Sharma v Queensland Building and Construction Commission
[2017] QCAT 457
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- Unreported Judgment
- Sharma v Queensland Building and Construction Commission[2017] QCAT 457
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Sharma v Queensland Building and Construction Commission[2017] QCAT 457
Sharma v Queensland Building and Construction Commission[2017] QCAT 457
CITATION: | Sharma v Queensland Building and Construction Commission [2017] QCAT 457 |
PARTIES: | Sheetal Sharma (Applicant) |
| v |
| Queensland Building and Construction Commission (Respondent) |
APPLICATION NUMBER: | GAR032-17 & GAR288-16 |
MATTER TYPE: | Building matters |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
DELIVERED ON: | 14 December 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where review of decision by respondent to disallow insurance claims INSURANCE – CLAMS GENERALLY – REFUSAL – OTHER MATTERS – where two claims for payment for non-completion under the statutory insurance scheme were disallowed – where certificates of insurance were issued – where the multiple living units were not disclosed Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(h), s 87 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, 24 Parker & Anor v Queensland Building Services Authority [2000] QDC 221 |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]This is an application pursuant to s 86(1)(h) and s 87 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) by Sheetal Sharma for review of two internal review decisions dated 10 October 2017 by the Queensland Building and Construction Commission (QBCC) to disallow insurance claims made under the Queensland Home Warranty Scheme.
- [2]Ms Sharma entered into two contracts with Oz Build Homes Qld Pty Ltd (Oz Build) on or about 28 January 2015 for the construction of two dwellings at 166 and 172 Handley Street, Darling Heights, Toowoomba.
- [3]In each contract the works were described in the item schedule as “single dwelling as per attached plans and specifications for the subject lot”.[1]
- [4]In each contract the attached plans described the dwelling to be a “proposed duplex” and the plans clearly referenced “duplex 1” and “duplex 2” as separate mirror image dwellings under one roof but separated by a fire wall.[2]
- [5]In all, QBCC issued nine certificates of insurance in respect of the two projects, three on 19 February 2015 and six on 22 February 2016, copies of which were filed in the tribunal on behalf of Ms Sharma on 4 April 2017. The latest certificates were corrections of those that went before. They show a variety of addresses and real property descriptions and notified contract values. All define the insured residential construction work as “new dwelling”.
- [6]QBCC says that the discrepancies are a result of the incorrect information provided by Oz Build, which was subsequently corrected.[3] Nothing turns on these errors in address, as it is not contended by QBCC that those errors are the basis of, or are relevant to, its decision to disallow the applicant’s claim.
- [7]
- [8]On 19 August 2016, QBCC suspended Oz Build’s licence.[7]
- [9]On 28 September 2016, Ms Sharma lodged two complaints with the QBCC in respect of incomplete works. Her complaints included a bundle of documents which included the two contracts between her and Oz Build.[8]
- [10]It is at this point, having regard to the contracts, that QBCC became aware of the nature of the dwellings. On 10 October 2016 Ms Ennor, the decision maker, spoke to Ms Sharma’s husband, Sachin Sharma who, according to her file note confirmed, “they were building two sets of duplexes”.[9]
- [11]I cannot find confirmation of that in anything filed by or on behalf of Ms Sharma, but nor can I find anything where it is asserted or even suggested that the two structures are not duplexes.
- [12]QBCC in disallowing the claims relied on clause 7.10(2) of the insurance policy conditions.
- [13]The basis of Ms Sharma’s disagreement with those decisions is not easily discerned from the review application or other materials filed in the tribunal by her.
- [14]As I understand it, she says that the work is incomplete and as a result, she has suffered loss. The works are insured as evidenced by the various insurance policy certificates issued by the QBCC.
- [15]Clause 7.10 of the insurance policy provisions provides:
Not withstanding anything stated in this 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.
- [16]It then gives an example in the form of s 70A QBCC Act. As a result of amendments since the printing of those policy conditions to that act, the equivalent section is now s 68 QBBC Act, which provides relevantly:
- (2)If a person enters 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 assistance under the statutory insurance scheme for the work carried out under the contracts.
- (3)For subsection (2) –
…
- (c)a duplex is taken to be 2 living units.
- [17]Clause 1.9 of the policy provisions proviso that QBCC is not liable for payment for noncompletion “in relation to a contract or contracts for residential work involving more than 2 living units between the insured and one contractor”.[10]
- [18]Ms Sharma has entered into two contracts with the same builder for construction of two duplexes, or four living units. Under clause 1.9 and clause 7.10 (both virtue of section 68 of the QBCC Act), QBCC is not liable to make payment to Ms Sharma for non-completion.
- [19]If Ms Sharma has been misled or disadvantaged by the issue of the polices by the QBCC or their failure to provide copies of the insurance policy conditions (which is denied by QBCC) that does not affect the outcome of this review.
- [20]This review is a fresh hearing on the merits. The purpose of the review is to reach the correct and preferable decision.[11]
- [21]The tribunal may only confirm or amend the decision, set it aside and substitute its own decision or set it aside and remit it to the decision maker for reconsideration.[12]
- [22]The issue of the insurance certificates does not alter the terms of the policy or prevent QBCC from relying on those terms.[13] The QBCC and the tribunal in its place is obliged to apply the relevant statutory provisions and the insurance policy conditions. Ms Sharma’s claims under the statutory insurance schemes are accordingly disallowed.
Orders
- The application is dismissed.
Footnotes
[1] Statement of reasons for decision dated 10 February 2017, pages 77 & 131, Item 1.
[2] Statement of reasons for decision dated 10 February 2017, pages 81 - 88, 135 -142.
[3] Respondent’s submissions dated 13 April 2017, paragraphs 12 & 13.
[4] Respondent’s submissions dated 13 April 2017, Annexure A.
[5] Statement of reasons for decision dated 10 February 2017, pages 9 - 56.
[6] Draft statement of agreed facts (applicant’s version) contained in an email from Agassi to QBCC legal branch dated 14 March 2017.
[7] Statement of reasons for decision dated 10 February 2017, paragraph 22.
[8] Statement of reasons for decision dated 10 February 2017, pages 73 - 181.
[9] Statement of reasons for decision dated 10 February 2017, page 188.
[10] Pursuant to clause 1.9(c), a duplex is taking to be 2 living units.
[11] QCAT Act, s 20.
[12] QCAT Act, s 24.
[13] Parker & Anor v Queensland Building Services Authority [2000] QDC 221, [69] – [70].