Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2022
  4. Gollan v Queensland Building and Construction Commission - [2022] QCAT 85

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gollan v Queensland Building and Construction Commission[2022] QCAT 85

Gollan v Queensland Building and Construction Commission[2022] QCAT 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gollan v Queensland Building and Construction Commission [2022] QCAT 85

PARTIES:

WILLIAM GOLLAN

(applicant)

V

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR331-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

10 March 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application for review filed on 9 September 2020 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether statutory time limit expired

Queensland Building and Construction Commission Act 1991 (Qld), s 72A

Orlanski v Queensland Building Services Authority [2011] QCAT 35

REPRESENTATION:

Applicant:

Self-represented

Respondent:

C Low

APPEARANCES:

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

Chronology

  1. [1]
    On 30 March 1998, Mr Gollan entered into a contract with Derek Geoffrey Veitch for the construction of a new dwelling.
  2. [2]
    On 1 September 2003, Mr Gollan noticed defects and made a complaint to the Queensland Building and Construction Commission (‘QBCC’).
  3. [3]
    On 15 December 2003, the QBCC gave a direction to rectify to Mr Veitch.
  4. [4]
    On 16 July 2004, the QBCC approved a claim against the statutory insurance scheme. Mr Gollan engaged R A Dibbs & Sons Pty Ltd to complete the rectification work.
  5. [5]
    On 22 December 2004, Mr Veitch agreed to rectify some of the items. 
  6. [6]
    On 15 December 2006, R A Dibbs & Sons Pty Ltd completed rectification of the remaining defects.
  7. [7]
    On 20 May 2008, Mr Gollan made a second complaint with the QBCC, claiming that the rectification work carried out by Mr Veitch had failed.
  8. [8]
    On 10 June 2008, the QBCC gave a second direction to rectify to Mr Veitch.
  9. [9]
    On 11 October 2008, the QBCC approved a second claim against the statutory insurance scheme.  Mr Gollan engaged Stargaze Pty Ltd to complete the rectification work.
  10. [10]
    On 4 February 2019, Mr Gollan contacted the QBCC call centre about rust and water leaks noticed to the deck.
  11. [11]
    On 15 June 2020, Mr Gollan sent an email to the QBCC, which was taken to be a third complaint. 
  12. [12]
    On 29 June 2020, the QBCC made a decision not to give a direction to rectify, and further decided that the statutory insurance scheme was unable to provide assistance for any of the complaint items.
  13. [13]
    On 3 August 2020, the QBCC confirmed its decisions upon internal review.
  14. [14]
    On 9 September 2020, Mr Gollan purported to seek review of both decision with the Tribunal. 
  15. [15]
    On 2 March 2021, the QBCC lodged applications for miscellaneous matters seeking to have the application for review struck out.

Direction to rectify

  1. [16]
    Sub-section 72A(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) provides:

A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

  1. [17]
    It is not in dispute that the time for giving a direction to rectify expired between July 2015 and early 2016.  The QBCC has not made an application to the Tribunal to extend the six year and six month time limit. 
  2. [18]
    As Mr Gollan did not make a complaint to the QBCC within the six year and six month time limit, neither QBCC nor in its place the Tribunal has the power to issue a direction to rectify.

Statutory insurance scheme

  1. [19]
    The relevant terms of cover for the statutory insurance scheme are contained in the Insurance Policy Conditions Edition 7, which was effective from 1 September 2003.
  2. [20]
    Clause 2.4(a) deals with the expiry of cover under the policy.  For a category one defect, the QBCC is only liable to pay for loss where the defect first became evident within six years and six months of the earlier of:
    1. (a)
      the date of payment of the insurance premium; or
    2. (b)
      the date of entering into the contract.
  3. [21]
    The date of entering into the contract was 11 October 2008.  Six years and six months from this date was 11 April 2015.
  4. [22]
    Clause 2.5 requires a claim for a category one defect must be made within three months of the defect first becoming evident, or within such further time as may be allowed.  In Orlanski v Queensland Building Services Authority, the Tribunal observed:[1]

In the ordinary course, accepting that liability may exist for defects first becoming evident up until the last day of the six years and six months insurance cover period, claims might be made at latest 3 months after the expiry of the insurance cover. That is, unless the QBSA allows additional time for the making of the claim.

  1. [23]
    It is not in dispute that Mr Gollan was aware of the claimed defects when he made his call to the QBCC on 4 February 2019, but did not make a complaint until 15 June 2020.  Even if the three month period for making a claim were to be extended, the policy had long since expired.

Conclusion

  1. [24]
    In the present circumstances, the Tribunal cannot now issue a direction to rectify or approve a claim under the statutory insurance scheme.  The application for review is therefore dismissed.
  1. [25]
    For completeness, I note that Mr Gollan has raised issues under the Australian Consumer Law.  This is irrelevant to an application for review of a decision made under the QBCC Act.
  2. [26]
    I also note that I have not addressed the QBCC’s contentions relating to whether it is possible to seek review of two decisions in a single application, as it is not necessary for me to do so.  However, I will note that both decisions are contained in a single decision notice of the QBCC.

Footnotes

[1]  [2011] QCAT 35, [61].

Close

Editorial Notes

  • Published Case Name:

    Gollan v Queensland Building and Construction Commission

  • Shortened Case Name:

    Gollan v Queensland Building and Construction Commission

  • MNC:

    [2022] QCAT 85

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    10 Mar 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
Orlanski v Queensland Building Services Authority [2011] QCAT 35
2 citations
Jump To
Cite 1 - [2011] QCAT 35
Cite 2 - [2011] QCAT 35

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.