Danial James Moore v Queensland Building and Construction Commission
[2023] QCAT 486
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- Unreported Judgment
- Danial James Moore v Queensland Building and Construction Commission[2023] QCAT 486
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Danial James Moore v Queensland Building and Construction Commission[2023] QCAT 486
Danial James Moore v Queensland Building and Construction Commission[2023] QCAT 486
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Danial James Moore v Queensland Building and Construction Commission [2023] QCAT 486 |
PARTIES: | danial James moore (applicant) v queensland Building and construction commission (respondent) |
APPLICATION NO/S: | GAR426-21 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 12 December 2023 |
HEARING DATE: | 28 February 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Davies |
ORDERS: | The Queensland Building and Construction Commission decision dated 25 June 2021 to wholly disallow a claim under the Statutory Insurance Scheme is confirmed. |
CATCHWORDS: | PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – review of decision to disallow homeowner’s claim against scheme – whether the homeowner’s claim was in respect of primary insurable work Queensland Building and Construction Commission Act 1991 (Qld), s 67X, s 67WA, s 67WC, s 67WD, s 86C Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 32 Queensland Building and Construction Commission Regulation 2018 (Qld), s 25, Schedule 6 EH Holden Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 13 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 |
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
Introduction
- [1]By an application instituted on 13 July 2021 Danial Moore (‘Homeowner’) sought a review by the Tribunal of a decision made by the Queensland Building and Construction Commission (‘QBCC’). The decision nominated in the application as the decision sought to be reviewed is a decision made on 25 June 2021.
- [2]The key Queensland legislative enactments that are relevant for deciding this matter are the Queensland Building and Construction Commission Act 2009 (Qld) (‘QBCC Act’), the Queensland Building and Construction Regulation 2018 (Qld) (‘QBCC Regulation’), being the enactments that establish govern a Statutory Insurance Scheme (‘SIS’),[1] and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which regulates the Tribunal’s review jurisdiction.[2]
- [3]The Homeowner’s contention is that the QBCC decision to disallow an insurance claim by him under the SIS was wrong. The claim was for rectification of building work that the Homeowner asserted was defective.[3]
- [4]The Tribunal’s jurisdiction to review the QBCC decision is conferred on it by the QBCC Act.[4] In exercising its review jurisdiction, this Tribunal has all the functions of the decision-maker.
- [5]The purpose of a review by this Tribunal is to produce the correct and preferable decision. The Tribunal must hear and determine this review by a fresh hearing on the merits.[5] The orders that this Tribunal may make include confirming or amending the decision being reviewed or setting aside the decision and substituting the Tribunal’s own decision.[6]
- [6]In conducting this review there is no presumption that the decision under review was correct.[7]
Background to decision under review
- [7]Although the matrix of events that gave rise to Homeowner’s application for review are not in dispute, a summary of the factual background gives appropriate context to the decision under review. A summary of the relevant background is as follows:
- By a contract dated 12 June 2019 the Homeowner and Rachel Moore, as owners, entered into a contract with a building company, Arcren Building Pty Ltd (ACN 601 003 463) (‘Contract’). The Contract was for the construction of a new home. That is, the Contract was for ‘residential construction work.’[8]
- Acren Building Pty Ltd held a contractor’s licence issued pursuant to the QBCC Act.
- A statutory policy of insurance under the SIS came into force when the Homeowner and Rachel Moore entered into the Contract.
- Work commenced under the Contract in or about July 2019 and ceased in or about June 2020 at which time the work under the Contract had been carried out.
- On or about 31 January 2021, around seven months after completion, the QBCC received a construction work complaint from the Homeowner (‘Complaint’).
- The Complaint consisted of two related items. They were, firstly that water was pooling in a bathroom ceiling and, secondly, that this water was leaking from an air-conditioning pipe.
- The Complaint was investigated by the QBCC. On 27 April 2021 a building inspector employed by the QBCC undertook an inspection of the Complaint items and prepared an initial inspection report.
- In April 2021 the QBCC issued a request to rectify to Arcren Building Pty Ltd to rectify defective work identified in the inspection report. That request was not complied with.[9] Acren Building Pty was deregistered in May 2022.
- The Homeowner was advised of the outcome of that investigation by a letter to him dated 24 May 2021. The outcome of the QBCC investigation was ‘That the Queensland Home Warranty Scheme is unable to cover for any of your claim items.’[10]
- The basis for this outcome was stated by QBCC to be that the SIS applied to defective ‘primary insurable work’ (a defined term) and the defective work claimed by the Homeowner did not satisfy that definition.
- On 26 May 2021, the Homeowner sought an internal review of that decision.
- QBCC commenced undertaking that review. The QBCC was required, by the QBCC Act, to make its internal review decision as soon as practicable but in any event by 28 days after the internal review application was made.[11] That is, the QBCC was required to render its internal review decision by 23 June 2021.[12] That was not done. However, because the application was not decided within the required 28-day period, the internal review decision is taken to be the same as the original decision.[13]
- In any event, by a letter dated 25 June 2021 and headed ‘Decision Notice’, the QBCC advised the Homeowner that its preliminary assessment of the internal review application was that it did not contain any new information or evidence and that the SIS does not provide cover for defective ‘associated insurable work’ (also a defined term).
Issue
- [8]The issue for determination in this review, phrased in the form of a question, is as follows – is the claim by the Homeowner one to which the SIS is responsive?
- [9]The QBCC position is, in summary, that the SIS was not responsive to the Homeowner’s claim on the basis that the items in the claim were not ‘primary insurable work.’
- [10]The Homeowner’s position, as set out in his application to this Tribunal, is that the QBCC have not properly applied the QBCC Act (and, by extension, the QBCC Regulation) to his claim to rectify defective building work. Earlier, in an email to QBCC dated 24 May 2021[14] the Homeowner had set out this contention in more detail by stating that the air conditioning systems installed, including, I infer, the defective air conditioner, were ‘associated insurable work’ and should be covered by his claim. The Homeowner supported this contention by reference to material contained on the QBCC website that gave examples of insurable work.
The SIS
- [11]The SIS is continued by s 67X of the QBCC Act. Subsection (2) of s 67X sets out that the purpose of the SIS is to provide assistance to ‘consumers’ of ‘residential construction work’ for loss associated with work that is defective or incomplete.
- [12]
consumer, for residential construction work –
(a) means a person who contracts with a licensed contractor to carry out the work; and
(b) includes a person who purchases the work, once completed, if the work is primary insurable work.
residential construction work is—
(a) primary insurable work; or
(b) associated insurable work.
- [13]On the material before the Tribunal, there appears to be no dispute that the Homeowner is a consumer and the work in question is residential construction work.
- [14]The terms ‘primary insurable work’ and ‘associated insurable work’ are defined in s 67WC and s 67WD of the QBCC Act.
- [15]Primary insurable work, insofar as it is relevant to this dispute, is defined, in s 67WC, as follows:
- Primary insurable work is any of the following building work if carried out by a licensed contractor and the insurable value of the work is more than the regulated amount—
- the erection or construction of a residence or related roofed building;
- building work within the building envelope of a residence or related roofed building;
- building work for anything attached or connected to a residence or related roofed building that requires building development approval under the Building Act 1975 or a permit under the Plumbing and Drainage Act 2018;
…
(2) However, the following is not primary insurable work, but may be associated insurable work—
…
(d) installation, renovation, repair or replacement of any of the following—
(i) air conditioning;
(e) other work prescribed by regulation.
(emphasis added)
- [16]The meaning of ‘associated insurable work’ is relevantly defined, in s 67 of the QBCC Act, as follows:
(1) Associated insurable work is any additional work that may be contracted to be carried out under a contract for primary insurable work if—
(a) for primary insurable work relating to a residence—the work is carried out on the site of the residence or proposed residence and is for residential purposes; or
(b) for primary insurable work relating to a related roofed building—the work is carried out on the site of the building or proposed building and is for residential purposes.
(2) To remove any doubt, it is declared that associated insurable work may include work that is not building work.
- [17]To ascertain what is covered by the SIS it is necessary to consider Schedule 6 of the QBCC Regulation. That Schedule sets out the terms of cover for the SIS. The SIS covers both incomplete residential work[16] and defective work.[17] As set out in paragraph [3] above, the Homeowner’s claim was for defective work. It is thus necessary to give primary consideration to Part 3 of the terms of cover.
- [18]The cover for defective work under the SIS is set out in s 14 of Schedule 6. That section provides, that the SIS applies to ‘residential construction work that is primary insurable work if it is defective.’ That is, for a maintainable claim under the SIS, the work for the Homeowner, as a consumer, must be residential construction work, it must work that is encompassed by the term ‘primary insurable work’ and the work must be defective.[18]
- [19]The QBCC decision under review characterised the Homeowner’s complaint as damage resulting from the installation of air conditioning. This characterisation was based on the Homeowner Complaint item list in the Homeowner’s initial complaint.[19] Further, the QBCC concede that installation work was defective.[20] Thus, these aspects of the Homeowner’s claim are established.
- [20]The difficulty for the Homeowner is the exclusion of the installation of air conditioning from the definition ‘primary insurable work.’
- [21]
- [22]Whilst it is understandable that a claimant under the SIS commences from the position that defective work by a licensed builder, particularly where there is a structural defect, should provide an adequate basis for a claim, the reality is more complex.
- [23]To succeed in a claim for compensation under the SIS, it must be established that the work is primary insurable work. Here the Homeowner’s claim fails because of the explicit exclusion of the installation of air conditioning from the definition of primary insurable work in s 67WC of the QBCC Act.
- [24]As stated by Member Deane in EH Holden Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 13, although the purpose of the SIS is to provide consumer protection, it does not provide unlimited consumer protection.[23]
Conclusion
- [25]For the reasons set out above, the decision that I have come to is that the Queensland Building and Construction Commission decision dated 25 June 2021 to wholly disallow a claim under the Statutory Insurance Scheme is confirmed.
Footnotes
[1]The SIS is continued by s 67X of the QBCC Act. The SIS operates under the name of the Queensland Home Warranty Scheme by virtue of s 67X of the QBCC Act and s 25 of the QBCC Regulation.
[2]QCAT Act, Chapter 2, Division 3, Subdivision 2.
[3]The application to review the decision filed with QCAT states, in Part B that the claim is ‘to rectify defective building work to my newly built home under the Queensland Home Warranty Scheme.’
[4]QBCC Act, Part 7.
[5]QCAT Act, s 20.
[6]QCAT Act, s 24(1).
[7]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[8]The term ‘residential construction work’ is defined in s 67WA of the QBCC Act.
[9]QBCC Statement of Reasons for the Decision dated 28 September 2021, paragraphs 26, 27.
[10]QBCC Letter to the Homeowner dated 24 May 2021.
[11]QBCC Act, s 86C.
[12]The date stated in the QBCC ‘Decision Notice’ dated 25 June 2021.
[13]QBCC Act, s 86C(3).
[14]This email is contained in the documents that are attached to the QBCC Statement of Reasons for the Decision. It is marked ‘SOR-10”.
[15]QBCC Act, s 67WA.
[16]Part 2 of Schedule 6.
[17]Part 3 of Schedule 6.
[18]There is also a time limitation on a claim but that is not in issue in this proceeding.
[19]Exhibited as ‘SOR-2’ to QBCC’s Statement of Reasons.
[20]The QBCC submissions in reply dated 14 April 2022 concede, at paragraph 40, that ‘The defect is a structural defect.’ In this regard see also QBCC’s Building Inspection Report extracted at paragraph 25 of the QBCC’s Statement of Reasons for the Decision which identifies the defect as ‘structural’.
[21]Undated but marked as ‘Received’ by QCAT on 30 March 2022.
[22]Paragraph 3 of the Homeowner’s written submissions.
[23]At [38].