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  4. Peterson v Queensland Building and Construction Commission - [2022] QCAT 347

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Peterson v Queensland Building and Construction Commission[2022] QCAT 347

Peterson v Queensland Building and Construction Commission[2022] QCAT 347

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Peterson v Queensland Building and Construction Commission [2022] QCAT 347

PARTIES:

scott peterson

(applicant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR148-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 August 2022

REASONS DELIVERED:

13 October 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Traves

ORDERS:

  1. The application to extend time filed by the applicant on 30 May 2022 is allowed.
  2. The time for filing the application for review is extended to 14 April 2022.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – whether to extend time to file application to review pursuant to s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where review of decision of decision to disallow claim under the statutory insurance scheme – where owner completed work to rural shed – whether Schedule 6, s 64 of the Queensland Building and Construction Commission Regulation 2018 applies to exclude claim

Queensland Building and Construction Commission Act 1991 (Qld), s 67Y, s 67WC, s 86, s 87, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 6, s 64

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 61

Jensen v Queensland Building and Construction Commission [2017] QCAT 232

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    On 14 April 2022 Mr Peterson filed an application to review a decision by the Queensland Building and Construction Commission made on 14 March 2022 to decline his claim made under the Queensland Home Warranty Scheme.
  2. [2]
    The application to review was required to be filed within 28 days of being notified of the decision, that is, on or before Monday, 11 April 2022. Mr Peterson’s application was, therefore, filed 3 days late.
  3. [3]
    On 30 May 2022 Mr Peterson filed an application to extend the time for filing his application to review. Mr Peterson submits that he posted the application to review on 9 April, which was within time and that therefore the extension should be allowed.
  4. [4]
    The Queensland Building and Construction Commission filed submissions opposing the extension. The primary reason for opposing the extension related to the strength of the applicant’s case. In effect, the Commission submitted that due to its construction of the relevant terms of cover, Mr Peterson’s case could not be viewed as having strength or merit. Accordingly, the Commission sought orders that the extension of time be refused and the review application dismissed.

Background

  1. [5]
    Mr Peterson is the owner of a rural property in Boonooroo, Queensland.
  2. [6]
    On 17 December 2020 Outback Sheds Pty Ltd gave Mr Peterson a written quote for  $68 399.90 for the construction of a “woodland grey” kit shed, 197.8m2 in size, kit specifications: 30121709072256.
  3. [7]
    The kit price was $29, 826.73. The extras were as follows:

Insulation

$3, 900

Construction by Raregem Pty Ltd

$11, 900

Concrete on flat site

$15, 000

Council application

$880.00

QBCC fees

$625.00

Waste levy

$50.00

  1. [8]
    On 24 December 2020 Mr Peterson entered into a Basic Works Contract with Raregem Pty Ltd. The contract price was $31, 300.50. The construction period was 180 days and the date for commencement was “February”. Practical completion was “the last day of the construction period from the date of commencement”.
  2. [9]
    The works were divided into 2 stages: Stage 1, Slab completion ($18, 210.50) and stage 2, practical completion ($13, 090.00).
  3. [10]
    On 13 December 2021 Mr Peterson lodged a non-completion claim with the Commission about the non-completion of the contracted work by Raregem Pty Ltd. In the complaint Mr Peterson stated that the work was at the “base stage” and in describing what stage the work was up to stated: “Slab completed. Shed build not commenced”.
  4. [11]
    The complaint stated that there were an additional variation costs of $6, 179.47 bringing the total amount for construction to $72, 305.64, $60, 754.72 had been paid and $13, 824.65 still owing. The work started on 1 October 2021 and stopped on 10 October 2021.
  5. [12]
    On 10 March 2022 Sedgwick Building Consultants (on the Commission’s behalf) conducted an on-site inspection for the purposes of assessing whether Mr Peterson’s claim under the scheme was payable. Sedgwick’s Non-Completion Assessment Report dated 11 March 2022 states the contract value to be $72, 305.64. The Report confirms that the owner had paid a total of $60, 754.74, approximately 83% of the total building contract amount, leaving $11, 550.90 remaining liability as per the building contract. The Report concludes that the build was 100% complete and that the estimate of the work required to complete the contracted works was “N/A Build 100% complete, the Homeowner engaged an alternative Builder to complete construction”. The Report listed nil items for claim acceptance as the work was now 100% complete.
  6. [13]
    By the time of the inspection, Mr Peterson had engaged an alternative local builder to complete the construction of the kit shed.
  7. [14]
    On 14 March 2022 the Commission received a copy of the Sedgwick Report. The Commission wrote to Mr Peterson the same day notifying him that his non-completion claim was denied in full on the basis he had proceeded to reinstate the built work without the approval of the Commission within the meaning of Schedule 6, s 64 of the Queensland Building and Construction Regulation.
  8. [15]
    On 14 April 2022 Mr Peterson applied for review of this decision. Mr Peterson seeks, in effect, for the decision to be set aside and replaced by a decision allowing his claim. He seeks to be reimbursed for the additional expense he incurred in having the shed completed and his legal expenses. Mr Peterson claimed the decision was wrong, in summary, because the Commission had taken two months to determine that he had validly terminated the contract and proposed to take a further 7 steps to decide what he described as a “simple matter”, namely:

Our builder was in breach of contract. Our $40 000 shed kit had been sitting on our property for 5 months with wildlife defecating, urinating on it and building nests in it. We had to get it built.

  1. [16]
    Mr Peterson said he had submitted a quote from an alternative builder to construct the kit shed, detailing the cost and scope of work and that this had been submitted with his claim. Mr Peterson claimed the Commission should have obtained other quotes and indemnified them under the scheme.

Consideration

  1. [17]
    The Tribunal has jurisdiction to review decisions made under the Queensland Building and Construction Act 1991 (Qld).[1] The decision to disallow Mr Peterson’s claim under the statutory insurance scheme is a reviewable decision.[2]
  2. [18]
    A proceeding is commenced in the Tribunal by making an application.[3] Pursuant to s 33(3) of the QCAT Act, an application for review of a reviewable decision must be made by filing it in the registry within 28 days after the relevant day. ‘Relevant day’ is defined in s 33(4) to be, relevantly, the day the applicant is notified of the decision.
  3. [19]
    Mr Peterson has accordingly applied for an extension of time to file his application
  4. [20]
    The Tribunal has power to grant an extend a time limit for the start of a proceeding under s 61 of the QCAT Act. The factors relevant to the Tribunal’s exercise of discretion to extend time under s 61 were outlined in Jensen v Queensland Building and Construction Commission.[4] In summary those factors are:
    1. (a)
      whether there is a satisfactory reason for the delay;
    2. (b)
      the strength of the applicant’s case;
    3. (c)
      prejudice to adverse parties;
    4. (d)
      length of the delay;
    5. (e)
      overall, whether it is in the interests of justice to grant the extension, which usually requires analysis of all the above factors in combination.
  5. [21]
    The Commission objects to the extension of time primarily on the basis that Mr Peterson’s case lacks strength or merit. In support the Commission relies on Schedule 6, section 64 of the Regulation.
  6. [22]
    Schedule 6 sets out the terms of cover for the statutory insurance scheme.[5] Pursuant to schedule 6, section 7(1) of the QBCC Regulation, where a claim is made for work that has already commenced, a consumer is entitled to assistance under the Scheme for the reasonable costs of completing the residential work.
  7. [23]
    Part 2 of Schedule 6 provides for the assistance a consumer for residential construction work is entitled to claim under the statutory insurance scheme if the work is incomplete, subject, relevantly, to the exclusions in Part 5.
  8. [24]
    Section 64 of Part 5 provides:

64 DEMOLITION, RECTIFICATION OR REINSTATEMENT WITHOUT APPROVAL

  1. (1)
    A consumer for residential construction work is not entitled to claim assistance in relation to the work if the consumer does any of the following without the prior written approval of the commission—
  1. (a)
    demolishes the built work;
  2. (b)
    rectifies the work;
  3. (c)
    reinstates the built work.

Note—

Seesection 67(2).

  1. (2)
    In this section—

"approval" does not include the following—

  1. (a)
    a decision of the commission about the scope of works to be carried out to rectify residential construction work or reinstate built work;
  2. (b)
    a decision of the commission to grant an application for an owner-builder permit.
  1. [25]
    The Commission submitted that Mr Peterson had, by engaging the alternative builder to complete the work, “reinstated the built work”. No submissions were provided by either party as to the meaning of ‘residential construction work’, ‘reinstate’ or ‘built work’.
  2. [26]
    Courts have warned against giving insurance policies an over-refined analysis.[6] The words of the policy are to be construed in their ordinary and popular sense.[7]
  3. [27]
    The shed was constructed on rural land and Mr Peterson does not reside there. It is unclear from the facts whether the contracted work was “residential construction work”.[8]
  4. [28]
    ‘Built work’ is defined in s 2 of Schedule 6 as follows:

“built work” means a structure or part of a structure, or another thing, resulting from residential construction work

  1. [29]
    The ordinary meaning of “reinstate” is:

restore (someone or something) to their former position or state.

  1. [30]
    It is not for me here to decide the point but, in my view, it is distinctly arguable that ‘reinstate’ when read together with ‘built work’, means to restore or rebuild, in this case the shed, to its former state or similar. This is not what Mr Peterson did. He did not reinstate something that was there before. He had someone assemble the shed from the kit that was delivered. Further, for completeness, I do not consider that Mr Peterson demolished the built work or rectified the work of the original building contractor.
  2. [31]
    The Commission emphasised (by underlining the submission) that there was no dispute the work was completed without the Commission’s approval. With respect, that submission, while correct, misses the point. The issue is whether the work that Mr Peterson did comes within the meaning of the exclusion in s 64, Schedule 6 of the Regulation. It is not clear to me that it does.
  3. [32]
    For these reasons, because the delay is short and is explained, and because there is no prejudice to the respondent, I extend the time to 14 April 2022 for Mr Peterson to file his application to review the decision by the Queensland Building and Construction Commission to disallow his claim under the statutory insurance scheme.

Footnotes

[1]QCAT Act, s 17; QBCC Act, s 87.

[2]QBCC Act, s 86E, s 86(1)(h).

[3]QCAT Act, s 33.

[4][2017] QCAT 232 at [65] to [69].

[5]QBCC Act, s 67Y, QBCC Reg, reg 30(1).

[6]General Newspapers Pty Ltd v Cigna Insurance (1991) 6 ANZInsCas 61-086 at 28.

[7]Ibid citing Stanley v Western Insurance Co (1868) LR 3 Exch 71 at 73 per Kelly CB.

[8]QBCC Act, Schedule 2; QBCC Act, s 67WA definition for the purposes of Part 5.

Close

Editorial Notes

  • Published Case Name:

    Peterson v Queensland Building and Construction Commission

  • Shortened Case Name:

    Peterson v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 347

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Traves

  • Date:

    09 Aug 2022

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
America v McRae (1868) L.R. 3
1 citation
Jump To
Cite 1 - (1868) L.R. 3
Jensen v Queensland Building and Construction Commission [2017] QCAT 232
2 citations
Jump To
Cite 1 - [2017] QCAT 232
Cite 2 - [2017] QCAT 232
Young Harness Racing Club Incorporated v New Zealand Insurance Co. Ltd (1991) 6 A.N.Z. Ins. Cas. 61
1 citation
Jump To
Cite 1 - (1991) 6 A.N.Z. Ins. Cas. 61

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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