Van Dorssen v QBCC[2025] QCAT 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The applicants engaged a builder to construct a new brick home for them by contract dated 25 March 2011.
2. [2]
   The works completed on 30 November 2011. The builder was paid all monies due under the contract.
3. [3]
   Thereafter the applicants performed landscaping work in the courtyard and at the front of the property.
4. [4]
   On 17 July 2012 the applicants made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about various matters including efflorescence appearing on brickwork.
5. [5]
   On 17 October 2012 QBCC issued the builder with a direction to rectify various aspects of work, but not with respect to efflorescence.
6. [6]
   On 5 February 2018 the applicants lodged a second complaint with QBCC in relation to excessive slab moisture and, again, about efflorescence appearing on brickwork.
7. [7]
   On 1 May 2018 QBCC issued the builder with a direction to rectify in relation to the second complaint.
8. [8]
   On 28 May 2018 the builder applied to the Tribunal to review the direction to rectify (‘GAR171-18’). The applicants were not joined as parties to that proceeding.
9. [9]
   In early 2019 a preliminary insurance assessment was undertaken by QBCC.
10. [10]
    On 28 May 2019 QBCC approved the applicants’ claim under the statutory insurance scheme. QBCC approved a scope of rectification work.
11. [11]
    Also on 28 May 2019 QBCC wrote to the builder to advise QBCC was proceeding with the claim under the statutory insurance scheme and enclosing the scope of works to be carried out. The builder was advised it was entitled to seek an internal or external review of the scope of works decision.
12. [12]
    On 28 June 2019 in matter GAR171-18 the Tribunal set aside the direction to rectify given to the builder.
13. [13]
    On 17 July 2019 QBCC advised the applicants that, given the Tribunal’s findings in GAR171-18, the applicants claim under the statutory insurance scheme was disallowed.
14. [14]
    On 14 August 2019 the applicants lodged an application for internal review.
15. [15]
    On 11 September 2019 an internal review decision was made not to issue a direction to rectify to the builder and to disallow the applicants claim under the statutory insurance scheme.
16. [16]
    On 8 October 2019 the applicants filed the within application in the Tribunal to review the internal review decision.

The issues

17. [17]
    The only review pursued in the Tribunal is of the decision refusing the claim under the statutory insurance scheme.
18. [18]
    The issues to be determined are:

    1. Was QBCC functus officio when it decided to refuse the insurance claim?
    2. If so, what is the effect of that?
    3. If not, is it the correct and preferable decision that the claim to insurance be refused?

Was QBCC functus officio when it refused the insurance claim?

19. [19]
    The applicants argue that QBCC had no power to disallow the claim after having allowed it. They say that QBCC was functus officio when it purported to do so.
20. [20]
    The term functus officio has true application in judicial decision making. It is not always useful in concept however in the context of administrative decision making. According to Gleeson CJ in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11:

[8]  The requirements of good administration, and the need for people affected directly or indirectly by decisions to know where they stand, mean that finality is a powerful consideration.  And the statutory scheme, including the conferring and limitation of rights of review on appeal, may evince an intention inconsistent with a capacity for self-correction.  Even so, as the facts of the present case show, circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness.  The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.^[1]

21. [21]
    And Gaudron and Gummow JJ said there:

[46]  In our view, it is neither necessary nor helpful to describe erroneous administrative decisions as "void", "voidable", "invalid", "vitiated" or, even, as "nullities". To categorise decisions in that way tends to ignore the fact that the real issue is whether the rights and liabilities of the individual to whom the decision relates are as specified in that decision.^[2]

22. [22]
    There is nothing in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’)^[3] specifically entitling QBCC to revoke a decision once made to allow a claim for payment under the statutory insurance scheme.
23. [23]
    The relevant policy of insurance applying in the case at hand was Edition 8 effective from 1 July 2009.
24. [24]
    The policy provides at page four that, subject to the terms of the policy, QBCC will pay, amongst other things, for defective construction and non-completion of insured work.
25. [25]
    Part 8 of the policy sets out the procedure for claims.
26. [26]
    By clause 8.3(a) the insured owes a duty to QBCC to act with utmost good faith under or in relation to the policy. The policy makes provision for recovery from the insured in the very limited circumstances of the insured failing the duty of utmost good faith. In that event any amount paid out in excess of QBCC’s actual liability to pay for loss under the policy is recoverable.
27. [27]
    The word ‘entitled’ is used with respect to the payment of monies following a claim falling within the terms and scope of the insurance policy.
28. [28]
    Lacking specific provision to set aside a claim already admitted, QBCC relied on the implied power of revocation contained in s 24AA of the Acts Interpretation Act 1954 (Qld) (‘AIA’), which provides:

24AA Power to make instrument or decision includes power to amend or repeal

If an Act authorises or requires the making of an instrument or decision—

1. the power includes power to amend or repeal the instrument or decision; and
2. the power to amend or repeal the instrument or decision is exercisable in the same way, and subject to the same conditions, as the power to make the instrument or decision.

29. [29]
    Whether that power to revoke or withdraw an earlier decision is to be implied however, depends on the intention of the relevant legislation. By s 4 of the AIA, the provisions of the AIA may be displaced, wholly or partly, by a contrary intention appearing in any Act.
30. [30]
    In support of the contention that the power is implied, QBCC points to no time limit being set under the Act to allow or disallow an insurance claim. That is true.
31. [31]
    QBCC then suggest that s 23 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) contemplates a reconsideration of a decision by QBCC.
32. [32]
    Any such reconsideration however is not instigated by QBCC. The Tribunal may invite QBCC to reconsider its decision. It need not do so. The purpose of s 23 of the QCAT Act is to allow QBCC to reconsider, usually following the benefit of a compulsory conference or the filing of statements of evidence by the applicant, its decision with a view to early and simple resolution of a dispute in light of new information and therefore perspective.
33. [33]
    Section 23 of the QCAT Act is a dispute resolution tool used by the Tribunal, not any form of extension of power granted QBCC to withdraw an earlier decision and replace it with a new decision.
34. [34]
    QBCC then cites the decision of Kline Industries International Pty Ltd v QBCC [2020] QSC 243 (‘Kline’) where it says s 24AA was found to apply to permit QBCC to withdraw a direction to rectify.
35. [35]
    Kline offers little support to QBCC’s position. In that matter, in the course of outlining the factual chronology of the case, mere passing comment was made that a direction to rectify issued to a builder had been withdrawn by QBCC and that QBCC had relied on s 24AA to do so. Nothing more than that was said and the claimed power to act in that way was not explored by the Court, it not being necessary to do so.
36. [36]
    QBCC’s final submission is that the decision to allow a claim under the statutory insurance scheme not only affects the claimant, but the building contractor who may be required to repay monies paid out on a successful claim. QBCC submits, if it is discovered that, for whatever reason, an insurance claim that was allowed was not in fact “a claim under the statutory insurance scheme”, QBCC would not be entitled to recover any payment out under the insurance from the building contractor. It is therefore appropriate for QBCC to have the power to reconsider a decision allowing a claim, if it is later discovered that the claim should not have been allowed.
37. [37]
    What is an equally troubling scenario however is, after setting aside a decision to pay out under the statutory insurance scheme, perhaps years after the insurance has been paid out, QBCC attempts to claw back the insurance monies from the homeowner concerned.
38. [38]
    In the context of Workers Compensation scheme payments to injured workers and a subsequent decision based on new information terminating the entitlement to payment, Applegarth J said in Yang v WorkCover Queensland [2021] QSC 274:

[38]  … If a power to terminate such a benefit was to be inferred to arise simply in circumstances in which the decision-maker obtained further information or a new opinion then it may introduce “a lamentable measure of uncertainty”[20] and disturb the welfare of injured persons who have honestly and successfully advanced an application for compensation. 

[20]In re 56 Denton Road, Twickenham [1953] 1 Ch 51 at 56-57.

39. [39]
    In Firearm Distributors P/L v Robert James Carson & Ors [2000] QSC 159 (‘Firearm Distributors’) Chesterman J said:

[33]  The cases, I think, do establish that where the power conferred by statute is to make a decision with respect to the award of financial recompense in specified circumstances the power is exercisable only once. The subject matter of the decision does not permit successive exercises of the power. The statute conferring the power contains an intention inimicable to the operation of s 23(1) or s 24AA of the Interpretation Act.

40. [40]
    The case law established principle referred to has been applied in circumstances of a statutory insurer claiming power to revoke a decision made under legislation based on s 24AA of the AIA. In Lee v RACQ Insurance Ltd [2015] QSC 120 the applicant was injured in a motor vehicle accident. RACQ, as the respondent compulsory third party insurer, agreed to pay rehabilitation expenses. Subsequently it resiled from that position.
41. [41]
    The insurer relied on s 24AA of the AIA to justify the change of mind. The applicant sought an interlocutory injunction against the decision not to pay rehabilitation expenses pending final hearing. In leaning to a conclusion that s 24AA was not intended to apply to the decision concerned, Dalton J said:

[45]  There is also the difficulty referred to in Firearm Distributors Pty Ltd v Carson [2000] QSC 159 [32] that the Act should not be interpreted so as to allow an insurer to make successive decisions as to these matters, because such vacillation on the part of an insurer could be unreasonable and have an unfortunate effect on the victims of motor accidents.

42. [42]
    Returning to Firearm Distributors, there a dealer in the wholesale business of selling firearms ceased trading in consequence of the restrictions applied to the sale of firearms following the Port Arthur massacre. Amendments made to the Weapons Act 1990 (Qld) provided for the payment of compensation by the Commissioner of Police to persons obliged to surrender certain types of firearms and to persons whose business was affected by the changes in the law. Under the legislation such people were entitled to compensation from the State. The Commissioner was authorised by regulation to decide the amount of compensation payable. Certain guidelines were adopted one of which provided for a report prepared by an assessor.
43. [43]
    The Commissioner fixed an amount following assessment to which the company agreed. The Commissioner agreed to pay a fixed amount of compensation on 22 April 1998. Subsequently however some of the values underlying the assessment of loss were reconsidered by the Commissioner. The Commissioner wrote to the company on 1 June 1998 to advise the decision to pay the agreed compensation was revoked and the compensation amount would be reconsidered.
44. [44]
    The Commissioner relied on s 24AA of the AIA as authority for the power to revoke the approved compensation.
45. [45]
    Chesterman J referred to the earlier English authority of Re 56 Denton Road Twickenham [1953] 1 Ch 51 concerning legislated compensation awards to property owners suffering loss from enemy action in the 39-45 War, where the agreed award of compensation to a plaintiff was subsequently changed by the War Damage Commission. His Honour said:

[35] … Vaisey J accepted as correct the submission

 “That where Parliament confers upon a body such as the War Damage Commission the duty of deciding or determining any question, the deciding or determining of which affects the right of the subject, such decision or determination made and communicated in terms which are not expressly preliminary or provisional is final and conclusive, and cannot in the absence of express statutory power or the consent of the person or persons affected be altered or withdrawn by that body.”

 At p 56-57.  His Lordship went on:

“I think that the contrary view would introduce a lamentable measure of uncertainty, and so much disturbance in the minds of those unfortunate persons who have suffered war damage that the Act cannot have contemplated the possibility of such vacillations as are claimed to be permissible in such a case as the present.”

[36]. This observation affords a compelling foundation for thinking that decisions of the type here in question are not amenable to the process of reconsideration and reversal contemplated by ss 23(1) and 24AA of the Interpretation Act.  Those provisions impose no time limit upon their exercise.  It would be nonsense to talk of a right to claim compensation, or an entitlement to be paid, if a determination could be recalled at any time so that money paid (and no doubt spent) becomes a debt recoverable by the State. 

(emphasis added)

46. [46]
    There is force in Chesterman J’s observations, or as he put it, a compelling foundation against the application of s 24AA applying in such circumstances.
47. [47]
    Section 23(1) of the AIA referred to by Chesterman J provides:

23. Performance of statutory functions etc.

1. If an Act confers a function or power on a person or body, the function may be performed, or the power may be exercised, as occasion requires.

48. [48]
    Chesterman J also referred to the English decision of Rootkin v Kent County Council [1981] 1 WLR 1186 (‘Rootkin’) where Lawton LJ had identified:

[32] … a difference between cases in which a citizen is entitled to payment upon the adjudication of a claim by a local authority, and cases in which a local authority is given a discretion in given circumstances to make a payment or confer a benefit. In the latter, but not the former, a decision when made can be changed or revoked subsequently.

49. [49]
    Rootkin was also referred to in Comptroller-General of Customs v Kawasaki Motors Pty Ltd [1991] FCR 652 as authority for the proposition that some administrative decisions, but not all, once communicated, may be irrevocable. The following further statement by Lawton LJ in Rootkin was set out there:

[27] “It was submitted to us on the authority of a number of cases, of which the last in order of time was Re 56 Denton Road, Twickenham, Middlesex...that what the divisional education officer was doing was making a determination and, having once made a determination, he was not entitled to go back on it. In my judgment, that is a misconception. It is the law that if a citizen is entitled to payment in certain circumstances and a local authority is given the duty of deciding whether the circumstances exist and if they do exist of making the payment, then there is a determination which the local authority cannot rescind. That was established in Livingston v Westminster Corpn... But that line of authority does not apply in my judgment to a case where the citizen has no right to a determination on certain facts being established, but only to the benefit of the exercise of a discretion by the local authority….”

50. [50]
    In Firearm Distributors Chesterman J quoted from Professor Enid Campbell’s article “Revocation and Variation of Administrative Decisions” published 1992 in the Monash University Law Review where the emeritus professor said:

There are many cases in which courts have asserted or assumed that a valid and perfected decision of an administrative character which affects individual rights or liabilities cannot be revoked or altered by the decision maker unless there is statutory authority (express or implied) to revoke or alter the decision.  This general rule has been applied even where the decision has been based on some error of fact or has been sought to be reopened after discovery of fresh evidence.  Valid and perfected decisions which courts have held to be irrevocable, in the absence of statutory authority to rescind or vary them, have included decisions about compensation or other monetary grants payable under legislation.^[4]

…

The general legal principle which, in my opinion, should be adopted and applied, is that, where a valid administrative determination is made in respect of a person’s rights, entitlements or liabilities, that determination cannot, in the absence of fraud or misrepresentation, be rescinded or varied by the decision maker on the ground of error of fact on the part of the decision maker, except possibly with the consent of the party or parties affected.^[5]

51. [51]
    In Yang v WorkCover Queensland [2021] QSC 274, previously mentioned, Applegarth J had observed:

[38]  Where Parliament confers on an entity, such as WorkCover, the duty of deciding applications for compensation, and those decisions are not expressly described as preliminary or provisional, then a power to alter or withdraw that decision so as to affect the right to continue to receive the compensation to which the person has been found to be entitled, should be reasonably clear. 

52. [52]
    In Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 Perram J discussed In Re 56 Denton Rd, Twickenham [1953] Ch. 51 and Firearm Distributors amongst others and suggested:

[66] ...I would accept that all of these cases (and for that matter Kabourakis) establish that where the statutory scheme provides for a decision concerning rights following on some process of formal determination, this will usually exhibit a sufficient contrary intention to prevent s 33(1) from applying. 

53. [53]
    Section 24AA AIA is in similar though wider terms to s 33 of the Acts Interpretation Act 1901 (Cth).^[6]
54. [54]
    With these authorities in mind I turn to consider the matter at hand.
55. [55]
    On 18 April 2019, QBCC produced a scope of work for the rectification of defective work sought by the applicants under the statutory insurance scheme based on a report from consulting engineers engaged by QBCC. Prior to that, a preliminary insurance assessment had been undertaken by QBCC and the recommendation was that the applicants were entitled to a claim under the insurance, subject to a full assessment being done.
56. [56]
    On 28 May 2019, QBCC produced a document entitled QBCC Home Warranty Claim Assessment Reasons for Decision – Defective Works Insurance Policy Condition – Edition 8. The name of the decision maker for QBCC is recorded. The claimant is noted to be entitled to the full amount of insurance cover, $200,000. The claim is noted as accepted in full on 28 May 2019.
57. [57]
    Also on 28 May 2019, QBCC advised the applicants’ a scope of work had been approved for the rectification work.
58. [58]
    And on 28 May 2019, QBCC wrote to the builder to advise that it was proceeding with the claim under the statutory insurance scheme. A copy of the scope of work to be carried out was enclosed. The builder was advised it was entitled to seek an internal or external review of the scope of works. The builder was put on notice that it had 28 days to seek either internal or external review of the scope of works decision.
59. [59]
    The general legal principle referred to by Professor Campbell and as applied by the abovementioned authorities applies to the matter at hand.
60. [60]
    The applicants claim against the statutory insurance was clearly approved by QBCC on 28 May 2019 to the full amount payable under the insurance, $200,000. It was a final decision, not provisional or preliminary to a further step to be taken. It was a decision made based upon investigation of the facts, expert reports and careful consideration of the terms of the policy of insurance. The applicants had a right of claim under the insurance. The decision to approve the claim was communicated to them. There is no suggestion of fraud or misrepresentation as a basis for the revocation of the decision to allow the claim for payment under the insurance.
61. [61]
    Section 24AA has no application there being a sufficient contrary intention to prevent that.^[7]
62. [62]
    After making the decision on 28 May 2019 to pay the applicants’ claim under the insurance the decision making power granted QBCC under the legislation was spent.^[8]

What is the effect of that?

63. [63]
    QBCC says the Tribunal should not consider whether QBCC had power to make the decision to set aside the approval of the applicants’ insurance claim. It is only the Supreme Court with jurisdiction to hear and determine an application made under the Judicial Review Act 1991 (Qld).
64. [64]
    QBCC say if QBCC did not have authority to make the decision to withdraw approval of the applicants’ claim under the insurance, the only order the Tribunal may make is to dismiss the application for review because there was no reviewable decision to be reviewed and the Tribunal has no jurisdiction to make an order other than one concerning a reviewable decision.
65. [65]
    The claim that only the Supreme Court has jurisdiction to hear and determine an application made under the Judicial Review Act is correct. That does not mean the Tribunal does not have power to review the within decision however.
66. [66]
    Similar jurisdictional challenge was made in JM Kelly (Project Builders) Pty Ltd v Queensland Building Services Authority [2013] QCAT 502 (‘JM Kelly’). Judge Alexander Horneman-Wren SC answered to that challenge:

[37]  Where, in contrast, the Tribunal is exercising review jurisdiction, the only matter, the only jurisdictional fact, of which the Tribunal need satisfy itself is the existence of a decision of a kind the Tribunal has power to review. Whether there is such a decision which falls within the Tribunal’s review jurisdiction is governed by the relevant statutes which confer the review jurisdiction on the Tribunal. It is a construction of those statutes which determines whether it is necessary that there be a valid decision made in a lawful exercise of the decision making power in order for the decision to be reviewable.

(emphasis added)

67. [67]
    His Honour then referred to the landmark^[9] decision of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 328 (‘Collector of Customs’) where the Full Court of the Federal Court considered the provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (repealed) and whether the Administrative Appeals Tribunal (‘AAT’) could review a decision purportedly made in exercise of statutory powers but not in fact so.
68. [68]
    The facts in Collector of Customs as set out by Smithers J are instructive:

This is an appeal from the decision of the Administrative Appeals Tribunal, (the Tribunal), given in an application by Brian Lawlor Automotive Pty. Ltd. for the review of a decision made on 31st October, 1977, by the assistant Collector of Customs, New South Wales, (the Collector) to revoke warehouse license No. 3152 held by the applicant over the premises at 152 Old Pittwater Road, Brookvale, and known as Bri-Law Bond. The Tribunal's decision was to review the Collector's decision, set it aside and substitute a decision that no action be taken purporting to revoke the licence.

…

… it sought a review of the decision of the Collector, the present plaintiff, on the ground, inter alia, that it was in excess of his authority to cancel the licence. It was said for the Collector that there was implied authority to cancel the licence in the terms of the Customs Act 1901 and also that adequate authority to do so was conferred by s 33(3) of the Acts Interpretation Act 1901 (Cth). It was also contended that if in law the Collector was not authorized to revoke the licence the applicant was not entitled to seek a review of the decision of the Collector.

The learned President of the Tribunal held that s 33(3) of the Acts Interpretation Act did not operate to confer on the Collector authority to revoke the licence. He held also that, although neither express nor implied power to revoke the licence was to be found in the provisions of the Customs Act 1901, nevertheless in revoking the licence the Collector acted in the intended exercise of a power contained in Pt V of the Customs Act. He further held that in view of that circumstance the decision to revoke was a decision under Divn 1 of Pt V of the Customs Act within the meaning of that expression in cl 2(b) of Pt XII of the Schedule to the Administrative Appeals Tribunal Act 1975 and accordingly the applicant was entitled to seek a review of that decision by the Tribunal (see ss 25 (1), (4) and 26 of that Act) and the Tribunal had authority to entertain such an application.

(emphasis added)

69. [69]
    Judge Alexander Horneman-Wren SC in JM Kelly summed up Collector of Customs as follows:

[39]  Bowen CJ found[14] in rejecting the applicants contention that the Tribunal did not have jurisdiction to review a decision which was asserted to be a nullity:… in my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.

[14] At 346.

[40] His Honour was of the view that giving wide meaning to the word ‘decision,’ such that it included a decision made in purported exercise of powers conferred by the enactment, would permit the Tribunal to determine whether the decision was properly made in fact and in law.[15]

[15] Ibid at 344.

[41] Smithers J, who agreed with Bowen CJ in the result, said:

It is to be noted also that the subjects of review are decisions. If an administrator makes a particular decision in the course of government administration, then whether or not he is authorised to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.[16]

[16] Ibid at 368.

[42]  His Honour concluded that those decisions which were reviewable were those which were ‘…made by an administrator in purported or assumed pursuance of the relevant statutory provision’.[17]

[17] Ibid at 373.

70. [70]
    Judge Alexander Horneman-Wren SC considered other authorities including Martinez v Minister for Immigration and Citizenship and Another (2009) 256 ALR 32 (‘Martinez’) to conclude:

[50]  The expression ‘decision’ is not otherwise defined by the Act.[29] Nor does the Act explain the meaning to be given to the expression ‘made or taken to have been made’. In my view, the inclusion within the Tribunal’s review jurisdiction of decisions taken to have been made under an enabling act recognises that under some enabling acts there may be provisions which deem a decision to have been made in circumstances in which no decision has in fact been made.

[51] …I am of the opinion that s 17 should not be construed so as to limit reviewable decisions under the QCAT Act to only those made validly under an enabling act.

71. [71]
    In Martinez Rares J said:

[20] …The tribunal has power to cure a defect in the delegate’s decision once the tribunal’s jurisdiction has been invoked by an application for review: Zubair 139 FCR 344 at [32]. A party affected will elect to treat an administrative decision as valid, though erroneous, by exercising the right to have it reviewed by a second administrative body, in preference to exercising a right to have a court compel proper performance by the original authority of its duty. Such an outcome promotes administrative efficiency, provided that the party applying for the review subsequently receives a fair hearing by the second body. In that way, any defects in the process by which the original decision was reached are cured by the later determination on the administrative review or administrative appeal: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 116 per Mason J.

72. [72]
    Rares J added:

[22]  However, as French, O'Loughlin and Whitlam JJ pointed out in Madafferi v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 326 at 346 [68] the source of the tribunal’s power to give the correct or preferable decision on a review is s 43 of the Administrative Appeals Tribunal Act.  They said:

“It does not exercise afresh the power conferred by the enactment under which the decision was made.  A fortiori, when it affirms a decision or sets it aside and remits it for reconsideration, it does not exercise a power conferred by the enactment under which the primary decision-maker has made his or her decision.

(emphasis added)

73. [73]
    Hence in the matter at hand, the Tribunal’s power to give the correct and preferable decision is not derived through the jurisdiction granted QBCC under the QBCC Act to make decisions of the type under consideration, but pursuant to div 3 of the QCAT Act.
74. [74]
    The Tribunal does have power to review the decision made by QBCC refusing the applicants’ claim under the statutory insurance scheme. That is so despite, as I have found, the decision under review was beyond the power of QBCC to make
75. [75]
    In such circumstances, the correct and preferable decision in the matter at hand is to set aside the decision made by QBCC on 17 July 2019 disallowing the applicants’ claim under the statutory insurance scheme and make orders leaving effective the earlier decision approving the applicants’ claim under the statutory insurance scheme.

If the decision to disallow the insurance claim was effective

76. [76]
    In case I am wrong about the application of s 24AA or the order I propose to make or both, I turn to consider whether the internal review decision of QBCC to disallow the claim of the applicants under the statutory insurance scheme made 11 September 2019, if effective, is in any case the correct and preferable one.
77. [77]
    In the reasons for decision given by QBCC the basis for rejection is said to be that the cause of the defective work is attributable to the applicants. By clause 7.4 of the policy it is provided:

Other Exclusions

Other than as provided in Parts 2 and 3 of this policy the insured is not entitled to payment for loss where the loss is caused by or contributed to by:

(a) the act, omission or inaction of any person other than the contractor or the contractor’s agent, employee, subcontractor, supplier or invitee;

78. [78]
    The original complaint made by the applicants to QBCC on 5 February 2018 (the second complaint) the subject of internal review and now the subject of external review in these proceedings was in the following terms:

…Excessive slab moisture and efflorescence on bricks. Fretting, spalling and mould on bricks. Recent lifting of vinyl plank flooring in walk in pantry with white flaky substance under planks.

79. [79]
    The complaints have been the subject of much investigation. In the current proceeding, engineering experts have produced a joint report.
80. [80]
    QBCC attributes the cause of the problems for all issues to be the distribution of crusher dust around the perimeter of the dwelling. QBCC says the builder was responsible for placing the crusher dust but the applicants compacted it and added cement to stabilize it at the perimeter.
81. [81]
    QBCC says the applicants also graded land adjacent to the house from the finished ground level left by the builder, installed extensive groundwater mitigation drains and outlets around the perimeter of the property to ensure groundwater could not pond near the house and laid turf around the perimeter of the house. It is not clear how some of the latter work is relied on to support the claim that the applicants caused the defective work.
82. [82]
    The experts’ evidence, set out in their joint report and expanded by them at hearing with the experts giving concurrent evidence, was that there is evidence of dampness in the masonry below the damp proof course (‘DPC’) and in the pantry and the garage floor edges. They are of the opinion that there is rectification work possible on site which would significantly improve both the rising damp and slab edge dampness problems. Their evidence was as follows.

The joint experts report

83. [83]
    The experts agree that there is efflorescence (dissolved salt left after water carrying the salts have evaporated from the external face of brickwork) visible below the  DPC in numerous locations around the perimeter of the external masonry veneer walls of the dwelling. There is also minor efflorescence under the vinyl flooring of the pantry and there is efflorescence at the internal edge of the garage floors and the exposed edge under the garage doors.
84. [84]
    There is evidence of minor fretting and spalling in isolated locations around the dwelling. Regular removal of efflorescence reduces the rate of fretting and spalling which may cause damage and is related to the rate of salt crystal growth.
85. [85]
    The experts agree there is no obvious direct correlation between gardens added by the applicants around the dwelling and the areas of efflorescence.
86. [86]
    They add that the efflorescence has probably been on-going since construction and it is likely to continue for an extended period of time. The experts cannot say whether the fretting and spalling will affect the structural adequacy of the brickwork below the DPC in the future.
87. [87]
    The dampness in the pantry is slab edge dampness arising primarily because the edge beam footing is probably in contact with moist soil and the moisture is transferring through the concrete via continuous capillary action. Additionally, under-slab water may be passing across a construction joint formed with a slab step adjoining the pantry. Vinyl on the pantry floor may be trapping the moisture on top of the slab.
88. [88]
    The outside edge of the top of the footings has a concave surface which may also trap water. The porosity of the concrete may also be a contributing factor.

The experts evidence at hearing

89. [89]
    At hearing the experts said there is evidence of poor surface drainage during construction based on photographs taken of the right hand side of the building at the time. The experts are unable to say whether the poor surface drainage was corrected prior to the laying of the crusher dust around the dwelling.
90. [90]
    Where the finished ground around the perimeter of the dwelling consists of a thick layer of crusher dust, the critical feature is the ground surface below the crusher dust. Where there are concrete paths adjacent to the first metre away from the external walls of the dwelling, if the concrete paths have fall away from the dwelling, water on the pavements will flow into the permeable finished ground at the edge of the pavements, and again the critical feature will be the ground surface beneath that.
91. [91]
    This was put to one of the experts during hearing:

MR AMBROSE:   There appears to be two issues at this property.  There is the rising damp issue and the slab edge dampness.  Mr Ryan, is it the case that the primary cause of these two issues is the crusher dust layer around the perimeter of the house?

MR RYAN:   The crusher dust layer is simply a – not in itself, no.  There’s many different factors.

92. [92]
    The other expert, Mr Van de Hoef explained a short time later:

… so with that crusher dust, you just have to think that the water’s going to go straight through it, and it’s going to hit the permeable or less permeable layer underneath.  So the shape of the surface to that crusher dust is not critical, because the water doesn’t run off it at all, it just runs into it.  I did a water test when I was onsite, sat there with a hose.  Water runs off the concrete path, runs into the crusher dust and you never saw any water again.  But what we don’t know is what’s happening in the ground underneath.  Now, on this particular site, there are construction photos provided by the building owners, that show that the site drainage at the time of construction, on the right-hand side of the site, was inadequate.  What I can’t do is to say that that was the – that was the site drainage when they put the crusher dust in.  But what I – if I use my experience, what typically happens is that builders think they can get falls away from the house by shaping the crusher dust.  And if they do that, water runs through, hits the sloping impermeable surface and runs straight back under the paving, up against the house.  And then you’ll have a rising damp problem.

93. [93]
    Mr Van de Hoef added subsequently, when asked to comment on whether inadequate fall away from the external walls of the property of concrete paths and landscaping was a factor to the problems:

… whether the ground surface to the right-hand side of the dwelling falls towards the paths or falls away from the paths, is slightly academic in circumstances where there’s a 200-millimetre layer of crusher dust sitting under the – under the grass.  Because the water goes – no matter what the ground surface is doing, the water goes straight in and sits there.  And you can sit there forever with a hose, and you’ll never see any water pond anywhere.

94. [94]
    That was followed by Mr Ryan saying;

So yes, the drainage along that area, at the time of our inspections, was poor.  Is that the – the – the fundamental issue and everything else has come as a consequence of that.  No.  That’s a contributing factor.

95. [95]
    Mr Van de Hoef finished by saying that the standard AS20-870 primarily prohibited the placement of crusher dust up against a dwelling if the purpose was to achieve appropriate falls away from the dwelling. On the point of the standard, he added that it required a contractor to ensure adequate drainage on a class H site ( as this one was) from commencement of construction:

So by virtue of examining the images provided by the owners, I’m able to conclude that during the construction there wasn’t adequate site drainage.  That’s non-compliant with the requirements of the standard.  But equally, there – if you want to be by the book, AS 2870 talks about the responsibilities.  So homeowners are required to maintain the site to meet the requirements of the design.  And that would include ensuring that there’s adequate site drainage, the position of trees, planting of – positioning of gardens and the like.

Other evidence

96. [96]
    The builder did not give evidence, nor were statements of evidence previously made by him relied on by QBCC.
97. [97]
    Mrs Van Dorssen, one of the applicants, gave evidence. She was asked who placed the crusher dust around the perimeter of the dwelling. She said it was done by the builder before handover.
98. [98]
    A number of photographs of the perimeter of the dwelling were also tendered in evidence. One shows very large quantities of crusher dust stockpiled on site during construction. Two others, also taken during construction, show the land immediately adjacent the dwelling before crusher dust was added. Neither appear to show the land there cut to have fall away from the dwelling and in one photograph, water seems to be pooling but perhaps further away from the dwelling than one metre.

Consideration

99. [99]
    The experts do not agree with QBCC’s suggestion that the primary cause of the dampness problems is the crusher dust around the perimeter of the dwelling.
100. [100]
     The crusher dust was clearly present and used by the builder for the purpose of leveling under the slab to create a level building surface. I accept Ms Van Dorssen’s evidence that it was the builder that also spread the crusher dust around the perimeter of the property. Indeed that evidence was not challenged.
101. [101]
     In the experts’ opinion the cause of the dampness problem is most likely attributable to what lies beneath the crusher dust, namely hard soil without any or any appropriate fall away from the dwelling as required by good construction practice. Water permeating the crusher dust surrounding the dwelling was trapped and flowed in accordance with the hard soil level below the crusher dust layer.
102. [102]
     Water pooling caused by the applicants’ landscaping after handover may have been a contributing factor but was not the primary factor causing the problems of rising damp beneath the DPC and slab edge dampness in the pantry and garage.
103. [103]
     The photographic evidence suggests that during construction the site had inadequate drainage immediately adjacent the dwelling with no fall away from the dwelling. There is no evidence that that had changed as at date of completion. I find that it is more likely than not that currently, as at date of completion, the hard soil layer beneath the crusher dust immediately around the perimeter of the dwelling does not fall away from the dwelling as good construction practice required.
104. [104]
     I accept the evidence of the experts. I determine that it was the defective work performed by the builder in failing to achieve fall away from the dwelling which primarily caused the dampness problems the subject of the within proceeding and those problems were not caused by or contributed to by the actions of the applicants in any significant way.
105. [105]
     This finding answers to disallow the argument raised at hearing by QBCC that the cause of the dampness problems was the laying of the crusher dust around the dwelling and that was associated building work (landscaping) and associated building work is not covered by the policy, only primary building work is covered.
106. [106]
     QBCC also raised at hearing for the first time a time bar with respect to both of the applicants’ claims on the statutory insurance, the first in 2012 and the second in 2018. They are not meritorious defences.
107. [107]
     By clause 4.5 of the policy:
108. [108]
     Time Limit for Making a Claim

The insured is NOT ENTITLED to payment for loss under this Part unless:

(a) in the case of a category 1 defect the claim is made within 3 months of that defect first becoming evident (in the opinion of the QBCC); or

(b) in the case of a category 2 defect, the claim is made within 7 months of the date of practical completion,

or within such further time as the QBCC may allow.

(emphasis altered)

109. [109]
     In the QBCC document entitled QBCC Home Warranty Claim Assessment Reasons for Decision – Defective Works Insurance Policy Conditions – Edition 8 dated 28 May 2019 approving the applicants’ claim under the statutory insurance, the issue of whether or not the claim was within time was explored and the following decision made:

Insurance Entitlement

Part 4 defective Construction

4.4 Expiry of Cover

…

The insured became (sic) first became aware of the efflorescence exhibiting on the external brickwork in some areas of the house on 31/01/2012 (first complaint form). QBCC did not carry out a thorough investigation and considered this was not a defect or affecting the structural integrity of the brickwork.

…

The owner lodged their second complaint form on 5 February 2018 due to the further deterioration of the brickwork. They state on their second complaint form they most recently became aware of the defect n 30/11/2017 which is within the prescribed period.

…

4.5 Time Limit for Making a Claim

…

The policy requires that in the case of a Category 1 (structural) defect, the insured makes the claim within 3 months of that defect first becoming evident (in the opinion of the QBCC) or within such further time as QBCC may allow.

Given the insured first notified QBCC of their concerns about the brickwork back in July 2012, they were proactive in bringing this to QBCC’s attention. The outcome of the first complaint was that this was not a defect. The deterioration of the brickwork triggered the owner’s 2^nd complaint. The owner launched their 2^nd complaint within 3 months of becoming aware of what is now considered a category 1 (structural) defect. Discretion is therefore not required. Even if were, QBCC were able to issue a DTR to the builder so had not been prejudiced.

…

Decision Summary

…

28/5/2019 – claim accepted in full.

110. [110]
     QBCC gave careful consideration to the chronology of the claims. It determined the second claim was within time but even if that was not strictly the case, it is clear QBCC was prepared to exercise the discretion to accept the claim though it might be late under clause 4.5 of the policy given it admitted it had not been prejudiced by delay.
111. [111]
     I find the claims made by the applicants were within time and in so far as they are argued to be out of time, QBCC in any case acknowledged they would be accepted if necessary by exercise of the discretion available under clause 4.5 of the policy.

Disposition

112. [112]
     I have found the decision under review was beyond the power of QBCC to make.
113. [113]
     What is the correct and preferable decision to make now? As in Collector of Customs, to my mind, the appropriate decision is to set the decision aside and substitute it with the decision that no action be taken purporting to revoke the approval of the applicants’ claim under the statutory insurance made 28 May 2019.