Seitz v Queensland Building and Construction Commission (No 2)
[2023] QCAT 438
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- Unreported Judgment
- Seitz v Queensland Building and Construction Commission (No 2)[2023] QCAT 438
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Seitz v Queensland Building and Construction Commission (No 2)[2023] QCAT 438
Seitz v Queensland Building and Construction Commission (No 2)[2023] QCAT 438
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Seitz v Queensland Building and Construction Commission (No 2) [2023] QCAT 438 |
PARTIES: | armin seitz (applicant) v queensland building and construction commission (respondent) |
APPLICATION NO/S: | GAR110-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 16 November 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where it has been found that there was no defective work – where the insurance claim was made outside the 7 months’ time limit for non-structural work – whether the decision of the Queensland Building and Construction Commission should be confirmed or set aside Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 6 Walker v Queensland Building and Construction Commission [2021] QCAT 32 |
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]This is a review of a decision made by the Queensland Building and Construction Commission on 6 June 2022 to disallow a claim by Armin Seitz under the Queensland Home Warranty Scheme, on the basis that the work complained of was not defective.
- [2]I need to find the correct and preferable decision by way of a fresh hearing on the merits.[1] In doing so I have taken into account all the evidence and submissions made by Mr Seitz, and I have been assisted by the material provided by the QBCC.
- [3]The context of the insurance claim is that on 14 January 2022 Mr Seitz complained about certain items of building work done by the builder Win Constructions Queensland (WCQ) in constructing a new house which he purchased on 25 May 2021. After some remedial work done by the builder there were two outstanding items of work complained of – inconsistency in the paintwork to the garage ceiling and discolouration to the grout in two bathrooms.
No cover because work is not defective
- [4]The QBCC decided on 6 June 2022 that the work complained of was not defective. That decision came to me for external review and in a separate decision in GAR281-22 I have confirmed the decision of the QBCC not to issue a direction to rectify on the same basis, that the work complained of was not defective.
- [5]On that basis I must also confirm the QBCC’s decision to disallow the claim under the Home Warranty Insurance Scheme. That is because the insurance scheme provides cover for incomplete or defective work. Since there was no incomplete or defective work, there can be no insurance claim.[2]
No cover because insurance claim out of time
- [6]In this review, the QBCC submits that in any case the insurance claim was out of time because any defective work was non-structural and this means that the insurance claim must be made within 7 months after the work was substantially complete.
- [7]The QBCC say that the work was substantially complete when a Form 11 Certificate of Occupancy was issued on 13 May 2021.[3] Mr Seitz lodged the complaint to QBCC about defective work on 14 January 2022 and this was 8 months after the certificate. The QBCC say that there is no discretion available to them, and therefore to the tribunal, to extend time to make an insurance claim.
- [8]In this matter the applicable insurance provisions are those in schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld). Section 16 of schedule 6 provides time limits for making a claim under the Home Warranty Insurance Scheme. These time limits differ depending on whether the defect is structural or non-structural. For non-structural ones like those alleged here, homeowners may claim for defects which they were aware of or should have been aware of within 6 months after substantial completion (excluding latent non-structural defects) and if they claim within 7 months of substantial completion (excluding late claims).[4]
- [9]‘Substantially complete’ for these purposes is defined in section 2 of schedule 6 and is either when the final payment under the contract for the work is made, when the residence is occupied, or when the built work is able to be used for its intended purpose despite the work not complying with the contract because of a cosmetic difference. In this case therefore I agree with the submissions of the QBCC that the time started on 13 May 2021 when the house was certified as ready for occupation.
- [10]When was the insurance claim made? Although the QBCC regard the making of a complaint about defective work also to amount to an insurance claim,[5] Member Paratz in Walker v Queensland Building and Construction Commission [2021] QCAT 32 considered that this was not clear from the Terms of Cover and that the practical reality was that an insurance claim was not made until after a Direction to Rectify was not complied with and the matter was referred to the insurance section of the QBCC.[6]
- [11]In this review the earliest possible date that can be taken as being the date of the insurance claim is when Mr Seitz made a complaint to QBCC about the defective work and this was 14 January 2022. This was out of time because it was 8 months after the certificate of occupancy.
- [12]There is no discretion to enlarge this time limit. Mr Seitz blames the builder for causing the delays by deliberately dragging out performance of remedial work until the time to make the insurance claim expired.[7] He says both the QBCC and the builder knew about the timeframe, the implication (although not expressly stated) being that he did not know about them. The builder has not been able to respond to Mr Seitz’s allegation because it is not a party to this matter, and there was no oral hearing in which the truth of this allegation could have been examined. But since there is no discretion to extend the time limit it would have been pointless to examine this.
- [13]For the sake of completeness, I refer to the attempt to repaint the garage ceiling. There is a dispute whether this was done by the builder or whether it was done by the builder’s foreman out of goodwill. If the former, then there are two missing elements for a successful insurance claim: there no defective work and the claim is out of time. If the latter, this is not work covered by the Home Warranty Insurance Scheme anyway because it is work which does not have a value of above $3,300 and therefore is not building work.[8]
Conclusion
- [14]For the above reasons the only decision which can be made is to disallow the insurance claim. I confirm the QBCC’s decision on 6 June 2022 to that effect.
- [15]I have given leave for the evidence to put given to the tribunal without a hearing book as previously directed as it appears from the correspondence with the tribunal that there was some difficulty in creating the hearing book.
Footnotes
[1] Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[2] Subject to limitations, the Queensland Home Warranty Insurance Scheme provides assistance if the work is incomplete or defective: section 1 of schedule 6 of Queensland Building and Construction Commission Regulation 2018 (Qld).
[3] On the basis that in giving the certificate of occupancy the builder certifier would have decided that the building has been substantially completed: section 102 of the Building Act 1975 (Qld).
[4] Section 16(2) and (3)(b) of schedule 6 of the regulations.
[5] Paragraph 16 of the submissions of the QBCC referring to online material published by the QBCC.
[6] [123].
[7] Email of 2 October 2023.
[8] And therefore not primary insurable work as defined by section 67WC of the Queensland Building and Construction Commission Act 1991 (Qld),