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Frame v Queensland Building and Construction Commission[2024] QCAT 63

Frame v Queensland Building and Construction Commission[2024] QCAT 63

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Frame v Queensland Building and Construction Commission [2024] QCAT 63

PARTIES:

jaden frame

(applicant)

v

queensland Building and construction commission

(respondent)

APPLICATION NO/S:

GAR635-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

8 February 2024

HEARING DATE:

8 May 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 – where a claim was made upon the Queensland Home Warranty Scheme more than three months after the owner became aware of defects in residential construction work – where the claim was disallowed – whether circumstances exist to allow the applicant to advance claim

Acts Interpretation Act 1954 (Qld), s 24AA

Queensland Building and Construction Commission Act 2009 (Qld), s 20, s 24, s 67X

Queensland Building and Construction Regulation 2003 (Qld)

Queensland Building and Construction Regulation 2018 (Qld), s 3, s 15, s 16

Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209

Gray v WorkCover Queensland & Anor [2000] QSC 418

Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58.

Messaoudi v Queensland Building and Construction Commission [2021] QCAT 124

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

A Hoare, Legal Practitioner employed by the Respondent

REASONS FOR DECISION

Introduction

  1. [1]
    By an application instituted on 15 November 2021 Jaden Frame (‘Applicant’) sought a review by the Tribunal of a decision made by the Queensland Building and Construction Commission (‘QBCC’) on 18 October 2021.
  2. [2]
    The decision was an internal review decision. It was made by a Principal Review officer of the QBCC. The decision was to disallow the claim made by the Applicant under the Queensland Home warranty scheme - a statutory insurance scheme (‘SIS’).
  3. [3]
    The Applicant’s rejected claim was in respect of a crack in the bottom of a concrete inground swimming pool constructed for him under a construction contract.
  4. [4]
    In summary, the Applicant’s principal contention is that the decision was wrong. The basis for that contention is that he only became that it was a structural defect that was causing the leak on 19 August 2020 and that he lodged a claim under the SIS on 2 October 2020 which he asserts was within the timeframe required by the SIS.[1] Further, the Applicant raises a subsidiary but related issue. He questions the process by which QBCC rescinded an original insurance decision that was favourable to him.[2]
  5. [5]
    For its part, the QBCC position is that the Applicant’s claim was not made within the time it was required to be made under the SIS. The QBCC contends that to be a valid claim under the SIS, the claim must be made within three months after the day that the Applicant became aware of the defect, and that the date on which the Applicant became aware was 13 November 2019. As a result, the QBCC submits that the claim made on 2 October 2020 is not a claim to which the SIS responds.[3] As to the subsidiary issue, the QBCC contends that it is permitted, under the relevant statutory regime, the power to remake a decision in the manner that it did.
  6. [6]
    The Tribunal’s jurisdiction to review the QBCC decision is conferred on it by the Queensland Building and Construction Commission Act 2009 (Qld) (‘QBCC Act’).[4] In exercising its review jurisdiction, this Tribunal has all the functions of the decision-maker. 
  7. [7]
    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]
  8. [8]
    In conducting this review there is no presumption that the decision under review was correct[7] nor is there a formal onus of proof on either party. Nonetheless, there must be sufficient evidence before the Tribunal to support the final orders made by the Tribunal.

Background to decision under review

  1. [9]
    Although the matrix of events that gave rise to this application are, broadly speaking, not in dispute, a summary of the factual background gives context to the decision under review. A summary of the relevant, uncontested, factual background is as follows:
  1. By a contract dated 16 July 2018, the Applicant entered into a pool building agreement with a Contractor for the construction of an inground concrete swimming pool. The contract price was $79,500.
  2. On 2 August 2018, an insurance policy under the SIS (number 013812997) was raised in respect of the pool contract.
  3. On 15 October 2018, work under the pool contract commenced. That work reached practical completion on 28 February 2019, and on 19 March 2019, the Applicant made the last required payment to the Contractor under the contract.
  4. On 13 November 2019, the Applicant became aware of a crack in the base of the pool shell and that the pool was losing a significant amount of water (about 100 mm per day).
  5. After becoming aware of the leak in the pool in November 2019, the Applicant took steps between then and August 2020 to identify the cause and address the problem with the Contractor. At the Contractor’s suggestion and expense, the Applicant arranged for the cracks to be repaired temporarily.[8]
  6. On 2 October 2020 the Applicant lodged a Residential and Commercial Construction Complaint Form that nominated the pool Contractor as the Respondent.[9]
  7. On 24 November 2020 Mr Stephen Hickling, a building inspector employed by the QBCC, inspected the Applicant’s pool.[10]
  8. On 4 February 2021 NJA Consulting Pty Ltd, consulting engineers engaged by the QBCC, conducted an inspection of the pool to assess and determine the cause of the cracking of the pool shell and the water loss, and finalised its report on 23 March 2021 (‘the NJA report’).[11]
  9. On 29 April 2021 Mr Hickling, assisted by the NJA report, completed his initial inspection report.[12]
  10. On 6 May 2021 the QBCC notified the Applicant and the Contractor that it would not give a direction to rectify to the Contractor on the basis that there was no evidence to suggest that the crack in the pool was the result of defective building work by the Contractor. By that same notification QBCC advised the Applicant that the complaint would be referred for insurance assessment as a possible claim.[13]
  11. During May 2021 the parties conducted an exchange of correspondence that, amongst other things, addressed the date on which it became apparent to the Applicant that the pool was leaking.
  12. On 9 June 2021, the QBCC made a decision to allow the Applicant’s claim under the SIS and advised the Applicant accordingly.[14] It also drafted a scope of works for rectification work.[15]
  13. On 26 August 2021, the QBCC withdrew its decision to allow the claim decision and made a new decision to wholly disallow the Applicant’s claim on the basis that the Applicant’s claim for assistance had been made outside of the relevant timeframes specified by the SIS.[16]
  14. On 21 September 2021 the Applicant lodged an internal review application.
  15. On 18 October 2021 a Principal Review Officer of the QBCC made a decision ‘to disallow the applicants (sic) claim under the Queensland Home Warranty Scheme’.[17]

Issues in dispute

  1. [10]
    Both the Applicant and the QBCC prepared dispute schedules. The matters in dispute, identified by these schedules, can be characterised as a principal issue and a subsidiary issue. The principal issue is whether (or not) the Applicant’s claim for assistance under the SIS was made within the time required by that scheme (the ‘Time Issue’). The subsidiary issue, and one only raised by the Applicant in his dispute schedule, is whether the process adopted by the QBCC for rescinding the original insurance approval was appropriate (the ‘Rescinding Issue’).

Time issue

  1. [11]
    For the resolution of the time issue, it is appropriate to firstly set out the statutory structure which sets up and regulates the SIS, and secondly to identify the provisions of the SIS that pertained to the Applicant’s claim and then consider the application of those provisions of the SIS to the Applicant’s claim. 
  2. [12]
    The key Queensland legislative enactments that are relevant for deciding this matter are the QBCC Act current from 1 March 2018 to 10 September 2018, the Queensland Building and Construction Regulation 2003 (Qld) which was current on 16 July 2018 (‘QBCC Regulation 2003’) and, insofar as it is relevant, the Queensland Building and Construction Regulation 2018 (Qld) (‘QBCC Regulation 2018’). This statutory framework establishes and governs the SIS.[18]
  3. [13]
    Under s 67X of the QBCC Act the purpose of the SIS, relevantly for this matter, is to provide assistance to consumers of residential construction work for loss associated with work that is defective.
  4. [14]
    As to the provisions of the SIS that are relevant to the Applicant’s claim, the QBCC contends that Schedule 6 of the QBCC 2018 Regulation applies for the purposes of determining whether to allow or disallow the Applicant’s claim under the SIS.[19] For present purposes, it is sufficient to note that Schedule 6 of the QBCC Regulation 2003, as it applied at the time the insurance policy came into effect, is identical in substance and form to Schedule 6 of the QBCC Regulation 2018.[20]
  5. [15]
    The Applicant’s complaint is that the work, the construction of his pool, was defective.[21] The term ‘structural defect’ is defined in section 3 of the terms of cover for the SIS as follows:

structural defect, for primary insurable work, means—

  1. …
  2. if the work is for a swimming pool—a defect in the work that allows water to escape through the shell of the swimming pool; 
  1. [16]
    In detailing his complaint in his 2 October 2020 complaint form,[22] the Applicant, under the heading of ‘Complaint Item List’, described his complaint as a ‘4m Crack in the bottom of the cement pool and pool was losing water.’
  2. [17]
    Based on the Applicant’s complaint, I find that the defect complained of by the Applicant is a structural defect.
  3. [18]
    Given that there is a defect, indeed a structural defect, what does the SIS provide by way of assistance? Under the heading of ‘Assistance for defective work’, section 15 of the terms of cover for the SIS, a consumer (here the Applicant) is entitled to claim for the reasonable costs of rectifying defective work.
  4. [19]
    However, as is common in insurance policies or schemes, that entitlement to claim is then qualified. On the basis that the defect is a structural defect, the qualifications of relevance to this matter are set out in section 16 of the terms of cover for the SIS; a section that is entitled ‘Limit on assistance.’ Subsection (1) of section 16 sets a general time limit on the provision of assistance under the SIS. It is in the following terms:
  1. (1)
    A consumer is entitled to claim assistance mentioned in section 15 in relation to a structural defect in the residential construction work if the consumer first becomes aware, or ought reasonably to have become aware, of the structural defect within—
  1. (a)
    for residential construction work that is not substantially complete …
  2. (b)
    otherwise—6 years and 6 months after the cover commencement day for the work.
  1. [20]
    Given that the insurance policy was raised, and construction commenced in 2018, a claim in October 2020 is within the period that the Applicant was entitled to claim.
  2. [21]
    However, subsection (3) of section 16 of the terms of cover contains a further time qualification. It puts a time limit within which a consumer may make a claim for a structural defect. It provides as follows:
  1. (3)
    No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15—
  1. (a)
    for a structural defect—within 3 months after the day the consumer first becomes aware, or ought reasonably to have become aware, of the defect in the work; or
  2. (b)
    for another defect …
  1. [22]
    The essence of the Applicant’s submission on this issue is that when he first noticed the fall in water level in November 2019 he did not, at that time, understand the defect to be structural. It was not until 19 August 2020 that (in the words of the Applicant’s Response to the Respondent’s Hearing Submissions) ‘he reasonably became aware that the issue may have been a structural defect…’[23]
  2. [23]
    The difficulty for the Applicant is that where the issue of the classification of a building defect has been considered by QCAT against a similar statutory background, it has been found that it is the awareness of a defect, rather than the classification of it, that is the pivotal in determining the date.
  3. [24]
    In Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290, a decision that confirmed a decision of the QBCC to wholly disallow a claim by the applicants under a statutory insurance scheme, the Tribunal was called on to consider a clause that required a claim to be made ‘within three months of that defect first becoming evident’. At paragraph [32] the Member said that:

Additionally, I do not take the clause to require the precise nature of the defect to be evident. The policy would be practically unworkable if the time for lay consumers to exercise their rights were to run from the time the technical nature of a defect became evident. It is, in my view, sufficient if the consequences of a defect are evident, such that objectively it would be concluded that the work is defective in the sense indicated in the definition of a category 1 defect. Again, it seems unlikely that the drafter intended that the practical application of the time limit would depend upon the technical knowledge of the owner.

  1. [25]
    This decision was cited with approval in the more recent Tribunal decision of Messaoudi v Queensland Building and Construction Commission [2021] QCAT 124 where it was also held that the classification of a defect is relevant to a time limit but that the applicant’s knowledge of the classification of a defect is not relevant to the time limit.[24]
  2. [26]
    Given that section 16(3) of the terms of cover under the SIS addresses when the consumer first becomes aware of the defect, and in the light of the decisions mentioned, I conclude that the Applicant’s contention on the time issue–that time would only run for making a claim when he became aware (or ought to have become aware) that the defect was structural–cannot be sustained.
  3. [27]
    As acknowledged by the QBCC this conclusion may be an unfair to the Applicant.[25] This is particularly in view of the attempts that he made to address the pool leak once he became aware of it – without seeking, in the first instance, recourse to the SIS.
  4. [28]
    The unfairness of the situation facing the Applicant with respect to the time limit on making a claim is not unlike that faced by the applicant in Walker v Queensland Building and Construction Commission [2021] QCAT 32 (‘Walker’s case’). However, in the absence of a mechanism to extend the time for the making of a claim or the ability of the QBCC to waive compliance with the time requirement, a similar result to that found by the Member in Walker’s case follows. In effect, the Applicant’s claim fails because he did not seek to call on the SIS but sought to resolve the matter without recourse to the statutory scheme.

Rescinding issue

  1. [29]
    As to the rescinding issue, the Applicant, in his dispute schedule, questions the process undertaken by the QBCC to rescind its original decision and, further, contends that the amended decision put him in a ‘significantly disadvantaged position.’[26]
  2. [30]
    The Applicant’s contentions raise two questions for determination under this heading. Firstly, was the process adopted by the QBCC to rescind its decision soundly based and secondly, was the QBCC prevented from rescinding its decision on the basis that the Applicant was in a significantly disadvantaged position?
  3. [31]
    The QBCC addresses the first of these questions in its hearing submissions[27] and submits that it has the statutory ability to remake its decision on the basis of an application of s 24AA of the Acts Interpretation Act 1954 (Qld).  That section sets out the power to make an instrument or decision and the power to amend or repeal that instrument or decision. The QBCC also relies on the decision in Gray v WorkCover Queensland & Anor [2000] QSC 418 in which the application of s 24AA was considered. I accept that the 18 October 2021 decision of the QBCC falls within s 24AA and replaces what the QBCC refers to in its submissions and the First Insurance Decision – the decision of 9 June 2021. Thus, subject to what follows, the revocation of the First Insurance Decision and the making of the decision under review was possible.
  4. [32]
    As to the second question, the Applicant, although not phrasing the issue in quite these terms is, in effect, asserting that the QBCC should be estopped from changing its position in respect of his claim under the SIS. The basis for this contention is that the Applicant relied, to his detriment, on the QBCC decision of 9 June 2021 to allow his claim, and that the QBCC should now not be permitted to change its position.[28]
  5. [33]
    The Applicant articulates the detriment that he suffered in his written response to the QBCC’s hearing submissions by saying that he ‘lost the opportunity for the builder to rectify the pool and now has sole reliance on the’ SIS.
  6. [34]
    In asserting this detrimental reliance claim the Applicant faces the difficulty in establishing an estoppel against a statute.
  7. [35]
    I consider that whether the QBCC can be estopped from relying on the time limit contained in the SIS depends on the nature of the right or entitlement and whether the estoppel would nullify a statutory provision.[29]
  8. [36]
    The statute is, in my view, clear. The SIS relevantly requires a claim for a structural defect to be made within three months after the day the consumer first becomes aware of the defect.[30] I find that to not allow the QBCC to rely on the time limit would nullify the statutory provision. Accordingly, I find that QBCC is not estopped from relying on the time limit in s 16(3) of the SIS.

Orders

  1. 1.The decision of the QBCC made on 18 October 2021 to disallow the claim made under the Queensland Home Warranty Scheme is confirmed.

Footnotes

[1] This position is articulated in various of the Applicant’s documents including on page 2 of his response to QBCC’s hearing submissions under the heading of Dispute 1.

[2] Applicant’s Dispute Schedule.

[3] QBCC’s Dispute Schedule.

[4] QBCC Act, Part 7.

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.

[6] Ibid, s 24(1).

[7] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[8] These matters in subparagraphs (a) - (e) are set out in the QBCC’s Statement of Reasons and were specifically endorsed as accurate by the Applicant at the hearing of this matter.

[9] A copy of this document is attached to the QBCC’s Statement of Reasons and identified as ‘SOR-5’.

[10] Mr Hickling gave oral evidence at the hearing of this application. His statement is exhibit 4.

[11] A copy of this report is annexed as ‘SH-3’ to the statement of Mr Hickling (exhibit 4).

[12] A copy of this report is annexed as ‘SH-4’ to the statement of Mr Hickling (exhibit 4).

[13] A copy of this notification is attached as ‘SOR-14’ to QBCC’s Statement of Reasons.

[14] QBCC’s Statement of Reasons at paragraph 46 and the correspondence to the Applicant. See also paragraph 6(e) of QBCC’s hearing submissions which states that the QBCC ‘decided to allow the Applicant’s claim under the Scheme…’

[15] A copy of QBCC’s correspondence of 9 June 2021 is attached as ‘SOR-18’, to the QBCC’s statement of reasons.

[16] QBCC’s Statement of Reasons at paragraph 51.

[17] A copy of the 18 October 2021 Decision Notice is attached, as SOR-1, to the QBCC’s statement of reasons.

[18] 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.

[19] QBCC’s Statement of Reasons at paragraphs 12 and 13.

[20] See also QBCC’s Statement of Reasons at paragraphs 12 and 13.

[21] Described in the Applicant’s complaint form as a ‘4m Crack in the bottom of the cement pool and pool was losing water.’ The QBCC Initial Inspection Report dated 11 November 2020 (at page 3) states under the heading of ‘Defect Category’ the defect as ‘Structural cracking to the pool shell.’ Despite this identification of the defect the conclusion of the Report was that there ‘was insufficient evidence to reveal any obvious defective construction practices by’ the pool contractor.

[22] A copy of which is ‘SOR-5’ to the QBCC’s Statement of Reasons.

[23] Applicant’s Response to the Respondent’s Hearing Submissions on page 2.

[24] Messaoudi v Queensland Building and Construction Commission [2021] QCAT 124, at [9].

[25] In the QBCC’s written hearing submissions at paragraph 32.

[26] The phrase used by the Applicant in his dispute schedule.

[27] At paragraphs 14-18.

[28] As to whether estoppel applies to administrative decision making under the QBCC Act, this is a question that has been recently considered in Walker v Queensland Building and Constructions Commission [2021] QCAT 32 and Perry v Queensland Building and Construction Commission [2022] QCAT 234, [38] which referred to it as ‘unresolved.’

[29] Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 216.

[30] SIS, s 16(3).

Close

Editorial Notes

  • Published Case Name:

    Frame v Queensland Building and Construction Commission

  • Shortened Case Name:

    Frame v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 63

  • Court:

    QCAT

  • Judge(s):

    Member Davies

  • Date:

    08 Feb 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
Day Ford Pty Ltd v Sciacca[1990] 2 Qd R 209; [1990] QSCFC 1
2 citations
Jump To
Cite 1 - [1990] 2 Qd R 209
Cite 2 - [1990] 2 Qd R 209
Gray v WorkCover Queensland [2000] QSC 418
2 citations
Jump To
Cite 1 - [2000] QSC 418
Cite 2 - [2000] QSC 418
Jackson v Queensland Building and Construction Commission [2018] QCAT 290
2 citations
Jump To
Cite 1 - [2018] QCAT 290
Cite 2 - [2018] QCAT 290
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Messaoudi v Queensland Building and Construction Commission [2021] QCAT 124
3 citations
Jump To
Cite 1 - [2021] QCAT 124
Cite 2 - [2021] QCAT 124
Cite 3 - [2021] QCAT 124
Perry v Queensland Building and Construction Commission [2022] QCAT 234
1 citation
Jump To
Cite 1 - [2022] QCAT 234
Walker v Queensland Building and Construction Commission [2021] QCAT 32
3 citations
Jump To
Cite 1 - [2021] QCAT 32
Cite 2 - [2021] QCAT 32
Cite 3 - [2021] QCAT 32

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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