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Queensland Building and Construction Commission & Benton v Egan[2023] QCATA 29

Queensland Building and Construction Commission & Benton v Egan[2023] QCATA 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Building and Construction Commission & Benton v Egan [2023] QCATA 29

PARTIES:

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first applicant/appellant)

NIGEL BENTON

(second applicant/appellant)

v

ANGELA EGAN

(respondent)

APPLICATION NO/S:

APL161-21, APL166-21

ORIGINATING APPLICATION NO/S:

GAR360-19, GAR360-20

MATTER TYPE:

Appeals

DELIVERED ON:

4 April 2023

HEARING DATE:

1 February 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Peter Murphy SC

ORDERS:

  1. The Order of the Tribunal made on 17 May 2021 be set aside.
  2. In substitution for that Order, it is ordered that the decision of the Queensland Building and Construction Commission made on 15 August 2019 be confirmed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where the Tribunal at first instance determined that building works with respect to the respondent’s structure was “residential construction work” for the purposes of the Queensland Home Warranty Scheme – whether the Tribunal at first instance properly interpreted “residential construction work”, “proposed residence” and “residential purposes” as used within Part 5 of the Queensland Building and Construction Commission Act 1991 – whether the works related to a “residence” or a “related roofed building” under the Act – whether the subjective intention of an owner to reside in a structure is sufficient to qualify a site as a “proposed residence”

Acts Interpretation Act 1954, s 14A, s 14B

Building Act 1975, s 115, s 118, s 119

National Construction Code 2019, Pt A6

Queensland Building and Construction Commission Act 1991, s 67WA, s 67WC, s 67WE, s 67WF, s 67X, Pt 4, Pt 5, Sch 1B

Queensland Building and Construction Commission Regulation 2018, s 25, s 30, Sch 6, s 15, Pt 4

Queensland Civil and Administrative Tribunal Act 2009, s 3

Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40, cited

Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267, cited

IW v City of Perth (1997) 191 CLR 1, cited

New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, cited

Nilant v Macchia (2000) 178 ALR 371, cited

Pearson v Thuringowa City Council [2005] QCA 310; [2006] 1 Qd R 416, clarified

SAS Trustee Corporation v Miles (2018) 265 CLR 137, cited

APPEARANCES & REPRESENTATION:

Applicants:

T Schmidt, counsel for the Queensland Building and Construction Commission (via video link)

J Carey, solicitor of WRG Lawyers for N Benton (via video link)

Respondent:

P Travers, counsel instructed by Mackey Wales Law

REASONS FOR DECISION

  1. [1]
    In January 2017, Dr Egan purchased a block of land situated at Mount Surround, about 50 kilometres from Townsville.  There was an existing structure on the land. The 2005 approval for erection of the structure described it as a “carport and awning”.  In 2015 further approval was given for a structure described as a “new shed”.
  2. [2]
    When Dr Egan purchased the land, the structure upon it was classified as a Class 10a building (“a non-habitable building including a private garage, carport, shed or the like”).[1]  In mid-2018, Dr Egan engaged Mr Benton to undertake building work on and around the structure.  Their contract was oral.  Development approval was required for the work, but it was not obtained.
  3. [3]
    Mr Benton’s work was defective. In consequence, Dr Egan sought to avail the Home Warranty Insurance Scheme legislated in Part 5 of the Queensland Building and Construction Commission Act 1991 (“the Act”) and its associated Regulation.[2]
  4. [4]
    On 15 August 2019, the Commission[3] rejected Dr Egan’s claim.  Dr Egan reviewed that decision in the Tribunal. After a hearing “on the papers”, the tribunal set aside the Commission’s decision and returned the matter to the Commission for reconsideration with a direction that the “items under review are ‘residential construction work’ for the purposes of s 67WA of [the Act]”.
  5. [5]
    The Commission appeals that decision. Mr Benton also appeals.  In accordance with earlier procedural orders, the appeals were heard together.
  6. [6]
    The proceedings before the Tribunal were directed to the proper interpretation of “residential construction work” and, more particularly, the proper interpretation of “residence”, “proposed residence”, and “residential purposes” as used within Part 5 of the Act.
  7. [7]
    Those same issues underpin the Commission and Mr Benton’s challenge to the order made by the Tribunal and, if error is established, a determination by this appeal Tribunal.[4]

What Is the Relevant Defective Work?

  1. [8]
    The scheme presupposes that if redress is sought, particular work will be identified as defective.  That process was addressed in the Inspection Report of the Commission and, in turn, found its way into submissions at the hearing on behalf of Dr Egan and of the Commission and Mr Benton.
  2. [9]
    “Works” was defined in the written submissions on behalf of Dr Egan at the hearing as the collective term for three pieces of defective work.  Those same three pieces of work were identified initially in the Inspection Report prepared for the Commission consequent upon Dr Egan’s complaint to the Commission:
  • “new roofed patios to three sides of the [existing] Building”;
  • “the building of a roofed carport/patio on the western side of the [existing] building”; and
  • “a roofed timber structure over the pump area”.
  1. [10]
    The defective work was described in almost the same terms in the submissions of the Commission and Mr Benton at the hearing.  It was accepted at the hearing of the appeal that the “roofed carport/patio on the western side” was connected to the existing building on the property.

What is “Residential Construction Work”?

  1. [11]
    Part 5 of the Act provides for a statutory insurance scheme, the “the Queensland Home Warranty Scheme”.[5]
  1. [12]
    Cover under the scheme insures for particular loss arising as a consequence of the defective work, but only if the defective work is “residential construction work”.[6]
  1. [13]
    The compensation afforded by the scheme is limited both by being available only for “residential construction work” as defined and by being limited to the reasonable costs of rectifying the defective work up to a maximum capped by the Regulation.[7]
  1. [14]
    The defined concept of “residential construction work” is confined in its operation to the scheme. It is a concept different to other work defined and regulated by the Act and the Regulation. For example, despite some similarities in nomenclature and definitions, the Act does not adopt “domestic building work” performed under “domestic building contracts” as the foundation for cover under the scheme.[8]
  1. [15]
    Section 67WA of the Act defines “residential construction work” as, relevantly, “primary insurable work”.  The expression is in turn defined by s 67WC.  Relevantly:
  1. (1)
    Primary insurable work is any of the following building work if carried out by a licensed contractor and the insurable value of the work is more than the regulated amount—
  1. (a)
    the erection or construction of a residence or related roofed building;
  1. (b)
    building work within the building envelope of a residence or related roofed building;
  1. (c)
    building work for anything attached or connected to a residence or related roofed building that requires building development approval under the Building Act 1975 or a permit under the Plumbing and Drainage Act 2018;  …
  1. (3)
    In this section—

building envelope, for a residence or related roofed building, means the outermost sides of the aggregation of the components of a building that have the primary function of separating the internal part of the residence or related roofed building from the external environment.

Example of a building envelope—

the slab and footings system, an external wall and a roof …

  1. [16]
    Self-evidently, the definition makes the defined concept of “residence” fundamental to satisfying the definition of “primary insurable work”.
  1. [17]
    Residence is defined in section 67WE. Relevantly:
  1. (1)
    Each of the following structures is a residence if the structure is fixed to land and used for residential purposes— 
  1. (a)
    a single detached dwelling;

…

  1. (2)
    Part of a structure is also a residence if the structure is fixed to land and the part is designed to be used, and is used, for residential purposes.
  1. [18]
    As s 67WC(1) makes clear, primary insurable work can also be undertaken to a “related roofed building”.  That concept was central to Dr Egan’s case at the hearing before the Tribunal.  “Related roofed building” is defined in s 67WF.  Relevantly:
  1. (1)
    A related roofed building means a building that—
  1. (a)
    has a roof designed to be—
  1. (i)
    part of the building; and
  1. (ii)
    impervious to water or wind; and
  1. (b)
    is, or is proposed to be, on the site of a residence or proposed residence; and
  1. (c)
    is used, or proposed to be used, for a purpose related to the use of a residence or proposed residence.

Example of related roofed building—

A private garage, shed, carport, toilet building or change room on, or proposed to be placed on, the site of an existing or proposed residence.

  1. (2)
    However, a building is not a related roofed building if—
  1. (a)
    the building is a residence …

Is There Error?

  1. [19]
    In my opinion, the Tribunal failed to properly address and consider the arguments of the Commission, and Mr Benton, and has failed to provide adequate reasons for rejecting those arguments.
  1. [20]
    In addition, the Tribunal’s reasons are in my opinion manifestly inadequate to elucidate the findings that the existing building on Dr Egan’s land was a “residence” and that the works (erroneously referred to at [20] only as “the patios”) were “related roofed buildings”.
  1. [21]
    Each of those errors constitute errors of law and the decision of the Tribunal should be set aside.

How Do the Errors Arise?

  1. [22]
    The resolution of the issues before the Tribunal essentially required a task of statutory construction.  The arguments of the Commission, supported by Mr Benton, were directed to the proper construction of terms used within the relevant sections in Part 5.  The task of construing those terms “begin[s] and end[s] with the text of the statute” but “… interpreted in their context and in light of their purpose although legal rules can sometimes exclude or restrict the use of some context”.[9]
  1. [23]
    The arguments were put in this way in the Commission’s written submissions for the hearing:

The Commission considers that the dispute turns solely on the interpretation of the relevant provisions of the Scheme, particularly with respect to the following:

  1. (a)
    Does the Work constitute [residential construction work] under the Scheme, in circumstances where the Building was being unlawfully used as a residence?
  1. (b)
    Does the subsequent classification of the Building as a Class 1a now entitle the Applicant to assistance under the scheme?   
  1. [24]
    As has been seen, the central plank of the argument was that the provisions of sections 67WE and 67WE could not apply in circumstances where the occupation of the existing building on the land was unlawful.
  1. [25]
    It was contended that accepted principles of statutory construction require the definitions of “residence” and “related roofed building”, and the undefined phrases “single detached dwelling” and “residential purposes”, to be construed in their context. The multi-pronged submissions of the Commission, supported by Mr Benton, were directed both to the natural and ordinary meaning of the words used within the relevant sections and an asserted context for those words as part of the task of statutory construction that was the essence of the case.
  1. [26]
    A crucial component of that context is, it was submitted,[10] a wider legislative framework which includes the Building Code of Australia (now the National Construction Code); the Building Act 1975; the Standard Building Regulation 1993 (repealed in 2006); and the Integrated Planning Act 1997. Taken together, that legislation can be seen as directed to the regulation of building work in Queensland:
  • The classifications of buildings under the Building Code provides context and guidance to the proper construction of “single detached dwelling”: a Class 1a building is defined as a “single dwelling being a detached house”.  By contrast a Class 10 building is a “non-habitable building or structure”;
  • The Building Act 1975 prescribes specific offences for the use and occupation of buildings for residential purposes,[11] including tying an offence to the Building Code by making it an offence to use and occupy a building contrary to its classification.[12]
  • The Integrated Planning Act 1997 binds the owner of land, and successors in title and occupiers, to the development approval; the approval attaches to the land. The development permit for the subject land contained a condition that “the shed is not to be used for habitable purposes”.
  1. [27]
    The Commission argued that a construction of the relevant terms inconsistent with that legislative framework “would do violence to the statutory context in which [the Act] sits”.[13]
  1. [28]
    A second prong of the Commission’s argument was that Dr Egan could not satisfy the definition of residence contained in s 67WE(2) because, the work:

… in isolation, being patios and a carport, was not designed to be used for residential purposes; rather same may have been used as part of a wider residential purpose related to the overall use of the Building.[14] 

  1. [29]
    A third prong of the argument was that a construction of the relevant sections which, in effect, sanctioned an “unlawful” use of the building was an interpretation that permitted Dr Egan to take advantage of her wrong.  It was submitted authority established that such an interpretation should be resisted.[15]
  1. [30]
    Specific arguments were also addressed to Dr Egan’s contention that the works were “related roofed buildings” within the meaning of sub-paragraphs (b) and (c) of s 67WF(1).  The arguments just outlined are said to apply equally to those sub-paragraphs because, in order for each to apply, each requires the existing building on the land to be a residence as defined.
  1. [31]
    The Tribunal’s ultimate finding is at [20] of the reasons:

… I am satisfied that the building was a residence and the that the patios were related roofed buildings.  The work carried out by Mr Benton was therefore residential construction work.  I will set aside the decision under review and make a direction accordingly.

  1. [32]
    Earlier in the Reasons (at [17]) the Tribunal referred to the central contention of the Commission in these terms:

The crux of the Commission’s submissions as well as those of Mr Benton, is that the use of the building or structure as a residence by Dr Egan was not lawful. This is because the structure was classified as a class 10a structure, and not a class 1a structure, at the time of the works.

  1. [33]
    The findings supporting the Tribunal’s ultimate conclusion appear to be these:
  • “It would be a mistake to accept [those] submissions without having regard to the factual context” (at [18]);
  • Although the structure was a Class 10a “non-habitable building or structure” at the time Mr Benton was engaged to carry out the works, “Mr Benton was engaged to carry out the works so that [Dr Egan] could reside in the building” (at [5]–[6]).[16] 
  • During a conversation between them, Mr Benton told Dr Egan that Council approval for the work was not necessary and that was relied upon by Dr Egan (at [7]–[10]);[17]
  • In light of that conversation and reliance, it “would be an unpalatable outcome for Dr Egan to be denied relief in respect of defective building work on the basis of incorrect advice from the same builder” (at [18]);
  • The “inclusion of a laundry, kitchen, toilet, shower and full power facilities, as well as Dr Egan’s actual residence of property, all point to the requisite residential purpose as set out in the comments of Keane JA” (at [19]);
  • In addition to the matters just referred to was Dr Egan’s “actual residence on the property” (at [19]);
  • Part 5 of the Act “does not make the classification of the building a precondition for work being covered under the statutory insurance scheme” (at [19]); and
  • “To the extent it is relevant”, the conclusion is “supported by Dr Egan’s subsequently obtaining approval classifying the building as a class 1a structure once properly informed” (at [19]).
  1. [34]
    The reference to “the comments of Keane JA” is a reference to part of the judgment in Pearson v Thuringowa City Council [2005] QCA 310 cited to the Tribunal by Dr Egan:

… a building is being used for ‘residential purposes’ when the primary use of the building is as a venue for a function or functions normally undertaken in a dwelling, such as food preparation and consumption, washing or sleeping, in a manner that is not merely temporary or sporadic but is consistent with an intention to use the building for such functions on a permanent or long-term basis.

  1. [35]
    The references to Dr Egan’s “actual residence on the property” and the factors referred to in Keane JA’s judgment effectively avoid addressing the submissions made by the Commission and Mr Benton. Keane JA’s comments were made in an unsuccessful appeal from a conviction for “usi[ng] a building (other than a class 1, 2, 3 or 4 building) for residential purposes …”.   That is, the criteria to which his Honour makes reference found the unlawfulness of using a building for those purposes contrary to its classification; they do not assist in analysing and deciding the central contention by the Commission and Mr Benton.
  1. [36]
    There was no real issue before the Tribunal that Dr Egan was living in the building or that activities of the type described by Keane JA occurred there.  Indeed, the Commission conceded that “the [b]uilding may have been used as a residence”.  The argument was, however, that the building could not be a residence because “those purposes were not lawful”.[18] That central contention was not addressed by the Tribunal.
  1. [37]
    Only one specific finding by the Tribunal might be seen as addressed specifically to the central task of statutory construction and the Commission’s submissions addressed to it.  The Tribunal found that Part 5 of the Act “does not make the classification of the building a precondition for work being covered under the statutory insurance scheme” (Reasons at [19]).
  1. [38]
    That finding purports to attribute an exclusory intention to the legislature without reference to the words used in Part 5 or any contextual considerations.  Contrary to that approach, the search is:

… not for the intention of the legislature, but for the meaning of the language it used, interpreted in the context of that language.  The context lies partly in the rest of the statute (which calls for interpretation of its language), partly in the pre-existing state of the law, partly in the mischief being dealt with and partly in the state of the surrounding law in which the statute is to operate.  …[19]

  1. [39]
    It is true, as submitted on the appeal by Dr Egan, that authority clearly establishes it was not necessary for the Tribunal to have made findings on every disputed piece of evidence nor refer in the reasons to each separate submission made.  It is also true, as submitted, that the fact that a submission is not expressly referred to in the reasons, does not mean it was not considered.  Equally, those same considerations should have regard to the reasons having been given in a context statutorily mandated to be “… economical, informal and quick”.[20]
  1. [40]
    However, a real concern that submissions central to the construction and application of a statute have not been grappled with and dealt with, in the reasons, gives rise to a legitimate concern about a miscarriage of justice.  The Tribunal’s failure to properly consider the case presented by the Commission and Mr Benson is, in my opinion an error of law.[21]
  1. [41]
    Equally, the Tribunal’s reasons are manifestly inadequate to explain both how the statutory construction urged upon it was rejected and how conclusions were reached that the building was a “residence”, and the works were “related roofed buildings”, within the meaning of the Act.
  1. [42]
    The Tribunal’s reasons appear to assume that the findings earlier outlined, which in essence are addressed to satisfaction that “residential purposes” is established, explain the ultimate findings that the building is a residence, and the “patios” are related roofed buildings.  In my view they do not.
  1. [43]
    An ultimate finding that a piece of work is “primary insurable work” and, thus, “residential construction work”, must be drawn from a series of necessary findings antecedent to it prescribed by an interplay of legislative provisions within Part 5 of the Act.
  1. [44]
    In this case, those antecedent findings – and reasons for those findings - must address how s 67WE(1) or (2) is satisfied so as to establish the existing building as a residence.  In addition, findings - and reasons for those findings - must address how each of the three separate requirements of s 67WF(1) is satisfied so as to illuminate a conclusion that the works are related roofed buildings.
  1. [45]
    The Tribunal’s reasons do not do so.  No distinction is drawn in the findings between the requirements of each of the relevant sections.  The findings as to “residential purpose”, even if accepted as open on the evidence, do not elucidate how the requirements of each of the applicable sections are met.  In my opinion, the reasons are manifestly inadequate.
  1. [46]
    Separately, it was submitted by Mr Benson that the Tribunal’s conclusion was informed centrally by an irrelevant consideration, namely the finding as to the result being “unpalatable” for Dr Egan.
  1. [47]
    Dr Egan’s appeal submissions concede, properly in my view, that this finding is irrelevant.  It is contended, however, that “the finding does not result in the entirety of the decision having been made in error”. That may be true of the finding in isolation, but it is one of a number of findings upon which the decision was based. In the absence of further exposition, it is not possible to know its materiality in the ultimate decision.  There is the potential for injustice accordingly. In my opinion, the Tribunal erred by taking account of an irrelevant consideration.

What Orders Should Be Made in Substitution?

The Relevant Requirements of Part 5 of the Act

  1. [48]
    It is not contentious that certain pre-conditions for relief under the Scheme are satisfied.[22]  It is also not contentious that the works satisfy the definition of “building”.[23]
  1. [49]
    The requirements of ss 67WC, 67WE and 67WF are related parts of a definitional chain required to be satisfied if the Scheme is to provide cover to a consumer.  The requirements of each of the relevant links in the chain must be established and not conflated.  Dr Egan’s contention that the work was the “erection or construction” of a “related roofed building” requires proof of each of the relevant separate components of s 67WF. Separately, it requires proof of those parts of s 67WE made relevant by the terms of s 67WF.
  1. [50]
    Section 67WF(1)(a) provides for three characteristics which a related roofed building must possess. Where, as in the instant case, the structures claimed to be related roofed buildings have been built, s 67WF(1)(b) must be satisfied by the buildings being on the site of a residence or a proposed residence.  Similarly, s 67WF(1)(c) must be satisfied by the buildings having a purpose related to a residence or a proposed residence.
  1. [51]
    Taken together, the plain words of s 67WF require the identification of a “building” (or buildings) claimed to be the related roofed building/s.  The relevant buildings here are the three pieces of work earlier identified.  The section also requires the identification of a “residence” or “proposed residence” separate from that building – that is, a building to which the roofed building “relates”.  In this case, that building is the existing structure on the land.
  1. [52]
    The buildings claimed to be related roofed buildings must be on the site of the existing building which must, in turn, be a residence as defined (s 67WF(1)(b)). So, too, the buildings claimed to be related roofed buildings must be used, or proposed to be used, for a purpose related to the use of the existing building which must, in turn be a residence (s 67WF(1)(c)). Plainly enough then, the satisfaction of each of sub-paragraphs (b) and (c) of s 67WF(1) necessitates satisfying the definition of residence in s 67WE.

Dr Egan’s Arguments

  1. [53]
    Dr Egan’s case, as argued before the Tribunal,[24] is that “the Works are primary insurable work” as “the Works involved the erection of a related roofed building.[25]
  1. [54]
    For that case to be made out, it is first necessary to establish that the works had the three characteristics required by s 67WF(1)(a). Submissions by the Commission at the hearing before the Tribunal suggest it is “arguable” that the second and third of those requirements are met.  No further argument is advanced. No argument is advanced in respect of the first requirement.  On the material before me, it is tolerably clear that all three requirements are met for all three pieces of work earlier identified.[26]
  1. [55]
    As Dr Egan’s written submissions at the hearing recognise, it is also necessary to satisfy the remaining sub-paragraphs of s 67WF(1). Dr Egan submitted:

… both the Building and the Patio are, relevantly, “on the site of a residence or proposed residence” [s 65WF(1)(b)] and “used, or proposed to be used, for a purpose related to the use of a residence or proposed residence” [s 65WF(1)(c)].

  1. [56]
    The written submissions had earlier defined the terms used in that submission. “Patio” was defined (at [4]) as the “roofed carport on the right-hand side of the Building”.  “Building” was defined as the existing structure on the land and “Veranda” as the “new roofed patios to three (3) sides of the Building” (at [3]).
  1. [57]
    Dr Egan submitted the Building was a “residence” as it was “used for residential purposes” and “is a single detached dwelling” (s 65WE(1)(a)).[27]  Those contentions are said to be supported by “undisputed” evidence from Dr Egan that:
  1. (a)
    the Building contained amenities such as a laundry, kitchen, toilet, shower and power facilities;
  2. (b)
    [Mr Benton] carried out works at the Property which included plumbing and drainage works to the laundry and kitchen; and
  3. (c)
    the works were proposed to enable [Dr Egan] to reside in the Building.[28]
  1. [58]
    Dr Egan sought to meet the central argument by the Commission and Mr Benton by arguing at the hearing before the Tribunal that “there is no requirement that the works can be lawfully occupied as a residence in order for the Scheme to apply”.  Read literally, that argument misapprehends, in my view, the argument.  The argument is that neither s 67WE nor s 67WF is satisfied because the existing building must be lawfully occupied for both sections’ requirements to be satisfied.
  1. [59]
    Dr Egan went on to contend:

If this was [the requirement], any consumer who engaged a licenced builder to construct their residence would not be eligible to make a claim against the Scheme if the builder failed or neglected to obtain a development approval in respect of the residential construction works.[29]

  1. [60]
    In my opinion, that conclusion does not follow from the arguments made in support of the proposition.  It is not the absence of a required development approval that is said to engage disqualification for the Scheme.  Rather the arguments are founded on the occupation of the building in circumstances that make the occupation unlawful.  The arguments have no asserted application to work without development approval proposed or carried out to a building occupied lawfully.  Here, whether Dr Egan was ignorant of that fact or not, there seems to be no dispute that residential occupation of the existing building on the land was unlawful.

Is The Existing Building a “Residence” As Defined?

  1. [61]
    Neither “singled detached dwelling” nor the word “dwelling” is defined.  The search is for the ordinary and natural meaning.  The ordinary meaning of a word or expression “means the ordinary meaning conveyed by a provision having regard to its context in the Act and to the purpose of the Act.[30]  Dictionary definitions of “dwelling” include “a house or place to live in” or “a place of residence or abode”.[31]
  1. [62]
    The section is to be interpreted in a manner “which best achieves the purpose of the Act”.[32]  The purposes of the Act include “to provide remedies for defective building work”.  The purposes also include regulation of the building industry by ensuring “proper standards” and achieving a “reasonable balance between the interests of building contractors and consumers”.[33]
  1. [63]
    While the Act as a whole might not be seen as remedial or beneficial in nature, Part 5 of the Act provides compensation and can be seen to have such a purpose.[34] Part 5 should then be given a “liberal construction”.  However, “the task remains one of statutory construction … and a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural”.[35] “The principle that beneficial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively”.[36] The High Court has also said that the words of the statute are to be “interpreted in their context”[37] and the interpretive task is a search for “the meaning of the language … used, interpreted in the context of that language”.[38]
  1. [64]
    The submissions by the Commission, supported by Mr Benton, as to the interpretive context for s 67WE should be accepted.  As earlier set out, the Act forms part of a broad framework of legislation designed to achieve purposes similar to the Act, namely, regulating the building industry; balancing the interests of consumers and builders; and ensuring the protection of consumers.
  1. [65]
    The offence provisions of the Building Act, although punitive in nature, can be seen to fit squarely within that same context.  The offences have a protective function as well as a punitive function.  They prevent the occupation of premises that do not pass the relevant tests of proper standards so as to both regulate appropriate building work and protect the homes of consumers.
  1. [66]
    The submission that guidance should be taken from a building’s classification under the Building Code of Australia should also be accepted.  That interpretation is supported by the legislature underscoring the importance of those classifications by creating offences for use and occupation contrary to those same classifications.
  1. [67]
    Seen in its proper context, the word “dwelling” should be interpreted as meaning a home or place of abode that has been properly classified as such by reference to relevant building legislation.
  1. [68]
    Therefore the existing building on Dr Egan’s land was not a single detached dwelling within the meaning of s 67WE(1)(a) and therefore not a “residence’ within the meaning of that section.  The works cannot be a “related roofed dwelling” by reference to s 67WF(1)(b) because they are not a “building” on the “site of a residence”.
  1. [69]
    Section 67WE(2) broadens the definition of residence to include “part of a structure” if it is “fixed to land” and “the part is designed to be used, and is used, for residential purposes”.
  1. [70]
    The section can be seen to have its real meaning and purpose if used to establish that particular work amounts to “the erection or construction of a residence” within the definition of of “primary insurable work” in s 67WC(1)(a).  However, that is not so when it is called in aid of s 67WF(1).  When interposed as the meaning of “residence” into each of s 67WF(1)(b) and (c) incongruity emerges.  For example, s 67WF(1)(b) would require a related roofed building to be “on the site of” part of a structure fixed to land where the part of the structure itself was used for residential purposes.

Are the Buildings on the Site of a Proposed Residence?

  1. [71]
    It is common ground that on 6 June 2019 Dr Egan applied to have the existing building on the land reclassified.   On 20 September 2019, the building was classified as a Class 1a building – that is a building in which habitation was permitted.  The classification was deemed effective from 14 June 2019.
  1. [72]
    There are factual disputes between Dr Egan and Mr Benton as to if and when Dr Egan informed Mr Benton that the work undertaken by him was so that she could live in the building.  Similarly, there is a factual dispute about what was said or not said about the necessity for obtaining building approval. Separate from those factual issues, however, is the question whether the subsequent classification of the existing building permissive of habitation permits of a conclusion that, when the work was undertaken, the building was a “proposed residence”.
  1. [73]
    “Proposed residence” is not defined.  The Commission’s submissions before the Tribunal referred to the Macquarie Dictionary definition of “propose”: “to put forward (a matter, subject, case etc) for consideration, acceptance or action”. It was contended by the Commission that a proposed residence or proposed use cannot be judged by reference to subjective intent.  Rather, objective criteria are required.
  1. [74]
    It was submitted that the legislative framework contains the means by which subjective intention can manifest in objective action: “at the time the works were performed, the construction of a residence on the site has been at least proposed, by way of development application for reclassification or material change of use”.[39]  The argument continued:

It is a sensible interpretation to require approval or documentation to evidence the ‘proposal’ of a residence.  It would defy the objects of [the Act] if any building work on any roofed building could be retrospectively deemed [residential construction work] for the purposes of the Scheme, merely upon application to the council at any time.[40]

  1. [75]
    The expression “proposed use” of a building as used in the section also occurs within the legislative framework earlier referred to.  The essence of the legislative approval and classification process is to give formality, structure, and often conditions, to proposed building work and relevant standards to buildings.  The legislative framework provides the means by which an existing permitted use becomes a prospective permitted use. Again, sanctions underpin that process by providing penalties for use and occupation until approval (or the application for approval) crystalises a prospective use.
  1. [76]
    The subjective intention of an owner is insufficient because, if it were the criterion, it would undermine the legislative framework of which the Act forms part. In a similar vein, current use of the building contrary to its classification cannot be determinative of “prospective residence”.  Such an interpretation would fly in the face of the offence provisions earlier referred to.
  1. [77]
    “Proposed residence” should be interpreted to mean a building for which formal approval as a future residence has been applied for (or, of course, granted).

Conclusions

  1. [78]
    The defective works were not the erection or construction of a related roofed dwelling as defined.
  1. [79]
    The defective works were not “primary insurable work” and therefore not “residential construction work”.

Orders

  1. [80]
    It is ordered:
  1. The Order of the Tribunal made on 17 May 2021 be set aside.
  1. In substitution for that Order, it is ordered that the decision of the Queensland Building and Construction Commission made on 15 August 2019 be confirmed.

Footnotes

[1]National Construction Code 2019, Part A6.10.

[2]Queensland Building and Construction Commission Regulation 2018 (“the Regulation”).

[3]  The Queensland Building and Construction Commission.

[4]  All parties urge a determination in that event rather than the matter being remitted to the original Tribunal: Queensland Civil and Administrative Tribunal Act 2009, s 146. 

[5]  s 67X of the Act; the Regulation, s 25.

[6]  s 67X(2) and (3); s 67WA definitions;  s 67WC;  the Regulation s 30; Schedule 6.

[7]  Schedule 6 to the Regulation, s 15 and Part 4 to the Schedule.

[8]  As to which see Part 4 of the Act, Schedule 1B and the Regulation.

[9]SAS Trustee Corporation v Miles (2018) 265 CLR 137 per Edelman J at [64].  See also for example, Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40 per Allsop CJ at [3].

[10]  Commission’s written appeal submissions, [49]–[54].

[11]Building Act 1975, ss 118, 119.

[12]Building Act 1975, s 115.

[13]  Commission’s written appeal submissions, [50].

[14]  Commission’s written appeal submissions, [47].

[15]  Citing Holden v Nuttall [1945] VLR 171; Tickle Industries Pty Ltd v Hann & Richardson [1974] HCA 5.

[16]  This evidence was said by the Tribunal to be ‘uncontested’, but that conclusion is challenged on appeal.

[17]  This was the subject of a factual contest at the hearing and the finding as to the conversation having occurred is challenged on this appeal.

[18]  Commission’s written submissions at the hearing, [48].

[19]Momcilovic v The Queen (2011) 245 CLR 1, at 175–176 per Heydon J (citations omitted).

[20]Queensland Civil and Administrative Tribunal Act 2009, s 3.

[21]  See, for example, Dennis Willcox Pty Ltd v Federal Commissioner of Taxation (1988) 79 ALR 267 at 276–277.

[22]  The work is undoubtedly “building work”; Mr Benton is a “licensed contractor” and the “value of the work is more than the regulated amount”.  Also, Dr Egan is a “consumer” and there is a compliant (oral) contract between Dr Egan and Mr Benton: See the Act, s 68H; s 68H(1)(a)(ii); s 67WC(1); Schedule 2.

[23]  The Act, Schedule 2, relevantly “any fixed structure”.

[24]  Written submissions at the hearing, [21].

[25]  The reference to the alternative argument that the works were within the building envelope of a residence or related roofed building has been omitted as no finding was made by the Tribunal to that effect and no arguments were addressed to it on appeal.

[26]  It appears to be accepted that the relatively small structure housing the pump appears to have a roof impervious to water.

[27]  Written submissions at the hearing, [25]. 

[28]  Written submissions at the hearing, [27] (footnoted citations to Dr Egan’s statement omitted).

[29]  Written submissions at the Tribunal hearing, [37]–[38].

[30]Acts Interpretation Act 1954, s 14B.

[31]  Respectively, Cambridge Dictionary; Macquarie Concise Dictionary.

[32]Acts Interpretation Act 1954, s 14A.

[33]  The Act, s 3

[34]  As to part of legislation being seen as remedial or beneficial see Nilant v Macchia (2000) 178 ALR 371.

[35]IW v City of Perth (1997) 191 CLR 1, per Brennan CJ and McHugh J at 12.

[36]New South Wales Aboriginal Land Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232, per Gageler J at [92].

[37]Per Edelman J in SAS Trustee Corporation, above at n 9.

[38]  Per Heydon J in Momcilovic, above at n 19.

[39]  Commission’s written appeal submissions, [73].

[40]  Commission’s written appeal submissions, [76].

Close

Editorial Notes

  • Published Case Name:

    Queensland Building and Construction Commission & Benton v Egan

  • Shortened Case Name:

    Queensland Building and Construction Commission & Benton v Egan

  • MNC:

    [2023] QCATA 29

  • Court:

    QCATA

  • Judge(s):

    Judicial Member Peter Murphy SC

  • Date:

    04 Apr 2023

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
Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40
2 citations
Jump To
Cite 1 - (2017) 251 FCR 40
Cite 2 - (2017) 251 FCR 40
Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267
2 citations
Jump To
Cite 1 - (1988) 79 ALR 267
Cite 2 - (1988) 79 ALR 267
Holden v Nuttall [1945] VLR 171
1 citation
Jump To
Cite 1 - [1945] VLR 171
IW v City of Perth (1997) 191 CLR 1
2 citations
Jump To
Cite 1 - (1997) 191 CLR 1
Cite 2 - (1997) 191 CLR 1
Momcilovic v The Queen (2011) 245 CLR 1
1 citation
Jump To
Cite 1 - (2011) 245 CLR 1
New South Wales Aboriginal Land Council v Minister Administering the Crown Land Act (2016) 260 CLR 232
2 citations
Jump To
Cite 1 - (2016) 260 CLR 232
Cite 2 - (2016) 260 CLR 232
Nilant v Macchia (2000) 178 ALR 371
2 citations
Jump To
Cite 1 - (2000) 178 ALR 371
Cite 2 - (2000) 178 ALR 371
Pearson v Thuringowa City Council[2006] 1 Qd R 416; [2005] QCA 310
3 citations
Jump To
Cite 1 - [2005] QCA 310
Cite 2 - [2005] QCA 310
Cite 3 - [2006] 1 Qd R 416
SAS Trustee Corporation v Miles (2018) 265 CLR 137
2 citations
Jump To
Cite 1 - (2018) 265 CLR 137
Cite 2 - (2018) 265 CLR 137
Tickle Industries Pty Ltd v Hann [1974] HCA 5
1 citation
Jump To
Cite 1 - [1974] HCA 5

Cases Citing

Case NameFull CitationFrequency
Queensland Building and Construction Commission & Benton v Egan (No 2) [2023] QCATA 1631 citation
1

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