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Walker v Queensland Building and Construction Commission[2021] QCAT 32

Walker v Queensland Building and Construction Commission[2021] QCAT 32

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walker v Queensland Building and Construction Commission [2021] QCAT 32

PARTIES:

Marie Walker

 

(applicant)

 

v

 

Queensland building and construction Commission

 

(respondent)

APPLICATION NO/S:

GAR 267-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

27 January 2021

HEARING DATE:

27 July 2020

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

  1. The decision of the Queensland Building and Construction Commission made on 28 June 2019 to disallow the claim made under the Queensland Home Warranty Scheme is confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME - where a claim was made upon the Queensland Home Warranty Scheme more than three months after the owner became aware of defects in residential construction work – where the claim was disallowed – where the fairness of the legislative provisions was discussed

Queensland Building and Construction Commission Act 1991 (Qld) s 71C, s 72(5)

Queensland Building and Construction Commission Regulation 2018 (Qld) Sch 6 s 15 and s 16

Auret v Queensland Building Services Authority & Anor [2013] QCAT 623

Davis & Ors v Queensland Building and Construction Commission [2020] QCAT 189

Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127

Hiettecorp Pty Ltd atf Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105

Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 042

APPEARANCES & REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

C. Low - QBCC Legal Services

REASONS FOR DECISION

  1. [1]
    This is an application to review a decision of the Queensland Building and Construction Commission (QBCC) made on 28 June 2019 to disallow a claim made under the Queensland Home Warranty Scheme.
  2. [2]
    The QBCC filed an application on 13 January 2020 to dismiss or strike out the application to review a decision. A direction was given by the Tribunal on 22 January 2020 that the application would be considered at the hearing of the matter.
  3. [3]
    Marie Walker (the owner) owned a house at Godwin Beach in Queensland.  She wanted an extension built which comprised a roofed deck and stairs.
  4. [4]
    She engaged Mr Paul Staveley (the builder) to conduct the work. He held a QBCC licence No. 72756 in the classes of builder – medium rise, carpentry and joinery. He traded as Suncoast Carpentry.
  5. [5]
    The owner and the builder signed a ‘QBCC Level 2 renovation, extension and repair contract’ for the work for a contract price of $27,000 on 30 October 2017. The starting date was 6 November 2017, and the date for practical completion was 25 December 2017.
  6. [6]
    The builder proceeded to conduct the work in November 2017. The owner paid the full amount of $27,000.
  7. [7]
    An officer of the Moreton Bay Regional Council conducted an inspection of the premises on 5 December 2017, and identified that a roofed patio deck had been constructed on the property without an associated building development approval.
  8. [8]
    A Show Cause Notice under the Planning Act 2016 (Qld) was issued by the Moreton Bay Regional Council to the owner on 13 March 2018 as to why an enforcement notice should not be issued to her.
  9. [9]
    The Show Cause Notice noted that the work was ‘assessable development’ and required an associated building development approval from a private building certifier, and that the council’s records indicated that such approval had not been obtained.
  10. [10]
    The owner states that she immediately contacted Ms Sheryl Harvey from Moreton Bay Building Certification, the designer (AMR Design) and engineer (E.N.G. Engineering) after she received the Show Cause Notice.[1]
  11. [11]
    The owner states that the certifier conducted an inspection, and verbally pointed out to her that the stairway, railings, supporting structures, roof bearings, and other matters, were areas of concern.[2]
  12. [12]
    The owner states that she contacted the builder and advised what had transpired, and was told by him ‘not to worry, they will probably just tell me to put a couple of extra bolts in’, and that the builder attended the property a short time later, and she discussed with him what the certifier had mentioned to her as to the requirements of the building code.[3]
  13. [13]
    The owner describes subsequent events as follows:[4]
  1. (4)
    Builder telephoned me saying he wanted to come and do some minor fix ups to ‘help me get it over the line’. I advised him to wait until the plans came back because it should be rectified according to the approved plans. Builder returned to my property whilst I [was] away at work and did some additional works.
  1. (5)
    Upon receiving the approved plans back from the certifier, I handed a copy of the plans to the builder to read through the details, to ascertain if the patio and deck he had built, met the building approval requirements.

(Copy of the building approval enclosed. Plans are already on file)

  1. (6)
    Response from builder:

After reading through the plans, builder assured me, via a text message, that he would co-operate with all the requirements, but due to his busy work schedule, could not fit my job in until the [sic] November 2018. I was under the impression that I had the builder’s full co-operation in getting the matter resolved.

  1. (7)
    4 months passed, and just 3 weeks before he was due to return, I received a legal document from builder’s solicitor, a Mr Johnson from (Qld Law), stating that his client, Mr Staveley the builder, had complied with his contract, and accused me of underlying matters relating to building requirements, of which I had no understanding, and was blatantly called a liar!

(Copy is already on file)

  1. (8)
    Not knowing what the law firm representative was talking about, I contacted the certifier for guidance. I was advised by her to contact the QBCC immediately and lodge a complaint.

(Copies of my lengthy complaint already lodged on file)

  1. (9)
    The QBCC had no hesitation in accepting my letter of complaint, and an assessor, Mr Andrew Duncan, was assigned to my case. In March 2019, a representative from QBCC, Mr Robert Murphy, was given the task to come to my property and investigate the complaint, in the presence of the builder and his son Noah, and myself, and my friend, Mr Neil Kelly.

(reports on file)

Robert Murphy inspected the areas of which I had identified as a problem, but further to these, Robert also uncovered additional defects to the building code and regulations. Robert concluded, after his inspection and deliberation, that the builder had not met the building requirements and so subsequently, builder was issued a direction notice by the QBCC to rectify the specified defective works by 22nd April 2019.

(Notice of Direction to Rectify already on file)

  1. (10)
    Builder attended my property and did further works to patio and deck.
  1. (11)
    I received a phone call from Robert Murphy of QBCC, to seek confirmation that the works had been completed. I advised him that he come and re-inspect the work as I have no idea what is required.
  1. (12)
    Mr Robert Murphy returned to re-inspect the rectification works and found numerous items failed to meet the requirements of the direction notice. I was then advised that the matter was now going to progress to the QBCC assessor, who would organise a tender from another builder to finally fix it properly.
  1. [14]
    Ms Harvey, the certifier, says that she was contacted by the owner after the owner received the Show Cause Notice from Moreton Bay Regional Council and recounts the subsequent events as follows:[5]

I advised Marie that she would need to have plans drawn, engineering and form 15 for the roofed deck as it had already been constructed. I also advised Marie that we would require a copy of the QBCC confirmation of insurance letter from the builder prior to being able to issue the building approval.

Marie applied for the application on the 22/05/2018 and the application was issued on the 14/06/2018. The building approval has a 24 month completion date. Marie advised, that the builder was coming back to commence rectification work but was unable to come back till November as he was booked out, so that the deck would be built in accordance with the engineering.

Marie got in touch to let me know that she had the QBCC involved as the deck builder would not come back without further payment to make the deck comply with the engineering. Marie was also in close contact with Duncan Haynes from the MBRC Building and Development compliance team. She advised the QBCC inspector had been to site and issued a notice to rectify to the builder.

The initial QBCC insurance decision

  1. [15]
    The QBCC notes that the owner lodged a ‘Residential and Commercial Construction Complaint Form’ on 5 December 2018 which consisted of 16 alleged defective items, and comprised the following documents:[6]
    1. (a)
      quote dated 10 March 2017;
    2. (b)
      QBCC level 2 renovation, extension and repair contract dated 30 October 2017;
    3. (c)
      Show Cause Notice from Moreton Bay Regional Council to the applicant dated 13 March 2018;
    4. (d)
      Licensee’s Notice of Cover dated 6 November 2017;
    5. (e)
      Building Application Decision Notice from Moreton Bay Building Certification to the applicant dated 14 June 2018;
    6. (f)
      Form 15 dated 16 May 2018;
    7. (g)
      plans dated 16 May 2018;
    8. (h)
      letter from QLD Law Group to the applicant dated 15 October 2018; and
    9. (i)
      letter from the applicant to QLD Law Group dated 16 October 2018.
  2. [16]
    The QBCC agrees that Mr Robert Murphy, building inspector, attended the site on 12 March 2019 to inspect the alleged defective items; and by letter dated 21 March 2019 the QBCC issued the licensee with a Direction to Rectify, and notified the applicant of the progress of the complaint.[7]
  3. [17]
    The QBCC notes that the builder advised it by email dated 29 April 2019 that rectification work was complete.[8]
  4. [18]
    The QBCC notes that Mr Murphy carried out a reinspection of the complaint items on 7 May 2019, and by email dated that day, the QBCC made the decision that some complaint items had not been satisfactorily rectified.[9]
  5. [19]
    The reinspection report of Mr Murphy dated 7 May 2019 notes that items 1, 3, 4, 5, 8, 10, and 11 were not satisfactorily rectified.
  6. [20]
    The QBCC then by letter dated 23 May 2019 notified the owner of its decision to disallow her claim under the Statutory Insurance Scheme. The letter commenced by stating that ‘Your Queensland Home Warranty Scheme claim has now been impartially assessed and a decision has been made’. The decision noted items not covered by the Queensland Home Warranty Scheme were items 1, 3– 7, 11– 16. The reason was stated as follows:[10]

Not covered – outside permitted timeframe

These items were notified to QBCC outside the timeframe required by the Queensland Home Warranty Scheme.

The items classified as structural defects under the Queensland Home Warranty Scheme. Structural items are covered by the Queensland Home Warranty Scheme if notified to QBCC within three months of practical completion of the construction.

The items classified as non--structural defects under the Queensland Home Warranty Scheme. Non-structural items were notified to QBCC more than 7 months after practical completion of the construction. This does not meet schedule 6, section 16(3)(b) of the Queensland Building and Construction Commission Regulation 2018…

The QBCC internal review

  1. [21]
    The QBCC made an internal review decision on 28 June 2019, which is the decision under review. That decision confirmed the decision to disallow the owner’s claim under the Queensland Home Warranty Scheme.
  2. [22]
    The basis of the refusal to allow the insurance claim was set out as follows:

Terms of Cover

The Terms of Cover for the Owner’s policy of insurance are contained in Schedule 6 of the QBCC Regulation (Terms of Cover).

Section 15 of the Terms of Cover relevantly states:

15 Limit on assistance

  1. (1)
    The consumer of the residential construction work is entitled to claim assistance for the reasonable cost of the following work (rectification work) –
  1. (a)
    rectifying the defective work;
  1. (b)
    any other building work reasonably required to be carried out to a relevant building as a consequence of the defective work

Section 16 of the Terms of Cover relevantly states:

16 Limit on assistance

  1. (3)
    No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15 –
  1. (a)
    for a structural defect – within 3 months after the day the consumer first becomes aware, or reasonably to have become aware, of the defect in the work; or
  1. (b)
    for another defect – within 7 months after the day the residential work is substantially complete.

The defects list provided by the owner to the QBCC indicated that the owner first became aware of the defects between November 2017 and December 2017. The owner also submitted with her Internal Review Application that the defects became evident in November 2017, after being notified of the defects by Mr Haines. The owner further states that the defects were notified to her on 11 December 2017 by Ms Harvey.

However, it appears that QBCC was not notified of the defects until lodgement of the Complaint Form was received on 5 December 2018.

Whilst I take into account the owner’s reasoning for the delay between noticing the complaint items and notifying the QBCC, the Owner’s Terms of Cover do not allow discretion to be applied when considering a claim that was made outside of the timeframes as stated in Schedule 6, section 16 (3) of the QBCC regulation.

In light of the above, I therefore must decline the owners [sic] claim for assistance under the statutory insurance scheme.

Offences by the builder

  1. [23]
    As a result of the complaint lodged by the owner on 2 December 2018, the QBCC investigated the complaint and detected breaches of the legislation. The QBCC issued the following infringement notices to the builder:[11]

Offences under the Queensland Building and Construction Commission Act 1991

Section 68B(2) Failure to pay appropriate insurance premium at the appropriate time in relation to the carrying out of residential construction work under a contract with a consumer

Schedule 1B Section 30 Building contractor commences contracted services before regulated contract complies with requirements

Schedule 1B section 33 (1) Building contractor demands or receives a deposit in excess of the limits

Issues arising

  1. [24]
    There is no issue as to the facts in this matter as they relate to the events.
  2. [25]
    It is not disputed that the owner took immediate steps upon receiving a show cause notice from the local council as to the works not being properly approved, to obtain advice from a building certifier, engineer and designer.
  3. [26]
    Neither the certifier, the engineer, or the designer advised the owner that she should make a claim upon the statutory insurance scheme at that time. The encouragement from those persons appears to have been for her to alert the builder to the issues, and to work with the builder to have the builder remedy them.
  4. [27]
    There is no suggestion that the builder had given the owner any indication, until the time of its solicitors’ letter, that it would not proceed to repair the defects.
  5. [28]
    The QBCC gave the builder a Direction to Rectify. The builder performed some remedial works, which the QBCC found to be unsatisfactory.
  6. [29]
    The normal course of events is that once a complaint is lodged by an owner with the QBCC, an investigation will occur, and if a Direction to Rectify is given and is not complied with, that the matter will then be referred to the insurance section of the QBCC for the work to be repaired under the statutory insurance scheme. The cost of the remedial work is recoverable by the QBCC from the builder under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
  7. [30]
    The decision of the QBCC to refuse cover under the statutory insurance scheme raises several issues in this matter. These include:
  1. (1)
    At what stage is a claim made upon the statutory insurance scheme, and how is a claim made? Does a claim arise when a complaint is first made to the QBCC about defective work; or does a claim arise after a Direction to Rectify is given by the QBCC and is not complied with, and the matter is referred internally to the insurance section of the QBCC?
  1. (2)
    When does the time for lodging of a claim on the statutory insurance scheme run from, when the builder is continuing to perform work at the premises?
  1. (3)
    If the owner is advised by an officer of the QBCC that the matter is being referred internally, and that a new builder will be engaged to repair the defects, and the owner accepts and relies upon that advice, is the QBCC estopped from later refusing the claim?
  1. (4)
    What is the relationship between the giving of a Direction to Rectify, and coverage under the statutory insurance scheme?
  1. [31]
    I raised these issues at the conclusion of the hearing, and gave directions in relation to the filing of submissions as to relevant questions of law. I issued amended directions the following day, on 28 July 2020, as follows:
  1.  The parties are to file submissions as to the following questions of law:
  1. a)
    Does rectification work, and new work done, under a Direction to Rectify, constitute “residential construction work” under s 16 (1) and s 16 (3) of the Queensland Building and Construction Commission Regulations 2003 and 2018?
  2. b)
    If a claim for assistance for the reasonable cost of rectification work under s 15 of the Queensland Building and Construction Commission Regulations 2003 or 2018 is given to the Queensland Building and Construction Commission (QBCC) by a consumer, and:
  1. (i)
    The QBCC, having regard to the claim for assistance, gives a Direction to Rectify under s 67(2) of the Queensland Building and Construction Commission Regulations 2018, without giving any advice or notification to the consumer as to the claim for assistance being out of time for a claim for assistance under the Statutory Insurance Scheme, and
  2. (ii)
    The consumer withholds taking any further or any steps as to the rectification, or commencing proceedings against the licenced contractor, in anticipation of the QBCC making Directions to Rectify, which if not satisfactory complied with, will give rise to an allowable claim for assistance under the Statutory Insurance Scheme; and
  3. (iii)
    The Directions to Rectify are not satisfactorily complied with, and
  4. (iv)
    The QBCC advises the consumer that as the Directions to Rectify have not been satisfactorily complied with, that the Statutory Insurance Scheme will thereafter respond to engage alternate licensed contractors to repair the defective work; and
  5. (v)
    The consumer withholds taking any further, or any, steps as to rectification, or commencing proceedings against the licenced contractor, in anticipation of the QBCC allowing the claim for assistance under the Statutory Insurance Scheme:-

Does an estoppel then arise against the QBCC thereafter denying the allowance of the claim for assistance under the Statutory Insurance Scheme which is consistent with the Directions to Rectify on the basis that the claim for assistance is out of time?

  1. c)
    What constitutes a ‘complaint’ and a ‘claim for assistance’ under the Queensland Building and Construction Commission Act 1991 and the Queensland Building Construction Commission Regulations 2003 and 2018; and what is the difference between those two terms?

Submissions of the Owner

  1. [32]
    The owner filed submissions in relation to the questions of law, and submitted that the rectification work done under a Direction to Rectify does constitute residential construction work; and that her complaint/claim was accepted and acted upon by referring the QBCC building inspector to attend her property, and an estoppel arose.[12]

Initial Submissions of the QBCC

  1. [33]
    The QBCC handed up written submissions at the hearing,[13] and filed further submissions in response to the directions.[14]
  2. [34]
    The Commission submitted that a policy of insurance came into force on the date of the contract on 30 October 2017, and that Terms of Cover are prescribed by regulation which was the Queensland Building and Construction Commission Regulation 2003 (Qld) (current from 3 July 2017 to 31 October 2017).[15]
  3. [35]
    The Commission noted that whilst the 2003 regulation has now been repealed and replaced with the Queensland Building Construction Commission Regulation 2018 (Qld), that the relevant sections as to the right to entitlement under the scheme are identical in substance and form.
  4. [36]
    Section 16(3) of the Terms of Cover provides as follows:
  1. (3)
    no assistance can be given to the consumer unless a consumer makes a claim mentioned in section 15 –
  1. (a)
    for a structural defect – within 3 months after the day the consumer first becomes aware of, or ought reasonably to have become aware, of the defect in the work; or
  1. (b)
    for another defect – within 7 months after the day the residential construction work is substantially complete
  1. [37]
    Section 16(1) of the Terms of Cover provides as follows:
  1. (1)
    A consumer is entitled to claim assistance mentioned in section 15 in relation to a structural defect in the residential construction work if the consumer first becomes aware, or ought reasonably to have become aware, of the structural defect within –
  1. (a)
    for residential construction work that is not substantially complete within 6 months after the cover commencement day for the work – the period –
  1. (i)
    starting on the day that is six months after the cover commencement day; and
  2. (ii)
    ending 6 years and 6 months after the period starts; or
  1. (b)
    otherwise – 6 years and 6 months after the cover commencement day for the work.
  1. [38]
    The QBCC submitted that the requirements of section 16(1) and 16(3) of the Terms of Cover, which are prescribed by regulation, are separate and must both be satisfied to allow a claim under the scheme.[16]
  2. [39]
    The QBCC submits, in its initial submissions at the commencement of the hearing, that a claim against the scheme is made by filing the complaint form:[17]

26. A ‘claim’ against the scheme must be in writing and include any other information, prescribed by regulation, that the Commission reasonably requires to decide the claim. (QBCC Act, section 71C; Terms of Cover, section 65(5)). The ‘QBCC Residential and Commercial Construction Work Complaint Form’ is the relevant ‘claim’.

  1. [40]
    The QBCC submits that the owner first became aware, or ought reasonably to have become aware of the defects between November 2017 and December 2017, and refers to the list of complaint items dated 16 January 2019 which lists the date at which the 21 problems were noticed as being between those dates.[18]
  2. [41]
    The QBCC notes that the owner lodged the complaint with the Commission on 5 December 2018, which was 12 months after first becoming aware of the defective work, and is outside the timeframes stated in section 16(3).
  3. [42]
    The QBCC submits that the Terms of Cover do not allow a discretion to be applied when considering a claim that is made outside of the timeframe stated in section 16(3)[19] and that the Tribunal, standing in the Commission’s shoes, is unable to grant the relief sought in the review application.[20]
  4. [43]
    The QBCC submits that the attempted rectification work carried out by the builder at the direction of the Commission does not constitute new building work, or a new contract for new building work, and does not amend the date for the owner to ‘become aware’ of the defects.[21]
  5. [44]
    The QBCC submits that if there were new defects complained of as a result of the builder’s rectification attempts on 22 April 2019, those defects should be dealt with by way of a new complaint. [22]
  6. [45]
    The QBCC further submits that the defects identified at the re-inspection relate to the same defects identified at the initial inspection.[23]
  7. [46]
    The QBCC submits that the scheme does not provide unlimited consumer protection to consumers of residential building work and that a purpose of the Terms of Cover is to define the scope of the scheme and to limit the circumstances under which assistance is available. [24]
  8. [47]
    The QBCC notes that the Commission was previously empowered, under clause 4.5 of the Policy Conditions, to extend the three-month time limit for defective construction claims to such further time as the QBCC may allow,[25] but that through the 2016 Amendment Act, the legislature removed the discretion exercisable by the Commission with respect to the three month timeframe.[26]
  9. [48]
    The QBCC submits that it is clear that the legislature intended to limit the Consumer Protection Purpose of the scheme.[27]
  10. [49]
    The QBCC submits that the Tribunal should not favour the consumer protection purpose over the scope limitation purpose, and that the time limit should run from on or about November 2017:[28]

62. In the Commission [sic] submission, the Tribunal should not adopt an interpretation which disproportionately favours the Consumer Protection Purpose over the Scope Limitation Purpose; particularly where it is clear that the 2016 Amendment Act intended to limit the Consumer Protection Purpose by placing numerous restrictions on the Commission’s exercise of discretion.

63. In the circumstances at hand, the Commission submits that the three-month timeframe commenced from when the applicant first noticed the defective work on or about November 2017: not when she knew it to be a structural defect; not when Mr Murphy carried out the re-inspection; not when the direction was issued, and not when the licensee attempted rectification work in response to the direction.

  1. [50]
    The QBCC submits that the owner’s awareness of the Terms of Cover does not affect the applicability and time limits,[29] and notes that it is irrelevant that the licensee did not pay the insurance premium at the date of the work under the relevant provisions of section 68H of the relevant QBCC Act:[30]
  1. (1)
    cover under the statutory insurance scheme comes into force if –
  1. (a)
    a consumer enters into a contract for the carrying out of residential construction work and –
  1. (i)
    the contract bears the licence number of a licensed contractor and, under the licensed contractor’s licence, the licenced contract or may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme…
  1. (2)
    Subsection (1) applies whether or not an insurance premium has been paid, or a notice of cover has been issued, for residential construction work under this part.
  1. [51]
    The Commission submits that pursuant to section 68I(1)(b) of the relevant QBCC Act, cover under the scheme commenced on the date the contract was signed, on 30 October 2017; regardless of the licensee’s non–payment of the insurance premium at that time.[31]

Further Submissions of the QBCC on questions of law

(a) Residential construction work

  1. [52]
    In response to the question asked in direction (a) as to what constitutes ‘residential construction work’, the QBCC submits that while it is arguable that the rectification work may constitute ‘residential construction work’, the time limit for making a claim under section 16(3) of the Terms of Cover is not ‘reset’ upon the licensee undertaking rectification work.[32]
  2. [53]
    The QBCC notes that in Davis & Ors v Queensland Building and Construction Commission,[33] the Tribunal considered whether rectification attempts ‘reset’ the statutory time limit for issuing a Direction to Rectify, where same was an attempt to repair original building work, and that Member Howe in that decision held that it did not.
  3. [54]
    The Commission submits that the work done by the builder after the owner complained, is more accurately described as ‘rectification work’ rather than ‘new work’.[34]
  4. [55]
    The QBCC notes that section 14 of part 3 of the Terms of Cover provides a limit on the application of part 3, namely ‘this part applies to residential construction work that is primary insurable work if it is defective’.
  5. [56]
    The QBCC submits that the Tribunal could be satisfied that the rectification work undertaken for complaint items 1, 3, 4, 5, 8, 10 and 11 was defective, on the basis of the Commission’s decision that the building work carried out in response to the direction was not of a satisfactory standard.[35]
  6. [57]
    The QBCC submits that it does not have the benefit of the builder’s evidence as to the exact nature and cost of the rectification work, and that Mr Murphy the building inspector has not provided a statement as to the estimated value of the rectification work.[36]
  7. [58]
    It submits that it is not determined that the rectification work would be over $3,300:[37]

21. Without the benefit of this further evidence, the Commission, and the Tribunal standing in its shoes, is unable to form a conclusive view on whether the ‘insurable value’ of the rectification work is more than the ‘regulated amount’ of $3300. For the reasons that follow, the Commission submits this is not determinative.

  1. [59]
    The QBCC submits that rectification work does not reset the time for lodging a complaint:[38]

24. In the Commission’s submission, it cannot be the case that every attempt to rectify defective work over $3,300 resets a strict statutory time frames [sic] under the Terms of Cover. Such an application would allow for re-occurring, limitless extensions of statutory time frames (far beyond the date the original defect was noticed), resulting in the unsustainable administration of the scheme.

25. While it is arguable the rectification work may constitute ‘residential construction work ‘, the Commission submits that the time limit for making a claim under section 16 (3) of the Terms of Cover is not ‘reset’ upon the licensee undertaking rectification work.

(b) Estoppel

  1. [60]
    The QBCC submits that the larger question of whether estoppel applies in the context of administrative decision-making, particularly under the QBCC act, remains unsettled.[39] It refers to the decision in Webb v Queensland Building Services Authority[40] where the Member held in the context of a licence application that estoppel did not apply to the Commission.[41] It also refers to converse comments which I made in Auret v Queensland Building Services Authority & Anor[42] where I said that I accept that estoppel may be available against the authority in an appropriate case.[43]
  2. [61]
    The QBCC notes the owner’s response to the directions, where she alleges that: [44]

At close of Robert’s second inspection of the rectified, defective work, he assured me that the matter would now progress to the assessment team, and a tender would be put in place for quotes to have an independent builder to satisfactorily rectify my deck

and submits that progression to the Commission’s assessment team for determination of entitlement to a claim under the scheme, is no guarantee of assistance under the scheme.

  1. [62]
    The QBCC submits that there is no evidence that the inspector made any representations as to assistance under the scheme, either at the initial inspection on 12 March 2019 or at the reinspection on 7 May 2019.[45]
  2. [63]
    Further, the Commission submits that the applicant did not rely on any representations if they were made:[46]

37. On the contrary, by the applicant’s own evidence at the hearing, the applicant conceded that she chose not to exercise her rights by pursuing the licensee (her neighbour) as she did not want to ‘make waves ‘. In the Commission’s submission, this demonstrates that the applicant’s failure to exercise her rights against the licensee was not induced by, or in reliance on, any representation by the Commission.

  1. [64]
    QBCC submits that it is not novel that time limits for a Direction to Rectify may be met, even where assistance under the scheme is later unavailable,[47] and that it cannot be the case that assistance under the scheme automatically follows from the giving of a Direction to Rectify.[48]

(c) What is a claim?

  1. [65]
    The Commission notes that a consumer must give ‘notice’ of a claim under the scheme under section 71C of the QBCC Act,[49] and that the only requirement in the Terms of Cover which prescribes the requirements, is section 65 which provides that the notice of claim must be in writing and include any other information the Commissioner reasonably requires to decide the claim.[50]
  2. [66]
    The QBCC submits that the complaint form is an administrative form, and serves the purpose of a ‘claim for assistance’: [51]

55. The Commission’s Residential and Commercial Construction Work Complaint Form (complaint form) is merely an administrative form which allows the Commission, as a large body corporate, to receive and assess the significant number of matters referred to it.

56. There is no specific power relevant to the complaint form; rather, the collection of information by way of the complaint form falls under the Commission’s function to administer the QBCC Act. To that end, the information collected on the complaint form serves a dual purpose of assisting to resolve a dispute between a homeowner and contractor or, and to assess whether a homeowner is entitled to a claim under the scheme. Notably, the key dates and amounts contained in the complaint form are utilised throughout the Commission’s assessment process.

57. The Commission submits that in this matter, the complaint form serves the purpose of the applicant’s ‘claim for assistance ‘, and falls within the definition within section 71C of the QBCC Act and section 65(5) of the Terms of Cover by virtue of being a notice to the Commission given in writing.

Discussion

  1. [67]
    The owner is a semi-retired hairdresser, who describes herself as an ‘ordinary person’ and does not have experience in building, or knowledge of construction law, and who appears to be of modest means.
  2. [68]
    The history of the matter is not in dispute:
    1. (a)
      The owner engaged a licensed builder, who was a neighbour.
    2. (b)
      The builder conducted works for which she paid $27,000.
    3. (c)
      A QBCC inspector considered that the initial work was defective, and issued a Direction to Rectify.
    4. (d)
      The builder conducted rectification works.
    5. (e)
      A QBCC inspector formed the view that the rectification works were also defective.
    6. (f)
      The builder was prosecuted for several offences under the QBCC Act, and fines were imposed.
    7. (g)
      The matter was referred to the QBCC insurance section for approval of the claim under the statutory insurance scheme.
    8. (h)
      The claim under the insurance scheme was refused for being out of time.
  3. [69]
    The timeline of the matter is also not in dispute:
    1. (a)
      the builder conducted initial work in November 2017;
    2. (b)
      an officer of the Moreton Bay Regional Council conducted an inspection of the premises on 5 December 2017;
    3. (c)
      the owner received a show cause notice from the Council dated 13 March 2018;
    4. (d)
      the owner immediately contacted a certifier, designer, engineer, and the builder, upon receiving the show cause notice from the Council;
    5. (e)
      the builder told the owner that he would conduct further works in November 2018;
    6. (f)
      the builder’s solicitor advised on 15 October 2018 that the builder had complied with his contract;
    7. (g)
      the owner lodged a complaint with the QBCC on 5 December 2018;
    8. (h)
      a QBCC inspector inspected the works on 12 March 2019;
    9. (i)
      the builder was issued a Direction to Rectify on 21 March 2019;
    10. (j)
      the builder conducted further works in April 2019;
    11. (k)
      a QBCC inspector reinspected the works on 7 May 2019;
    12. (l)
      the QBCC made an initial decision to disallow a claim by the owner under the statutory insurance scheme on 23 May 2019;
    13. (m)
      the QBCC made an internal review decision, confirming the decision to disallow a claim by the owner under the statutory insurance scheme, on 28 June 2019.
  4. [70]
    The circumstances of the making of the contract was not canvassed at the hearing, but the positions of the owner and the builder can be ascertained from material attached to the QBCC statement of reasons.
  5. [71]
    The position of the builder appears from the letter of its solicitors dated 15 October 2018.[52] That letter says that the owner told the builder that she did not want to incur the costs of engineered drawings and Council approval, and it was agreed that the quote would not include engineered drawings and Council approval and that the owner assumed the risk of not getting Council approval. It states the builder’s position as follows:

Our client has completed the contract and been paid for that work.

The risk of the Council later wanting the deck approved by it was always your risk. You suggest that our client should now renovate the deck at no cost however our client did the job it was paid to do. It was your choice to get Council approval and have the deck builder accordingly or not to do that and save money.

Having chosen to save money then you cannot now ask our client to do what you chose not to pay for previously.

  1. [72]
    The owner replied to the letter from the builder’s solicitors, and took issue with that. In a return email to the solicitors she said that she was relying on representations by the builder that the work could be satisfactorily done without approvals:[53]

When finally I did sell (a property in Clontarf) in August 2017, I again contacted Paul about the deck, as his original quote was only valid until 10 July 2017, and told him that I had been advised by a friend to get a building approval so as to insure my home properly, so I said I thought of doing that. He said that I wouldn’t get it through Council and built before Christmas because he was so busy. He said he could start my job in November, and stated emphatically that I would have no trouble getting the approval after it was built. I was planning a family Christmas at my new home, and was anxious to get done.

I was not aware of the correct legal building procedure, so I trusted Paul, as he is the builder, with a licence, and as such is the ‘professional’. I honestly thought he was doing the right thing by me.

  1. [73]
    The builder in a letter to the QBCC inspector asserted that he had told the owner at the time of quoting that if Council approval and drawings were not supplied there was no guarantee the work would pass Council approvals at a later date and that this was a risk that she would be responsible for, which she accepted as she did not want the extra cost or timelines,[54] and outlined the repairs that he was prepared to undertake:

On 11 July 2018 Marie contacted me and now gave me a set of drawings, specifications and details, and I was told that I now have to come and renovate [the] deck to meet Council approvals at no cost to Marie. I explained to Marie that without drawings there was always a risk the deck might not pass as I had no specifications to build to (which fell on deaf ears).

I was willing to carry out any minor items to help Marie at no cost to her but Marie was quite adamant I was responsible for everything.

Therefore no point in me trying to help.

  ……….

I am happy to repair any real defects at my cost but not any items that have now arose as we had no plans, specifications, fixing details etc at the time of construction.

  1. [74]
    The QBCC contends that the owner first became aware, or ought reasonably to have become aware of the defects between November 2017 and December 2017, and that a three month time limit for her to make a claim on the statutory insurance scheme ran from that time.
  2. [75]
    The owner was obviously aware of defects in the work in December 2017, as she was so advised by an officer of the Moreton Bay Regional Council.
  3. [76]
    The owner did not submit a complaint form to the QBCC until 2 December 2018, which was about 12 months after she was aware of defects in the work.
  4. [77]
    The reason why the owner did not make a complaint to the QBCC until almost a year had passed after she became aware of the defects is explained by her as follows:
    1. (a)
      Immediately when she received the show cause notice from the Council, in March 2018, she contacted a certifier, designer, engineer, and the builder, none of whom alerted her to a need to make a complaint to the QBCC at that time;
    2. (b)
      the builder told her in March 2018 that he would come back and rectify the work in November 2018, which she accepted, and believed would occur; and
    3. (c)
      when the builder did not rectify the work she again contacted the certifier, who then advised her to lodge a complaint with the QBCC, which she did soon after.
  5. [78]
    The owner has not initiated proceedings in the nature of a building dispute against the builder at any time.
  6. [79]
    The builder did not initially take out a policy of insurance with the QBCC at the date of signing the contract on 30 October 2017, but did so on about 28 June 2018, which he says he did at the request of the owner.[55]
  7. [80]
    The builder conducted initial works, and then conducted rectification works which the QBCC considers were not satisfactory.
  8. [81]
    The central contention of the QBCC is that the relevant date from when a claim on the scheme should be made is when the owner became aware, or should have become aware, that the initial works were defective, and that the subsequent rectification works do not ‘reset’ the time period.
  9. [82]
    Were it not for the issue as to whether a claim against the statutory insurance scheme was made within three months of her becoming aware of defects in the work, there does not appear to be any reason why a claim against the scheme would not have been accepted.
  10. [83]
    In considering whether to issue a Direction to Rectify, the QBCC considers whether it is fair to the builder to give the direction, under section 72(5) of the QBCC Act. In this matter, the inspector had received communication from the builder as to the non-provision of engineered plans. The absence of plans would not remove the builder’s obligation to perform work in a proper manner within the expected competence of a builder of the licence class.[56]
  11. [84]
    The QBCC obviously considered it was fair to issue the Direction to Rectify to the builder, and the builder did not seek to review the decision to issue the Direction to Rectify.
  12. [85]
    The owner has been left in the position where it is not in dispute that she has paid for building work, that the initial and subsequent building work is defective, and she would appear to have a valid claim against the statutory insurance scheme, but for the time issue.
  13. [86]
    The owner is understandably left in a bewildered and aggrieved position. She has paid the full amount agreed for work that is substantially defective. The builder has been given a Direction to Rectify defects of a structural nature. The builder has been prosecuted by the QBCC for specific offences for non-payment of the insurance premium, commencing works before the contract complies with requirements, and demanding or receiving an excessive deposit - but there is no further consequence benefitting the owner in relation to the Direction to Rectify which the builder failed to satisfactorily comply with. The owner has been told by the QBCC that her claim against the statutory insurance scheme will not be accepted due to the timing issue.
  14. [87]
    It is acknowledged by the QBCC that there is a Consumer Protection Purpose in the QBCC Act. It says that its hands are tied as the 2016 amendments to the Act contain a Scope Limitation Purpose, which imposes a strict three month time limit, and which the Commission has no discretion to extend.
  15. [88]
    It could be expected that members of the public would be as disturbed as the owner is, by this chain of events. In essence, a consumer has engaged a builder who has taken her money, but failed to deliver properly constructed work, and she has been refused cover under a scheme of insurance which exists to cover such a situation, on the basis that she was nine months late in notifying the QBCC of the defects, despite the QBCC seeing fit to issue a Direction to Rectify for unsatisfactory structural work about four months after she notified the QBCC of the defects.
  16. [89]
    At the end of the hearing, I identified three specific legal questions, and sought submissions from the parties as referred to in these reasons, and I will discuss these in turn.

Residential construction contract

  1. [90]
    The QBCC agreed that the Tribunal could be satisfied that the rectification work undertaken by the builder in relation to defective items was not of a satisfactory standard, and that it is arguable that the rectification work may constitute ‘residential construction work’, if the value of the work exceeds $3,300.
  2. [91]
    The QBCC submits that there is no evidence in this matter that the rectification works exceed $3,300 in value, and therefore it is not determined that the rectification required may not come within the definition of ‘residential construction work’.
  3. [92]
    The owner has included in her bundle of material a quote from Infinity Decking dated 13 May 2020 to replace the deck and install a new insulated roof for $67,850.[57] No cross examination was conducted as to this aspect of the matter, and it may be that the quote is for a scope of work in excess of the rectification required by the Direction to Rectify which was not complied with. The quote does however serve to give an indication that the rectification work would be of significant cost.
  4. [93]
    Whilst there was no specific evidence given as to the quantum of the rectification required, I consider that it is obvious that the value of the defective work in question would clearly exceed $3,300. A simple perusal of the list of defective work compiled by the inspector at the second inspection would indicate, as a matter of common sense, that the cost would significantly exceed $3,300. The list is as follows:
    1. (a)
      Item 1 – The installation of the timber bearer, mid-span to the deck is deficient and not in compliance with AS 1684 – Residential Timber Framed Construction and Timber Queensland technical data sheet No. 4, in that the 2 x 190mm x 45mm pine bearers are insufficient to span the required distance which has resulted in a structurally deficient structure that may lead to creating a safety issue for the occupants – Pertains to item ‘1’ on the QBCC complaint form.
    2. (b)
      Item 3 – the installation of the timber bearer/s and span, are deficient and not in compliance with AS 1684 – Residential Timber Framed Construction and Timber Queensland technical data sheet No. 4 in that (a) the two hardwood bearers are insufficient to span required distance, and (b) roof loads have not been transferred directly to the ground floor steel posts which has resulted in a structurally deficient structure that may lead to creating a safety issue for the occupants – Pertains to Item ‘3’ on the QBCC complaint form.
    3. (c)
      Item 4 – the installation of the timber stairs to the rear deck is defective, has not been completed with due care and attention to detail, and not in compliance with Building Code of Australia NCC, Timber Queensland technical data sheets and the Queensland Government, Department of Agriculture, Fisheries and Forestry – construction timbers in Queensland, in that (a) inconsistent rises and gaps greater than 125mm and non-compliant head height has created a safety issue for the occupants, (b) timber selected for handrail material is not durable for the intended purpose, and (c) stringers not being securely fixed into position and in contact with the ground has resulted in a structurally deficient access – Pertains to items 4, 6, 7, 13 and 14 on the QBCC complaint form.
    4. (d)
      Item 5 – the installation of the timber joists to the rear deck have not been installed in a tradesman like manner and within acceptable building standards, in that the new pine joists are not bearing onto bearers which has resulted in structurally deficient structure – Pertains to item 5 on the QBCC complaint form.
    5. (e)
      Item 8 – the installation of the decking boards to the rear deck has not been completed to a reasonable standard of workmanship and finish expected of a competent holder of a trade contractor’s licence, does not comply with the requirements of Timber Queensland, in that protruding fixings, butt joins that are not staggered, decking supported on joistshas resulted in presenting an unacceptable surface finish and creating a safety issue for the occupants – Pertains to item 11 on the QBCC complaint form.
    6. (f)
      Item 10 – the construction detail encompassing the exposed right-hand post/beam to the upper level of the deck has not been completed within acceptable building practices, in that no priming of the joint prior to installation, no provisions for the timber to shed water has resulted in reducing the longevity of the components – Pertains to item 15 on the QBCC complaint form.
  5. [94]
    I am satisfied on the basis of the reports of the QBCC inspector, which were not contradicted in any way, that both the initial building work and the rectification work was defective; and I am also satisfied that the cost of rectification would exceed $3,300.
  6. [95]
    I consider that the rectification work comes within the definition of ‘residential construction work’ within the Terms of Cover of the scheme.

Estoppel

  1. [96]
    The QBCC submitted that the question of whether estoppel applies in the context of administrative decision-making under the QBCC Act remains unsettled.
  2. [97]
    I adhere to my view expressed in 2013 in Auret v Queensland Building Services Authority & Anor[58] that estoppel may be available against the authority in an appropriate case, for reasons as expressed in that decision.
  3. [98]
    I accept the submission of the QBCC that progression to the Commission’s assessment team for determination of entitlement to a claim under the scheme is no guarantee of assistance under the scheme, and I do not consider that a mere referral to the insurance arm of the Commission would create an estoppel prohibiting a claim being refused in proper circumstances.
  4. [99]
    One of the essential elements to create an estoppel is that a party must have relied, to their detriment, upon representations made by the other party.
  5. [100]
    In this matter, the representation that the owner could be seen to have been acting upon was a representation, as she understood it, that a reference to the insurance arm of the QBCC would result in acceptance of the claim, and in the works being repaired under the scheme.
  6. [101]
    The step that the owner may be considered to have refrained from taking, would be the institution of proceedings against the builder for breach of the building contract. No other step has been identified.
  7. [102]
    The QBCC submits that the applicant did not rely on any representations, if they were made, as she conceded that she chose not to exercise her rights at any stage by pursuing the builder (who was a neighbour) as she did not want to ‘make waves’.
  8. [103]
    The owner said at the hearing that she could not afford the legal fees to conduct litigation against the builder.
  9. [104]
    It is not established that the owner suffered damage by relying on the alleged representation, as she was still free to institute proceedings against the builder after she was advised that her claim was being rejected.
  10. [105]
    A necessary element to give rise to an estoppel, as to reliance on a representation causing detriment, is therefore not established, and an estoppel against the QBCC thereafter denying cover under the statutory insurance scheme therefore does not arise.

Time

  1. [106]
    The central issue in this matter is the question of time.
  2. [107]
    The QBCC contends that time is not ‘reset’ by the builder conducting rectification work, and submits that if strict statutory time frames under the Terms of Cover were reset whenever rectification work was attempted, that this would result in the unsustainable administration of the scheme.
  3. [108]
    The Commission referred to the decision of the Tribunal in Davis & Ors v Queensland Building and Construction Commission.[59] In that matter the Tribunal considered the situation where work was completed on 10 July 2009 and defects as to water penetration were first noticed in December 2014 or January 2015, and the builder returned and carried out some rectification work. The QBCC received further complaints in November 2017. The QBCC declined to issue a Direction to Rectify in relation to the further complaints, as it considered the complaint was lodged outside the six year and six months period permitted under the timeframe prescribed by s 71J and s 72A(4) of the QBCC Act.
  4. [109]
    The Member considered that the six year and six month time limit under s 72A(4) was not reset from 2015 when the builder undertook rectification work.[60]
  5. [110]
    The Member also considered that the 2015 work was work done to try to rectify a water entry problem resulting from the 2009 work, and said that:[61]

[66]  The primary complaint here is not that the 2015 work is defective. The primary complaint is that, despite the 2015 work, the 2009 work has not been rectified.

[67]  This is the view of QBCC and why QBCC took issue with the description of the 2015 work as new work. I agree.

[68]  There is no reasonable basis to maintain that attempting to utilise a new remedy to rectify defective building work subject to the s 72A(4) time limit elevates the novel remedy to the status of new building work triggering a new 6 year and 6 month limitation period for the new building work.

  1. [111]
    The QBCC has submitted that the scheme would become unworkable if time was ‘reset’ each time that rectification works conducted. This is an argument that such a result would be against public policy.
  2. [112]
    There is another issue of public policy however as to the effect of a Direction to Rectify in these circumstances, that should be considered, having regard to consumer protection purposes. The situation which results is that the QBCC may issue a Direction to Rectify, in a matter where the owner is said to have advised the QBCC of the defects more than three months after she became aware of them, and the Direction to Rectify would have no consequence benefiting the owner if the builder failed to comply with it.
  3. [113]
    There are consequences for a builder for failure to comply with a Direction to Rectify in relation to the QBCC, which do not affect a consumer:[62]
    1. (a)
      the failure to rectify may appear on the builder’s public record marked as ‘not complied’, which is searchable by the public through the QBCC website;
    2. (b)
      a fine of $2,669 may be imposed by the QBCC; or if prosecuted in the courts, a fine of up to $33,362.50 for an individual, or $166,812.50 for a company, may be imposed;
    3. (c)
      up to 10 demerit points may be imposed on the builder’s licence.
  4. [114]
    The consequence to an owner in a similar situation to the owner in this matter is that:
    1. (a)
      a Direction to Rectify may be given, and may not be satisfactorily complied with by the builder, and
    2. (b)
      if cover under the statutory insurance scheme is denied for any reason, that
    3. (c)
      there is no further effect of the Direction to Rectify in relation to the owner’s interests as a consumer.
  5. [115]
    This consequence raises questions as to the efficacy of a Direction to Rectify. If the QBCC declines cover under the statutory insurance scheme, there is then no consequence for the builder for its failure to comply with the Direction to Rectify, which would reimburse the owner for the defects.
  6. [116]
    It may still be open to an owner to commence or continue proceedings directly against the builder if cover under the statutory insurance scheme is denied, however this requires the owner to engage in litigation with its attendant costs, time and uncertainty.
  7. [117]
    This would appear to raise a question of public policy as to the force of Directions to Rectify. This may encourage a situation where a builder might take the chance that cover would be denied for some reason, and deliberately not comply with Directions to Rectify, feeling secure in the knowledge that in that case there would be no monetary consequence as to the rectification cost of their work. This may particularly be so where the builder considers that the owner is not in a financial position, or unlikely for some reason, to pursue further proceedings against them.
  8. [118]
    The issuing of a Direction to Rectify would not be determinative in civil proceedings by an owner against a builder. This matter raises a question as to whether a Direction to Rectify should have greater impact in relation to a consumer, so as to further encourage a builder to comply with a Direction to Rectify.

The making of a claim

  1. [119]
    The QBCC submitted that a ‘claim’ against the scheme must be in writing and include any other information prescribed by a regulation that the Commission reasonably requires to decide the claim. There does not appear to be any specific form to ‘claim’ against the scheme.
  2. [120]
    The QBCC submitted that the ‘complaint form’, which is the formal notification to the Commission of alleged defective building work, is an administrative form which serves the purpose of being a ‘claim for assistance’ under the scheme.
  3. [121]
    It is peculiar that there is no specific time which can be identified as a point at which a ‘claim for assistance’ is made against the scheme. The practice is that if a Direction to Rectify is not complied with, the matter is then referred internally within the QBCC to the insurance section, without any further input from the consumer. The actual date at which the ‘claim for assistance’ is formally received by the insurance section of the QBCC for consideration is not identified.
  4. [122]
    Section 15(1) of the Terms of Cover refers to a consumer being entitled to claim assistance for the reasonable cost of rectification work. Section 16 of the Terms of Cover provides that a claim must be made for a structural defect within three months after the day the consumer first becomes aware, or ought reasonably to have become aware, of the defect in the work.
  5. [123]
    Whilst the submissions of the QBCC are that the complaint form ‘serves the purpose’ of being a ‘claim for assistance’, it is not clear under the Terms of Cover that this is the case. The practical reality is that a claim for assistance is not made until after a Direction to Rectify is not complied with, and the matter is referred to the insurance section of the QBCC.
  6. [124]
    Where a builder has come back and performed rectification work, the consumer would clearly only be making a ‘claim for assistance’ for remaining defective work. The defective work that the consumer would be seeking to make a claim in respect of, is obviously the defective work as at the time of the builder completing their purported rectification.
  7. [125]
    The owner was not aware of the remaining defective work until the report of the QBCC inspector dated 7 May 2019 was received by her.
  8. [126]
    Whilst the owner made a ‘complaint’ in the standard form on 5 December 2018 in relation to a longer list of defective works, the matters that she was actually making a ‘claim for assistance’ for, were those matters identified by the QBCC inspector on 7 May 2019. However, the legislation does not recognise that situation.

Conclusion

  1. [127]
    This matter highlights elements of unfairness which can be observed in the current operation of the statutory insurance scheme, due to the effect of a strict and very limited limitation time for complaint of three months from becoming aware of the defects, which was introduced by the 2016 amendments.
  2. [128]
    It is not in contention that the owner did not formally make a complaint to the QBCC until about 12 months after she first became aware of the defects. Her reasons for not make a complaint earlier are as discussed in these reasons, and centralise on her being unaware of the limitation period, and relying upon the expressed intent of the builder to return and rectify the defects.
  3. [129]
    The QBCC inspector saw fit to issue a Direction to Rectify to the builder. The builder failed to satisfactorily rectify the defects. The owner understood that the consequence of the builder failing to rectify the defects would be that the defects would then be repaired under the policy of insurance.
  4. [130]
    The insurance section of the QBCC then declined cover, having regard to the limitation period.
  5. [131]
    In considering this matter, both at the hearing, and upon considering submissions as requested, I have considered whether the owner’s position was assisted by consideration of the provisions in the Terms of Cover as to the status of the rectification work as residential construction work, the nature of a claim upon the insurance scheme and the time at which it became effective, and whether any estoppel arises as a result of the issuing of the Direction to Rectify and the referral to the insurance section.
  6. [132]
    I am satisfied that the rectification work that was directed to be performed, was residential construction work within the Terms of Cover. I do not consider that an estoppel arises in this matter against the QBCC declining cover under the insurance scheme.
  7. [133]
    I have not been able to determine a proper basis upon which the time limitation period would relate to the date when the rectification work was attempted by the builder, as the relevant section is framed in wording that relates to the date when the owner becomes aware, or ought to have become aware, of the defect.
  8. [134]
    If it were open to me to extend the time for lodgement of the complaint with the QBCC, I would extend the time, as:
    1. (a)
      I consider that the owner would be able to show a valid reason why she filed the complaint 12 months after she first became aware of the defects, and not within the required three months.
    2. (b)
      The owner had consulted the builder, a certifier, a designer, and an engineer, within those 12 months, and none of them had alerted her to the need to file a complaint within a period of three months of becoming aware of the defects.
    3. (c)
      She had also relied upon the representation of the builder that he would be coming back to repair the defects.
    4. (d)
      There is no suggestion that the builder was adversely affected by the lodging of the complaint after 12 months, and the builder did in fact return and attempt rectification work after the date of the complaint.
  9. [135]
    I would anticipate that the QBCC would similarly have extended the time of lodgement of the complaint with it, under the discretion available to it prior to the 2016 Amendment.
  10. [136]
    The consequence is that the decision of the QBCC to decline cover under the policy must be confirmed, notwithstanding that I consider there to be an inherent injustice in that outcome as a result of the legislative provisions.
  11. [137]
    I urge that the removal of discretion from the QBCC, as to extending the time for consideration of a claim under the insurance scheme, be reconsidered by the relevant authorities, and by the legislature, with consideration of further legislative amendment, as soon as possible, to avoid inevitable further such unjust outcomes occurring in the future.
  12. [138]
    The decision of the QBCC made on 28 June 2019 to disallow the claim made under the Queensland Home Warranty Scheme is confirmed.

Footnotes

[1]  Statement of Marie Walker, tab 4 QBCC Hearing Brief, [3].

[2]  Ibid.

[3]  Ibid.

[4]  Ibid [4] – [12].

[5]  Letter Sheryl Harvey to ‘whom it may concern’, 16 September 2019.

[6]  QBCC Statement of Reasons, [11] – [12].

[7]  Ibid [16][18].

[8]  Ibid [19].

[9]  Ibid [22].

[10]  Ibid SOR-13.

[11]  Letter QBCC to Ms Walker, 30 August 2019.

[12]  Email Marie Walker to the Tribunal and the QBCC, 9 August 2020.

[13]  Written submissions of the Commission to be relied upon at oral hearing dated 14 July 2020.

[14]  Submissions in response to directions dated 28 July 2020, filed 25 August 2020.

[15]  Written submissions of the Commission to be relied upon at oral hearing dated 14 July 2020, [16] – [18].

[16]  Ibid [23].

[17]  Ibid [26].

[18]  Ibid [24].

[19]  Ibid [29].

[20]  Ibid [30].

[21]  Ibid [41].

[22]  Ibid [42].

[23]  Ibid.

[24]  Ibid [47].

[25]  Ibid [52].

[26]  Ibid [54].

[27]  Ibid [57].

[28]  Ibid [62] – [63].

[29]  Ibid [64].

[30]  Ibid [67].

[31]  Ibid [68].

[32]  Submissions in response to directions dated 28 July 2020, [25].

[33]  [2020] QCAT 189.

[34]   Submissions in response to directions dated 28 July 2020, [6].

[35]  Ibid [14].

[36]  Ibid [19] – [20].

[37]  Ibid [21].

[38]  Ibid [24] – [25].

[39]  Ibid [26].

[40]  [2012] QCAT 145.

[41]  QBCC submissions in response, [29].

[42]  [2013] QCAT 623.

[43]  Ibid [135].

[44]  QBCC submissions in response, [32].

[45]  Ibid [35].

[46]  Ibid [37].

[47]  Ibid [45].

[48]  Ibid [48].

[49]  Ibid [51].

[50]  Ibid [52].

[51]  Ibid [55] – [57].

[52]  QBCC statement of reasons p 56.

[53]  Ibid p 58.

[54]  Email Mr Staveley to Mr Murphy 4 March 2019 (‘SOR-6’) Hearing Brief p71.

[55]  Ibid p 71.

[56]  Ref: Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127; Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 042;  Hiettecorp Pty Ltd atf Hiette Unit Trust v Queensland Building and Construction Commission [2018] QCAT 105.

[57]  Tab 4 of the QBCC hearing brief.

[58]  [2013] QCAT 623.

[59]  [2020] QCAT 189.

[60]  Ibid [48].

[61]  Ibid [66] – [68].

[62]  QBCC current Fact Sheet ‘QBCC’s dispute resolution process’.

Close

Editorial Notes

  • Published Case Name:

    Walker v Queensland Building and Construction Commission

  • Shortened Case Name:

    Walker v Queensland Building and Construction Commission

  • MNC:

    [2021] QCAT 32

  • Court:

    QCAT

  • Judge(s):

    Member Paratz AM

  • Date:

    27 Jan 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Auret v Queensland Building Services Authority & Anor [2013] QCAT 623
3 citations
Jump To
Cite 1 - [2013] QCAT 623
Cite 2 - [2013] QCAT 623
Cite 3 - [2013] QCAT 623
Davis v Queensland Building and Construction Commission [2020] QCAT 189
3 citations
Jump To
Cite 1 - [2020] QCAT 189
Cite 2 - [2020] QCAT 189
Cite 3 - [2020] QCAT 189
Glen Williams Pty Ltd v Queensland Building Services Authority [2012] QCAT 127
2 citations
Jump To
Cite 1 - [2012] QCAT 127
Cite 2 - [2012] QCAT 127
Hiettecorp Pty Ltd v Queensland Building and Construction Commission [2018] QCAT 105
2 citations
Jump To
Cite 1 - [2018] QCAT 105
Cite 2 - [2018] QCAT 105
Imperial Homes (Queensland) Pty Ltd v Queensland Building and Construction Commission [2014] QCAT 42
2 citations
Jump To
Cite 1 - [2014] QCAT 42
Cite 2 - [2014] QCAT 42
Webb v Queensland Building Services Authority [2012] QCAT 145
1 citation
Jump To
Cite 1 - [2012] QCAT 145

Cases Citing

Case NameFull CitationFrequency
Ahmet v Queensland Building and Construction Commission [2022] QCAT 4172 citations
Frame v Queensland Building and Construction Commission [2024] QCAT 633 citations
Hayward v Queensland Building and Construction Commission [2021] QCAT 1697 citations
Hayward v Queensland Building and Construction Commission [2021] QCAT 1807 citations
Messaoudi v Queensland Building and Construction Commission [2021] QCAT 1242 citations
Miller v Queensland Building and Construction Commission [2024] QCAT 2312 citations
Perry v Queensland Building and Construction Commission [2022] QCAT 2342 citations
Seitz v Queensland Building and Construction Commission (No 2) [2023] QCAT 4382 citations
TCQ Pty Ltd ATF Midgley Family Trust v Queensland Building and Construction Commission [2023] QCAT 4852 citations
1

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