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BG Developments Qld Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 232

BG Developments Qld Pty Ltd v Queensland Building and Construction Commission[2016] QCAT 232

CITATION:

BG Developments Qld Pty Ltd v Queensland Building and Construction Commission [2016] QCAT 232

PARTIES:

Margaret Baldock t/as BG Developments Qld Pty Ltd

(Applicant)

v

Queensland Building and Construction Commission

(Respondent)

APPLICATION NUMBER:

OCR135-15

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

12 April 2016

HEARD AT:

Brisbane

DECISION OF:

Member Guthrie

DELIVERED ON:

5 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The reviewable decision is confirmed.

CATCHWORDS:

GENERAL ADMINISTRATIVE REVIEW – OCCUPATIONAL REGULATION MATTERS – BUILDING – INSURANCE – where developer sought to recover deposit paid under a contract under statutory insurance scheme – where developer claimed pro forma letters issued by the Queensland Building and Construction Commission are misleading - where developer sought recommendations be made to the Queensland Building and Construction Commission to change the wording of its correspondence

Queensland Building and Construction Commission Act 1991 (Qld) ss 19, 68, 68B, 69, 69A, 70, 70A, 71AA, 86

Queensland Building and Construction Commission Regulation 2003 (Qld) ss 10,  11  26,  34A, sch 1A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 18, 19, 20, 21, 24

Parker v Queensland Building Services Authority [2001] 2 Qd R 644

APPEARANCES:

APPLICANT:

Ms Margaret Baldock

RESPONDENT:

S Moody of Counsel, instructed by Queensland Building and Constructed Commission

REASONS FOR DECISION

  1. [1]
    Ms Margaret Baldock is the sole director of BG Developments Qld Pty Ltd (‘BG Developments’). BG Developments is a property development company that sought to construct 33 townhouses at 6 Cloverdale Road, Doolandella. That proposed development was BG Developments first foray into developing in Queensland.

Background facts

  1. [2]
    Certain of the facts in this case are not in dispute. On 28 November 2014, BG Developments entered into a commercial building contract with Brandt Homes Pty Ltd (‘Brandt Homes’) for the construction of the townhouses. The contract sum was $5,115,000.00.[1]
  2. [3]
    BG Developments paid, by instalments, a 5% deposit to Brandt Homes. On 1 December 2014, the Queensland Building and Construction Commission (‘QBCC’) issued to BG Developments 33 covering letters enclosing 33 certificates of insurance. All of the covering letters were identical in their terms and commenced with the salutation ‘Dear Homeowner’.[2] The certificates of insurance were also in identical terms.[3]
  3. [4]
    The covering letters from the QBCC to BG Developments, dated 1 December 2014, state:

You have recently contracted with a QBCC licensee to undertake residential construction work at 6 CLOVERDALE ROAD, DOOLANDELLA QLD 4077. I have pleasure in enclosing your Certificate of Insurance and Policy Conditions booklet. Your certificate provides details of your specific contract. If any of the details on your certificate are inaccurate please phone 139 333 immediately.

Queensland licensees are required to arrange home warranty insurance through QBCC. This insurance covers you against the licensee failing to complete the works or failing to rectify defective works, including subsidence of your footings, subject to the terms and conditions of this Policy and the Queensland Building and Construction Commission Act 1991.

Like any insurance this Policy is a limited liability policy. You should read the terms and conditions of the Policy carefully to ensure you are familiar with both the benefits and limitations. Please contact QBCC if you have any queries about any of the clauses contained in the policy.

If you are building multiple buildings or units with the one licensee this Policy has limitations specific to you. You must make yourself familiar with these limitations. Please refer to Part 1 of the Policy for full details.

  1. [5]
    It is also common ground that the construction work did not commence before BG Developments purportedly terminated the contract on 13 April 2015.
  2. [6]
    On 21 April 2015, BG Developments lodged a complaint with the QBCC. On 12 May 2015, Ms Cauley, Senior Claims Officer made a decision to decline a claim under the statutory insurance scheme. Following a request for review of that decision, Ms June Blaney issued a review notice dated 10 July 2015 declining the insurance claim as a whole. BG Developments then applied to the Tribunal for a review. The Tribunal makes findings of fact consistently with those undisputed facts.

The reviewable decision

  1. [7]
    In its application for review and submissions filed in the Tribunal, BG Developments sought an order from the Tribunal that the QBCC pay it $200,000.00 under the statutory insurance scheme. During the internal review process with the QBCC, BG Developments sought payment to it of the amount of the premium paid to the QBCC to effect the insurance. The premium amount was approximately $44,000.00 and was paid to the QBCC by Brandt Homes. However, BG Developments says it gave Brandt Homes the money to pay the premium.
  2. [8]
    In its application for review to the Tribunal, BG Developments also sought an order from the Tribunal directing the QBCC to make an ex gratia payment to it in the sum of the premium amount or the amount of the deposit and that the QBCC pay it compensation.
  3. [9]
    In its filed submissions, the QBCC submits that the Tribunal should confirm the reviewable decision to disallow the claim under the statutory insurance scheme. The QBCC also says that the other orders sought by BG Developments are not orders the Tribunal can properly make when reviewing the reviewable decision.
  4. [10]
    At the outset of the hearing, Ms Baldock, on behalf of BG Developments, confirmed that she now understood that the only decision that could be reviewed by the Tribunal was the decision to disallow the claim under the statutory insurance scheme. She conceded that any purported decision in relation to whether or not to refund the insurance premium was not a decision that was reviewable by the Tribunal. Ms Baldock also indicated that she understood that the Tribunal could not order the QBCC to make an ex gratia payment to BG Developments or to pay it compensation. Ms Baldock informed the Tribunal that she was prepared to proceed with the hearing despite the appointed liquidator for Brandt Homes, Raj Khatri, failing to attend the hearing in compliance with a Notice to Attend issued by the Tribunal.
  5. [11]
    Pursuant to s 86(1)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), a decision to disallow a claim under the statutory insurance scheme wholly or in part is a ‘reviewable decision’. Section 18 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) makes it clear that the Tribunal may exercise its review jurisdiction if a person has applied under this Act to exercise its review jurisdiction for a ‘reviewable decision’. The Tribunal cannot conduct a review of a decision that is not a ‘reviewable decision’. The hearing proceeded on the basis that the Tribunal had jurisdiction to conduct a merits review of Ms Blaney’s decision.
  6. [12]
    Section 19 of the QCAT Act makes it clear that in exercising its review jurisdiction, the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. That means that the Tribunal does not have any greater power on review than the decision-maker had.
  7. [13]
    Section 20 of the QCAT Act provides that the purpose of the review of a reviewable decision is to produce the correct and preferable decision. The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits. In a proceeding for the review of a reviewable decision, the decision-maker must use his or her best endeavours so that it can make its decision. It must provide to the Tribunal all relevant documents upon which the decision was based.[4]
  8. [14]
    The Tribunal has considered the documents provided to it by the QBCC pursuant to s 21(2) of the QCAT Act as well as the oral evidence and documentary evidence provided by Ms Baldock and BG Developments as well as the oral evidence of Mr Ian Grant from the QBCC’s Insurance Services section. Both Ms Baldock and Mr Grant were cross-examined. The Tribunal has also considered the written and oral submissions filed on behalf of the parties.
  9. [15]
    Section 24 of the QCAT Act sets out the Tribunal’s functions for the review jurisdiction and provides:

24 Functions for review jurisdiction

(1) In a proceeding for a review of a reviewable decision, 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.

(2) The tribunal’s decision under subsection (1)(a) or (b) for a reviewable decision—

(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal’s review jurisdiction or an appeal under part 8; and

(b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.

  1. (3)
    The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.
  2. (4)
    If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision-maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.
  3. (5)
    In this section—

chief executive includes chief executive officer.

What is the correct and preferable decision?

  1. [16]
    At the commencement of the hearing and during the course of her evidence Ms Baldock conceded that developers had no entitlement under the statutory insurance scheme. However, she also gave evidence that when it came time for her to make a claim under the statutory insurance scheme, she consulted a lawyer and believed that the QBCC in issuing 33 Certificates of Insurance had effectively ‘cured’ the limitations on allowing a developer’s claim under the insurance policy as set out in s 70A of the QBCC Act. The Tribunal will consider that submission.
  2. [17]
    Mr Grant’s evidence related to the statutory insurance scheme and proposed amendments to the QBCC Act. The information provided by Mr Grant was of some assistance to the Tribunal and Ms Baldock had an opportunity to ask him questions to assist her understanding of the scheme. However, ultimately, the Tribunal must make findings of fact based on the evidence and apply the relevant law to those facts to arrive at a decision.
  3. [18]
    The relevant legislative provisions are contained in the QBCC Act and the Queensland Building and Construction Commission Regulation 2003 (Qld) (‘the Regulation’).  Section 19 of the QBCC Act provides that the board may make a policy governing the administration of the QBCC Act. The policies do not take effect until they have been approved by regulation.[5] Section 34A of the Regulation provides that for s 19 (1) of the QBCC Act, the policies stated in Schedule 1A of the Regulation are approved. The “Insurance Policy Conditions edition 8 made by the board on 19 March 2009” is an approved policy as it is listed in Schedule 1A of the Regulation. That is the relevant policy in this case.
  4. [19]
    Part 5 of the Regulation and Part 5 of the QBCC Act contain provisions relating to the statutory insurance scheme. Relevant definitions are also set out in the QBCC Act and the Regulation as well as the Insurance Policy Conditions.
  5. [20]
    Section 69(1) of the QBCC Act provides that when the commission accepts the appropriate insurance premium in respect of ‘residential construction work’ the commission must issue a certificate of insurance in respect of the residential construction work. Section 69(2)(a) provides that a policy of insurance comes into force in the terms stated in the board’s policies for the purpose if a consumer enters into a contract for the performance of residential construction work and other criteria are met, relevantly here, s 69(2)(a)(i).
  6. [21]
    In this case, the Tribunal has already found that there was one contract for the construction of the townhouses.  Section 69A(2) of the QBCC Act essentially provides that the policy of insurance  for the work, in the terms stated in the board’s policies comes into force on the earliest of when certain things happen – the appropriate premium is paid by the licensed contractor, the date the contract is entered into for the work or when a building contractor commences the work.
  7. [22]
    Section 70 of the QBCC Act provides that a person claiming to be entitled to indemnity under the insurance scheme must give notice of the claim to the commission in accordance with the regulations. Other provisions refer to ‘payment’ on a claim.[6]
  8. [23]
    The legislative provisions specifically refer to the policy of insurance coming into force in the terms stated in the board’s policies. The Insurance Policy Conditions must be considered in determining this application for review. The Insurance Policy Conditions also refer to ‘payment’ for particular loss. When a claim is made, it is for the decision-maker to determine whether any payment can be made under the policy. Part 9 also refers to payments the QBCC can make when it admits a claim. The payments that can be made on a claim under the statutory insurance scheme are limited by the terms of the legislative provisions and the policy.
  9. [24]
    The preface to the Insurance Policy Conditions relevantly states:

Subject to the terms of this policy, the Queensland Building and Construction Commission (“QBCC’) will pay for loss for:

  • Non-completion;

Of the insured work referred to in the Certificate of Insurance

These policy conditions apply to residential construction work covered by the Statutory Insurance Scheme for which a premium has been paid, a contract entered, or work commenced (whichever is the earliest) on or after the date of commencement of this policy.

  1. [25]
    Part 1 of the Insurance Policy Conditions contains the clauses relating to non-completion. Clause 1.1 of the Insurance Policy conditions states:

Subject to the terms of this policy, the QBCC agrees to pay for loss suffered by the Insured in the event of the contractor failing to complete the contract for the residential construction work.

  1. [26]
    Part 11 of the Insurance Policy Conditions contains the definitions of terms used in the policy and other terms dealing with interpretation. Clause 11.1 of the policy sets out the definitions and Clause 11.2 provides that unless the contrary intention appears wherever terms defined by the Act[7] or the Regulation[8] appear in the policy, those terms have the same meaning in the policy as in the Act or the Regulation when the policy comes into force.
  2. [27]
    Clause 11.1 of the policy provides that ‘residential construction work’ means residential construction work as defined in s 10 of the Regulation. Section 10 of the Regulation states that the following is classified as residential construction work: (a) primary building work and (b) associated building work. The meaning of ‘primary building work’ is set out in s 11 of the Regulation to include building work carried out by a building contractor for a residence or a related roof building of a value of more than $3,300 that is the construction of the residence or related roofed building.[9] The Tribunal finds that the work the subject of the commercial building contract was residential construction work.
  3. [28]
    Contracted works’ is defined in Clause 11.1 of the policy to mean the residential construction work to be performed under a contract. In this case, that must be the construction of 33 townhouses, there being only one contract that between BG Developments and Brandt Homes. There is no definition of ‘contracted works’ in the QBCC Act.
  4. [29]
    Clause 1.3 of the Insurance Policy Conditions states that for Part 1 ‘contracted works’ are commenced, relevantly in this case, when construction of the permanent footing system of a building comprising residential construction work is commenced. The Tribunal has already found that the contracted works had not commenced when the contract was purportedly terminated.
  5. [30]
    Clause 1.4 of the Insurance Policy Conditions, which is expressed to be subject to Parts 6, 7 and 8 of the policy, deals with the limit on the payment that can be made under the policy where the contractor has not commenced the contracted works in accordance with Clause 1.3. The amount of the payment in those circumstances is limited to the total of, relevantly here:
  1. (a)
    The lower of:
  1. (i)
    The amount of any unrefunded deposit paid by or on behalf of the Insured to or on behalf of the contractor; or
  1. (ii)
    If the contract price is equal to or more than $20,000 – 5% of the contract price (however this amount is limited to the QBCC’s maximum liability of $200,000 specified in Part 6 of this policy); …

and

  1. (b)
    Interest on the amount payable under paragraph (a) at the rate stated in the certificate for the period from when the deposit was paid until the date when the contract was properly terminated by the insured.
  1. [31]
    Clause 1.9 of the Insurance Policy Conditions states that the QBCC is not liable under Part 1 (that is, the part relating to payment for non-completion) in relation to a contract for residential construction work involving more than two living units between the insured and one contractor. As the Tribunal has already found there was, at the relevant time, one contract between BG Developments and one contractor, Brandt Homes. The contract was for the construction of 33 townhouses. Each townhouse is a living unit within the definition set out in Clause 1.9. There is really no dispute about that as the Tribunal has already found[10].
  2. [32]
    Part 7 is entitled ‘General exclusions’. Clause 7.10 provides that notwithstanding anything stated in the policy, the insured is not entitled to a claim, payment or other entitlement under this policy if it is prohibited by or contrary to the Act or Regulation. The example given of such a section is s 70A of the QBCC Act, which is then set out in its entirety under the terms of Clause 7.10.
  3. [33]
    Section 70A of the QBCC Act states:

70A Persons not entitled to indemnity under insurance

scheme

  1. (1)
    A building contractor who carries out speculative residential construction work is not entitled to indemnity under the statutory insurance scheme for the work.
  2. (2)
    Where a person has entered into 1 or more building contracts, in force at the same time, to construct 3 or more living units, the person is not entitled to indemnity under the statutory insurance scheme for the work.
  3. (3)
    For subsection (2)—

(a) a single detached dwelling is taken to be 1 living unit; and

(b) a residential unit is taken to be 1 living unit; and

(c) a duplex is taken to be 2 living units.

  1. (4)
    A policy of insurance for residential construction work, in the terms stated in the board’s policies, may include other circumstances in which a person is not entitled to indemnity under the statutory insurance scheme.
  2. (5)
    Nothing in this section affects the right of a subsequent owner of residential construction work mentioned in this section to claim indemnity under the statutory insurance scheme.
  1. [34]
    Each townhouse is a ‘living unit’ in terms of s 70A(3) of the QBCC Act.
  2. [35]
    Section 70A(2) of the QBCC Act provides that where a person has entered into one or more building contracts to construct three or more living units, the person is not entitled to indemnity under the statutory insurance scheme for the work. The Tribunal considers that s 70A of the Act puts the matter beyond doubt. BG Developments is not entitled to any indemnity under the statutory insurance scheme for the work.
  3. [36]
    In a letter from BG Developments then solicitors, AG Edwards, to the QBCC dated 10 July 2015, it is claimed that the insurance policy definitions and the definitions in the QBCC Act are inconsistent such that the conclusion must be that ‘contracted works’ means that all parties are covered for their deposit, but only domestic consumer building contracts provide cover for completion. It is claimed that the deposit is akin to trust monies, so that the deposit is covered by the insurance cover. Ms Baldock’s statement of 9 October 2015 maintained that argument.[11]
  4. [37]
    Ms Baldock was given multiple opportunities to make submissions about how she considered the terms of the policy and legislation should be interpreted to reach an outcome favourable to BG Developments.  In the Tribunal’s view, she was unable to articulate any additional argument and in fact said on a number of occasions that her lawyer’s interpretation was wrong. She reiterated that based on the letters dated 1 December 2014 and the issue of the 33 certificates of insurance that the QBCC had issued the certificates as a way of curing any limitations there might otherwise have been to BG Developments being covered under the policy.
  5. [38]
    For completeness, the Tribunal will deal with the argument originally advanced by her former legal representative. The Tribunal does not accept the argument. The Tribunal cannot see how the absence of a definition of ‘contracted works’ in the QBCC Act leads to the conclusion that developers are covered for their deposit but only domestic building contracts provide cover for completion. The Tribunal considers that the terms of the Insurance Policy Conditions make it clear that Part 1 of the Insurance Policy applies to claims for non-completion and, subject to the terms of the Policy, payment for loss suffered by the Insured for non-completion. Within that same part, clause 1.4 effectively limits the amount that can be paid (referring to the amount of any unrefunded deposit) where work has not commenced.  The Tribunal does not consider that the terms of the policy should be interpreted so that the amount of the deposit is a discrete payment of loss, separate from any other payment for loss for non-completion.
  6. [39]
    In the Tribunal’s view, the terms of Clause 1.9 are clear. The QBCC is not liable for payment for non-completion in circumstances where there is a contract for residential construction work involving more than two living units between the insured and the one contractor. In cases where the QBCC is liable for payment for non-completion and work had not commenced, the amount would be limited to the amount calculated under clause 1.4.
  7. [40]
    Further, and in any event, the Tribunal considers that s 70A of the QBCC Act is clear, and that in the circumstances of this case, BG Developments is not entitled to indemnity under the statutory insurance scheme. It is clear from Part 7 of the Insurance Policy Conditions, that s 70A is relevant to a consideration of any claim under the policy. The Tribunal does not consider that there is any inconsistency between the lnsurance Policy Conditions and the relevant legislative provisions.
  8. [41]
    Turning then to Ms Baldock’s argument relating to the issue of the 33 certificates of insurance ‘curing’ the limitation in s 70A. Mr Grant told the Tribunal that the construction notification number, which was identical on all 33 certificates of insurance, is the insurance policy number so that there was only one insurance policy relevant to the contract between BG Developments and Brandt Homes. Mr Grant’s evidence regarding there being one insurance policy is consistent with s 69(2)(a)(i). The Tribunal finds accordingly.
  9. [42]
    Each certificate of insurance states a notified contract value of $116,253.45. Mr Grant told the Tribunal and a quick calculation confirms that that amount reflects the contract price of $5,115,000 divided by 33. The amount is a nominal value attributed to each of the townhouses to be constructed. Mr Grant’s evidence in that regard is in line with s 26 of the Regulation, which provides for when a notional price applies.
  10. [43]
    Mr Grant also said that 33 certificates of insurance and 33 letters are issued so that as each unit is onsold by the developer they can be passed on to the new homeowner. That is consistent with s 70A(5) of the QBCC Act.
  11. [44]
    The Tribunal observes that in Parker v Queensland Building Services Authority[12] Mullins J reasoned that a certificate of insurance is not conclusive evidence of anything in it.[13]
  12. [45]
    The Tribunal does not consider that the fact that the QBCC issued multiple certificates of insurance impacts the application of the terms of the Insurance Policy Conditions and/or the relevant legislative provisions such that a different decision regarding BG Developments’ claim under the statutory insurance scheme can properly be made.
  13. [46]
    Ms Baldock also claimed that she was misled by the letters dated 1 December 2014 and believed that BG Developments was covered by the Insurance Policy.
  14. [47]
    Whether or not Ms Baldock was in any way misled by the QBCC’s correspondence (which is denied by the QBCC) cannot, in the Tribunal’s view alter that outcome. The Tribunal must apply the law. It is a legislative requirement that the licensed contractor pay the premium to effect  insurance.[14] Whether any claim made against that policy should be allowed is not dependent upon any reliance placed on correspondence received by the potential claimant. The relevant legislative provisions and the Insurance Policy Conditions must be construed and applied.
  15. [48]
    The Tribunal concludes that the correct and preferable decision is that the claim under the statutory insurance scheme is disallowed.

Can the Tribunal make recommendations under s 24(3) of the QCAT Act?

  1. [49]
    Ms Baldock argues that the Tribunal can confirm the decision to disallow the claim under the statutory insurance scheme and make written recommendations to the QBCC under s 24(3) of the QCAT Act. Ms Baldock urged the Tribunal to make written recommendations to the QBCC under s 24(3) of the QCAT Act to cure what she considered misleading and inaccurate correspondence issued by the QBCC. In particular, she considers that she should not have been issued with the pro forma letters dated 1 December 2014. She considers that the QBCC should have a pro forma letter for developers that informs them that they are not entitled to any indemnity under the statutory insurance scheme. She gave evidence that when she read the letter of 1 December 2014, which accompanied the Certificates of Insurance she believed that she would have insurance in the event that anything went wrong with the project. She says that the fact that her then lawyer also considered BG Developments was covered supports her submission that the correspondence was misleading.
  2. [50]
    During her evidence, Ms Baldock was unable to recall with any certainty whether she had read the entire letter at the time that it was issued. However, she maintained that it is a very simple matter to have modified letters issued to developers. She believes that many developers were unaware that they were not covered.
  3. [51]
    Ms Baldock argues that it is wrong to send the same correspondence to all potential insureds. A different letter should issue depending on the intended recipient. Ms Baldock asks the Tribunal to make written recommendations to the QBCC that any letter issued to developers regarding the Insurance Policy clearly states the limits of the QBCC’s liability.  Further, she submits that the Tribunal should recommend to the QBCC that the contents of the pro forma letter dated 1 December 2014, be redrafted to include a sentence, to the effect that, the insurance will come into effect after completion of the separate units and that the insurance covers each of the ultimate owners of the units.
  4. [52]
    Ms Baldock also submits that the terms of the Insurance Policy Conditions should be made clearer. She says that a person should not have to read the QBCC Act and Regulation as well as the Insurance Policy Conditions to ascertain whether they are covered.
  5. [53]
    A number of arguments were made on behalf of the QBCC as to why the Tribunal could not or should not make written recommendations as submitted by the applicant. Mr Grant gave evidence that with recent amendments to the QBCC Act to come into effect by no later than 28 October 2016, changes will be made to the statutory insurance scheme that will affect the QBCC’s processes so that its correspondence in relation to the scheme will necessarily be changed. Essentially, the argument is that there is no utility in the Tribunal making any recommendations now.
  6. [54]
    It was further argued for the respondent that if the Tribunal confirmed the reviewable decision it would not be appropriate to make written recommendations to the QBCC under s 24(3) of the QCAT Act. From its reading of the words of s 24 as a whole, the Tribunal considers that it would be open for it to confirm the reviewable decision under s 24(1) and then, under s 24(3), make recommendations to the decision maker. Section 24(3) does not provide any precondition for making recommendations.
  7. [55]
    It was also submitted for the respondent that the policies, practices and procedures must be those ‘applying to the reviewable decision’ and just because a matter is raised does not mean that it ‘applies to the reviewable decision’. It was further submitted that the Tribunal did not have any power to make recommendations about the legislation, and the legislation and policy were consistent and applied appropriately in making the reviewable decision. Further, it was argued that pro forma documents could not be a ‘practice’ within the words of s 24(3) but, in any event, the QBCC’s correspondence was consistent with the legislation. 
  8. [56]
    The Tribunal has carefully considered the words of s 24(3) of the QCAT Act. What is meant by ‘policies, practices and procedures’ must be read with the words, ‘applying to reviewable decisions of the same kind’. In this case, the reviewable decision is a decision to disallow a claim under the statutory insurance scheme. There is no suggestion that BG Developments’ claim under the statutory insurance scheme was treated any differently to any other such claim whether made by a developer or any other potential claimant. There is no evidence before the Tribunal on which it could find that BG Developments’ claim was subject to any different policies, practices and procedures.
  9. [57]
    The recommendations sought by BG Developments in relation to the correspondence relate only to a discrete group of potential claimants under the statutory insurance scheme, developers. Ms Baldock submits that that group should receive different correspondence and information about the statutory insurance scheme, so arguably be subject to a different practice or procedure.
  10. [58]
    The Tribunal is not satisfied that it is open for the Tribunal to exercise the discretion in s 24(3) of the QCAT Act to make written recommendations regarding the QBCC’s correspondence peculiar to a discrete group of potential claimants under the statutory insurance scheme.
  11. [59]
    Even if the Tribunal were wrong in that regard and the discretion in s 24(3) was capable of being exercised, in the circumstances of this case, the Tribunal would not be minded to exercise the discretion and make the written recommendations proposed by BG Developments in relation to the correspondence. The Tribunal does not consider that the letter dated 1 December 2014 was misleading when read as a whole. Ms Baldock received 33 copies of the letter addressed to the homeowner. The contents of the letter made it clear that there were limitations in the policy for the construction of multi-unit dwellings. While from Ms Baldock’s point of view, it would have been more helpful to her if she had received a letter directed to BG Developments’ particular circumstances, the letter she received, alerted the reader to the fact that there were specific limitations for someone constructing multiple buildings or units with the one contractor. The letter also stated that the person should read the terms of the Insurance Policy. The Insurance Policy Conditions refers to the QBCC Act and the Regulation.
  12. [60]
    Further, the Tribunal is satisfied that the QBCC’s policy, i.e., the Insurance Policy Conditions is not inconsistent with the relevant provisions of the QBCC Act and Regulation applying to the reviewable decision. The Tribunal is not persuaded to make any written recommendations to the QBCC regarding its policies.

Other matters

  1. [61]
    While Ms Baldock abandoned BG Developments’ claim for a refund of the premium, for completeness, the Tribunal observes that s 71AA of the QBCC Act specifically provides for the circumstances in which a policy of insurance may be cancelled by the contractor and to whom the QBCC must refund the insurance premium in those circumstances. The application of s 71AA of the QBCC Act is not a ‘reviewable decision’ under s 86 of the QBCC Act. Part 9 of the Insurance Policy Conditions sets out the payments that can be made under the policy if the claim is admitted by the QBCC. The refund of the insurance premium is not contemplated in the Insurance Policy Conditions as part of any loss payable under the policy.
  2. [62]
    A consideration of s 71AA of the QBCC Act is outside the scope of this review and the Tribunal’s jurisdiction.
  3. [63]
    In relation to the orders originally sought by BG Developments that the Tribunal order the QBCC to pay compensation or make an ex gratia payment to BG Developments, if such orders could not be made by the QBCC’s officer in deciding whether to allow or disallow an insurance claim, the Tribunal similarly cannot make such orders. Whether or not an ex gratia payment can be made is not part of the power given to a decision maker in determining whether or not to allow a claim under the statutory insurance scheme. As the Tribunal has already stated, Part 9 of the Insurance Policy Conditions sets out the payments that can be made under the policy. A decision not to make an ex gratia payment is not a decision listed in the QBCC Act as a reviewable decision. Similarly, the decision maker had no power in determining a claim made under the statutory insurance scheme to pay BG Developments ‘compensation’ as opposed to a payment for loss within the terms of the Insurance Policy Conditions, and the relevant legislative provisions regarding the statutory insurance scheme. Therefore, the Tribunal does not have such a power on review.

Decision

  1. [64]
    The reviewable decision is confirmed.

Footnotes

[1]Exhibit 11- document No. 2, 49-62.

[2]Exhibit 11- document No. 3, 63.

[3]Exhibit 11- document No.4, 64.

[4]QCAT Act s 21.

[5]QBCC Act s 19(3).

[6]See for example s 71 QBCC Act.

[7]QBCC Act.

[8]Queensland Building and Construction Commission Regulation 2003 (Qld).

[9]The Regulation s 11(2)(a).

[10]Findings of fact made under the heading “Background facts”.

[11]Exhibit 1.

[12][2001] 2 Qd R 644.

[13]Ibid at [68]-[71].

[14]QBCC Act ss 68, 68B, 69, 69A.

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Editorial Notes

  • Published Case Name:

    BG Developments Qld Pty Ltd v Queensland Building and Construction Commission

  • Shortened Case Name:

    BG Developments Qld Pty Ltd v Queensland Building and Construction Commission

  • MNC:

    [2016] QCAT 232

  • Court:

    QCAT

  • Judge(s):

    Member Guthrie

  • Date:

    05 Jul 2016

Appeal Status

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