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Juckes v Queensland Building and Construction Commission[2023] QCAT 398

Juckes v Queensland Building and Construction Commission[2023] QCAT 398

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Juckes v Queensland Building and Construction Commission [2023] QCAT 398

PARTIES:

TIM JUCKES

EMILY JUCKES

(applicants)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

GAR521-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 September 2023

HEARING DATE:

25 September 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Traves

ORDERS:

  1. The application for miscellaneous matters filed on 19 April 2023 is allowed in the following terms:

The application to review the decision dated 2 November 2022 filed on 29 November 2022 will proceed as an application to review the decision to disallow a claim in respect of items 2, 3 and 7 of the Complaint.

  1. The matter is listed for a Directions Hearing (together with GAR379-22 and GAR380-22) on a date and time to be advised.
  2. The parties are to provide to the Tribunal (by email to [email protected]) proposed draft directions two (2) days prior to the Directions Hearing.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where Decision Notice dated 2 November 2022 notified applicants of decision about the scope of works in respect of certain complaint items and to disallow a claim in respect of other complaint items – where applicants reviewed the decision dated 2 November 2022 – where decision-maker issued an amended scope of works – where applicants filed an application purporting to discontinue the review of the scope of works part of the decision with a ‘right of reinstatement’ – where respondent claims the current review is limited to a review of the scope of works decision – whether the review of the decision to disallow the claim for some items should properly have been the subject of a review of the decision not to issue a direction to rectify for those items – whether application to review should continue as a review of items disallowed – whether review proceedings should be dismissed.

Queensland Building and Construction Commission Act 1991 (Qld), s 67Y, s 72, s 72A, s 86

Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 6

Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379

Jenkins v Queensland Building and Construction Commission [2019] QCAT 117

Lim v Queensland Building and Construction Commission [2018] QCAT 156

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 19 April 2023 the applicants filed an Application for miscellaneous matters in the following terms:

GAR521-22 relates to our application for external review of the decision of the QBCC dated 2 November 2022, which comprises two parts:

  1. The QBCC’s decision to reject our Home Warranty Insurance Claim in respect to Complaint items 2, 3, and 7 of our April 2021 Complaint (Part 1 of GAR521-22); and
  2. The QBCC’s decision in regard to the Scope of Works for the rectification of Complaint Items 1, 4, 5 and 6 of our April 2021 Complaint (Part 2 of GAR521-22).

We, Tim Juckes and Emily Juckes apply to the tribunal for:

  1. Partial discontinuance/strike out of our external review application, dated 29 November 2022, with right of reinstatement.
  2. The part we apply to discontinue/strike out, with right of reinstatement, is Part 2 of GAR521-22 only.

Note: Part 1 of GAR521-22 has not been resolved and remains in GAR521-22.

The reasons we provide are:

  1. On 12 April 2023, the QBCC filed an Amended Scope of Works document (Amended Scope of Works) in the Tribunal. The Amended Scope of Works resolves our concerns in respect to Part 2 of GAR521-22.
  1. [2]
    On 27 June 2023 the Queensland Building and Construction Commission filed its response. In summary, the Commission submitted that GAR521-22 was a merit review of a decision dated 2 November 2022 about a scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work pursuant to s 86(1)(g) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). The Commission submitted that, as a review of a scope of works decision, the scope of the review is limited to an examination of what works are reasonable and necessary to rectify the defects. To permit a review of earlier decisions at this time “would be an abuse of process, because it would allow a homeowner to effectively circumvent the time limits to seek review of a Direction to Rectify” (citing Lim v Queensland Building and Construction Commission [2018] QCAT 156). Further, the Commission submitted the applicants had an opportunity to examine those complaint items that were not included in the scope of works when they sought to review the respondent’s decision the subject of GAR621-21. Accordingly, it was submitted, as Part 1 of GAR521-22 was not within the scope of the Scope of Works review application and Part 2 of GAR521-22 had been resolved, the appropriate order was that GAR521-22 be dismissed.

Background

  1. [3]
    On or about 20 December 2016 the applicants entered into a contract with DJ Built Homes Pty Ltd (the contractor) for the construction of a new home at Chapel Hill.
  2. [4]
    On 27 February 2019 the applicants lodged a Complaint in relation to work carried out by the contractor at the property (First Complaint).
  3. [5]
    On 17 April 2019 the Commission notified the applicants that the items in the First Complaint were of a contractual nature and that the Commission was unable to assist.
  4. [6]
    On or about 16 March 2020 the contractor commenced a building dispute (BDL359-18) against the applicants in the tribunal.
  5. [7]
    On 23 April 2021 the applicants lodged another Complaint comprising seven (7) items in respect of work carried out by the contractor at the property (Second Complaint).
  6. [8]
    On 29 July 2021 the Commission made a decision not to give a direction to rectify for complaint items 2, 3, 4 and 5 and to give a direction to rectify for items 1, 6 and 7 (Original DTR decision).
  7. [9]
    On 25 August 2021 and 26 August 2021, the contractor and the applicants, respectively, lodged applications to internally review the Original DTR decision. On 7 October 2021 the Commission made the internal review decision not to give a direction to rectify to the contractor in respect of items 1 to 7 of the Second Complaint on the basis that, pursuant to s 72(5) of the QBCC Act, it would be unfair to do so (Internal DTR decision).
  8. [10]
    On 1 November 2021, based on the finding in the Internal Review DTR decision, a QBCC Home Warranty Claim Assessment of the Complaint items was conducted.
  9. [11]
    On 2 November 2022, the Commission notified the applicants of the Scope of Works decision, advising that Complaint Items 1, 4, 5 and 6 had been approved for a claim under the scheme and Complaint Items 2, 3 and 7 had not been approved for a claim for assistance under the scheme. The Scope of Works in respect of the approved items was attached to the Scope of Works Decision Notice (Decision dated 2 November 2022).
  10. [12]
    On 3 November 2021 the applicants filed an external review application with the tribunal seeking to review the Internal Review DTR decision (GAR621-21).
  11. [13]
    On 29 November 2022 the applicants filed an external review application in the tribunal seeking to review the decision dated 2 November 2022.
  12. [14]
    The review of the Internal Review DTR decision (GAR621-21) was set down for a three-day hearing to commence on 26 April 2023.
  13. [15]
    On 12 April 2023 the Commission filed an Amended Scope of Works.
  14. [16]
    On 19 April 2023 the applicants filed a Notice of Withdrawal in respect of GAR621-21.
  15. [17]
    On 19 April 2023 the applicants also filed the Application for Miscellaneous matters (to discontinue part of the application to review), which is the subject of this determination.

Consideration

  1. [18]
    The following legislative provisions were in effect when the contract was entered into:
  1. QBCC Act, reprint current from 28 October 2016 to 28 February 2017 (QBCC Act); and
  2. Queensland Building and Construction Commission Regulation 2003 (2003 Regulation) reprint current from 2 December 2016 to 3 May 2017.
  1. [19]
    The 2003 Regulation has been repealed and replaced with the 2018 Regulation (QBCC Regulation). Despite the repeal, the right to entitlement under the statutory insurance scheme, contained in Schedule 2C of the 2003 Regulation, is carried forward into Schedule 6 of the QBCC Regulation in identical terms.
  2. [20]
    Section 86 of the QBCC Act sets out the decisions of the Commission that are reviewable in the tribunal. They include, relevantly:
  • a decision to give or not to give a direction to rectify (s 86(1)(e));
  • a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify tribunal work (s 86(1)(g)); and
  • a decision to disallow a claim under the statutory insurance scheme wholly or in part (s 86(1)(h)).
  1. [21]
    Section 71A(6) of the QBCC Act provides:

The commission may only have work carried out under this section to the extent that the cost of the work is covered by the assistance under the statutory insurance scheme that the person may be entitled to.

  1. [22]
    A direction to rectify defective or incomplete building work may be given to the person who carried out the building work under s 72. The Commission, in deciding whether to give the direction may take into consideration all the circumstances it considers are reasonably relevant and is not limited to a consideration of the terms of the contract for carrying out the work.[1] Further, if the Commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction, it is not required to give the direction.[2] A direction to rectify or remedy cannot be given more than 6 years and 3 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.[3]
  2. [23]
    A decision to allow a claim under the scheme is made in accordance with the Terms of Cover as prescribed by the QBCC Regulation.[4] In other words, the applicants’ claim must meet the requirements of the Terms of Cover in order for their claim to be allowed under the scheme. There is no formal requirement for a claim to be made on the Commission. The complaint made is taken to constitute a claim for the purposes of the scheme.
  3. [24]
    Schedule 6, Part 3 of the QBCC Regulation provides for the assistance a consumer for residential construction work is entitled to claim under the scheme, if the work is defective. Relevantly, under the Terms of Cover for a defective work claim, it must be determined whether:
  1. the residential construction work is primary insurable work that is defective;[5]
  2. the licensed contractor who carried out the defective work has a continuing legal obligation to complete the work;[6]
  3. when the consumer became aware of the defect.[7]
  1. [25]
    A decision about the scope of works to be undertaken under the scheme to rectify defective work is not necessarily confined to work the subject of a Direction to Rectify. Indeed, the issue of a Direction to Rectify is not a necessary step before a claim can be allowed.[8] The scheme requires that the scope of works for the purposes of s 86(1)(g) must be a scope of works within the confines of the Terms of Cover which govern the entitlement to assistance under the scheme.[9] The amount of payment under the scheme is limited to the reasonable cost of undertaking those works necessary to rectify the defects, less the owner’s remaining liability under the contract.[10] The scope of a review about a scope of works decision has been held to be confined to an examination of what works are reasonable and necessary to rectify the defects.[11] I do not accept the Commission’s submission that the review is necessarily limited to a review of ‘a decision whether the scope of works are reasonable and necessary to rectify the defects identified in the relevant direction to rectify’ (emphasis added). Nor do I accept that the issue of a Direction to Rectify is a necessary pre-condition to payment of a claim under the scheme.
  2. [26]
    It follows from the nature of the reviewable decisions examined above that, although there may be some overlap, each decision involves different considerations. In particular, a decision about whether to allow a claim is not resolved simply by asking whether defective work exists for the purposes of s 72. Accordingly, I do not accept the Commission’s submission that ‘the applicants had opportunity to examine those Complaint items that were not included in the scope of works when they sought to review the respondent’s decision subject of GAR621-21.’ GAR621-21 was a review of the internal review decision not to issue a direction to rectify. The decision not to issue a direction for any of the items was made by the Commission on the basis it would be unfair to the contractor pursuant to s 72(5). The question of unfairness is not relevant to whether a claim for assistance under the scheme should be allowed, nor are the Terms of Cover relevant to whether a direction should be issued.
  3. [27]
    In this case, there does not appear to have been a separate decision relating to whether the items should, notwithstanding they were not the subject of a direction to rectify, be approved under the scheme. The scope of works decision was, in effect, bundled together with a decision to approve some items and to disallow others. This was confirmed by correspondence from the Commission in response to a request from the tribunal as to whether a separate decision notice was given in respect of the decision to disallow the claim for Items 2, 3 and 7 of the April 2023 complaint, and if so, to provide a copy of the Notice.[12] The decision in Jenkins[13]can be distinguished on that basis. There, the decision the subject of review only concerned the scope of works.
  4. [28]
    In those circumstances, given:
    1. the applicants purported to review both the decision about the scope of works for the items allowed and the decision not to progress the claim in respect of other items; and
    2. now seek to discontinue the review of the scope of works decision;

the application to review will proceed as a review of a decision to disallow a claim for items 2, 3 and 7 of the Complaint.

  1. [29]
    The applicants have requested a ‘right of re-instatement’, presumably of that part of the application to review they have withdrawn. This is not an order that I have jurisdiction to make, nor one I would be prepared to make in any event.
  2. [30]
    Accordingly, I make the following orders:
    1. The application for miscellaneous matters filed on 19 April 2023 is allowed in the following terms:

The application to review the decision dated 2 November 2022 filed on 29 November 2022 will proceed as an application to review the decision to disallow a claim in respect of items 2, 3 and 7 of the Complaint.

  1. The matter is listed for a Directions Hearing (together with GAR379-22 and GAR380-22) on a date and time to be advised.
  2. The parties are to provide to the Tribunal (by email to [email protected]) proposed draft directions two (2) days prior to the Directions Hearing.

Footnotes

[1]QBCC Act, s 72(3).

[2]QBCC Act, s 72(5).

[3]QBCC Act, s 72A(4).

[4]QBCC Act, s 67Y.

[5]QBCC Regulation, Schedule 6, s 14.

[6]QBCC Regulation, Schedule 6, s 18(b).

[7]QBCC Regulation, Schedule 6, s 16.

[8]Hall v Queensland Building and Construction Commission [2020] QCAT 379 at [14].

[9]QBCC Act, s 71A(6); Hall at [21].

[10]QBCC Regulation, Schedule 6, s 4.2(a).

[11]Jenkins v Queensland Building and Construction Commission [2019] QCAT 117 at [21]; Hall at [23] to [30].

[12]Correspondence from the Commission to the tribunal dated 20 September 2023.

[13]Jenkins v Queensland Building and Construction Commission [2019] QCAT 117.

Close

Editorial Notes

  • Published Case Name:

    Juckes v Queensland Building and Construction Commission

  • Shortened Case Name:

    Juckes v Queensland Building and Construction Commission

  • MNC:

    [2023] QCAT 398

  • Court:

    QCAT

  • Judge(s):

    Senior Member Traves

  • Date:

    25 Sep 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
Col Jenkins & Associates v Queensland Building and Construction Commission [2019] QCAT 117
3 citations
Jump To
Cite 1 - [2019] QCAT 117
Cite 2 - [2019] QCAT 117
Cite 3 - [2019] QCAT 117
Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379
2 citations
Jump To
Cite 1 - [2020] QCAT 379
Cite 2 - [2020] QCAT 379
Lim v Queensland Building and Construction Commission [2018] QCAT 156
2 citations
Jump To
Cite 1 - [2018] QCAT 156
Cite 2 - [2018] QCAT 156

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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