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Feinbloom v Queensland Building and Construction Commission[2023] QCAT 31

Feinbloom v Queensland Building and Construction Commission[2023] QCAT 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Feinbloom v Queensland Building and Construction Commission [2023] QCAT 31

PARTIES:

Douglas Feinbloom

(applicant)

v

Queensland Building and Construction Commission

(respondent)

APPLICATION NO/S:

GAR004-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

18 January 2023

HEARING DATE:

12 February 2021

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Fitzpatrick

ORDERS:

  1. The Tribunal amends the decision the subject of these review proceedings.
  2. The correct and preferable decision is that the applicant’s claim on the Home Warranty Scheme policy of insurance set out in Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, in force from 2 December 2016 to 3 May 2017, is allowed to meet the cost of rectification of the items of defective work set out in the letter from the Queensland Building and Construction Commission dated 24 April 2019.  The assistance the applicant is entitled to under the Home Warranty Scheme is reduced by the liability amount for the work in the sum of $119,788.30.
  3. If an order for costs is sought written submissions must be filed in the Tribunal and given to the other party by 4.00pm 3 February 2023, with any submissions in response filed in the Tribunal and given to the applicant party by 4.00pm 17 February 2023. Any application for costs will be determined on the papers without an oral hearing, not before 17 February 2023.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant sought external review of a decision in relation to the liability amount under the Home Warranty Insurance Scheme – relevant policy in force – meaning of liability amount – where settlement agreement entered after termination of contract – whether liability amount affected.

Queensland Building and Construction Commission Act 1991 (Qld), s 68, s 69, s 69A

Queensland Building and Construction Commission Act 1991 (Qld), s 67A, s 67X, s 68A, s 68B, s 68F, s 68H, s 68I, s 71A

Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 2C, s 1, s 15(4)

Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015

Queensland Building and Construction Commission and Other Legislation Amendment Regulation (No2) 2016, s 2, s 10

Queensland Building and Construction Commission and Other Legislation Amendments Act 2014, s 36

Queensland Civil and Administrative Tribunal Act 2009 (Qld), Division 3

Statutory Instruments Act 1992 (Qld) in force 28 February 2015 to 28 February 2017, s 51

Arthur v QBSA [1997] QBT 165

Bellgrove v Eldridge (1954) 90 CLR 613

DCT v Moore Bank Pty Ltd (1986) 1 Qd R 414

Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1992) 1 Qd R 149

Godbold v QBCC [2014] QCAT 537

Illing v QBSA QBT 156

Littlewood v George Wimpey & Co Ltd [1953] 2 All ER 915

McDonald v QBSA [2004] QCCTB 181

Schneider v Queensland Building and Construction Commission [2021] QCA 155

Sutton v QBSA [2000] QBT 3

The State of Western Australia v Cunningham [No 3] WASCA 207

APPEARANCES &

REPRESENTATION:

Applicant:

Ms M Campbell, Solicitor, Crouch and Lyndon

Respondent:

Mr R Ensbey, Solicitor Gadens Lawyers

REASONS FOR DECISION

  1. [1]
    Dr Feinbloom and his wife entered into a contract for the construction of residential dwelling with Buildmaster Pty Ltd on 6 January 2017 (the Contract).
  2. [2]
    This is an application by Dr Feinbloom to review[1] a decision of the Queensland Building and Construction Commission (QBCC) advised to Dr Feinbloom on 3 December 2019, in relation to the extent of cover available to him under the statutory insurance scheme for defective contract works.
  3. [3]
    A Senior Internal Review Officer of the QBCC re-considered a claim by Dr Feinbloom under the statutory insurance scheme, known as the Queensland Home Warranty Scheme following termination of the Contract on 26 April 2018. Dr Feinbloom complained to the QBCC on 21 May 2018 in relation to defective work and sought indemnification under the Scheme for the cost of rectification of the work.
  4. [4]
    Dr Feinbloom’s claim on the Home Warranty Scheme was approved on 1 October 2019 in an amount of $90,770.84, being the amount approved to complete the work in an amount of $130,178.40 less money said to be owed under the Contract in an amount of $39,407.56.
  5. [5]
    The scope of work to be undertaken by the contractor engaged under the statutory insurance scheme included 5 items, the most important of which related to water ingress relevant to all windows throughout the building. 119 work items were identified as not covered by the Queensland Home Warranty Scheme.
  6. [6]
    On 2 October 2019 the QBCC advised Dr Feinbloom that his liability for the purposes of his claim under the Queensland Home Warranty Scheme has been calculated as $39,407.56.
  7. [7]
    By email dated 2 October 2019 the QBCC advised the liability amount had been calculated as follows:

Contract amount$1,135,752.00

Variation #27$5,335.00

Price Cost Reduction$44,127.00

As varied contract amount$1,096,182.00

Less payments$1,056,744.44

Liability amount$39,407.56

The decision the subject of the review

  1. [8]
    Dr Feinbloom sought an internal review of the 2 October 2019 decision.
  2. [9]
    Dr Feinbloom submitted to the internal reviewer that the liability amount should be zero on the basis that following lawful termination of the Contract before the practical completion stage was reached, a settlement agreement was entered whereby the builder waived any other payment under the Contract. Consideration for the settlement agreement was $91,385.24. It is uncontentious that the sum was an amount claimed by the builder in an invoice dated 24 April 2018 sent to Dr Feinbloom after termination on 27 April 2018. The sum purports to be the value of the Stage 10 progress claim for landscaping and fence construction less variation 27, less certain provisional sum and prime cost items.
  3. [10]
    Dr Feinbloom submitted with reference to the QBCC’s calculation, that the prime cost reduction was incorrectly recorded and was in fact $44,471.00. Insofar as the sum of $39,407.56 is comprised of variation #27 and the practical completion stage payment under the contract, those components should not be included because, as a result of the settlement agreement the practical completion stage payment had been waived, and because variation #27 was issued 13 days after termination it was not a valid variation.
  4. [11]
    The internal review decision disallowed Dr Feinbloom’s claim on the Home Warranty Scheme in part. The internal review decision determined that the liability amount is $119,788.30.

The relevant insurance policy

  1. [12]
    The QBCC asserts in its decision that because of the date of the contract the relevant insurance policy is that set out in Schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Schedule 6 Policy). Later in this proceeding the QBCC changed its position to assert that the relevant insurance policy is that set out in Schedule 2C of the QBCC Regulation 2018, in force as at 6 January 2017 (Schedule 2C Policy). I cannot discern any relevant difference in the terms of the Schedule 6 and Schedule 2C policies.
  2. [13]
    Relevantly it is said that the policy provides that the assistance a consumer is entitled to claim in relation to residential construction works must be reduced by the consumer’s liability amount for the work.
  3. [14]
    The QBCC refers to the definition of “Liability amount” in the Schedule 6 policy as the amount of the consumer’s remaining liability under-
    1. (i)
      if the contract for carrying out the works has ended – the contract immediately before the contract ended, or
    2. (ii)
      otherwise – the contract for carrying out the works; but
  1. (a)
    does not include –
  1. (i)
    any amount for liquidated damages or damage for delay that the consumer may be entitled to set off against the remaining liability; or
  2. (ii)
    an amount for which the licenced contractor who carried out the works has waived payment for valuable consideration, or is liable to the consumer in relation to the contract.

Practical Completion stage payment

  1. [15]
    The decision maker determined that the Practical Completion component of the contract remained a liability under the contract to be contributed by the owners towards the cost of rectification of the defective building work.
  2. [16]
    The decision maker considered that for the builder to have waived payment in respect of the Practical Completion amount there first must have been an obligation by Dr Feinbloom to pay this amount to the builder. The QBCC considered that as the practical completion stage had not been reached, the builder has no entitlement to make a claim for the PC stage and it remained a liability under the contract to be contributed by Dr Feinbloom towards the cost of rectification of the defective building work.

Stage 10 (driveway and fence)

  1. [17]
    The decision maker noted that the builder issued an invoice for his work on the driveway and fence after termination of the contract. On this basis it is reasoned that the builder had no entitlement to claim for payment and Dr Feinbloom had no obligation to pay the builder for that stage through any settlement agreement. It is uncontentious that the settlement sum did include the value of the stage 10 work and that the driveway and fence were completed before termination. It is also the case that the invoice was dated before the termination date but issued after termination.
  2. [18]
    The decision maker found that the stage 10 payment need not have been paid by Dr Feinbloom and formed part of the remaining liability under the contract to be contributed by Dr Feinbloom towards the cost of rectification of the defective building work.

Variation 27

  1. [19]
    This variation was not considered by the QBCC to be a valid variation in accordance with the Contract, accordingly it was not included as part of the liability amount.

Calculation of remaining liability

  1. [20]
    Accepting that the stage 10 allowance in the contract was $136,290.24 and that the practical completion amount was $34,072.56, the QBCC determined the remaining liability of Dr Feinbloom as follows:

Contract price$1,135,752.00

Less Variations $768.78

Less PS and PC sums$44,471.10

Less variation 27$5,335.00

New Contract Value$1,085,177.20

Less Payment made$965,388.90

Retention$119,788.30

  1. [21]
    In summary the QBCC found that the remaining liability of Dr Feinbloom at the time the contract ended was the adjusted combination of Stage 10 and the Practical Completion progress claims. The use of the term “retention” by the QBCC is somewhat confusing given that no retention moneys were held by Dr Feinbloom under the Contract. The QBCC appears to use the term interchangeably with remaining liability.

Issues for determination

  1. [22]
    Dr Feinbloom submits and I accept that the Tribunal must make the correct and preferable decision on the basis of a hearing de novo which will include a consideration of the following factors:
    1. (a)
      which policy of insurance is the correct insurance policy to respond to Dr Feinbloom’s claim;
    2. (b)
      what is the correct and preferable interpretation of the “remaining liability” as it is referred to in the relevant policy of insurance; and
    3. (c)
      what is the correct calculation of Dr Feinbloom’s “remaining liability” (if any) to be deducted from any insurance amount approved for the rectification of the window defects?
  2. [23]
    The QBCC says that the issue to be determined by the Tribunal is whether or not the sum of $91,385 paid by Dr Feinbloom to the builder is a “liability amount as defined in the Schedule 2C Policy and further, the date when Dr Feinbloom and the builder agreed to the quantum of the adjusted amount to be paid in respect of Stage 10.
  3. [24]
    I intend to deal with the latter considerations as part of my determination of the correct calculation of Dr Feinbloom’s “remaining liability”.

The Orders sought by Dr Feinbloom

  1. [25]
    Dr Feinbloom seeks the following orders:
    1. (a)
      the decision be set aside;
    2. (b)
      the Tribunal substitute the decision with a determination that the remaining liability is $0.00 or in the alternative $34,072.56 and approve his claim for the balance cost of rectification; and
    3. (c)
      the QBCC pay Dr Feinbloom’s costs of and incidental to the proceeding.

What is the applicable insurance policy?

  1. [26]
    Dr Feinbloom contends that Edition 8 is the applicable policy. That policy was in force until 27 October 2016.[2]
  2. [27]
    The QBCC contend that Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, in force on 6 January 2017, provides the terms of cover for the statutory insurance scheme and that the applicable policy commenced on 28 October 2016.[3]
  3. [28]
    The reasons for Dr Feinbloom’s contention are:
    1. (a)
      by s 69A of the Queensland Building and Construction Commission Act 1991 (the QBCC Act), current as at the date of payment of the premium, a policy of insurance comes into force on the earliest of:
      1. when the premium is paid under s 68;
      2. on the date the contract is entered into for the work;
      3. when work commences.

The premium was paid on 12 October 2016 which pre-dates the other elements. Accordingly it is submitted that the relevant policy of insurance is Edition 8.

  1. (b)
    The QBCC has applied Edition 8 in declining a separate non-completion claim, relating to the works, and should be bound by that position.[4]
  1. [29]
    The QBCC refers to the version of the QBCC Act current as at the date of the contract on 6 January 2017 with respect to the question of when cover under the statutory insurance scheme comes into force. The QBCC refers to s 68H of the QBCC Act in force as at the contract date.
  2. [30]
    If the question before me is whether cover under the statutory insurance scheme has come into force as at the date of payment of the premium on 12 October 2016, the previous version of the Act as at that date is relevant. I will consider the QBCC’s submission by reference to s 69 of the QBCC Act in force on 12 October 2016.
  3. [31]
    The QBCC says that it is clear that cover under the statutory insurance scheme only comes into force when a contract for the carrying out of residential construction work is entered into between a consumer and a building contractor. It is submitted that if there is no contract, there is no cover.
  4. [32]
    Dr Feinbloom does not address that point.
  5. [33]
    I accept the QBCC’s submission that no insurance cover arises as at 12 October 2016 by virtue of the builder prematurely paying a premium to the QBCC before a contract for the performance of residential construction work has been entered.
  6. [34]
    It follows and I find that the certificate of insurance issued to the builder on 12 October 2016 cannot be evidence of insurance coverage at that time because there is no known residential construction work to which it attaches.
  7. [35]
    This conclusion is reinforced by s 68 of the QBCC Act, in force at 12 October 2016, which provides that a premium must be paid as soon as practicable after the contract is entered into with the consumer.
  8. [36]
    I consider that the legislation in effect as at the date of entry into the contract on 6 January 2017 is relevant to the question of whether and what insurance cover is in place with respect to the Contract works.
  9. [37]
    Relevantly by s 68A of the later version of the QBCC Act (QBCC Act January 2017), a licensed contractor who pays an insurance premium, pays the premium on behalf of a consumer. By s 68B(2) the licensed contractor must collect from the consumer and pay to the commission, the appropriate insurance premium before the first of the following happen – 10 business days elapse from the day the contract was entered into or construction work starts.
  10. [38]
    There is no evidence those steps took place.
  11. [39]
    By s 68F if the commission accepts an insurance premium for residential construction work, the commission must issue a notice of cover for the work. There is no evidence before me that the QBCC issued a notice of cover for the work the subject of the 6 January 2017 contract.
  12. [40]
    Despite the problems raised on the facts by premature payment of the premium, Dr Feinbloom is nevertheless entitled to the benefit of the Home Warranty Scheme. By s 68H cover under the Scheme comes into force, in any event, if a consumer enters into a contract for the carrying out of residential construction work, the contract bears the licence number of the licensed contractor and the contractor is under the terms of his licence able to carry out the work covered by the statutory insurance scheme. Those conditions are met in the 6 January 2017 contract.
  13. [41]
    Dr Feinbloom has the benefit of the statutory insurance scheme despite non-compliance by the builder with its requirements under the Act in relation to payment of a premium.
  14. [42]
    It is not relevant for the purpose of this review, however, it is by no means clear how the QBCC has treated the premium paid by Mr King, the licensed nominee of the builder. It is possible that it has been applied to the 6 January 2017 contract after issuing a refund to Mr Kind to reflect the lower value of work the subject of the contract.
  15. [43]
    Dr Feinbloom attaches a QBCC record in relation to policy number 012234688 to his statement of evidence, obtained through a Right to Information request.[5] Dr Feinbloom says he understands that Mr King received a partial refund of the premium paid by him because of the ultimately reduced contract value of the contract entered into with the builder. The QBCC record does not confirm any refund was made. The best I can make out is that the last modification to the policy record occurred on 29 April 2018 at 6.02pm when the Policy Payment Date was changed to 12 October 2016, the date of payment of the original premium. It is unknown why such a step was taken on that date. The record reveals a request for a refund of part of a premium by the builder and on 10 January 2017 a notification that a partial refund would only be allowed where there is a decrease in the work’s insurable value as a result of a contract variation. A copy of the building contract and signed variations was requested. There is no evidence the documents were provided or that a refund was given.
  16. [44]
    In the end I am unable to make any finding as to the status of the premium paid and whether it was ultimately applied to the 6 January 2017 contract. I do not consider that a finding is necessary in that regard because Dr Feinbloom is entitled to the benefit of the statutory insurance scheme whether a premium was paid or not. It is clear is that the QBCC has accepted a claim under the statutory insurance scheme, it has appointed a contractor and planned to proceed with rectification work. It is unknown if the work has been performed.
  17. [45]
    Because no insurance coverage arose prior to the 6 January 2017 contract being entered into, I find that the statutory policy of insurance relevant to the works the subject of the 6 January 2017 contract is the Schedule 2C policy set out in the Queensland Building and Construction Commission Regulation 2003 in force from 2 December 2016 to 3 May 2017, noting that its subsequent repeal does not affect anything done or suffered under the legislation before it ceased to have effect.[6]The policy came into force on the date of the contract.[7]
  18. [46]
    I will now turn to the extent of assistance Dr Feinbloom is entitled to under the Schedule 2C policy.

What assistance is Dr Feinbloom entitled to and how is that calculated?

Statutory framework

  1. [47]
    Section 67X of the QBCC Act (January 2017), provides that the purpose of the statutory insurance scheme is to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.  Assistance can not be provided under the scheme to a consumer unless the consumer has suffered loss as a consequence of residential construction that is defective or incomplete.
  2. [48]
    On the basis of the Complaint as to defective work made to the QBCC and the acceptance of the claim under the Scheme to rectify defective work, I find that the claim on the policy is for assistance for the reasonable cost of rectifying defective work. In their submissions the parties have somewhat inconsistently referred to the claim as one for incomplete work. That is not the basis on which I will determine Dr Feinbloom’s entitlement.
  3. [49]
    S 15(1) of the Schedule 2C Policy provides that a consumer of residential construction work is entitled to claim assistance for the reasonable costs of rectifying defective work.
  4. [50]
    S 15(4) of the Policy provides that the assistance the consumer is entitled to claim under the section must be reduced by the consumer’s liability amount for the work.
  5. [51]
    The Schedule 2C policy defines liability amount as:
    1. (a)
      the amount of the consumer’s remaining liability under-
      1. if the contract for carrying out the work has ended – the contract immediately before the contract ended; or
      2. otherwise – the contract for carrying out the work; and
    2. (b)
      does not include –
      1. any amount for liquidated damages or damages for delay that the consumer may be entitled to set-off against the remaining liability; or
      2. an amount for which the licensed contractor who carried out the work has waived payment for valuable consideration, or is liable to the consumer in relation to the contract.

How is the liability amount calculated?

  1. [52]
    It is important to note that the policy nominates a point in time when the liability amount is to be calculated. That is, “immediately before” the contract ends. The policy does not say “upon the contract ending” or upon termination of the contract. It is also important to note that the policy does not refer to an amount which is due or due and owing to the builder under the contract or to an accrued liability.
  2. [53]
    The policy refers to a “remaining liability”. The QBCC in its submissions filed 19 May 2021 refer to various judicial considerations of the word “liability” in differing contexts.[8] Overall the decisions refer to being bound by law or equity, “answerable”, and “can by bound”. I consider that liability in the context of the Schedule 2C policy means an amount which Dr Feinbloom can be bound to pay under the contract, if it is performed according to its terms.
  3. [54]
    It is useful to note a decision of the Queensland Court of Appeal in Schneider v Queensland Building and Construction Commission[9] which considered an earlier version of the statutory insurance policy and provisions which entitled the QBCC to reduce the amount payable under a claim by the amount of any pre-payment by the owner under the contract.
  4. [55]
    Morrison JA said:

…it cannot have been intended that the QBCC would be required to fill the role of an adjudicator between the owner and contractor when issues of the statutory insurance scheme and policy are concerned…It would be contrary to the intended purpose of the statutory scheme, namely “to provide assistance to consumers of residential construction work for loss associated with work that is…incomplete[10], to embroil the QBCC in an adjudication of the merits of claims, or the state of mind of either contracting party. Under the construction I have advanced, the QBCC has a simple consideration to address, has the work been done or not, and has money been paid for work not yet done.

Thus understood, clause 1.6(b) is not dependent upon the particular conditions of a contract or the reason why the works have not been done.  It does not depend upon the knowledge of the owner, or the state of mind of the contractor.  It operates solely upon the question of whether work has been done and therefore the money for that work has become due.

  1. [56]
    Those observations are helpful to understanding the role of the QBCC more generally under the statutory insurance scheme, which in turn influences the way the policy is construed. I respectfully adopt Morrison JA’s observation to conclude that the QBCC is not an adjudicator required to determine what sums may or may not be owing to a party in the event of a dispute between the parties resulting in termination of the contract.
  2. [57]
    If it is not the QBCC’s role to determine disputed claims under the contract in order to determine what might be the remaining liability of an owner, but simply to determine what remains of the contract price before the end of the contract, it can meet its statutory obligation to indemnify the owner for his loss.
  3. [58]
    The effect is that it becomes possible to establish the owner’s actual loss at that point in time. Actual loss must mean net loss, once the contract price for full performance of the contract is taken into account. Consistently, loss in the context of a claim for damages for breach of contract by a builder is usually assessed as the difference in the contract price of the work and the cost of making the work conform to the contract.[11]

What does the Contract provide in relation to liability for payments?

  1. [59]
    By clause 11.4 of the General Conditions of the contract, Dr Feinbloom is obliged to pay the contract price in accordance with the contract.
  2. [60]
    Contract price is defined as the amount stated in item 3 of the Schedule - $1,135,752.00, as adjusted under the contract.
  3. [61]
    Clause 11.6 of the general conditions provides that the contractor is entitled to claim payment of the Contract price progressively on completion of the stages set out in the contract, as adjusted.
  4. [62]
    By clause 11.7, if the contractor gives to the owner a progress claim for a progress payment under clause 11.6, the owner must pay the contractor the claimed progress payment within 5 business days.
  5. [63]
    By clause 20.5, if the contract is terminated (for failure to remedy substantial breach), the Contractor is entitled to a reasonable remuneration for the unpaid value of that part of the works it carried out under the contract to and including the day on which the contract is terminated.
  6. [64]
    Immediately before the contract came to an end by its valid termination, Dr Feinbloom had not received any progress claim for stage 10 (Driveway and front fence) or for Stage 12 (Practical Completion). I note that the contract does not refer to a Stage 11. Bearing mind that the contract was on foot and that it had not been terminated, because we are concerned with the point in time “immediately before the end” of the Contract, Dr Feinbloom was at that time liable to pay the balance contract price in accordance with the terms of the contract. As I noted earlier, the policy does require that any liability before the end of the Contract must be an accrued liability. It is merely a liability at large.
  7. [65]
    Accordingly, the amount of the remaining progress claims form part of Dr Feinbloom’s remaining liability as adjusted by variations and provisional sum and prime cost items.

Liability amount is the balance contract price

  1. [66]
    I consider the reference in the policy to liability amount is a reference to the balance contract price of the work for which Dr Feinbloom was liable under the Contract. The QBCC has submitted that earlier versions of the policy, which did not define remaining liability but required its deduction from any amount paid out under the policy for incomplete or defective work, has been treated in other matters as the balance contract price.[12]
  2. [67]
    The balance contract price is the amount of the unpaid progress payments less adjustments for agreed variations, prime cost and provisional sums. I find that sum is the amount calculated by QBCC’s internal reviewer, in the sum of $119,788,30.
  3. [68]
    In relation to the issue raised by the QBCC as requiring determination, namely whether the sum of $91,385.24 paid by Dr Feinbloom to the builder is a liability amount as defined.
  4. [69]
    I conclude that to the extent the sum of $91,385.24 forms part of an unpaid progress claim and the balance contract price immediately before the end of the contract, it is part of the liability amount as defined.
  5. [70]
    The QBCC has also raised an issue as to the date when agreement was reached as to the quantum of the adjusted amount paid in respect of Stage 10.  On the basis of my finding that the liability amount is the balance contract price as at the time immediately before the end of the contract that date cannot be relevant unless the sum was in fact paid before the end of the contract, thereby altering the balance contract price. That did not occur.
  6. [71]
    In any event I note that the QBCC agrees with the adjustments to the balance contract price in terms of the variations, prime cost and provisional sums which were in fact applied by Dr Feinbloom and the builder to arrive at the amount of the Stage 10 progress claim.

What is the effect of the settlement agreement entered into by Dr Feinbloom and the builder after termination of the Contract?

  1. [72]
    The difficulty for Dr Feinbloom is that after the contract ended, he paid the sum of $91,385.24 to the builder for works completed to the date of termination and in consideration for a release from liability for future payments under the contract.
  2. [73]
    That payment, the reasons for it and the circumstances under which it was made all fall outside the relevant considerations under the definition of “remaining liability”. The payment relates to a period after the end of the contract, not “immediately before” the end of the contract.
  3. [74]
    Attempting to deal with the payment and the terms on which it was paid and accepted involves the QBCC acting as an adjudicator in the dispute. On the reasoning in Schneider’s case, that adjudication is beyond the QBCC’s role and responsibility in its administration of the Home Warranty Scheme. It is also unnecessary for the purpose of determining the liability amount.
  4. [75]
    Despite this, the QBCC has in its statement of reasons for the decision under review and in its submissions sought to reach a conclusion on the merits of the settlement agreement, including whether Dr Feinbloom was legally obliged to pay the settlement sum and whether the builder was legally entitled to waive payment of the practical completion stage payment.
  5. [76]
    Likewise, Dr Feinbloom has argued strenuously in favour of the settlement sum being treated as payment of an existing legal obligation and therefore outside the pool of any remaining liability.
  6. [77]
    These considerations are otiose in the context of the definition of “liability amount” which requires consideration of remaining liability at a specific earlier point in time.
  7. [78]
    Dr Feinbloom makes the point that if the settlement sum is not taken out of the pool of moneys forming the remaining liability under the Contract, he will in fact have paid twice. He submits that he has paid the builder for works done at the property and is now being required to pay that money again towards the cost of rectification works, as it is considered retention.  The net effect is that the applicant is being required to pay a substantial amount of his own money (because it is not money that is actually held in retention) towards the cost of the rectification of significant defects in existence due to the builder’s default.
  8. [79]
    With respect that submission ignores the limited assistance the Home Warranty Scheme offers. The Scheme will help to defray net loss as a result of defective work calculated before the end of the Contract. Dr Feinbloom has no entitlement to any greater sum under the Home Warranty Scheme. The fact that his net loss may have been greater after termination of the Contract is not to the point. To the extent that that Dr Feinbloom has suffered loss not indemnified by the Scheme because he has satisfied what he considered to be a contractual obligation arising on termination of the Contract, he may turn to his rights against the builder.

Conclusion

  1. [80]
    To the extent the QBCC has nominated the Schedule 6 policy as the relevant insurance policy, I find that is incorrect and the relevant insurance policy is the Schedule 2C policy.
  2. [81]
    I find that the calculation of the liability amount in the sum of $119,788.30 made by the QBCC in its 3 December 2019 decision is correct.

Orders

  1. [82]
    The Tribunal amends the decision the subject of these review proceedings.
  2. [83]
    The correct and preferable decision is that Dr Feinbloom’s claim on the Home Warranty Scheme policy of insurance set out in Schedule 2C of the Queensland Building and Construction Commission Regulation 2003, in force from 2 December 2016 to 3 May 2017, is allowed to meet the cost of rectification of the items of defective work set out in the letter from the Queensland Building and Construction Commission dated 24 April 2019. The assistance Dr Feinbloom is entitled to under the Home Warranty Scheme is reduced by the liability amount for the work in the sum of $119,788.30.
  3. [84]
    If an order for costs is sought written submissions must be filed in the Tribunal and given to the other party by 4.00pm 27 January 2023, with any submissions in response filed in the Tribunal and given to the applicant party by 4.00pm 10 February 2023.

Footnotes

[1]Division 3 Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[2]Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015.

[3]Queensland Building and Construction Commission and Other Legislation Amendment Regulation (No2) 2016, s 2, s 10; Queensland Building and Construction Commission and Other Legislation Amendment Act 2014, s 36; Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015.

[4]Exhibit 6, Letter from the Queensland Building and Construction Commission to Dr Feinbloom dated 2 February 2021.

[5]Exhibit 3, attachment RT-1.

[6]Statutory Instruments Act 1992 (Qld), section 51(2).

[7]Queensland Building and Construction Commission Act 1991 (Qld) in force 6 January 2017, s 68I.

[8]The State of Western Australia v Cunningham [No 3] WASCA 207, [175]; DCT v Moore Bank Pty Ltd (1986) 1 Qd R 414, 416; Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1992) 1 Qd R 149, 151; Littlewood v George Wimpey & Co Ltd [1953] 2 All ER 915, 921

[9][2021] QCA 155.

[10]Or defective, within the terms of the policy.

[11]Bellgrove v Eldridge (1954) 90 CLR 613.

[12]Godbold v QBCC [2014] QCAT 537, [7], [56], [61]; McDonald v QBSA [2004] QCCTB 181, [31]; Sutton v QBSA [2000] QBT 3, [6]-[8]; Arthur v QBSA [1997] QBT 165; Illing v QBSA QBT 156.

Close

Editorial Notes

  • Published Case Name:

    Feinbloom v Queensland Building and Construction Commission

  • Shortened Case Name:

    Feinbloom v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 31

  • Court:

    QCAT

  • Judge(s):

    A/Senior Member Fitzpatrick

  • Date:

    18 Jan 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
Arthur v Queensland Building Services Authority [1997] QBT 165
2 citations
Jump To
Cite 1 - [1997] QBT 165
Cite 2 - [1997] QBT 165
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Fibreglass Pool Works (Manufacturing) Pty Ltd v ICI Australia Pty Ltd (1992) 1 Qd R 149
2 citations
Jump To
Cite 1 - (1992) 1 Qd R 149
Cite 2 - (1992) 1 Qd R 149
Godbold v Queensland Building and Construction Commission [2014] QCAT 537
2 citations
Jump To
Cite 1 - [2014] QCAT 537
Cite 2 - [2014] QCAT 537
Gold Coast Carlton Pty Ltd v Council of the Shire of Beaudesert[1986] 1 Qd R 414; [1985] QSCFC 140
2 citations
Jump To
Cite 1 - [1986] 1 Qd R 414
Cite 2 - [1986] 1 Qd R 414
Littlewood v George Wimpey & Co Ltd [1953] 2 All ER 915
2 citations
Jump To
Cite 1 - [1953] 2 All ER 915
Cite 2 - [1953] 2 All ER 915
McDonald v QBSA [2004] QCCTB 181
2 citations
Jump To
Cite 1 - [2004] QCCTB 181
Cite 2 - [2004] QCCTB 181
Schneider v Queensland Building and Construction Commission [2021] QCA 155
2 citations
Jump To
Cite 1 - [2021] QCA 155
Cite 2 - [2021] QCA 155
State of Western Australia v Cunningham (No. 3) [2018] WASCA 207
2 citations
Jump To
Cite 1 - [2018] WASCA 207
Cite 2 - [2018] WASCA 207
Sutton v QBSA [2000] QBT 3
2 citations
Jump To
Cite 1 - [2000] QBT 3
Cite 2 - [2000] QBT 3

Cases Citing

Case NameFull CitationFrequency
BIELBY [2023] QCAT 3451 citation
1

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