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Miller v Queensland Building and Construction Commission[2024] QCAT 231

Miller v Queensland Building and Construction Commission[2024] QCAT 231

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Miller v Queensland Building and Construction Commission [2024] QCAT 231

PARTIES:

Rebecca Miller

(applicant)

v

Queensland Building and COnstruction Commission

(respondent)

APPLICATION NO/S:

GAR 428-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

5 June 2024

HEARING DATE:

On the papers

HEARD AT:

Cairns

DECISION OF:

Member Taylor

ORDERS:

  1. The decision of the Queensland Building and Construction Commission made on 12 September 2022, to disallow the claim made under the Queensland Home Warranty Scheme, is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where a homeowner seeks review of a decision of the Queensland Building and Construction Commission to disallow a claim under the Queensland Home Warranty Insurance Scheme – where in her application for review, the homeowner seeks relief in the nature of monetary damages – where the relief sought is beyond the review jurisdiction of this Tribunal

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACT – OTHER MATTERS – where a homeowner entered into an oral contract with a contractor for the construction of a substantial retaining wall – where there was no written contract document – where the home-owner asserts the contractor claimed to hold a licence for the performance the work – where the contractor was not licenced to perform the work – where there was no express nor implied claim that the contractor held a licence to perform residential construction work

CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – ILLEGAL AND VOID CONTRACTS – EFFECT OF ILLEGALITY OR INVALIDITY – where a homeowner entered into an oral contract with a contractor for the construction of a substantial retaining wall – where the work under the contract could be considered to be domestic building work – where the contract was thus of no effect – where as a result of the contract being of no effect no cover under the Queensland Home Warranty Scheme could have come into force

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where a homeowner entered into a contract with a contractor for the construction of a retaining wall – where the work performed was substantially defective – where the homeowner made a claim for assistance under the Queensland Home Warranty Scheme – where there was no written contract document – where the homeowner asserted the contractor claimed to hold a licence for the performance of residential construction work – where the contractor was not licenced to perform the work – where there was no express nor implied claim that the contractor held a licence to perform residential construction work – whether the work in question was residential construction work – whether cover under the Queensland Home Warranty Scheme came into force

Acts Interpretation Act 1954 (Qld), s 14D

Queensland Building and Construction Commission Act 1991 (Qld), s 67X, s 67WC, s 67WD, s 68H(1)(c), s 77, s 86, s 86E, s 87, Schedule 1B s 4, Schedule 1B s 7, Schedule 1B s 14, Schedule 1B s 18, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 25, Schedule 6 s 59

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21, s 24, s 32

BM Farage Pty Ltd ATF Farage Discretionary Trust v Queensland Building Services Authority [2003] QCCTB 11

Cerda v Jacob [2020] QCATA 57

Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87

Clarke v Queensland Building and Construction Commission [2020] QCAT 88

Harris v Queensland Building and Construction Commission & Anor [2020] QCAT 155

Queensland Building Services Authority v Fox [2005] QDC 129

Stevens v Queensland Building and Construction Commission [2018] QCAT 331

Stevens v Queensland Building and Construction Commission [2020] QCAT 335

Walker v Queensland Building and Construction Commission [2021] QCAT 32

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

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:

Ms G. Adams – Solicitor of GLR Law

Respondent:

Ms G. Boundy - Legal Services Unit of the Queensland Building and Construction Commission

REASONS FOR DECISION

  1. [1]
    The Queensland Home Warranty Scheme is created under Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).[1] It is administered by the respondent, which requires to consider claims made under the scheme for assistance where, inter-alia, defective building work is not rectified. In doing so it may disallow such a claim, wholly or in part.
  2. [2]
    Under s 86(1)(h) of the QBCC Act, such a decision is a reviewable decision. A person affected by that decision may, as has occurred in terms of the proceeding that is before me, apply to the respondent for an internal review of that decision, from which a second decision is then made by the respondent. If the person maintains it is still affected by that second decision, under s 87 of the QBCC Act that person may apply to this Tribunal for another review. On that occasion it is the second decision that is the subject of review, not the first decision.[2]
  3. [3]
    The applicant claims to be such an affected person. By commencing this proceeding she has sought review of a decision by the respondent to disallow a claim for assistance under the scheme she asserts an entitlement to. Whilst she seeks orders from this Tribunal in this proceeding that do not fall within its jurisdiction to give in a review proceeding, and therefore has failed in that regard, to the extent I am afforded  power as the Member constituting this Tribunal for this proceeding in a way that affords her relief, such as inter-alia setting aside the decision and substituting my own decision, or remitting it to the respondent for reconsideration, the applicant has also failed.
  4. [4]
    For the reasons I discuss in detail herein, I gave orders confirming the respondent’s decision. In my opinion it is the correct and preferable one. On the facts and circumstances as they appeared in the material before me, notwithstanding that the applicant entered into an oral contract with the contractor to have a substantial retaining wall constructed on the land on which she resided in her home thereon, and that the work was defectively performed such that she has or will suffer what appears to be a substantial damage in terms of the cost of rectification if she is otherwise unable to recover that cost from the contractor, cover under the Queensland Home Warranty Scheme never came into force.

Relevant Facts and Circumstances[3]

  1. [5]
    On or about 7 August 2021, the applicant, as owner, entered into a contract with Cory’s Consulting Pty Ltd, as contractor, under which the contractor would construct for the applicant a concrete block retaining wall along a boundary line of the applicant’s property. That wall is shown to have been constructed so as it adjoins what I understand to be the garage of the house in which the applicant resides. The contract was not at any time reduced to writing. It was at all times oral, the sole written evidence of such being a ‘quote’ given by the contractor.
  2. [6]
    The contractor performed the relevant work commencing on or around 16 August 2021 and ceasing on or around 15 October 2021.
  3. [7]
    Notwithstanding that it is recorded in the material before this Tribunal that the work ceased on or about 15 October 2021, on or about 7 September 2021 the applicant paid the respondent $20,000 for the work, it being the total of the quoted price.
  4. [8]
    On or about 9 January 2022, the applicant lodged a complaint with the respondent asserting defects were present in the works performed.
  5. [9]
    On 31 May 2022, an inspector for the respondent inspected the works. In a report of that inspection dated 3 June 2022, recorded that the work was defective and that a Direction to Rectify would be issued. That Direction to Rectify was in turn issued to the contractor in a document dated 8 June 2022.
  6. [10]
    The contractor did not comply with that Direction to Rectify. The complaint then effectively morphed into a claim under the Queensland Home Warranty Scheme.[4]
  7. [11]
    By letter dated 14 July 2022, said to have been received by the applicant on 22 July 2022, the respondent informed the applicant that:
    1. The contractor had not complied with the Direction to Rectify; but
    2. Notwithstanding its finding of defective work and the contractor’s failure to have complied with the Direction, the respondent was unable to assist the applicant further with her complaint as a claim because “The Queensland Home Warranty Scheme is unable to provide cover for any of the items.” and accordingly “Your case has been finalised.”
  8. [12]
    Subsequently, the applicant sought internal review within the respondent of that decision. The decision on that review was made on 12 September 2022, communicated to the applicant on 13 September 2022. It upheld the original decision citing the following conclusions (‘the Decision’):
    1. There was no written contract between the parties, thus cover under s 68H(1)(a)(ii) of the QBCC Act has not come into force.[5]

Further or in the alternative should the decision-maker have been wrong about that point:

  1. The work the subject of the contract is neither primary insurable work nor associated insurable work as those terms are defined in s 67WC and s 67WD of the QBCC Act, thus not residential construction work, and so not covered by the Queensland Home Warranty Scheme;[6]

In the further alternative should the decision-maker have been wrong about that point:

  1. The applicant was aware of the defects complained of prior to it being substantially complete and payment made for same, thus pursuant to Schedule 6 s 59 of the Queensland Building and Construction Commissions Regulation 2018 (Qld) (‘the QBCC Regulations’), being where the Terms of Cover for the Queensland Home Warranty Scheme appear, the applicant was not entitled to claim assistance under the scheme.
  1. [13]
    By application to this Tribunal filed 12 October 2022, the applicant sought review of the Decision arguing the decision-maker fell into error because:[7]
    1. The applicant was a ‘defrauded person’ and accordingly under s 68H(1)(c) a policy of insurance did come into force;[8]
    2. The work the subject of the contract was ‘primary insurable work’ and accordingly was covered under the scheme;
    3. Notwithstanding the applicant’s acceptance of the decision-maker’s finding about the work being ‘substantially complete’ on payment for the works, the applicant still argues the decision is in error because she had complained to the contractor about the relevant issues and he had informed her that all was resolved and that there were only cosmetic issues remaining to be attended to.
  2. [14]
    By that application, the applicant also expresses the following as the orders she seeks from this Tribunal as relief in this proceeding:
    1. Costs for rectification work;
    2. Compensation for emotional distress and undue burden; and
    3. Punitive damages.
  3. [15]
    What then followed was a series of Directions issued by this Tribunal for the conduct of the proceeding. In the last four of those, a Direction was given that the matter was to be determined on the papers, that being without an oral hearing.[9] The applicant’s application was thus listed before me for determination on the papers, which I did against this background of relevant facts and circumstances.

The Issues

  1. [16]
    There was a threshold issue arising from the manner in which the applicant framed the relief she sought, such being outside the jurisdiction of this Tribunal on an application for review. Accordingly I deal with that first.
  2. [17]
    I then turn to what was, in my opinion, the sole issue in this proceeding, it being whether a policy of insurance under the Queensland Home Warranty Scheme came into force.
  3. [18]
    Given the decision I have reached on that issue, it was unnecessary for me to consider the issue of the application of Schedule 6 s 59 of the QBCC Regulations as to whether the applicant was disentitled to claim assistance under the scheme. Accordingly I have not discussed it in these reasons. Whilst the challenge to the remaining parts of the Decision was premised on a number of aspects of the decision-maker’s reasons and findings, in my opinion the issue was readily resolved without descent into all the detail raised in both the reasons for the Decision and the applicant’s application for a finding against it. As I discuss it herein, there was a fundamental threshold issue that the applicant did not, and in my opinion on the facts as presented was unable to, surmount such that she could succeed in her application for this Tribunal to review the Decision in her favour.

Relevant Law

This Tribunal’s jurisdiction and the Respondent’s role in this proceeding

  1. [19]
    This Tribunal is empowered with a review jurisdiction which is conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that enabling Act. Such arises under s 17 of the Queensland Civil and Administrative Act 2009 (Qld) (‘QCAT Act’).
  2. [20]
    As is relevant in this proceeding, the enabling Act is the QBCC Act. Under Part 7 Division 3 Subdivision 2 therein, this Tribunal is empowered to undertake a review of the Decision. The extent to which it may in turn grant relief is then governed by the Chapter 2 Division 3 of the QCAT Act, and more particularly s 20 and 24(1) therein which requires this Tribunal to hear and decide a review by way of a fresh hearing on the merits for the purposes of  producing the correct and preferable decision by ultimately doing one of the following: confirming or amending the decision, setting aside the decision and substitute my own decision, or setting aside the decision and returning the matter for reconsideration by the decision-maker. In doing so I had all the functions of the decision-maker in terms of the decision to be made.[10] It was not necessary for me to consider whether the respondent’s decision-maker had made an error in making the Decision, rather the focus was on the cogency of the applicant’s case as presented in the hearing before me.[11]
  3. [21]
    This proceeding was not a traditionally adversarial process as one should expect in a commonplace civil proceeding of a claim by one party on another. But at the same time it was not an inquisitorial process such that I was required to delve into the detail. My decision turned on the material presented to this Tribunal, both documentary and oral. In that regard, the respondent was not participating in an adversarial role advocating for the correctness of the decision by its decision-maker. Its role was to use its best endeavours to help me in making my decision on the review.[12]
  4. [22]
    As it was required to do, the respondent provided relevant material to this Tribunal.[13]

The legislation relevant to the Decision

  1. [23]
    As noted earlier herein, the Queensland Home Warranty Scheme is established under Part 5 of the QBCC Act. As it is described therein, relevant to this proceeding:

67X  Statutory insurance scheme

  1.  ….
  1.  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.
  1.  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.
  1.  …
  1. [24]
    On this basis, the work in question must be ‘residential construction work’ which is defined in that Part to be either ‘primary insurable work’ or ‘associated insurable work’, the relevant definitions of which I extract here as relevant to the facts before me:

67WC  Meaning of primary insurable work

  1.  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—
  1.  the erection or construction of a residence or related roofed building;
  1.  building work within the building envelope of a residence or related roofed building;
  1.  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;
  1.  …
  1.  However, the following is not primary insurable work, but may be associated insurable work—
  1.  fencing;
  1.  landscaping;
  1.  …

67WD  Meaning of associated insurable work

  1.  Associated insurable work is any additional work that may be contracted to be carried out under a contract for primary insurable work if—
  1.  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
  1.  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.
  1.  To remove any doubt, it is declared that associated insurable work may include work that is not building work.
  1. [25]
    In turn, once again as relevant to this proceeding, cover of residential construction works comes into force in the manner described therein, namely:

68H  Cover of residential construction work

  1.  Cover under the statutory insurance scheme comes into force if—
  1.  a consumer enters into a contract for the carrying out of residential construction work and—
  1.  the contract bears the licence number of a licensed contractor and, under the licensed contractor’s licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1.  the contract is with a licensed contractor and, under the licensed contractor’s licence, the licensed contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1.  a consumer enters into a contract for the carrying out of residential construction work with a building contractor and, at or before the time the contract is entered into, the building contractor makes a representation that would cause a reasonable person to believe that the residential construction work is covered by the statutory insurance scheme; or
  1.  a person (the defrauded person) enters into a contract for the carrying out of residential construction work with a person (the fraudulent person) fraudulently claiming to hold a licence under which the fraudulent person may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme; or
  1.  ….
  1.  Subsection (1) applies whether or not an insurance premium has been paid, or a notice of cover has been issued, for residential construction work under this part.
  1.  ...

Discussion on the Issues

The relief sought by the applicant

  1. [26]
    As I referred to it in paragraphs [14] and [16] herein, the applicant has sought relief which is beyond the jurisdiction of this Tribunal in exercising its review jurisdiction. That is not to say the Tribunal does not have jurisdiction to give such relief when exercising its ‘original jurisdiction’ which for example includes a building dispute as it is empowered to decide under s 77 of the QBCC Act.
  2. [27]
    To that extent, the applicant must fail in obtaining any such relief, and her application has thus been considered and determined, with the corresponding order made, within the ambit of the Tribunal’s review jurisdiction.

The applicant’s case as presented

  1. [28]
    The applicant accepts the correctness of the decision-maker’s reasoning reliant on s 68H(1)(a), (b), and (d) that cover under the insurance scheme has not come into force.[14] For that reason I have not discussed those provisions in these Reasons. The applicant presses her case on only two aspects of the legislation, namely:
    1. The work in question was ‘primary insurable work’ for the purposes of s 67WC of the QBCC Act because it is building work that is ‘attached or connected to a residence that requires building development approval under the Building Act 1975’ and as such it was ‘residential construction work’; and
    2. The applicant was a ‘defrauded person’ for the purposes of s 68H(1)(c) because she entered into a contract with the contractor who was fraudulently claiming to hold a licence under which it may enter into contracts with consumers to carry out residential construction work covered by the insurance scheme.

Is the work ‘Residential Construction Work’?

  1. [29]
    I will deal firstly with this issue, because if work is not residential construction work, such being the decision-maker’s finding which the applicant asserts was in error, then the applicant does not get to the point of being able to argue reliance on s 68H(1)(c).[15]
  2. [30]
    The decision-maker’s finding is that the work the subject of the contract was fencing and/or landscaping. The applicant argues that to be in error because it is a retaining wall:[16]

… connected to the garage (a related roofed building) of the residence by way of adjacency, and attached by way of being cemented together; and

… is connected to the water tank by way of adjacency.

  1. [31]
    As I read the reasons of the decision maker, it records a submission made before her that the retaining wall in issue provided structural integrity to the water tank and to a shed connected to the house (which based on the submission to which I referred in the last paragraph I infer is the garage), and arguably the foundations of the house to prevent erosion.[17] The only such submission I can find on the material before this Tribunal is that contained in an e-mail dated 18 August 2022 shown to have been authored by whom I understand to be Ms G Adams of GLR Law, the applicant’s solicitor, and within a document entitled ‘Submissions for Internal Review’ which I understand to have been at attachment to a subsequent e-mail from Ms Adams dated 24 August 2022.[18] However such a submissions is, on the material before me, a bare submission devoid of any material to support it. At its highest, the material provided by Ms Adams is a set of plans for the construction of the house, such being dated 4 May 2016, none of which show any reference to the retaining wall as constructed by the contractor.
  2. [32]
    But, and more importantly, the applicant does not make any such submissions, nor in her statement, filed in this proceeding. Thus I proceed on the basis that this point is no longer pressed. As such, the only relevant ‘fact’ is that which is the substance of the submission to which I referred in paragraph [28] herein.
  3. [33]
    In that regard, from my review of the applicant’s statement and the photos of the work included therein, I could see that the retaining wall is a substantial wall supporting much of the land on which the house and garage are constructed, and that at one end it meets perpendicularly with a wall of what I infer is the garage to the house.[19] It is also shown as being constructed immediately beside what appears to be a water tank that is buried in the ground with the top of the tank being at ground level. There is however no evidence before me to show that the retaining wall is connected to the garage structurally or is otherwise in place to provide some form of structural support to the house, the garage, the foundations of same, or their surrounds, nor similarly in terms of the water tank. But notwithstanding the absence of same, in my opinion there should not be any question, and none was raised by either party, that the retaining wall constructed is a ‘building’, and in turn it is ‘building work’, as those terms are defined in Schedule 2 of the QBCC Act. It is evidently a fixed structure, that is not temporary in nature, and thus it is the construction of a building.[20]
  4. [34]
    That being so, if a literal reading of the text of s 67WC(1)(c) is to be adopted, in my opinion there is no need for any such structural attachment and connection, or structural support, and a mere physical connection is all that is necessary. For this reason, I am unable to accept the decision-maker’s finding that the work should be categorised as merely ‘fencing’ or ‘landscaping’ such that it could not be primary insurable work and would at best only be ‘associated insurable work’ if contracted to be performed under a contract for primary insurable work, which in this instance it was not.
  5. [35]
    In my opinion the work in question should be viewed as falling within the ambit of ‘primary insurable work’, thus making it ‘residential construction work’ for the purposes of s 68H of the QBCC Act, but such would only be the case if carried out by a licenced contractor, such being an issue I turn to under the next heading herein. In all respects it is quite clearly building work attached to or connected to a residence or related roofed building, and whilst there is no evidence of same I accept prima-facie that, given the substantive nature of the construction work required, it would require approval under the Building Act 1975,[21] thus falling within the ambit of s 67WC.[22]

Was the applicant ‘defrauded’?

  1. [36]
    Given my finding that the work in question should be considered as residential construction work, it thus turned the focus on whether the contractor should be considered a ‘licenced contractor’ for the purposes of s 68H of the QBCC Act. This is because if the contractor was not considered to be a licenced contractor, notwithstanding the nature of the work fell within the ambit of s 67WC the work in question could not be primary insurable work. This is because it could only be such if it was carried out by a licenced contractor. It is here the question of whether the applicant was defrauded into believing that fact to be so becomes prominent.
  2. [37]
    If the facts supported the finding that the contractor fraudulently claimed to hold a licence under which it may enter into contracts with consumers to carry out residential construction work covered by the Queensland Home Warranty Scheme, and in turn the applicant was a defrauded person who entered to a contract with the contractor for the carrying out of such work, then it would follow that the contractor must be considered to a licenced contractor for the purposes of s 68H.[23]
  3. [38]
    In that regard, the parties have engaged in extensive submissions on the state of the law in terms of the conduct of what is said to be fraudulent and whether s 68H(1)(c) should be given a broad or narrow construction, doing so with reference to a series of decisions of this Tribunal and the District Court of Queensland.[24] Whilst such detailed and extensive submissions and argument is helpful to this Tribunal, in my opinion it is not necessary for me to engage in an extensive discussion on it to explain the conclusion I reached on this issue. It more substantively turned on the absence of evidence presented by the applicant to support the case she sought to make.
  4. [39]
    As the respondent has expressed succinctly, correctly in my opinion:[25]

… the threshold for establishing cover under s 68H(1)(c) of the QBCC Act, provides that:

  1.  fraudulent conduct must have occurred prior to contract formation; and
  1.  such conduct must amount to a fraudulent claim by the contractor to the homeowner, which misrepresents whether they hold a licence or their current licence status.
  1. [40]
    That conclusion comes from my consideration of the caselaw to which the parties have referred.[26] Whilst I agree with the respondent’s submission in this regard that there is some uncertainty within the caselaw as to what the proper test is, on my reading of it I have discerned the following relative criteria in terms of the application and operation of s 68H(1)(c) of the QBCC Act:
    1. A claim that is said to be fraudulent for the purposes of this provision is only relevant if made up to the time of the formation of the contract;[27]
    2. Whilst this provision should be given a broad rather than a narrow interpretation, it is only in the circumstance where a claim has been made to a consumer that a contractor has a licence when in fact no such licence is held, it not being necessary to show deliberate dishonesty and a mere a misunderstanding of the true position will suffice;[28]
    3. There must however be a positive assertion of a licence being held, albeit not necessarily an oral assertion with a mere written assertion of being licenced being sufficient, however silence in its entirety, and in turn in either event a mere assumption by the consumer that the contractor holds a licence, are not sufficient to enliven the requirement of ‘fraudulently claiming’ as that term is used in this provision;[29] and
    4. The absence of diligence on the part of a consumer is making enquiries as to the licence status is irrelevant to the operation of this section providing the claim of a licence being held is shown to have been made.[30]
  2. [41]
    Applying these criteria, in my opinion it is here that the applicant’s case goes wrong.
  3. [42]
    In her statement, the applicant describes the engagement with the contractor starting in the first half of August 2021 up to when it is said she accepted the contractor’s quote on 12 August 2021.[31] However none of that which she described therein in any way suggests, even remotely, that the contractor’s representatives with whom she spoke, or the documentation she is said to have reviewed on-line, represented in any way that the contractor held a licence under the QBCC Act.
  4. [43]
    To the extent the applicant then continues in her statement explaining the events that occurred post formation of the contract,[32] namely the performance of the work and in turn the giving of the Tax Invoice claiming payment in which a statement is made that work had been performed “in accordance with the QBCC building code”, such is entirely irrelevant to the requirement for their to have been a claim made as to having been licenced.
  5. [44]
    Put simply, in my opinion the applicant failed to show that the contractor made any such claim of being licenced, whether it be expressly or impliedly, such that she may properly claim to be a ‘defrauded person’ for the purposes of s 68H(1)(c) of the QBCC Act and in turn for cover under the statutory warranty insurance scheme to have come into force.
  6. [45]
    Thus, even if it may be said that the decision-maker’s decision was erroneous in other respects, ultimately the decision to deny the claim was correct for that reason. For this reason there was an order confirming the decision as being the correct one.

A further comment

  1. [46]
    Whilst not raised in the decision-maker’s reasoning, nor by the applicant or the respondent in their respective submissions, in my opinion there is another relevant aspect of the law that has been seemingly overlooked by the parties. I comment on it here for completeness only as a benefit for the applicant so as she may fully understand and appreciate the ambit of the case she was running in this proceeding. It may also be of some assistance to her in terms of what steps she may contemplate taking following the conclusion of this proceeding. I must emphasize however that it is not a basis upon which I reached my decision in this proceeding.
  2. [47]
    The applicant ran her case on the basis that the work performed by the contractor was residential construction work. Contrary to the findings of the respondent’s decision maker, I accepted the applicant’s argument as being correct. As I have noted herein it also seemed to be the position the respondent was taking in this proceeding.
  3. [48]
    However, that finding could have had a further ramification for applicant on the facts as they were before this Tribunal. It is the relevance of Schedule 1B of the QBCC Act that deals with domestic building work and in turn domestic building contracts.
  4. [49]
    On my reading of the applicant’s material filed in this Tribunal, it seems to me she was alert to, whether it be on her own understanding of the facts or based on the legal advice she was given leading up to her commencing this proceeding, the concept of a domestic building contract, with her making both a statement and a submission raising issues which only appear under that Schedule 1 B, namely:
    1. In her written statement, the following appears:[33]

However, the Contractor nor any its employees provided us with either a proper QBCC Level 2 Contract, nor the Consumer Building Guide – both of which we understand now were legally required due to the value of the works.

  1. In the Applicant’s Submissions, the following appears as one of the bases upon which the applicant relies to argued she was misled into believing the contractor was licenced and authorised to complete the work:[34]

Since the amount was $20,000, it should also be noted that the Contractor failed to issue the Applicant with a compliant level 2 QBCC form contract and a copy of the “Consumer Building Guide”. These documents would have informed the Applicant of their rights under the QBCC Act.

  1. [50]
    Her references to a ‘QBCC Level 2 Contract’ and a ‘compliant level 2 QBCC form contract’ can only be read as a reference to ‘level 2 regulated contract’ as that term is used in Schedule 1B s 7 of the QBCC Act, namely, as relevant to the facts and circumstances as I have extracted them from the material before the Tribunal, a domestic building contract for which the contract price is equal to or more than the level 2 amount.[35]
  2. [51]
    Her references to a ‘Consumer Building Guide’ can only be read as a reference to the consumer building guide as it is referred to in Schedule 1B s 18 of the QBCC Act, such which must be given by a contractor to an owner before the owner signs the contract, albeit permissibly separate from the contract document. It is a document prepared by the respondent as mandated by legislation for the purposes of informing home owners who are intending to enter into a domestic building contract. It does not have any relevance to contracts which are not for domestic building work.
  3. [52]
    In my opinion, on the facts as they were presented before this Tribunal, not only were those facts sufficient to reach a finding the work in question was residential construction work, those facts also support a finding that the work would fall within the definition of domestic building work under Schedule 1B s 4 of the QBCC Act because it is, at the very least, work associated with the improvement of a home such which can extend beyond merely the building which is the house, and more particularly the construction of a building or fixture associated with the home, it being a ‘retaining structure’.[36]
  4. [53]
    All that being said, I am left with the very clear impression from the content of the applicant’s material to which I have just referred that she, and I assume her legal advisors for this proceeding, were of the view that the contract the parties entered into was, in effect, a domestic building contract. If that view were one held, and upon which the applicant felt she should be entitled to cover under the Queensland Home Warranty Scheme, then once again her case would have gone wrong.
  5. [54]
    This is because of the very strict provisions of Schedule 1B s 14 of the QBCC Act, in particular two of the subsections therein which I extract here:

14 Requirements for contract – level 2 regulated contract

  1.  ….
  1.  The contract must be in a written form, dated and signed by or on behalf of each of the parties to it.

…

  1.  The contract has effect only if it complies with subsection (2).
  1. [55]
    It is that last subsection which would be fatal to the applicant’s case for assistance under the Queensland Home Warranty Scheme. Given the fact that there was no written contract, notwithstanding that on the facts the parties entered into an oral contract, something sufficient for the purposes of s 68H of the QBCC Act in terms of cover under the scheme coming into force, even if the provisions of s 68H(1)(c) might be satisfied to the extent of the requisite fraudulent claim to holding a licence and in turn the applicant being found to be a defrauded person, ultimately that cover could never come into force because the oral contract entered into for the performance of domestic building work would be of no effect. Thus there could and would not be a contract entered into for the purposes of s 68H(1)(c).

Conclusion

  1. [56]
    As I discussed earlier in these reasons, the applicant could never succeed on obtaining the orders she sought in this proceeding. At best all she could have achieved is for me to agree with her arguments and set aside the Decision and substitute it with my own decision that she was entitled to assistance under the Queensland Home Warranty Scheme, or possibly for me to remit the Decision to the respondent for re-consideration. However she also failed in that regard for the reasons I have discussed herein.
  2. [57]
    Once again for completeness, it seems to me that in conclusion I should also make one further observation in terms of the case the applicant ran in this proceeding.
  3. [58]
    She seemingly sought to press her case on a basis that she was an inexperienced consumer, and that she placed her trust in the contractor.[37] Whilst each of those facts may be true, such is not an excuse for her not to have ensured that she had a written contract with the contractor, which on her own admission, had it been provided to her, it would have shown her that the contractor was not licenced, or at the very least it would have provided evidence of an express fraudulent claim by the contractor to have held a licence.
  4. [59]
    As the Appeal division of this Tribunal observed in Cerda v Jacob in reference to both Level 1 and Level 2 regulated contracts:[38]

In our view the s 13(5) and s 14(10) of Schedule 1B are clear on their face. A regulated contract that is not in writing, signed by the parties and dated is of no effect, with the consequence that the contract is void and unenforceable by either party. These minimum mandatory requirements are neither difficult for builders and building owners to comply with nor onerous in circumstances where persons contract for the performance of domestic building work. If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.

  1. [60]
    A similar observation, but one with a more expansive point being covered, was made in this Tribunal at first instance in Clarke v Queensland Building and Construction Commission:[39]

More to the point, level 2 regulated contracts are significant contracts. The statutory requirement for them to be in writing, dated and signed by or on behalf of both parties is there for a self-evident reason – to minimise disputes, of which the current matter is an example, about the terms of such contracts. There is obviously a consumer protection element to the evident policy of the legislation, but there is also a broader public interest in the minimisation of disputes the resolution of which, through publicly-funded mechanisms such as the Commission’s and Tribunal’s review processes, comes at a cost to the general public. It is prudent for owners entering into significant arrangements with builders to ensure they have a written contract signed by both parties and dated. Parliament’s plain intention is that owners or builders who fail to observe that requirement do so at their peril.

  1. [61]
    Such comments are apposite to the present circumstances before me concerning the applicant.
  2. [62]
    In all respects, the applicant’s case before this Tribunal was entirely misguided. The orders made reflect that.

Footnotes

[1]  The reference to it by that name is as provided for under s 67X of the QBCC Act and in turn s 25 of the Queensland Building and Construction Commission Regulation 2018 (Qld).

[2]  See s 86E(b) of the QBCC Act.

[3]  The parties helpfully provided a Hearing Book filed in this proceeding. This information has been drawn from that document.

[4] Walker v Queensland Building and Construction Commission [2021] QCAT 32, [123].

[5]  Related to this was a finding that s 68H(1)(b) ‘Representation of Cover’, (c) ‘Fraudulent claim’, and (d) ‘Speculative residential construction’ also did not apply.

[6]  The decision-maker’s reasons as they appear on pg 166 of the Hearing Book are somewhat confused in the manner they are expressed, but this is my understanding of those reasons.

[7]  As I mention later in these reasons, the applicant did not press an argument about the decision regarding the need for a written contract, rather she expressly accepted it as being correct.

[8]  In the ‘Application Submissions’ annexed to the originating application for review, at para’s 12 and 19 the applicant refers to the section as s 68H(1)(a)(c), however there is no such section and it can be read only as a reference to s 68H(1)(c).

[9]  See Directions dated 30 October 2023, 9 January 2024, 14 February 2024, and 7 March 2024. In the first of those the manner in which the Direction was framed provided for an ambiguity, which on one reading suggested date of the decision under review was 12 October 2022, and on another reading it was the date of the application for review. It must be read as the latter.

[10]  QCAT Act s 19.

[11]  For completeness I pause here to observe that on my reading of the applicant’s material before this Tribunal, she is not asserting the decision-maker made an error of process, but rather is asserting errors were made in the interpretation of relevant provisions of the QBCC Act.

[12]  QCAT Act s 21(1).

[13]  QCAT Act s 21(2). That was its Statement of Reasons filed 4 January 2023.

[14]  Applicant’s Submissions para 5.

[15]  This approach is the reverse of that taken by the respondent in its submissions in this proceeding. I consider my approach to be more appropriate, however in my opinion either approach is suitable as either gets to the same end result.

[16]  Applicant’s Submissions para 39.

[17]  See pg 3 and 4 of the Decision Notice.

[18]  See Annexure SOR-13 to the respondent’s Statement of Reasons contained behind TAB 5 of the Hearing Book at pages 111, 115, and 132 of the Hearing Book.

[19]  See photos attached to the Statement of Rebecca Miller, entitled ‘Picture evidence of connection to property’.

[20]  Given the substantial nature of the wall as constructed, it would not in my opinion fall within the lesser category of building work under paragraph (e) of the definition of ‘building work’ namely site work, such including the construction of a retaining structure, related to other work as described in that definition.

[21]  In the Applicant’s Submissions, the applicant points to an ambiguity in the text of s 67 WC(1)(c) to the extent of the reference to the requirement for such an approval, namely whether it relates to the work in question of the residence or related roofed building to which it is required to be attached or connected. I did not see any reason to enter into a detailed discussion on this submission. In my opinion the meaning to be attributed to that provision is that the reference to the need for an approval is to the building work being constructed, not to that to which it is attached or constructed, such being a common sense interpretation given the purpose of the section. However I accept the argument that the drafting could be substantially improved to remove that ambiguity

[22]  As I read and understood the Respondent’s Submissions, notwithstanding the decision-maker’s finding to the contrary, in responding to the application for review the respondent held a similar view to mine. See Respondent’s Submissions para’s 57 to 59.

[23]  Such is as I understand the respondent’s position to be in responding to the application. See Respondent’s Submissions para 56.

[24]  Applicant’s Submissions para’s 13 to 32; Respondent’s Submissions para’s 35 to 52. The caselaw cited is BM Farage Pty Ltd ATF Farage Discretionary Trust v Queensland Building Services Authority [2003] QCCTB 11; Queensland Building Services Authority v Fox [2005] QDC 129; Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228; Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87; Stevens v Queensland Building and Construction Commission [2018] QCAT 331; Harris v Queensland Building and Construction Commission & Anor [2020] QCAT 155; and Stevens v Queensland Building and Construction Commission [2020] QCAT 335.

[25]  Respondent’s Submissions para 35. My emphasis by way of underlining.

[26]  In that regard I was of the opinion that reference to Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228 was not of any assistance. I also pause here to observe the confusion in the parties’ respective submissions in terms of the Tribunal’s decisions in the Stevens matter. The applicant referred only to the 2018 decision, whereas the respondent referred only to the 2020 decision. Both decisions dealt with what was then s 69(2)(a)(iii) of the QBCC Act, now s 68H(1)(c). The former was a review dealing with the question of whether policies of insurance came into force in terms of the issue of ‘fraudulently claiming to hold a licence’; whereas the second, premised on the same facts and claims, followed the Commission’s further review of Ms Stevens claims subsequent to the first decision and dealt with the question more in terms of whether the work was residential construction work and in turn whether a contract for such came into force. It did not reconsider the issue of ‘fraudulently claiming to hold a licence’. Thus, in my opinion, the decision to which reference should be made in addressing the issue before me is the 2018 decision, not the 2020 decision to which the respondent referred me.

[27] Cester & Anor v Queensland Building and Construction Commission [2018] QCAT 87; [25] citing BM Farage Pty Ltd ATF Farage Discretionary Trust v Queensland Building Services Authority [2003] QCCTB 1. See also Stevens v Queensland Building and Construction Commission [2018] QCAT 33, [14].

[28] Queensland Building Services Authority v Fox [2005] QDC 129, [15] cited with approval and acceptance as being the correct approach in Harris v Queensland Building and Construction Commission & Anor [2020] QCAT 155; [66]. 

[29] Stevens v Queensland Building and Construction Commission [2018] QCAT 33, [29]; See also Harris v Queensland Building and Construction Commission & Anor (supra) at [67].

[30] Queensland Building Services Authority v Fox [2005] QDC 129, [27].

[31]  Statement of Rebecca Miller para’s 4 to 20 inclusive.

[32]  Ibid para’s 22 and 36.

[33]  Statement of Rebecca Miller para 20.

[34]  Applicant’s Submissions para 11(e).

[35]  The ‘level 2 amount’ at the time of entry into the contract was $20,000 – see s 45 of the Queensland Building and Construction Commission Regulation 2018 (Qld). It is still that amount at the date of these reasons.

[36]  In particular see Schedule 1B s 4(3)(b) and (4)(c), and in turn the ‘Example’ given in the Act in terms of subsection 4(b). Under s 14D of the Acts Interpretation Act 1954 (Qld), it is permissible to have regard to the contract of such an example in the interpretation of the provision to which it given.

[37]  Applicant’s Submissions para’s 12 and 13.

[38] Cerda v Jacob [2020] QCATA 57, [26]. My emphasis.

[39] Clarke v Queensland Building and Construction Commission [2020] QCAT 88, [27]. My emphasis, both bold and via underlining.

Close

Editorial Notes

  • Published Case Name:

    Miller v Queensland Building and Construction Commission

  • Shortened Case Name:

    Miller v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 231

  • Court:

    QCAT

  • Judge(s):

    Member Taylor

  • Date:

    05 Jun 2024

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
Cerda v Jacob [2020] QCATA 57
2 citations
Jump To
Cite 1 - [2020] QCATA 57
Cite 2 - [2020] QCATA 57
Cester v Queensland Building and Construction Commission [2018] QCAT 87
3 citations
Jump To
Cite 1 - [2018] QCAT 87
Cite 2 - [2018] QCAT 87
Cite 3 - [2018] QCAT 87
Clarke v Queensland Building and Construction Commission [2020] QCAT 88
2 citations
Jump To
Cite 1 - [2020] QCAT 88
Cite 2 - [2020] QCAT 88
Harris v Queensland Building and Construction Commission [2020] QCAT 155
3 citations
Jump To
Cite 1 - [2020] QCAT 155
Cite 2 - [2020] QCAT 155
Cite 3 - [2020] QCAT 155
Health Ombudsman v Esser [2020] QCAT 335
2 citations
Jump To
Cite 1 - [2020] QCAT 335
Cite 2 - [2020] QCAT 335
Queensland Building Services Authority v Fox [2005] QDC 129
4 citations
Jump To
Cite 1 - [2005] QDC 129
Cite 2 - [2005] QDC 129
Cite 3 - [2005] QDC 129
Cite 4 - [2005] QDC 129
Stevens v Queensland Building and Construction Commission [2018] QCAT 331
2 citations
Jump To
Cite 1 - [2018] QCAT 331
Cite 2 - [2018] QCAT 331
Trust v Queensland Building Services Authority [2003] QCCTB 11
2 citations
Jump To
Cite 1 - [2003] QCCTB 11
Cite 2 - [2003] QCCTB 11
TSP v Director-General, Department of Justice and Attorney-General [2018] QCAT 33
2 citations
Jump To
Cite 1 - [2018] QCAT 33
Cite 2 - [2018] QCAT 33
Walker v Queensland Building and Construction Commission [2021] QCAT 32
2 citations
Jump To
Cite 1 - [2021] QCAT 32
Cite 2 - [2021] QCAT 32
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
3 citations
Jump To
Cite 1 - [2017] QCAT 228
Cite 2 - [2017] QCAT 228
Cite 3 - [2017] QCAT 228

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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