Lim v Queensland Building and Construction Commission
[2018] QCAT 156
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- Unreported Judgment
- Lim v Queensland Building and Construction Commission[2018] QCAT 156
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Lim v Queensland Building and Construction Commission[2018] QCAT 156
Lim v Queensland Building and Construction Commission[2018] QCAT 156
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lim & Anor v Queensland Building and Construction Commission [2018] QCAT 156 |
PARTIES: | TENG LIM & CALEB FOO (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) |
APPLICATION NO/S: | GAR029-17 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 22 May 2018 |
HEARING DATE: | 22 May 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
ORDERS: | The application is dismissed as misconceived and lacking in substance. |
CATCHWORDS: | INSURANCE – PROPERTY AND PECUNIARY LOSS INSURANCE – DOMESTIC BUILDING CONSTRUCTION INSURANCE – where insurer accepted some items and declined other items – where decision based mostly on earlier ‘Direction to Rectify’ – where applicant did not apply to review earlier Decisions and is now out of time to seek review of those Decisions – where Tribunal’s jurisdiction does not extend to disturbing decisions that were reviewable but not reviewed PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISMISSAL – GENERALLY – where application to review decision under Home Warranty Insurance Scheme cannot be used as de facto review of decisions about ‘Direction to Rectify’ – where applicant did not file material or direct submissions other than his disagreement with ‘Direction to Rectify’ – where Tribunal did not have power in its review jurisdiction for any purpose other than dealing with precise decision under review – where application misconceived and lacking in substance Queensland Building and Construction Regulation 2003 (Qld), s 11 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4, s 47 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Bourne v Queensland Building Services Authority [2012] QCATA 102 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Dunbar v Commissioner of Police (2007) 51 SR (WA) 318 J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Orlanski v Queensland Building Services Authority [2011] QCAT 35 |
APPEARANCES & REPRESENTATION: |
|
Applicant: | C Foo self-represented |
Respondent: | M Stretton, solicitor of Holding Redlich |
REASONS FOR DECISION
Is there a proper basis to review the insurance decision?
- [1]On 16 March 2018, an Acting Senior Member of the Tribunal directed that an ‘Application for miscellaneous matters’ filed by the Queensland Building and Construction Commission on 7 March 2018 be determined at the start of the hearing.
- [2]The Commission had sought urgent directions to resolve this matter prior to the hearing, originally listed on 5 and 6 April 2018. That hearing was vacated and the matter relisted for hearing on 22 and 23 May 2018.
- [3]In compliance with the direction of the Acting Senior Member, the Tribunal proceeded to determine the Commission’s ‘Application for miscellaneous matters’ at the start of the hearing on 22 May 2018.
- [4]As part of its ‘Application for miscellaneous matters’, the Commission submitted that it was not appropriate for Mr Foo and Mr Lim to use this proceeding as a mechanism to seek review of its earlier decisions about its ‘Direction to Rectify’. That submission is correct.
- [5]An application to review a decision under the Home Warranty Insurance Scheme cannot be used as a de facto review of decisions about a ‘Direction to Rectify’. Unfortunately, Mr Foo’s application to seek a review of the Commission’s insurance decision appears to have proceeded precisely on that basis.
- [6]Certainly, the Commission decided to accept some items and decline other items under Mr Foo’s insurance policy. However, except for items 7, 55, 114 and 132 relating to painting work and item 30 relating to the concrete path, the Commission based its insurance decision on its earlier ‘Direction to Rectify’ made on 17 November 2015 and an internal review Decision of that ‘Direction to Rectify’ on 13 July 2016.[1]
- [7]Unfortunately, Mr Foo did not apply to the Tribunal to review those Decisions and he is now out of time to seek a review of those Decisions.
- [8]On 6 February 2017, Mr Foo did file an ‘Application to review’ a number of the Commission’s decisions.[2] However, on 25 May 2017, the Acting Senior Member directed that the application was to proceed only ‘as an application to review the decision of 29 November 2016 to accept some items and decline other items under the Home Insurance Warranty Scheme’.[3]
- [9]Despite this Direction, and Mr Foo being out of time for review of the ‘Direction to Rectify’, Mr Foo did not file any material or direct any submissions towards any grounds upon which the Tribunal should review the insurance Decision, other than his disagreement with the Commission’s findings in issuing the ‘Direction to Rectify’.[4]
- [10]A review of this ‘Direction to Rectify’ is not the subject of these proceedings. The Tribunal cannot review the Commission’s decisions about that ‘Direction to Rectify’ as part of these proceedings: the Tribunal’s jurisdiction does not extend to disturbing decisions that were reviewable but not reviewed.[5]
- [11]Because the Commission has decided not to issue a ‘Direction to Rectify’ for these and the time limit for an application for review by the Tribunal has expired, the Commission’s decisions about the ‘Direction to Rectify’ still stand. Mr Foo’s application does not provide a basis to review the Commission’s insurance decision to the extent that the insurance decision is consistent with those decisions.
- [12]This means that the Tribunal can only review the insurance decision on items that were not consistent with the Commission’s findings on those items when making its decisions about the ‘Direction to Rectify’. These were items 7, 55, 114 and 132 relating to painting work and item 30 relating to the concrete path.
- [13]The Commission originally included items 7, 55, 114 and 132 in the ‘Direction to Rectify’ but later declined them for the reason they were excluded as ‘associated building work’.[6] The Commission originally considered item 30 not to be a ‘defect’, but then also later declined it for the reason it was ‘associated building work’.[7]
- [14]However, during the hearing Mr Foo said he agreed with the Commission’s decision to decline items 7, 55, 114 and 132 but he disagreed with other actions by the Commission about painting, including the amount paid to a third part contractor to rectify. Those are not part of the decision under review and are beyond the Tribunal’s purview in this review:[8]
... there is no power within the Tribunal’s review jurisdiction that would now place the Tribunal in the shoes of the decision-maker for any purpose other than dealing with the precise decision now under review.
- [15]Mr Foo also offered no evidence on why item 30 was not ‘associated building work’.
Should the application be dismissed?
- [16]Mr Foo’s application does not provide a basis to review the Commission’s insurance decision. For all items other than items 7, 30, 55, 114 and 132, the Commission’s decision is consistent with its previous decisions about the ‘Direction to Rectify’.
- [17]Unfortunately, Mr Foo has not filed any material or directed any submissions towards any grounds upon which the Tribunal should review the insurance Decision, other than his disagreement with the ‘Direction to Rectify’, which cannot be reviewed.
- [18]Reviewing the insurance decision to the extent it would entail, considering whether items are in fact ‘defects’ or should otherwise have been part of the ‘Direction to Rectify’, would effectively mean reviewing the Commission’s previous decisions not to issue a ‘Direction to Rectify’ for these items. That is not the scope of these proceedings,[9] and would be an abuse of process, because it would allow a home owner to effectively circumvent the time limits to seek review of a ‘Direction to Rectify’.
- [19]Mr Foo agreed with the Commission’s decision to decline items 7, 55, 114 and 132. He also offered no evidence on why item 30 was not ‘associated building work’.
- [20]While Mr Foo does not have a formal onus of proof in a merits review, he still has an onus to adduce evidence and arguments to support his case. Without this, the Tribunal is not able to make the decision he seeks.[10] Mr Foo has not provided any basis or evidence upon which the insurance decision should properly be reviewed.
- [21]In these circumstances, the application is misconceived and lacking in substance and should be dismissed.[11] This order is consistent with the Tribunal’s mandate to conduct proceedings in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.[12]
- [22]The Tribunal understands that this may not be the outcome that Mr Foo may have been expecting or hoping for. However, Mr Foo has an obligation to take care in his dealings with the Tribunal and to act in his own best interests:[13]
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has observed in relation to court resources, “… the public as a whole, not merely the parties to the proceedings”. Finality in litigation is highly desirable, because any further action beyond the hearing can be unnecessarily burdensome on the parties.
- [23]Because the Tribunal has no basis upon which to review the insurance Decision, the application is dismissed as misconceived and lacking in substance.
Footnotes
[1]Decision of Simon Whitecross, Resolution Services Building Inspector dated 17 November 2015; Decision of Jonathan Pacey, Senior Internal Review Officer dated 18 July 2016.
[2]Together with Teng Lim who is Mr Foo’s attorney under an Enduring Power of Attorney.
[3]Direction 2 dated 25 May 2017.
[4]Decision of Simon Whitecross, Resolution Services Building Inspector dated 17 November 2015; Decision of Jonathan Pacey, Senior Internal Review Officer dated 18 July 2016.
[5]Orlanski v Queensland Building Services Authority [2011] QCAT 35, [55].
[6]Insurance Policy Conditions, Edition 8, effective 1 July 2009, Part 4.6; Queensland Building and Construction Regulation 2003 (Qld), s 11(3).
[7]Ibid.
[8]J & K Homes Pty Ltd v Queensland Building and Construction Commission [2017] QCAT 269, [30], citing with approval Dunbar v Commissioner of Police (2007) 51 SR(WA) 318, [19].
[9]Direction 2 dated 25 May 2017.
[10]Body Corporate for Parkwood Villas CTS 25893 v Queensland Building and Construction Commission [2015] QCAT 59, [67]; Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] – [25].
[11]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1)-(2).
[12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 4(c).
[13]Creek v Raine & Horne Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217.