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Parker v Queensland Building Services Authority[2000] QDC 221

Parker v Queensland Building Services Authority[2000] QDC 221

DISTRICT COURT OF QUEENSLAND

CITATION:

Parker & Anor v. Queensland Building Services Authority [2000] QDC 221

PARTIES:

QUINTIN PARKER AND JANE PARKER

(Applicant-Appellant)

v.

QUEENSLAND BUILDING SERVICES AUTHORITY

(Respondent)     

FILE NO/S:

Appeal No. 1624 of 2000

DIVISION:

District Court

PROCEEDING:

Chambers jurisdiction

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30th May 2000

DELIVERED AT:

Brisbane

HEARING DATE:

9th May 2000

JUDGE:

Forde DCJ

ORDER:

  1. Leave is granted to appeal with costs.
  2. The appeal is allowed with costs.
  3. The order of the Tribunal dated 23rd March, 2000, is reversed
  1. Order in lieu that the review by the Tribunal be allowed.

CATCHWORDS:

Home Building Act 1989 No. 147 (N.S.W.) and Regulation 1997

Queensland Building Services Authority Act 1991 ss.4; s 68, s.69, s. 94, s. 98, Regulation 4

Habjan v. Eclat Painters & Decorators (Unreported, QBT, 4th August, 1994) applied;

Mitchell v. Mornington Shire Council (Unreported QBT, 6th August, 1998) applied;

Watpac Australia Pty. Ltd. v. K. Crete Industries Pty. Ltd. (Unreported decision 17th October, 1995, Williams J.) applied;

Woorabinda Aboriginal Council v. Ealsrose Pty. Ltd. (Application No. 109 of 1993, 22 November, 1993 per Demack J) applied;

Graham v. Habul (Unreported QBT, 19 September 1997) referred to;

Melcrest Constructions Pty. Ltd. v. MalenyUnit Trust (Unreported QBT, 14th March, 1996) distinguished;

Pioneer Concrete (Qld) Pty. Ltd. v. Brisbane City Council and Ors. (1980) 145 CLR 485 referred to;

Mal Sutton and Sons Pty. Ltd. v. Rentwill Pty Ltd (Unreported QBT, 16th September, 1996) distinguished;

Precision Pools Pty. Ltd. & Berteaux (Unreported, 24th December, 1993) not followed;

Turren Pty. Ltd. T/As Maryborough Heritage Homes v. Hervey Bay Retirement Village (Unreported QBT, 3rd June 1996) distinguished.

COUNSEL:

Mr. P. Favell

Mr. X. Panayi (Solicitor)

SOLICITORS:

Kruger Law Solicitors for the Applicant-Appellant

Queensland Building Services Authority on its own behalf

Introduction

  1. [1]
    The appellants, Quintin Parker and Jane Parker, seek leave to appeal against the whole of the decision of the Queensland Building Tribunal dated 23 March, 2000. The Tribunal confirmed the decision of the Queensland Building Services Authority of 4 October, 1999. It was decided that building work carried out for the appellant did not fall within the definition of “residential construction work” within the meaning of the policy issued under s.69 of the Statutory Insurance Scheme (Part 5 of the Queensland Building Services Authority Act 1991 (“the Act”).  If leave be granted the grounds of the appeal are:
  1. The Tribunal erred in law in finding that the residential premises formed part of the commercial premises and that therefore all of the building work must be classified as commercial building work.
  1. The Tribunal erred in law in finding that the premises ought to be looked at as one building which constitutes a commercial activity and that therefore the work does not fall within the definition of “home” and thereby domestic building work.
  1. The Tribunal erred in law in finding that the decision of the Tribunal  is reinforced by Section 14A of the Acts Interpretation Act.
  1. The Tribunal erred in law in failing to adequately address that what was being interpreted was a provision of a policy of insurance and that by of the ordinary and plain meaning of the insurance policy, the construction work was residential construction work within the meaning of the policy.
  1. The Tribunal erred in law in finding that because the end result of the construction work would be for a commercial purpose, that the insurance policy did not cover the requisite construction work.
  1. The Tribunal erred in law in failing to find that if at the time of :-
  1. (i)
    The commencement of the construction works; and/or
  1. (ii)
    The entry into the relevant insurance policy.

the construction work related to a home, the work was residential construction work within the meaning of the relevant insurance policy”.

  1. [2]
    The work was never completed by the builder or was done in a defective manner. Clauses 2.1 and 3.1 of the policy allow the Authority to compensate the appellants for loss resulting from the builder failing to complete residential construction work or doing so in a defective manner.

Factual background

  1. [3]
    The appellants entered into a contract on 11th July, 1998 with a licensed  builder Mr. Moore, to carry out building work at their premises at 1 Sale Street, Eumundi.  The building work was described on the contract schedule as “combined new structure with renovations.  Timber floor iron roof”.  The council approved a plan to add extensions to the existing home for a proposed bed and breakfast facility.    It was the intention of the appellants to operate the new premises as a bed and breakfast facility.  It was also their intention to use the property as their home which included the additional bedrooms.  The lounge and dining areas were to be used by the appellants for their own use and by the guests when the bedroom facilities were in use.
  1. [4]
    Section 4 of that Act provides the following definitions:

“ ‘residential construction work’ means building work classified by regulation as residential construction work.

Regulation 4 defines residential construction work in these terms:-

‘residential construction work’ means major domestic building work –

  1. (a)
    consisting of the construction of a home or roofed building on the site of a home )other than a home or building that is a multiple dwelling of more than 3 storeys); or
  1. (b)
    consisting of an alteration or addition to such a home or building affecting –
  1. (i)
    its structure; or
  1. (ii)
    its external fabric or weatherproofing; or
  1. (iii)
    water supply, sewerage or drainage; or
  1. (iv)
    internal fixtures

if the work is performed by a building contractor other than as subcontractor.”

Section 4 of the Act defines the following:

‘domestic building work’ means building work related to a home or an associated building.

‘home’ means any residential premises except premises constituting, or forming part of, commercial or industrial premises.”

The word “home” is not defined in the policy but cl. 1.2 of  that document says:

“Unless the contrary intention appears wherever the terms defined by the Act or the regulation appear in this certificate, those terms have the same meaning as in the certificate as in the Act or regulations.”

Clause 1.1 of the policy of insurance defines “residential construction work” as “... the residential construction work described in the certificate ...”.

  1. [5]
    The question for determination is whether or not this building work is related to a home so as to bring it within the definition of “major domestic building work” within the meaning of (b), ibid. It is not in dispute that the work intended to be carried out nearly doubled the size of the building. The new work was merely a mirror addition to the existing house, and was connected to it. There were four additional bedrooms with ensuites in the new area. The Authority submits that the work carried out was not “residential construction work” within the meaning of the Act and was not covered by the Certificate of Insurance.

Member’s Reasons

  1. [6]
    The learned Member of the Tribunal approached the question by applying and categorising the work according to the design purpose of the building. It followed that the expression of “home” where it appears in the definition of “residential construction work” refers only to the design purpose of the “major domestic building work”. He went on to find that the residential premises formed part of the commercial premises, and therefore all of the building work must be categorised as commercial building work. The learned member regarded the premises as one building which contains a commercial activity and so the work did not fall within the definition of “home” and moreover the definition of “domestic building work”. Reliance was placed upon the decision of Wylie QC, DCJ in Precision Pools Pty. Ltd. & Berteaux (Unreported, 24th December, 1993) where the following passage appears:

“the definition of “domestic building work” in my view only emphasises the requirement that there be an absence of commerciality in that there must  be a residence and the associated swimming pool must be one to  be used and enjoyed by the residents and their guests”.

  1. [7]
    The finding was that as the bedrooms and ensuites were designed to be used by commercial clients of the appellants and not by guests or friends then the work was “commercial building work” and not covered by the Certificate of Insurance. The builder had failed to complete the work; the work that was done was defective. Section 98(e) of the Act allows a review by the Tribunal of a decision to disallow a decision relating to insurance. Section 94 gives jurisdiction to the District Court to hear appeals against a determination of the Tribunal.

Submissions by Counsel

  1. [8]
    It was submitted on behalf of the appellants that “such a home” refers to the dwelling as it existed before the alteration or addition commenced. The reference is to not to the status of the construction when it is completed. The argument continued that the fact that “such a home”, if it is to be altered or added to, must mean that the status of the construction should be considered before the work commences.
  1. [9]
    The Authority submitted that as the dwelling was designed wholly or predominantly as a bed and breakfast facility, it was not a “home” within the meaning of s. 4 of the Act and therefore was not “residential construction work” . If “domestic building work” means building work related to a home or an associated building, it was submitted that the words “related to” must be given a wide meaning: Pioneer Concrete (Qld) Pty. Ltd. v. Brisbane City Council and Ors. (1980) 145 CLR 485 at 498.  It was submitted the meaning of the definition of “building work” in s. 4 of the Act “related to a home” means that the building work must be carried out for the intended purpose of a home.  Reliance was placed on the Precision Pools case op. cit.

Legal Principles Applicable.

  1. [10]
    A broad view of “domestic building” was adopted by Williams J. in Watpac Australia Pty. Ltd. v. K. Crete Industries Pty. Ltd. (unreported decision 17th October, 1995):

“It should be noted that Demack J. in Woorabinda Aboriginal Council v Ealesrose Pty Ltd (unreported, Rockhampton No 109 of 1993, judgment delivered 22 November 1933) was concerned with a contract involving the construction of a large number of buildings (over twenty individual dwellings) for a sum well in excess of $1 million.  There was a single contract covering all of that work.  He concluded that the contract was with respect to “domestic building work” so that pursuant to s 97 the matter should be removed to the Tribunal. I was not referred to any other cases which, in my view, were in any way helpful.

Counsel for the respondent also argued that at this stage Admiralty Towers were commercial premises because the construction was a commercial venture for the owner, the second respondent. Further, he pointed ut that the building was not intended to be used by the second respondent as a residence.

The ruling of Demack J would provide an answer to that latter contention.

Further, in the circumstances I cannot see that the fact that the construction is a commercial venture for the second respondent affects the position.  One must concentrate on the work being carried out by the principal contractor and the sub-contractor.  If that work is “domestic building work” then the motives behind the landowner requiring that construction to be carried out are irrelevant.  Similarly, in my view, it is not to the point what the belief of the first respondent may have been at the time it entered into the contract.  The law is the law and must be applied irrespective of the beliefs of a party affected by it.

...

“In this day and age many homes are units in a high rise building and there is no reason why logically a high rise building containing home units such as Admiralty Towers cannot be a domestic building”. (p. 3 of 11)

  1. [11]
    In interpreting the meaning of “residential premises”, it has been applied to a “guest house”: Melcrest Constructions Pty Ltd. v. Maleny Unit Trust (unreported QBT, 14th March, 1996).  However, the Member went onto find that as the building contained  a commercial activity, it did not fall within the definition of “home” or “domestic building work”.  Reliance was placed on the Precision Pools case.
  1. [12]
    In a convenient summary form, counsel for the Respondent submitted in his written submissions:

“In relation  to the second limb, which excludes from the definition of ‘home’ premises constituting, or forming part of commercial or industrial premises, the following principles emerge:

  1. (a)
    If the premises are intended for ‘domestic or private use’, then they are not commercial; Precision Pools Pty Ltd v. Berteaux (at page 10).
  1. (b)
    Whether considered objectively, the premises are capable of use as a residence as opposed to commercial or industrial premises; Habjan v. Eclat Painters & Decorators (unreported QBT 4th August, 1994).
  1. (c)
    A motel complex is commercial, and does not come within the definition of ‘home’; Mal Sutton and Sons Pty Ltd v. Rentwill Pty Ltd (unreported QBT 16th September, 1996);
  1. (d)
    Premises under one roof line used partly as a ‘guest house’, is a commercial activity and does not fall within the definition of ‘home’ under the QBSA Act; Melcrest Constructions Pty Ltd v Maleny Unit Trust (unreported QBT 14th March 1991).
  1. (e)
    Whether premises are ‘commercial’ or ‘industrial’ depends on the intended usage of the premises; Graham v. Habul (unreported QBT, 19 September 1997) (at page 5).”
  1. [13]
    In Habjan v. Eclat Painters and Decorators (C524-93, op. cit.), the learned Member was dealing with a similar question concerning a substantial number of units in an apartment building used for holiday letting. The Member did not look at the current use only but whether considered objectively, the premises are capable of use as a residence, or in whole or in part, as commercial premises.  The Member went onto find that the premises were most certainly predominantly, if not wholly residential in character and fall within the definition of “home” within the meaning of the Act.  A similar test in the present case would lead, in my view to a similar result.
  1. [14]
    In Mal Sutton and Sons Pty. Ltd. v. Rentwill Pty. Ltd. (C679-95, op .cit.), the Member was concerned with a contract for the construction of a building at South Brisbane known as “Edmonstone Lodge”.  It involved the construction of 22 units lacking in all of the self-contained features ordinarily present in premises constructed for permanent occupation.  The use was more consistent with a motel facility.  It was clearly of a commercial nature.  The learned Member referred to various definitions of “residence” or “home”.  The latter was of more assistance  and included “dwelling place, fixed residence or family or household”. The meaning of “home” did not include a place of temporary or transitory stopping place.  Certainly, the present appellants regard their premises as a permanent abode for their family.
  1. [15]
    Counsel for the Appellants referred to the decision of Woorabinda Aboriginal Council v. Ealsrose Pty. Ltd (Application No. 109 of 1993 22 November, 1993) per Demack J:

“One must concentrate on the work being carried out by the principal contractor and the sub-contractor.  If that work is domestic building work then the motives behind the land owner required in the construction to be carried out are irrelevant.”

  1. [16]
    I apply that principle to the present case. The nature of the work being carried out was similar to the existing home of the appellants. His Honour held that the premises constituted residential premises notwithstanding that they were shared facilities. The purpose of the facility was to provide residential accommodation to aged persons.
  1. [17]
    Counsel for the Appellants submitted:

“(e) ‘The works’ included substantial renovations to the Applicants’ existing residence (home);

  1. (f)
    The contract price for the total works was $191,611.00;
  1. (g)
    ‘The works’ included the following renovations to the existing home –
  1. (i)
    New roof;
  1. (ii)
    New kitchen;
  1. (iii)
    New bathroom;
  1. (iv)
    An additional verandah;
  1. (v)
    Painting outside and inside;
  1. (h)
    All floors sanded and polished including doorways and windows as required;
  1. (i)
    Re-stumping;
  1. (j)
    Conversion of existing verandahs into new lounge and dining room; and
  1. (k)
    Laundry facilities under the house.

The value of these works (renovations was in the vicinity of $90,000.00.  The B & B facility comprises four bedrooms with an individual ensuite and with an external veranda.

...

It is submitted therefore that on a proper construction the work was residential construction work within the meaning of the Act.”

  1. [18]
    Those submissions are consistent with what I find to be the relevant authorities. Cases such as Turren Pty. Ltd. T/As Maryborough Heritage Homes v. Hervey Bay Retirement Village (C189-96, 3rd June 1996) can be distinguished.  In the latter case there were 41 self-contained villas plus a recreation centre and other facilities.  It was held correctly in my view that they constituted or formed part of commercial premises.
  1. [19]
    It becomes a question of fact in each case.  The approach of the Tribunal in Habjan allows one to approach the question objectively and to determine whether the premises are capable of use as a residence or whether the premises are capable of use in whole or in part as commercial or industrial premises.  In my view the use of the appellants’ premises falls within the definition of “home” within the meaning of the Act.  The work carried out does not change the essential character of the premises.  The home does not form part of commercial premises as the premises in this case do not change their essential character.  The work carried out is, in my view, “residential construction work” within the meaning of the Act and the insurance policy issued under the Act.  I adopt the similar reasoning of the learned Member in Mitchell v. Mornington Shire Council (unreported QBT, 6th August 1998).  It should be noted that the Home Building Act 1989 (No. 147, N.S.W.) and Regulation 1997 are more specific as to what is included and what is excluded from the definition of “residential building work”:  Regulations 5-8.  It may be that the definition under the Queensland Act needs clarification.

Leave to Proceed

  1. [20]
    The application for leave is not opposed. There is an important question of law which has been argued where there has been different approaches by the Members of the Tribunal. Leave is granted.

Conclusive Nature of the Certificate of Insurance

  1. [21]
    It was argued by the appellants that as a Certificate of Insurance had issued in relation to “residential construction work” then the certificate was conclusive: s. 68(3) of the Act. The argument seems inconsistent with the approach taken by the Court of Appeal in The Proprietors of ‘The View’ v. QBSA [2000] 1 Qd.R. 405,  where they reviewed the applicability of the certificate. However, it is not necessary to determine this question on this appeal.

ORDERS

  1. Leave is granted to appeal with costs.
  2. The appeal is allowed with costs.
  3. The order of the Tribunal dated 23rd March, 2000, is reversed.
  4. Order in lieu that the review by the Tribunal be allowed.
Close

Editorial Notes

  • Published Case Name:

    Parker & Anor v Queensland Building Services Authority

  • Shortened Case Name:

    Parker v Queensland Building Services Authority

  • MNC:

    [2000] QDC 221

  • Court:

    QDC

  • Judge(s):

    Forde DCJ

  • Date:

    30 May 2000

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
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 C. L. R. 485
2 citations
Jump To
Cite 1 - (1980) 145 C. L. R. 485
Cite 2 - (1980) 145 C. L. R. 485
Precision Pools Pty Ltd v Berteaux [1993] QDC 524
2 citations
Jump To
Cite 1 - [1993] QDC 524
Cite 2 - [1993] QDC 524
Queensland Building Services Authority v The Proprietors of "The View"[2000] 1 Qd R 405; [1998] QCA 401
1 citation
Jump To
Cite 1 - [2000] 1 Qd R 405

Cases Citing

Case NameFull CitationFrequency
Pennisi & Pennisi v Commissioner of State Revenue [2025] QCAT 3272 citations
Sharma v Queensland Building and Construction Commission [2017] QCAT 4572 citations
1

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