 6. 

[5]Exhibit 8: statement of reasons, attachments page 553.

[6]Exhibit 8: statement of reasons, attachments pages 95 and 96.

[7]Exhibit 8: statement of reasons, attachments page 109.

[8]Exhibit 12: statement of Mr Southern, attachments page 8 at clause 11(i).

[9]Exhibit 11: statement of Daniel Hayes, attachments page 226.

[10]Exhibit 12: statement of Mr Southern, attachments pages 39 and 40.

[11]Exhibit 8: statement of reasons, attachments page 63.

[12]Exhibit 8: statement of reasons attachments, page 64.

[13]Exhibit 11: statement of Daniel Hayes, attachments page 236.

[14]Exhibit 15.

[15]Exhibit 4: J attachments (J6 and J6.1) at pages 192-193.

[16]Exhibit 8: statement of reasons, attachments page 171.

[17]This affidavit has not been given an exhibit number because I have treated it as a submission only: see paragraph 61.

[18]Exhibit 8: statement of reasons, attachments page 449.

[19]B M Farage Pty Ltd as trustee for Farage Discretionary Family Trust v Queensland Building Services Authority [2003] QCCTB 11 at [41].

[20]Exhibit 8: statement of reasons, attachments page 264.

[21]Dart Holdings Pty Ltd v Total Concept Group Pty Ltd [2012] QSC 158; Gray v Simmons [2016] QCAT 239; Kabir v Queensland Building and Construction Commission [2016] QCAT 151; McCoy v Sloss [2012] QCAT 60.

[22]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3.

Close

Editorial Notes

  • Published Case Name:

    Jorg v Queensland Building and Construction Commission

  • Shortened Case Name:

    Jorg v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 364

  • Court:

    QCAT

  • Judge(s):

    Member Kanowski

  • Date:

    12 Oct 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.