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Crocker v Queensland Building and Construction Commission[2024] QCAT 73

Crocker v Queensland Building and Construction Commission[2024] QCAT 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Crocker v Queensland Building and Construction Commission [2024] QCAT 73

PARTIES:

lee anthony crocker

dene ward crocker

(applicants)

v

queensland building and construction commission

(respondent)

APPLICATION NO:

GAR090-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

12 February 2024

HEARING DATE:

29 January 2024

HEARD AT:

Brisbane

DECISION OF:

Member Olding

ORDERS:

The preliminary issues specified in the Tribunal’s directions 1, 2 and 3 of 16 October 2023 are determined as follows:

  1. It is within the jurisdiction of the Tribunal on a review of a decision about the scope of works to be undertaken under the statutory insurance scheme to consider whether the proposed items in the scope of works are within the terms of the statutory scheme.
  2. Whether it is within the jurisdiction of the Tribunal on a review of such a decision to consider whether it is ‘reasonable and necessary’ for an item to be in the scope of the works if the alleged defective work is not covered by the statutory insurance scheme – not necessary to answer.
  3. Clauses 6.3 and 6.10(b) of the insurance policy conditions do not operate such that defects which are apparent before practical completion, but which are not claimed until after practical completion, are excluded.
  4. Only the following defect items in the relevant scope of works should be excluded by clause 4.6 of the insurance policy conditions:
    1. (i)
      S 16, to the extent the scope of works relates to paint applied to the window hood;
    2. (ii)
      S 22, to the extent the tiling forms part of the pool, or pathways around the pool or elsewhere; and
    3. (iii)
      S 25, to the extent the drain abuts and supports a paved pathway.

CATCHWORDS:

ADMINISTRATIVE REVIEW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether tribunal has jurisdiction on review of a decision of the Queensland Building and Construction Commission about the scope of works under the statutory insurance scheme to consider whether proposed items in a scope of works are within the terms of the insurance scheme – whether items that became apparent before but were claimed after practical completion achieved are excluded from cover under the scheme – whether certain defects excluded as ‘associated building work’

Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(g)

Queensland Building and Construction Commission Regulation 2003 (Qld) (repealed), s 11(3)

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

Queensland Building and Construction Commission Insurance Policy Conditions, Edition 8, clauses 6.3, 6.10(b)

ACN 148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72

Carr v The State of Western Australia [2007] HCA 47

CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2

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

Project Sky Blue v Australian Broadcasting Authority [1998] HCA 28

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

What is this case about?

  1. [1]
    These reasons concern the following issues:

Whether it is within the jurisdiction of the Tribunal on a review of a decision about the scope of works to be undertaken under the statutory insurance scheme to consider:

  1. whether the proposed items in the scope of works are within the terms of the statutory scheme; or
  2. whether it is ‘reasonable and necessary’ for an item to be in the scope of the works if the alleged defective work is not covered by the statutory insurance scheme.
  1. [2]
    The Tribunal directed that these issues be determined as preliminary issues. If either issue is determined in the affirmative, the following additional issues would need to be determined:
    1. whether clauses 6.3 and 6.10(b) of the Insurance Policy Conditions operate such that defects which are apparent before practical completion, but which are not claimed until after practical completion, are excluded; and
    2. whether certain defect items in the relevant scope of works should be excluded by clause 4.6 of the Insurance Policy Conditions.

Background

  1. [3]
    The substantive proceeding is an application to review a decision of the Queensland Building and Construction Commission to issue a scope of works to be undertaken under the statutory insurance scheme to rectify or complete building work.
  2. [4]
    The applicants maintain each item in the scope of works is either not a defect or is excluded under the policy conditions referred to in the preliminary issues set out above. On that footing, the applicants submit the Commission has no liability for any of the defects under the terms of the statutory insurance policy and therefore it is unreasonable and unnecessary for any of the items to be included in the scope of works.
  3. [5]
    The Commission’s primary submission notes the Tribunal does not have jurisdiction to review the Commission’s antecedent decision to allow the owner’s claim under the insurance policy in respect of the defects. To consider whether items within the scope of works are covered by the policy conditions would, the Commission submits, amount to a review of the decision to allow the insurance claims which the Tribunal does not have jurisdiction to undertake.
  4. [6]
    In any case, the Commission says the applicants are mistaken regarding the operation of the specified conditions. The Commission says those provisions do not operate to deny the owner’s entitlement under the policy.
  5. [7]
    Further background to the review may be found in ACN 148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72.

Summary of conclusions

  1. [8]
    I have concluded the preliminary issues should be determined as follows:
    1. It is within the jurisdiction of the Tribunal on a review of a decision about the scope of works to be undertaken under the statutory insurance scheme to consider whether the proposed items in the scope of works are within the terms of the statutory scheme.
    2. Whether it is within the jurisdiction of the Tribunal on a review of such a decision to consider whether it is ‘reasonable and necessary’ for an item to be in the scope of the works if the alleged defective work is not covered by the statutory insurance scheme – not necessary to answer, in view of my conclusion in respect of (a).
    3. Clauses 6.3 and 6.10(b) of the insurance policy conditions do not operate such that defects which are apparent before practical completion, but which are not claimed until after practical completion, are excluded.
    4. Only the following defect items in the relevant scope of works should be excluded by clause 4.6 of the Insurance Policy Conditions:
      1. (i)
        S 16, to the extent the scope of works relates to paint applied to the window hood;
      2. (ii)
        S 22, to the extent the tiling forms part of the pool, or pathways around the pool or elsewhere; and
      3. (iii)
        S 25, to the extent the drain abuts and supports a paved pathway.
  2. [9]
    My reasons follow.

Does the Tribunal have jurisdiction to consider whether items in the scope of works are within the statutory insurance scheme or reasonable and necessary if the alleged defective work is not covered by the scheme?

  1. [10]
    It is common ground that the Tribunal’s jurisdiction to review decisions of the Commission is limited to the “reviewable decisions” listed in s 86 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). 
  2. [11]
    Section 86(1) relevantly provides as follows:

Each of the following decisions of the commission under this Act is a reviewable decision:

. . .

  1. a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work;
  1. a decision to disallow a claim under the statutory insurance scheme wholly or in part;
  1. a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non-completion under the statutory insurance scheme.
  1. [12]
    Section 86(1)(g) is the provision under which the Tribunal’s jurisdiction to review a scope of works decision arises. Neither party referred to any binding decision or to any extrinsic materials said to be relevant to the construction of s 86(1)(g). However, the applicants referred at length to the decision of the Tribunal in Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379.
  2. [13]
    Hall was also an application for review of the scope of works to be undertaken under the statutory insurance scheme. The Tribunal observed:

The scope of the review

The statutory scheme requires that the scope of works for the purposes of s 86(1)(g) of the QBCC Act must be a scope of works within the confines of the terms of the Policy which govern the entitlement to assistance under the statutory insurance scheme. This reasoning is consistent with s 71A(6) of the QBCC Act which provides that the Commission may only have rectification work carried out under s 71A to the extent that the cost of the work is covered by the statutory insurance scheme.[1]

  1. [14]
    This extract confirms, as is to be expected, that the scope of works must be limited to works that would be covered by the insurance policy. Appearing under the heading ‘The scope of the review’, the remarks might also, in isolation, suggest that whether the works would be covered by the insurance policy may form part of a review of the scope of works.
  2. [15]
    However, viewed in context it is clear the preliminary jurisdictional issues raised in the current matter were not the basis on which the Tribunal decided the issues in Hall. Rather, the Tribunal made clear that its decision was confined to determining what works were necessary to remedy identified defects relating to slab edge dampness and differential movement.[2] The jurisdictional issues were not directly addressed and decided in Hall.

Does the Tribunal have jurisdiction to consider whether the proposed items in the scope of works are within the terms of the statutory scheme?

  1. [16]
    It is axiomatic that construction of statutory provisions must begin and end with the statutory text construed in its context and to give effect to its purpose ascertained by permissible means. Further, as the High Court has stated, context must be considered at the outset, not merely at some later stage if ambiguity is identified.[3]
  2. [17]
    There is nothing in the text of s 86(1)(g) itself to suggest Parliament should be taken to have intended the jurisdiction for which it provides would be confined in a way that precludes consideration of whether a scope of works would be covered by the insurance scheme.
  3. [18]
    Nor is there anything in the identifiable purpose of s 86 that suggests whether works are covered by the insurance scheme was intended to be excluded from consideration. As already mentioned neither party identified any extrinsic materials that would assist in determining the purpose of s 86(1)(g) or s 86 more broadly. It is self-evident that the purpose of s 86 includes to confer, in association with other provisions, jurisdiction on the Tribunal to undertake merits review of decisions of the Commission. However, expressed at that level of generality, identification of the purpose of s 86 is of little assistance in construing the limits of s 86(1)(g).[4] That is especially so since the very purpose of s 86 is to delineate those limits. Nor do the objects of the QBCC Act set out in s 3 descend to a level of detail that assists in determining the purpose of s 86(1)(g) and there is no separate objects provision for the Division in which s 86 is located.
  4. [19]
    In those circumstances, the importance of choosing an available construction that promotes the harmonious operation of the statutory provisions assumes particular importance. It is a principle supported by highest authority that an enactment must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[5] In other words, Parliament must be assumed to have intended provisions within an enactment would operate in a consistent and coherent fashion.
  5. [20]
    Examining the broader context of s 86(1) in the QBCC Act for coherence with provisions governing the insurance scheme and the review provisions reveals competing considerations.
  6. [21]
    On the one hand, as observed in Hall, s 71A explicitly confines the work the Commission may have carried out under the insurance scheme:

to the extent that the cost of the work is covered by assistance under the statutory insurance scheme that the person may be entitled to.

  1. [22]
    Coherently with that provision, whether work included in a scope of works may be covered by the insurance scheme may be considered to be an unsurprising consideration in a review of decision about a scope of works. Why would it not be appropriate for the Tribunal to consider, when reviewing a decision about the scope of works to be undertaken under the statutory insurance scheme, whether the cost of work included is covered by the insurance scheme?
  2. [23]
    The Commission says that this would amount to a review of the decision to allow the relevant insurance claim. In that regard, the Commission notes that while s 86(1)(h) allows for review of a decision to disallow a claim under the insurance scheme, there is – apart from the limited exception in s 86(1)(h) as set out above – no corresponding provision in s 86(1) for review of a decision to allow a claim.
  3. [24]
    This, the Commission submits, indicates a deliberate decision by the legislature that merits review would only be available for decisions disallowing insurance claims and not for decisions allowing such claims. Further, the Commission says it would follow from the applicants’ submission that a scope of works could be reviewed on a variety of other bases on which it might be said that an insurance claim should not have been allowed.
  4. [25]
    No policy rationale for a deliberate legislative decision to deny merits review of a scope of works on the basis that the relevant work is excluded from coverage under the insurance scheme is posited by the Commission. Nor is there any obvious policy rationale for leaving a person affected by a decision with only the expensive option of pursuing judicial review of the decision to remedy that particular flaw in a scope of works decision.
  5. [26]
    Further, the existence of a right to merits review of a decision to disallow an insurance claim, but not a decision to allow a claim, in my view is not a sound foundation for an inference that a separate right to review of a decision ‘about the scope of works to be undertaken under the statutory insurance scheme’ should exclude consideration of whether the works could ever be covered by the scheme. That the legislature has not provided a right to review of a decision to disallow an insurance claim, but not for review of a decision to allow a claim, is scarcely surprising. Who would want to exercise a right to review a favourable decision on a claim under the policy? The answer may be that a builder or, as in this case, directors of a builder, from whom the Commission might seek to recover a payment under the insurance scheme, may wish to challenge a decision regarding the works to be undertaken under the scheme, but that circumstance is covered by an ordinary reading of s 86(1)(g).
  6. [27]
    In my view, resolution of the matter comes down to this: The legislature has provided for merits review of a decision about the scope of works to be undertaken under the insurance scheme. Aside from being about the scope of works, the jurisdiction is, in its terms, unconfined. On an ordinary reading of s 86(1)(g), a review of a decision about a scope of works to be undertaken under the insurance scheme would not preclude consideration of whether the works were covered by the insurance scheme. No policy or compelling contextual reason for confining the jurisdiction has been identified in either the terms of the legislation or extrinsic materials. On the contrary, there are compelling reasons for considering that a review of a decision about the scope of works should not exclude consideration of whether the scope of works would include costs that are not insurable under the scheme and which the Commission is, under s 71A(6), explicitly precluded from incurring. 
  7. [28]
    Accordingly, I consider that the Tribunal does have jurisdiction, in a review of a decision about the scope of works to be undertaken under the insurance scheme, to consider whether the proposed items in the scope of works are within the terms of the scheme.
  8. [29]
    Having reached that conclusion, it is not necessary to consider the second posited basis of jurisdiction; that is, whether the Tribunal may consider whether it is ‘reasonable and necessary’ for an item to be in the scope of the works if the alleged defective work is not covered by the statutory insurance scheme. A positive answer to that question would be another basis for the Tribunal considering such matters. However, the ‘reasonable and necessary’ test is not found in s 86(1)(g) or elsewhere as a direct reference from the statute. It is an expression developed in Tribunal jurisprudence as the test for whether an item should be included in a scope of works.[6] It is the relevant words of the statute, in s 86(1)(g), that determine the Tribunal’s jurisdiction.

Do clauses 6.3 and 6.10(b) of the insurance policy conditions operate such that defects which are apparent before practical completion, but which are not claimed until after practical completion, are excluded?

  1. [30]
    In respect of many of the disputed items, the applicants argue the alleged defects are excluded from the insurance scheme by clauses 6.3 and 6.10(b) because the defects were apparent prior to practical completion.
  2. [31]
    The Commission says that submission misconceives the operation of part 6 of the insurance policy in which these clauses are found.

The text of the relevant clauses of the policy

  1. [32]
    To understand clauses 6.3 and 6.10(b), it is necessary to consider them in the context of other provisions of the policy. Relevant clauses of the policy – clauses 6.2, 6.3 and 6.10 – are reproduced in full below:

6.2 Maximum liability – Single Detached Dwelling, Duplex or Related Roofed Building (that is not part of a contract or other Residential Construction Work) – Prior to Practical Completion

  1. This clause applies to liability under this policy in relation to:
  1. a single detached dwelling; or
  1. a duplex; or
  1. a related roofed building that is not erected or constructed, rectified or otherwise altered as part of a contract for the performance of other residential construction work.
  1. The maximum amount of payment for which the QBCC will be liable for all claims in the aggregate under this policy, in respect of a building mentioned in paragraph (a), that includes any or all of the following components:
  1. loss resulting from non-completion;
  1. loss to standing work resulting from vandalism and forcible removal;
  1. defects that become apparent prior to practical completion of works;
  1. subsidence or settlement that becomes apparent prior to practical completion of works;

will be the replacement value of the residential construction work or $200,000, whichever is less. That amount includes, where applicable, a maximum of $5,000 for alternative accommodation, removal and storage costs.

6.3 Maximum Liability – Single Detached Dwelling, Residential Unit or Related Roofed Building (that is not part of a contract for other Residential Construction Work) – After Practical Completion

  1. This clause applies to liability under this policy in relation to:
  1. a single detached dwelling; or
  1. a residential unit; or
  1. a related roofed building that is not erected or constructed, rectified or otherwise altered as part of a contract for the performance of other residential construction work.
  1. The maximum amount of payment for which the QBCC will be liable for all claims in the aggregate under this policy, in respect of a building mentioned in paragraph (a), that includes any or all of the following components:
  1. loss resulting from defective work that becomes apparent after practical completion;
  1. subsidence or settlement that becomes apparent after practical completion;

will be the replacement value of the residential construction work or $200,000, whichever is less. That amount includes, where applicable, a maximum of $5,000 for alternative accommodation, removal and storage costs.

6.10 Total Maximum Liability

  1. To remove any doubt, the maximum amount payable by the QBCC for all claims in the aggregate under this policy in relation to a single detached dwelling, residential unit or related roofed building, is $600,000.
  1. To remove any doubt, the QBCC is not liable for a claim in relation to defective work or subsidence or settlement which becomes apparent after practical completion, if the same defect was, or in the opinion of the QBCC should have been, apparent to the Insured, its agent or delegate prior to practical completion.

Are the items claimed excluded on the basis that the alleged defects were apparent before practical completion?

  1. [33]
    On the construction of clause 6.10(b) submitted by the applicants, the Commission is not liable for a claim in relation to defective work if the defect was or should have been apparent to the insured before practical completion. As the alleged defects were apparent to the owners before practical completion, the Commission, according to the applicants, is not liable under the policy.
  2. [34]
    The flaw in that submission is, with respect, revealed by paragraph [28] of the applicants’ submissions, which reads:

As the works had reached the stage of Practical Completion clause 6.3 of the policy conditions applies. Clause 6.3 operates such that the Respondent was only liable, in respect of a Single attached dwelling that has reached the stage of Practical Completion, for loss resulting from defective work that becomes apparent after practical completion.

  1. [35]
    The opening words of this paragraph – ‘[a]s the works had reached the stage of Practical Completion’ – can only refer to the time when the owners claimed there were defects as alleged. It cannot refer to when the defects became apparent to the owners because the applicants acknowledge – indeed, base their case in this respect on – the alleged defects being apparent before practical completion was achieved.
  2. [36]
    However, clauses 6.2 and 6.3 are not concerned with when the insured lodges a complaint about alleged defects. In terms, they are conditioned upon when an alleged defect ‘became apparent’ or ‘becomes apparent’.
  3. [37]
    If it were the case, as the applicant submits, that access to the maximum assistance under clause 6.2 would be precluded if the claim were to be made after practical completion, the regulation would operate in a capricious way.  For example, if a defect became apparent on one day and practical completion was achieved the next, a claim made but one day after the defect became apparent would be excluded. Such an outcome would be an unlikely intention to attribute to the drafter, especially when not supported by the ordinary reading of the clause.
  4. [38]
    Clause 6.2 sets the maximum amount payable under the scheme for, amongst other things, ‘defects that become apparent prior to practical completion of works’.  Clause 6.3 sets the maximum for losses resulting from defective work and subsidence or settlement ‘that becomes apparent after practical completion’.
  5. [39]
    Clause 6.2 is concerned with four classes of losses: loss resulting from non-completion of works; loss to standing work resulting from vandalism and forcible removal; defects; and subsidence and settlement. Clause 6.3 is only concerned with defective work and subsidence or settlement.
  6. [40]
    Considered against that context, in my view, clause 6.10(b) is not intended to operate as a blanket exclusion of claims for defective work or subsidence or settlement that was or should have been apparent before practical completion. That would inexplicably override clause 6.2 in respect of defective work and subsidence and settlement.
  7. [41]
    Rather, clause 6.10(b) prevents an insured double-dipping; that is, claiming up to the $200,000 limit under clause 6.2 and again under clause 6.3 for the same defective work or subsidence or settlement where the issue becomes apparent after practical completion but was or should have been apparent before practical completion.
  8. [42]
    For completeness, I note the applicants also referred to s 59 in Schedule 6 to the Queensland Building and Construction Commission Regulation 2018 (Qld) in which the statutory insurance policy conditions are now found. Section 59 states:

Defect in work apparent before work substantially complete

A consumer for residential construction work is not entitled to claim assistance in relation to a defect in the work if—

  1. the residential construction work is substantially complete; and
  1. the defect was apparent, or ought reasonably to have been apparent, to the consumer before the work was substantially complete.
  1. [43]
    However, that regulation was made some years after the policy conditions under consideration in this matter were promulgated. As such, they are of no assistance in construing the earlier policy conditions which are, in any case, expressed in different language.
  2. [44]
    Additionally, the applicants referred to the words ‘Prior to practical completion’ appearing in the heading to clause 6.2 and ‘After Practical Completion’ in clause 6.3. However, those words are clearly of a summary nature and, in any case, clause 11.2(b) states that headings are ‘for convenience only and are not to be used in interpreting this policy’.
  3. [45]
    For these reasons, I consider that clauses 6.3 and 6.10(b) of the insurance policy conditions do not operate such that defects which are apparent before practical completion, but which are not claimed until after practical completion, are excluded.

Should certain defect items in the relevant scope of works should be excluded by clause 4.6 of the insurance policy conditions?

  1. [46]
    The applicants argue that certain alleged defects are excluded from coverage under the insurance scheme as ‘associated building work’.

What is ‘associated building work’?

  1. [47]
    Clause 4.1 of the insurance policy states:

Subject to the terms of this policy, the QBCC agrees to pay the cost of rectifying defects in residential construction work that is primary building work, other than for defects from subsidence or settlement referred to in part 5 of this Policy.

  1. [48]
    Clause 4.6 provides:

The QBCC is not liable under this Part for that part of residential construction work that is associated building work.

  1. [49]
    Under clause 11, ‘primary building work’ and ‘associated building work’ take their meaning from sections 11 and 12 respectively of the former Queensland Building and Construction Commission Regulation 2003 (Qld) (‘the former regulation’).[7]
  2. [50]
    The expression ‘primary building work’ was defined in former s 11(2) as the following building work:
    1. construction of the residence or related roofed building;
    2. building work that affects the structural performance of the residence or related roofed building;
    3. building work for relocation or replacement of a roof, wall, internal partition, floor or foundation;
    4. building work for replacement or refitting of fixtures or fittings in a bathroom or kitchen in the residence or related roofed building;
    5. building work for an unenclosed, elevated platform or verandah, including a deck, attached to a residence;
    6. building work that increases the covered floor area of the residence or related roofed building;
    7. building work for installation or repair of the primary water supply to, or sewerage or drainage for, the residence or related roofed building.
  3. [51]
    However, s 11(3) provided:

The following is not primary building work, but may be associated building work –

  1. fencing;
  2. landscaping;
  3. painting;
  4. installation, renovation, repair or replacement of any of the following—
    1. (i)
      air conditioning;
    2. (ii)
      driveways, paths or roads;
    3. (iii)
      units for heating water regardless of the source of energy for heating, and including units for heating swimming pools;
    4. (iv)
      refrigeration;
    5. (v)
      roller shades and shutter screens;
    6. (vi)
      security doors and grills;
    7. (vii)
      solar power units and associated electrical components;
    8. (viii)
      swimming pools, or spas that are not part of a bathroom;
    9. (ix)
      water tanks that are not part of a primary water supply for the residence or related roofed building.
  1. [52]
    Section 12(1) of the former regulation relevantly defined associated building work as:

the following building work that is not primary building work, but is other building work carried out under a contract that includes primary building work (the other building work)—

  1. if the primary building work under the contract is for a residence, other building work for anything on the site of the residence, but only if the other building work is for residential purposes;
  2. if the primary building work is for a related roofed building, other building work on the site of the residence or proposed residence for which the related roofed building is to be used, but only if the other building work is for residential purposes.
  1. [53]
    Under the definitions set out above, driveways and paths may be associated building works. In the Hall case, plumbing works were required to remedy slab edge dampness issues. An issue arose concerning work on external pavements and a driveway required to enable the plumbing rectification work to be carried out. The Tribunal stated:

In my view, as the rectification works to repair all of the plumbing defects noted in the [plumbing report] are required to remedy the slab edge dampness issue, then if those works require the external pavements and driveway to be moved back to the first sawn joint to enable it to be completed, then that associated work should be included in the [scope of works]. It would be different if the parties were claiming that there was a defect in the external pavements and driveway which needed to be rectified. In that case, I would agree with the Commission, that the work would be outside the scope of the Policy, on the basis that the applicants would be claiming the cost of rectifying defects in “associated building work” for the Commission is not liable.[8]

  1. [54]
    The learned Tribunal member’s approach is, with respect, consistent with clause 4.1 of the policy. Clause 4.1 is not concerned with whether the work required to rectify defects is itself primary building work. It is concerned with the cost, which the Commission agrees to pay, of rectifying defects in primary building work. The exclusion in clause 4.6 should be similarly construed: what is excluded is not associated building work, but the cost of rectifying defects in associated building work.
  2. [55]
    Accordingly, I approach the circumstances in which the applicants claim works in the scope of works are excluded as associated building work by considering whether the work is for rectification of primary building work or associated building work.
  3. [56]
    To answer the final preliminary question, it is necessary to consider each of the alleged defects for which the applicants maintain the associated building work exclusion applies. I understand the contentious items to be those identified as: S 5, S 16, S 17, S 18, S 21, S 22, S 24, S 25, S 29, S 30, S 31 and S 32. The scope of works is described against each item below.

S 5 – Ease door in jamb and repaint exposed timber

  1. [57]
    The applicants submit this item is excluded as it relates to painting which is associated building work. However, the building inspection report indicates a defect in the setting of a door caused the door to bind on the door jamb which in turn caused damage to the painted surface. The work is not required to remedy any defect in the painting but rather to remedy the defect in the setting of the door.
  2. [58]
    Accordingly, this item is not excluded as remedying a defect in associated building work.

S 16 –

1. Ease window frame and repaint exposed timber.

2. Prepare and repaint window frame to match.

3. Prepare and apply additional coat of paint to match window hood.

  1. [59]
    The applicants submit this item is excluded as it relates to painting which is associated building work. The building inspection report indicates the margins around a window were insufficient to allow the application of paint, causing the window to bind on the window frame. The paint was rubbing off the window frame due to the operation of the window. The work required to remedy this defect is not due to any defect in the painting and therefore is not excluded as associated building work
  2. [60]
    The report also indicates the paint applied to the window hood appears thin and requires additional coats of paint to provide adequate coverage. This does not appear to be related to the issue with the operation of the window. This work is excluded as remedying associated building work.

S 17

This item can be rectified in one of two ways.

1) Remove unsightly sealant and replace with suitable sealant to match existing finish.

2) If sealant is paintable, apply over sealant to match wall cover.

  1. [61]
    The applicants submit this item is excluded as it relates to painting which is associated building work. The building inspection report indicates the defect to which this item relates is that the installation of sealant to a roof/wall junction was poorly finished, unsightly and not consistent with the external finish of the building.
  2. [62]
    Installation of sealant is not painting. This item is not excluded as associated building work.

S 18 – Remove existing and install new metal flashing over the front window hood.

  1. [63]
    The applicants submit this item is excluded as relating to painting. However, the building inspection report indicates the defect relates to the installation of the metal flashing over the front window awning painting. Further observations were that the flashing was not sealed or lapped under the timber cladding and the fixings installed were buckling the metal cladding.
  2. [64]
    The defect to be remedied requires new flashing. It is not a defect in the painting. This item is not excluded as associated building work.

S 21

1. Allow to scaffold for access to vertical tiling to rear elevation.

2. Remove existing vertical tiling to full height wall, tiling below alfresco area down to pool deck and tiles that continue below the dining area part of the house which run further along the same wall.

3. Check and prepare substrate to receive new tiling.

4. Re-tile vertical walls with as close to as matching the existing limestone tiles.

5. Note this item will coincide with items 60 & 61 [i.e. S 24].

  1. [65]
    The applicants submit this item is excluded on the basis that it relates to ‘external pavements, pathways and swimming pool’. Section 11(3) of the former regulation does not exclude ‘external pavements’. It does, though, reference ‘paths’ which I take to have a similar meaning.
  2. [66]
    However, the building inspection report indicates the relevant defect is the spot fixing of tiles i.e. inadequate tile glue coverage. While the report includes photographs of a swimming pool, the tiles appear to be located on surrounding vertical surfaces, not on the walls or floor of the pool. That the tiling is not on the walls of the pool is evidenced by the tap testing referenced in the report which could not be undertaken for tiles below the water line of a pool. Additionally, the scope of work refers only to vertical surfaces. Accordingly, the exclusion for ‘paths’ does not apply.
  3. [67]
    This defect is not excluded as associated building work.

S 22

1. Allow to chemical inject horizontal tiling around the pool deck including feature stair down to lawn and small vertical walls around pool and including pool shower wall.

2. Re-grout external tiling with suitable grout resistant to pool chemicals.

  1. [68]
    Again, the applicants say this item is excluded on the basis that it relates to ‘external pavements, pathways and swimming pool’. As noted above, s 11(3) of the former regulation does not exclude ‘external pavements’ but it does reference paths and swimming pools.
  2. [69]
    The inspection report indicates this item relates to grouting to external tiling said to be not of a reasonable standard. Observations include that there was cracked and missing grouting ‘in and around the swimming pool’ and grouting had reached only a minimal depth.
  3. [70]
    To the extent the tiling forms part of the pool, or pathways around the pool or elsewhere, the work is excluded as it is for the purpose of remedying associated building work.

S 24

1. Allow for careful removal of the Alfresco tiles so as not to damage any of the surrounding building elements.

2. Install centrally located “smart tile” style drain to integrate with the new tiling (see attached plan mark-up) blended to match the drain size with the size of the tiles if possible.

3. Allow to cut trench in external concrete slab and plumb additional drain in to existing external drainage point.

4. Allow to reinstate concrete after placement of additional drainage point.

5. Allow for new tiles to match existing to alfresco area. The tiles have been identified as a 20mm Limestone.

6. Allow for application of compatible sealer after laying of the tiles (speak with the owner re the tile specifications).

7. Grade newly laid tiles to new and existing drainage points (see plan mark-up).

8. Allow to remove and then re-attach the handrail along the front edge to allow installation of the tiles.

9. Allow for compliant temporary fencing to maintain security around the pool during the works.

  1. [71]
    The applicants say this work is excluded as it relates to pathways.
  2. [72]
    The building inspection report indicates the water pooling which the works are intended to remedy is in the ‘lower deck’. The accompanying photographs indicate the area is not a path. There is, for example, a sizeable table and chairs setting, indicating the area is not a mere path between two or more areas but rather designed for use as an occupied space.
  3. [73]
    Accordingly, this work is not excluded by clause 4.6.

S 25 – Install flexible sealant between grated drain and stone path.

  1. [74]
    Again, the applicants say this work is excluded as it relates to ‘external pavements, pathways’ which is associated building work.
  2. [75]
    The building inspection report indicates the defect is that ‘the grated drain to the side entrance has cracked and is failing requiring the installation of a flexible sealant . . .’ Other observations were that the grouting against the strip drain was cracked and failing: ‘a flexible sealant was not installed to the junction of the stone pavement and the strip drain to allow for any movement.’
  3. [76]
    The expression ‘pavement’ used in the report is capable of referring to a pathway or simply to a paved area. It is not clear from the report whether the area the failed drain abuts is, or is only, a path or includes a broader paved area.
  4. [77]
    The Commission says the defect is in a drain, not a path. In my view, that is an unduly restrictive view of what may constitute a path. To the extent the drain abuts and supports a paved pathway, I consider it is part of the path. To that extent, the defective drain would be excluded as a defect in associated building work.

S 29

1. Ease and make adjustments to doors to allow correct operation.

2. Allow to repaint any rework or minor damage caused during adjustments.

  1. [78]
    The applicants say these items are excluded as relating to ‘shutter screens and landscaping’. Section 11(3) of the former regulation does not refer to shutter screens but it does exclude ‘landscaping’.
  2. [79]
    The building inspection report indicates the defect is in the installation of external timber doors which were not functioning correctly. I am unable to see how that could be described as a defect in ‘landscaping’. For completeness, although not part of the applicants’ submissions on this item, I note that for the reasons already indicated consequential painting is not excluded as the defect is in the installation of the doors, not the painting.
  3. [80]
    Accordingly, this work is not excluded by clause 4.6.

S 30 – Replace latches to the doors with latches suitable for the purpose.

  1. [81]
    The applicants say this work is excluded as relating to ‘shutter screens and landscaping’. As noted above, s 11(3) of the former regulation does not refer to shutter screens but does exclude landscaping.
  2. [82]
    However, the building inspection report indicates the relevant defect is that the latches installed to external timber doors have come away and are not fit for the intended purpose.
  3. [83]
    Again, I am unable to accept that external timber doors fall within the exclusion for landscaping. It appears the doors may be in a bar-be-que area but that does not mean they are necessarily part of any landscaping. The term landscaping is an ordinary English word. It may embrace enhancements to outdoor areas but in my view does not extend to covered structures or doors into or out of such structures.

S 31 – Apply suitable sealant to back angle of polycarbonate roof sheeting

  1. [84]
    The applicants say this work relates to the roof in the bar-be-que area leaking at a junction and is excluded as landscaping. The defect is at the point of attachment of the roof sheeting to the main house.
  2. [85]
    Again, I am unable to accept that a covered structure of this kind is landscaping. It extends beyond mere enhancement of an area of land by, for example, planting plants, building retaining walls and the like, and is in the nature of a building or part of a building.
  3. [86]
    This work therefore is not excluded under clause 4.6.

S 32

1. Install suitable gasket or angle to close the ends of the cells of the polycarbonate roof sheeting.

2. Clean ends of closed cells prior to closing up.

  1. [87]
    This item also relates to the roof sheeting in the bar-be-que area. The building inspection report indicates the trims have fallen off, allowing deterioration of the roof sheets to occur.
  2. [88]
    Again, the applicants say this work is excluded as landscaping. For the reasons indicated in respect of S 31, I am unable to accept this is a defect in landscaping.
  3. [89]
    Accordingly, this item is not excluded by clause 4.6 of the policy.

Footnotes

[1]  [2020] QCAT 379, [21].

[2]  Ibid, [15].

[3] CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2.

[4] Carr v The State of Western Australia [2007] HCA 47, [5]-[7].

[5] Project Sky Blue v Australian Broadcasting Authority [1998] HCA 28, [70].

[6] Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379, [23]-[30].

[7]  Both parties approached this matter on the footing that the relevant definitions are those in the reprint effective 20 July 2012.

[8]  [2020] QCAT 379, [72].

Close

Editorial Notes

  • Published Case Name:

    Crocker v Queensland Building and Construction Commission

  • Shortened Case Name:

    Crocker v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 73

  • Court:

    QCAT

  • Judge(s):

    Member Olding

  • Date:

    12 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
ACN148 877 525 Pty Ltd v Queensland Building and Construction Commission [2022] QCAT 72
2 citations
Jump To
Cite 1 - [2022] QCAT 72
Cite 2 - [2022] QCAT 72
Carr v Western Australia [2007] HCA 47
2 citations
Jump To
Cite 1 - [2007] HCA 47
Cite 2 - [2007] HCA 47
CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2
2 citations
Jump To
Cite 1 - [1997] HCA 2
Cite 2 - [1997] HCA 2
Hall & Anor v Queensland Building and Construction Commission [2020] QCAT 379
5 citations
Jump To
Cite 1 - [2020] QCAT 379
Cite 2 - [2020] QCAT 379
Cite 3 - [2020] QCAT 379
Cite 4 - [2020] QCAT 379
Cite 5 - [2020] QCAT 379
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28

Cases Citing

Case NameFull CitationFrequency
Ashcam Pty Ltd v Queensland Building and Construction Commission [2025] QCAT 3213 citations
1

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