Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2023
  4. Perry v Queensland Building and Construction Commission (no. 2) - [2023] QCAT 286

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

Perry v Queensland Building and Construction Commission (no. 2)[2023] QCAT 286

Perry v Queensland Building and Construction Commission (no. 2)[2023] QCAT 286

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Perry v Queensland Building and Construction Commission (no. 2) [2023] QCAT 286

PARTIES:

errol perry

(applicant)

v

Queensland building and construction commission

(respondent)

APPLICATION NO:

GAR039-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

20 July 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDER:

The respondent’s decision of 13 January 2020 is set aside and substituted with a decision to decline the applicant’s claim under the Statutory Insurance Scheme on the basis that the applicant failed to obtain written approval from the respondent prior to rectifying the defective work.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – applicant engaged contractor to perform roofing work – roofing work found to be defective – applicant made claim under Statutory Insurance Scheme – Queensland Building and Construction Commission rejected the claim in reliance on s 61 of the Terms of Cover – applicant applied to the Tribunal to review decision to disallow claim – applicant subsequently engaged a contractor to carry out rectification work – whether carrying out rectification work without prior written approval also precluded the claim by virtue of s 64 of the Terms of Cover – whether s 64 applies to rectification work done after making of decision to refuse applicant’s claim

Queensland Building and Construction Commission Act 1991 (Qld), 67WB(1)(a)(i)

Queensland Building and Construction Commission Regulations 2018, s 61, s 64 of Schedule 6

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24

Cronin v Queensland Building and Construction Commission [2019] QCAT 14

Perry v Queensland Building and Construction Commission [2022] QCAT 234

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)

Applicant:

Self-represented

Respondent:

Norton Rose Fulbright Australia

REASONS FOR DECISION

  1. [1]
    Mr Perry seeks an order that this tribunal set aside a decision of the Queensland Building and Construction Commission (QBCC) not to allow his claim under the Statutory Insurance Scheme (Scheme) established by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). 
  2. [2]
    In order to succeed Mr Perry needs to satisfy this tribunal:
    1. (a)
      that he did not need to have written approval from the QBCC prior to rectifying the defective work;[1] and if he succeeds on that issue.
    2. (b)
      that the building work did not form part of ‘backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel’.[2]
  3. [3]
    Mr Perry has not been represented in these proceedings.  The law relating to the Scheme is complex, even for a lawyer.  The QBCC, cognisant of its duties as a model litigant, has sought to assist the tribunal by identifying the applicant’s arguments and evidence from the various emails and other material provided to it and the tribunal.  This assistance included compilation of a Hearing Book containing all relevant documents and submissions. 
  4. [4]
    When Mr Perry told the QBCC that he had had the leaks repaired, the QBCC made an application to have the application dismissed due to Mr Perry’s failure to obtain prior written approval from the QBCC before undertaking rectification.[3]  Member Lumb dismissed that application as in his opinion it was arguable that section 64 of the Terms of Cover only applied to work which is done without written approval prior to the QBCC making a decision to allow or disallow a claim under the Scheme.  He observed that this issue warranted further submissions from both parties and consideration by the tribunal at a final hearing.[4]  If the QBCC’s argument is correct it is fatal to Mr Perry’s claim under the Scheme. 

Facts

  1. [5]
    In June 2018 Mr Perry entered into a labour only contract (Contract) with a contractor to replace a section of roof.[5]  It was a special condition of the Contract that Mr Perry would supply all materials.  The contractor says that he was never shown a plan for the works.[6]  Mr Perry says the contractor’s foreman was given a copy of the engineering plans and the specifications regarding installation.[7]
  2. [6]
    In order to finalise the Building Approval, the certifier asked Mr Perry to provide a QBCC Confirmation of Insurance.[8]  In July 2018, the QBCC issued a Notice of Cover for the works to be performed under the Contract to Mr Perry.[9]  The notice referred to a website which set out the full terms of cover.  It provided that the notice was ‘subject to the limitations and exclusions expressed in schedule 2C of the QBCC Regulation 2003’.
  3. [7]
    In March 2019 Mr Perry sent a letter of demand to the contractor in which he wrote:

… it has been revealed that the final approval cannot be given because the approved plans show a Box Gutter on the northern gable as 450mm (sic) wide.  The Box Gutter you installed was only 200mm wide…. There is a water leak in the alcove and I am getting an independent opinion as to whether the leak is contributed to by the Box Gutter or the fact the Quad Gutter is falling the wrong way.  If so you will be required to fix it.[10]

  1. [8]
    On 13 May 2019, Mr Perry lodged a complaint with the QBCC, alleging that the box gutter installed by the contractor measured 200 mm while the plan required a box gutter measuring 400 mm.[11]  He described the defect as:
    1. (a)
      roof trusses not installed to manufacturer’s specification, and
    2. (b)
      a water leak in the vicinity of the box gutter on the southern gable.
  2. [9]
    On 22 July 2019 an officer of the QBCC attended the site along with Mr Perry, the contractor and a representative of BT Plumbing Service.  The officer prepared an inspection report.[12]  He noted that:
  • Construction consists of a gable truss roof installed between two existing buildings.
  • The new roof has metal flashing installed between the gables and existing structures.
  • The licensee advised he installed the flashings without sighting approved drawings.
  • Approved plans show box gutters between gables and existing structures.
  •  
  1. [10]
    The officer observed:

Roof water drainage is not installed between the new roof structure and existing buildings in accordance with the requirements of BCA P 2.2.1, AS3500.3 and HB 39 which is unsatisfactory.

…

The installation of the roof sheeting and gable cladding to the roof over the dance studio does not meet a satisfactory standard expected of a competent holder of a license nor does it comply with the provisions of BCA P 2.2.2., AS3500.3 and HB 39 in that there are:

a)  Holes in southern gable cladding

b)  Missing and pooly (sic) installed flashings

c)  Fixings screws without seals

d)  Damaged ridge capping

e)  Insufficient fixings to barge capping and cladding

f)  Unevenly finished cladding.

  1. [11]
    On 8 August 2019, the QBCC issued a Direction to Rectify and/or Complete Work to the contractor relating to the above items.[13]  The QBCC also wrote to Mr Perry advising that the Direction to Rectify had been issued.  The letter foreshadowed that if the contractor did not comply, the QBCC would consider if the Queensland Home Warranty Scheme was able to provide insurance assistance to complete outstanding items.[14]
  2. [12]
    The contractor did not comply with the Direction.  On 27 September 2019, the QBCC advised:
    1. (a)
      Mr Perry that the contractor had not complied, but that the Scheme was unable to provide cover for any of the items the subject of Mr Perry’s complaint;[15] and
    2. (b)
      the contractor of the consequences of his failure to comply with the direction which included recovery of the cost of rectification work from him if an insurance claim was paid.[16]
  3. [13]
    On 21 October 2019 an officer of the QBCC alerted Mr Perry to the specific exclusions from the Scheme under section 67WB of the Act.  She asked for more information.[17]  On 29 October 2019 Mr Perry responded:[18]

The complaint refers to an owner occupied residential house…

The whole of the building consists of the following:

…

One Home Ballroom

…

A section of the Home Ballroom needed replacing…

  1. [14]
    The QBCC made further attempts to obtain information from Mr Perry about the characteristics of his property on 1 November 2019[19] and 5 November 2019.[20]  It had no success.
  2. [15]
    On 21 November 2019 the QBCC informed Mr Perry that his claim was not covered by the Scheme under section 67WB(e) because it related to work:

on or for class 1b, 3, 4, 5, 6, 7b, 8 or 9 buildings are not considered to be residential construction work.[21]

  1. [16]
    On 10 December 2019, Mr Perry requested an internal review of the QBCC’s Decision.[22]  Mr Perry included a copy of the Redland Shire Council Rating Category Statement which explains the differential rating scheme for 2019/2020 which had 28 categories of land.  Category 1b includes:

All rateable land that:

  1. having regard to any improvement or activities conducted on the land, used primarily for residential purposes;
  2. has a value greater than $385,000;
  3. is the registered owner’s principal place of residence; and
  4. is NOT categorised in rating category 1e or 1g.
  1. [17]
    With his request Mr Perry also provided:
    1. (a)
      a document which listed the reasons he would not accede to an extension for the contractor to rectify, including that the work was a roof replacement on a section which joins the owner’s private residence and the building in question is not a public gathering space;[23]
    2. (b)
      a recommendation from Intellidraft of a methodology to address water leaks;[24]
    3. (c)
      a quote dated 22 October 2019 from All Seasons Roofing Qld to supply labour and materials for roof repairs.[25]
  2. [18]
    On 13 January 2020, the QBCC advised Mr Perry of the review decision.[26]  The letter provided a detailed explanation of the reasons for refusal.  It quoted section 67WB(1)(a)(i) which provides that the following work is not eligible for assistance under the Scheme:

backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel.

  1. [19]
    The letter quoted information the QBCC had sourced from the website www.tranquilitypark.com.au which had led the review officer to believe that Mr Perry’s property was a B&B at the time the work was carried out.  Further, even if the property was not operating as a holiday home/B&B at the time the work was carried out, the review officer noted that section 61 of Schedule 6 of the Queensland Building and Construction Commission Regulations 2018 (QBCC Regulations) precluded the claim, as when the claim was made, the work would not have been eligible to be covered under the Scheme because of section 67WB of the Act.
  2. [20]
    On 5 February 2020 Mr Perry filed the Review Application.
  3. [21]
    On 14 May 2020, the QBCC filed a Statement of Reasons for its decision.  The QBCC decided relied on two related bases:
    1. (a)
      first, the Work was not eligible for assistance under the Scheme because of the application of s 67WB(1)(a)(i) of the QBCC Act; and
    2. (b)
      second, s 61 of the ‘Terms of Cover’ did not apply because at the time of Mr Perry’s claim under the Scheme, the Work would not be covered under the Scheme because of s 67WB(1)(a)(i) of the QBCC Act.
  4. [22]
    On 14 July 2020 All Seasons Roofing Qld invoiced Mr Perry $5,761.80 for work completed for the roof repairs.[27]
  5. [23]
    In his written submissions Mr Perry says that in September 2020, having tolerated two and a half years of having to mop up and dry the wet floor, he was fed up with the QBCC.  He instructed All Seasons Roofing Qld to undertake the rectification.[28]
  6. [24]
    On 8 September 2021, in an Amended Statement of Reasons for the Decision, the QBCC added a further ground to support its opinion that the correct and preferable decision was that the claim should be disallowed.[29]  The QBCC’s position was that the alleged non-compliance with s 64 of the Terms of Cover disentitled Mr Perry to assistance under the Scheme.  Section 64 of the Terms of Cover provides:
  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;
  1. (b)
     rectifies the work;
  1. (c)
     reinstates the built work.
  1. [25]
    On 7 October 2021 the QBCC made an application to have the review application dismissed on the basis that it was misconceived and/or lacking in substance on the basis that failure to obtain prior written approval from the QBCC disentitled Mr Perry to assistance under the Scheme. 
  2. [26]
    On 20 June 2022 Member Lumb dismissed that application as in his opinion it was arguable that section 64 of the Terms of Cover, on its proper construction, only applies to work which is done without written approval prior to the making of the decision to allow or disallow a claim under the Scheme.[30]  He observed that this issue warranted further submissions from both parties and consideration by the tribunal at a final hearing.[31] 
  3. [27]
    On 26 June 2023 the matter was listed for hearing on the papers. 

Relevant legislation

  1. [28]
    When the Contract was made in June 2018, section 67WB of the then relevant QBCC Act provided:
  1. (1)
    The following work is not eligible for assistance from the statutory insurance scheme –
  1. building work on, or on the site of, a building or proposed building that is or forms part of any of the following –
  1. a backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel;
  1. [29]
    When the Contract was made in June 2018, section 61 of the then relevant QBCC Regulation provided:

Work no longer covered by the statutory insurance scheme

  1. (1)
    This section applies if –
  1. when residential work is carried out, the work is covered by the statutory insurance scheme; and
  2. the work is defective and incomplete; and
  3. when a claim for assistance is made, building work carried on or for the built work would not have been covered under the statutory insurance scheme because of section 67WB of the Act.
  1. (2)
    The consumer for the residential construction work is not entitled to claim assistance for the work. 
  1. [30]
    Section 64 of Schedule 6 of the QBCC Regulation (i.e., the Terms of Cover) provides:
  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;
  1. (b)
    rectifies the work;
  1. (c)
    reinstates the built work.

Relevant cases

Cronin v Queensland Building and Construction Commission

  1. [31]
    Cronin v Queensland Building and Construction Commission[32] (Cronin) was a case in which a claim for assistance under the Scheme was disallowed by the QBCC. The claim was disallowed on the basis that new contractors had been engaged to work on the house in question without prior written approval of the QBCC.
  2. [32]
    The work the subject of the claim in that case was found to fall into two categories: ‘emergency work’ and ‘rectification work’.  The emergency work was considered to be work to make the structure safe.  The member found that this type of work did not fall within s 64 because it was not demolition or reinstatement work, and it did not rectify any defective work, which remained defective.  Some of the rectification work was done before the claim for assistance was made and the balance was done after the claim was made, but prior to the date on which the QBCC disallowed the claim.
  3. [33]
    The member confirmed the QBCC’s decision to disallow the claim. The member found that:
    1. (a)
      the work contemplated by s 64 was not limited to work done prior to the submission of a claim but also to work done after the initial claim (the construction issue);
    2. (b)
      the rectification work (both before and after the claim) was work within s 64;
    3. (c)
      the terms of s 64 did not provide any discretion to allow an insurance claim if work described in the section has been done without prior written approval of the QBCC; 
    4. (d)
      the tribunal cannot do more than can be done by the original decision maker (the QBCC). 

Perry v Queensland Building and Construction Commission

  1. [34]
    In the earlier application to have the application dismissed on the basis that it was misconceived and/or lacking in substance due to Mr Perry’s failure to obtain prior written approval from the QBCC before undertaking rectification, Member Lumb consider that, at a factual level, Cronin was distinguishable from the present case because in this case all of the rectification work was undertaken after the QBCC had disallowed the claim by Mr Perry.[33]
  2. [35]
    Member Lumb observed[34] that in relation to the construction issue, the member in Cronin placed some emphasis on s 58 of the Terms of Cover, when he said:

[31]  Any such distinction as contended for on the Applicant’s behalf would also appear to be contra-indicated by the use of the expression ‘claim assistance’ in another part of the statutory provisions covering the statutory insurance scheme. Although in most cases where this expression is used in the QBCC Regulation it necessarily refers to the initial insurance claim, in section 58 of Schedule 2C of the QBCC Regulation it is used as follows:-

A consumer for residential construction work is not entitled to claim assistance if the consumer unreasonably refuses the commission access to the built work for the purposes of assessing a claim for the work.

[32]  Here the expression ‘claim assistance’ is clearly referring to events happening after the making of the initial insurance claim. It is right that this should not be regarded as wholly persuasive. But this shows at least that the expression in section 64 could mean the same as it does in section 58.

[33]  In my view, the correct purposive interpretation of section 64, consistent with its use elsewhere in the QBCC Regulation, is that it applies both to work done before and after the initial insurance claim. (citation omitted)

  1. [36]
    Member Lumb took the view that Section 58 is concerned with permitting access to the ‘built work’ for the purposes of ‘assessing a claim for the work’ and is intended to have application during the period prior to the date on which the QBCC makes its decision to allow or disallow a claim, not after such a claim has been assessed and a decision made by the QBCC.[35]
  2. [37]
    Member Lumb also considered other provisions of the Terms of Cover.  He had regard to s 67(2) of the Terms of Cover, saying:

[23]  Section 67 (which forms part of Part 6 of Schedule 6 to the Regulation) provides:

  1. (1)
     This section applies if—
  1. (a)
     the commission is given notice of a claim for assistance; and
  1. (b)
     the commission is of the opinion the residential construction work the subject of the claim is defective or incomplete.
  1. (2)
     Before deciding to allow or disallow the claim, the commission must decide whether to give a direction to rectify or remedy the work under section 72 of the Act. 

[24]  Subsection 67(2) makes it mandatory for the QBCC to decide whether to give a direction to rectify or remedy the work under s 72 of the QBCC Act before deciding to allow or disallow a claim for assistance. The operative event is the making of the decision to allow or disallow the claim.

[25]  In the event that a direction is given under s 72 of the QBCC Act, the QBCC must not make a decision to allow or disallow a claim under the Scheme in relation to the work until the period for complying with the direction has ended.

[26]  Further, s 70(1) of the Terms of Cover provides: A consumer for residential construction work has a duty to the commission to act in good faith in relation to a claim for assistance. Example of acting in good faith— disclosing to the commission any matter the consumer knows, or ought reasonably to know, is relevant to the commission making a decision on the claim

[27]  In my view, the above “Example” contemplates that the relevant period is the period up to the making of a decision on the claim for assistance.

  1. [38]
    Member Lumb concluded that the carrying out of any unapproved work, e.g. rectification work, could impact the assessment of the allegedly defective work and would impact the ability of the QBCC to direct the person who carried out the building work to rectify such work (and in the case of satisfactory rectification, no claim for assistance would need to be pursued).[36] He decided that there was support for a construction that s 64 applies to unapproved work carried out after the initial claim for assistance but before the decision is made to allow or disallow the claim for assistance. However, in his view it was not immediately apparent why it would be necessary to obtain written approval from the QBCC after it has made a decision in relation to the claim, particularly where it disallows the claim.
  2. [39]
    Member Lumb noted that the objects of the QBCC Act include achieving a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.  Further he noted that the purpose of the Scheme is to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.  He said:[37]

It could be argued that those objects and that purpose are not achieved if a consumer for residential construction work were to be denied recovery under the Scheme solely on the basis that he or she caused necessary rectification work to be carried out (without written approval) after the QBCC had disallowed the consumer’s claim for assistance.

  1. [40]
    Member Lumb, while not expressing a concluded view, considered that it is reasonably arguable that s 64 only applies to work contemplated by s 64 which is done without written approval prior to the making of the decision to allow or disallow a claim under the Scheme.

Is Mr Perry entitled to assistance under the Scheme?

  1. [41]
    Mr Perry lodged a complaint against the contractor on 13 May 2019.  Despite the contractor’s failure to rectify as directed, the QBCC decided that the Queensland Home Warranty Scheme was not able to provide insurance assistance to complete outstanding items because the contract was for work on a class of building falling outside the scope of the Scheme.  The internal decision confirming that decision was the original subject of this application to review. 
  2. [42]
    Before deciding whether that decision should be set aside, it is prudent to first consider the QBCC’s additional reason for rejecting the claim on the basis that it was a mandatory requirement of the Scheme that Mr Parry obtain written approval from the QBCC prior to rectifying the defective work.  If the QBCC’s submissions in that regard are accepted there is no utility in considering whether or not to confirm or amend the decision or to set aside the decision and substitute another decision[38] because Mr Perry will not be entitled to assistance due to the operation of s 64 of the Terms of Cover. 
  3. [43]
    For the purpose of disposing of this threshold issue I will assume, although I am by no means certain, that Mr Perry otherwise is entitled to assistance under the Scheme.
  4. [44]
    There is a factual dispute as to whether or not Mr Perry sought approval prior to having the rectification work carried out.  In his submissions regarding the QBCC’s application to dismiss the proceedings Mr Perry wrote:

On 29.10.19 [Mr] Perry, forwarded a claim to the Queensland Building and Construction Commission which included the quote from the All Seasons Roofing Qld Pty Ltd for approval.

The Queensland Building and Construction Commission did not acknowledge the correspondence forwarded on 29.10.19.

The only information which the Queensland Building and Construction Commission provided was to quote s. 67wb.

This section is not relevant as it is a ghost as it refers to a Town Planning Consent issued by the Redlands Council twenty-four years ago and which had lapsed.

In September, 2020 following two months of hospitalization for a broken wrist and hip where [Mr] Perry had restricted mobility for some time, having tolerated for two and a half years of having to mop up and dry the wet floor by using an electric oscillating heater a day at a time, [Mr] Perry “fed up” with the Queensland Building and Construction Commission continual procrastination, frustration and emotional torture, as an absolute necessity instructed All Seasons Roofing Qld Pty Ltd to undertake the rectification, which was eleven months after [Mr] Perry submitted the quote to the Queensland Building and Construction Commission.[39]

  1. [45]
    In its Amended Statement of Reasons made 8 September 2021, the QBCC said:

At no time prior to the All Seasons invoice did the [QBCC]:

receive any request from [Mr Perry] to approve the rectification work; or

issue any written approval to [Mr Perry] for the rectification work.[40]

  1. [46]
    Despite knowing, through the QBCC’s submissions in the dismissal proceedings, that the QBCC had searched its files and could not locate any correspondence sent by Mr Perry on 29 October 2019, and despite Member Lumb pointing out the need for that evidence, Mr Perry did not provide any sworn evidence that he sought approval to have the work quoted by All Seasons Roofing Pty Ltd carried out, on 29 October 2019 or any other day.
  2. [47]
    I accept the QBCC’s submissions that there is no material before the tribunal that shows that Mr Perry either:
    1. (a)
      provided a quote for the rectification work to the QBCC on 29 October 2019; or
    2. (b)
      sought approval for rectification to be carried out. 
  3. [48]
    I suspect that Mr Perry is mistaken about events which occurred some years ago.  The only document in the material dated 29 October 2019 is Mr Perry’s email to an officer of the QBCC listing the elements of the building.  The email is one in a chain dealing with the use of the property.  It makes no reference to All Seasons Roofing Pty Ltd or rectification. 
  4. [49]
    The evidence is that Mr Perry provided the quote from All Seasons Roofing Pty Ltd in his application for internal review lodged with the QBCC on 10 December 2019. 
  5. [50]
    I have no doubt that Mr Perry became fed up with the delay and suspect that he made a unilateral decision to engage All Seasons Roofing Pty Ltd.  His recollection that he instructed All Seasons Roofing Pty Ltd to do the repair in September 2020 is at odds with the invoice for the work dated 14 July 2020. 
  6. [51]
    I accept the QBCC’s submissions that mere provision of the quotation, which I find occurred on 10 December 2019, cannot be taken as a request for approval to undertake the rectification work pursuant to section 64 of the Terms of Cover.  There is no evidence that Mr Perry sought approval for the rectification to be carried out at any time prior to the work being done. 
  7. [52]
    While I agree with Member Lumb that Cronin was distinguishable from the present case on the facts, because in this case all of the rectification work was undertaken after the QBCC had disallowed the claim by Mr Perry, that does not lead to the inevitable conclusion that Mr Perry is entitled to assistance.  I agree with the conclusions of the member in Cronin that:
    1. (a)
      the terms of s 64 do not provide any discretion to allow an insurance claim if work described in the section has been done without prior written approval of the QBCC; 
    2. (b)
      the tribunal cannot do more than can be done by the original decision maker (the QBCC).
  8. [53]
    That conclusion is consistent with achieving the objects of the QBCC Act.  If a consumer who has made a claim for assistance under the Scheme undertakes rectification work without first obtaining written approval of the QBCC and on review the QBCC’s decision is set aside, the balance between the interests of the contractor and consumer tips against the contractor.  The contractor will have lost the opportunity to seek a review of the scope of the rectification works[41] because the QBCC will not have made any decision about the scope of the rectification works. 
  9. [54]
    In my view the reason it is necessary to obtain written approval from the QBCC to carry out rectification after it has disallowed the claim when a review application is on foot, is because the outcome of the review application might be to set aside that decision and allow the claim.  If a claimant has unilaterally undertaken rectification and the claim is allowed, the QBCC will have lost the ability to recover the cost of rectification work from the contractor who failed to comply with the direction to rectify. 
  10. [55]
    I find that in failing to obtain written approval from the QBCC prior to rectifying the defective work Mr Parry did not satisfy the terms of s 64 of the Terms of Cover.  Hence, he is not entitled to assistance under the Scheme.  The terms of s 64 are clear and I have no discretion to alter them. 

The nature of the building work

  1. [56]
    While my decision that Mr Perry is not entitled to assistance resolves the proceedings I wish to deal with a fundamental misunderstanding between Mr Perry and the QBCC.  The misunderstanding arose when the QBCC advised Mr Perry that the Scheme was unable to provide cover for any of the items the subject of Mr Perry’s complaint despite the fact the contractor had not complied with the direction to rectify because the work was not within the definition of residential construction work. 
  2. [57]
    Obviously, this came as a surprise to Mr Perry.  I suspect that when he received the notice of cover in July 2019 he did not go to the website or to schedule 2C of the QBCC Regulation 2003 to check the limitations and exclusions.  Even if he had done so, given his arguments after the claim was refused, he would not have formed the view that the exclusions were relevant to him because he maintains that when he entered into the Contract, and when the claim was made, his property was not backpacker’s accommodation, a caravan park, guest house, holiday accommodation or lodging house. 
  3. [58]
    In his discussions with officers of the QBCC in October 2019 and in subsequent emails in November 2019 he was asked to provide documentation such as certificate of classification, plans and development approval.  Perhaps this focussed his attention on documents produced by the local authority. 
  4. [59]
    Although Mr Perry asked for ‘definitive details of the Home Warranty Scheme for which I don’t qualify’[42] in October 2019 he was not given them until January 2020.  No doubt the officers of the commission understood that section 67WB of the relevant QBCC Act referred to nominated classifications of buildings under the Building Code, but by merely referring to those classifications by number in its decision of 21 November 2019, rather than expressly quoting the types of building excluded, the QBCC left the door open to misunderstanding.
  5. [60]
    It is clear from the material that Mr Perry mistakenly understood the QBCC’s reference to ‘class 1b’ as a reference to category 1b in the Redland Shire Council Rating Category Statement which describes a category of rateable land in the Redland Shire.  Mr Perry made submissions to the QBCC,[43] and to this tribunal,[44] which were intended to show that ‘it [was] not the intent of Section 67wb to exclude all categories of 1b from the Scheme’. As these submissions were made in respect of the Redland Shire Council Rating Category Statement, not the classification of buildings listed in section 67WB of the relevant QBCC Act, they were irrelevant. 
  6. [61]
    The QBCC’s decision notice of 13 January 2020 was a clearer statement of the legal position.  It:
    1. (a)
      expressly quoted the list of building types excluded by section 67WB(1)(a)(i);
    2. (b)
      set out the results of its internet search which indicated to the decisionmaker that the building was a holiday home/ B&B at the time the work was carried out;
    3. (c)
      alternatively, explained that even if the work was residential work when carried out, it was not covered because it had been converted into a holiday home before the claim for assistance was made. 
  7. [62]
    Mr Perry’s response addresses the changing use of the property over time and the ways in which the changes in use were not reflected in the website.  Again, Mr Perry refers to requirements of the Redland Shire Council in support of his claim.  Without intending to be critical of Mr Perry, who no doubt did his best to engage with the complexities of the relevant QBCC Act, the relevant QBCC Regulation and the Terms of Cover, I accept the QBCC’s submission that there has been limited engagement with the substantive issues in the application.  I am not in a position on the material before me to decide whether or not the claim related to building work to a ‘backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel’ either at the time the work was carried out or when the claim for assistance was made.
  8. [63]
    However, even if more evidence was provided to address the issue, it would not be possible to overcome section 64 of the Terms of Cover due to Mr Perry’s failure to obtain written approval from the QBCC prior to rectifying the defective work, which was fatal to his claim for assistance under the Scheme.  There is no utility in inviting the QBCC to reconsider its decision, or in considering whether or not to confirm or amend the decision or to set aside the decision and substitute another decision as Mr Perry is not entitled to assistance under the Scheme.

Outcome

  1. [64]
    The QBCC’s review decision of 13 January 2020 to decline the claim under the Statutory Insurance Scheme will be confirmed, but not for the reasons given on 13 January 2020.  The decision will be set aside and substituted with the tribunal’s decision to decline the claim under the Statutory Insurance Scheme on the basis that Mr Perry is not entitled to assistance under the Statutory Insurance Scheme because he failed to obtain written approval from the QBCC prior to rectifying the defective work. 

Footnotes

[1] Queensland Building and Construction Commission Regulations 2018, section 64, Schedule 6.

[2]  Ibid, s 61.

[3] Perry v Queensland Building and Construction Commission [2022] QCAT 234.

[4]  Ibid at [32].

[5]  Hearing Book, p 203 – 210.

[6]  Ibid, p 143.

[7]  Ibid, p 252.

[8]  Ibid, p 125.

[9]  Ibid, p 145 - 147.

[10]  Ibid, p 142.

[11]  Ibid, p 121.

[12]  Ibid, p 148 - 154.

[13]  Ibid, p 155 - 157.

[14]  Ibid, p 158 - 159.

[15]  Ibid, p 164.

[16]  Ibid, p 162.

[17]  Ibid, p 170.

[18]  Ibid, p 168.

[19]  Ibid, p 172.

[20]  Ibid, p 174.

[21]  Ibid, p 176.

[22]  Ibid, p 179 - 233.

[23]  Ibid, p 229.

[24]  Ibid, p 230.

[25]  Ibid, p 232.

[26]  Ibid, p 234 - 236.

[27]  Ibid, p 255.

[28]  Ibid, p 259.

[29]  Ibid, p 18 - 33.

[30] Perry v Queensland Building and Construction Commission [2022] QCAT 234.

[31]  Ibid at [32].

[32]  [2019] QCAT 14.

[33]  [2022] QCAT 234 at [19].

[34]  Ibid at [20].

[35]  Ibid at [21].

[36]  Ibid at [28].

[37]  Ibid at [31].

[38] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24.

[39]  Hearing Book, p 264.

[40]  Ibid, p 27.

[41] Queensland Building and Construction Commission Act 1991 (Qld), s 86(g).

[42]  Ibid, p 169.

[43]  Ibid, p 182 – 192 and p 435.

[44]  Ibid, p 257.

Close

Editorial Notes

  • Published Case Name:

    Perry v Queensland Building and Construction Commission (no. 2)

  • Shortened Case Name:

    Perry v Queensland Building and Construction Commission (no. 2)

  • MNC:

    [2023] QCAT 286

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    20 Jul 2023

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
Cronin v Queensland Building and Construction Commission [2019] QCAT 14
2 citations
Jump To
Cite 1 - [2019] QCAT 14
Cite 2 - [2019] QCAT 14
Perry v Queensland Building and Construction Commission [2022] QCAT 234
4 citations
Jump To
Cite 1 - [2022] QCAT 234
Cite 2 - [2022] QCAT 234
Cite 3 - [2022] QCAT 234
Cite 4 - [2022] QCAT 234

Cases Citing

Case NameFull CitationFrequency
Gebremariam v Queensland Building and Construction Commission [2024] QCAT 4112 citations
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.