Currall v Queensland Building and Construction Commission

[2019] QCAT 417

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Currall v Queensland Building and Construction Commission [2019] QCAT 417

PARTIES:

RYAN CURRALL
(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR271-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application to review a decision filed on 15 July 2019 is dismissed.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY POWER TO REQUIRE RECTIFICATION OF DEFECTIVE OR INCOMPLETE BUILDING WORK – whether statutory time limit expired

Queensland Building and Construction Commission Act 1991 (Qld), s 72A

Orlanski v Queensland Building Services Authority [2011] QCAT 35

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

1. On 14 June 2019, the Queensland Building and Construction Commission (‘the QBCC’) decided not to issue a direction to rectify in respect of a property at 7 Erebus Court, Tamborine Mountain owned by Mr Currall. The QBCC also decided to disallow Mr Currall’s claim against the statutory insurance scheme.

2. On 15 July 2019, Mr Currall filed an application to review the QBCC’s decision.

3. On 2 October 2019, the QBCC filed an application for miscellaneous matters seeking to have the review application struck out.

   Direction to rectify

4. Section 72A(4) of the Queensland Building and Construction Industry Act 1991 (Qld) (‘the QBCC Act’) imposes a time limit on when a direction to rectify may be issued:

   A direction to rectify or remedy cannot be given more than 6 years and 6 months after the building work to which the direction relates was completed or left in an incomplete state unless the tribunal is satisfied, on application by the commission, that there is in the circumstances of a particular case sufficient reason for extending the time for giving the direction and extends the time accordingly.

5. The final inspection certificate in respect the property at 7 Erebus Court, Tamborine Mountain was issued on 13 July 2012.  Mr Currall has not advanced any other date as to the date the building work was completed.  I therefore accept that the building work was completed on 13 July 2012.

6. Mr Currall made his first complaint to the QBCC on 8 February 2019.

7. Six years and six months from 13 July 2012 was 13 January 2019. The QBCC has not made an application to the Tribunal to extend the six year and six month time limit.

8. As Mr Currall did not make a complaint to the QBCC within the six year and six month time limit, neither QBCC nor in its place the Tribunal has the power to issue a direction to rectify.

   Statutory insurance scheme

9. The relevant terms of cover for the statutory insurance scheme are contained in the Insurance Policy Conditions Edition 8, which was effective from 1 July 2009.

10. Clause 4.4(a) deals with the expiry of cover under the policy. For a category one defect, the QBCC is only liable to pay for loss where the defect first became evident within six years and six months of the earlier of:

    (a)the date of payment of the insurance premium; or

    (b)the date of entering into the contract.

11. The date of entering into the contract is unknown, but the insurance premium was paid on 22 August 2011.  Six years and six months from this date is 22 February 2018.

12. Clause 4.4(c) extends the period of the policy where the construction work has not reached practical completion within six months.  I have accepted that practical completion was reached on 13 July 2012, which is more than six months after 22 August 2011.  In these circumstances, the period of cover is extended by the additional time taken to reach practical completion after the six month period.  In this case, the policy is extended by the period of time between 22 February 2012 and 13 July 2012.  The policy therefore expired on 13 July 2018.

13. Mr Currall became the owner of the property at 7 Erebus Court, Tamborine Mountain on 2 January 2019.  A pre-purchase inspection took place on 26 November 2018.

14. On any view, Mr Currall was not aware of the defects before the policy expired.

15. Clause 4.5(a) requires a claim for a category one defect must be made within three months of the defect first becoming evident, or within such further time as may be allowed.  While Mr Currall made a claim under the statutory insurance scheme within three months of the defect first becoming evident to him, the policy had by that stage expired.

16. In Orlanski v Queensland Building Services Authority, the Tribunal observed:[1]

    In the ordinary course, accepting that liability may exist for defects first becoming evident up until the last day of the six years and six months insurance cover period, claims might be made at latest 3 months after the expiry of the insurance cover. That is, unless the QBSA allows additional time for the making of the claim.

    [1][2011] QCAT 35, [61].

17. In other words, to have any redress under the statutory insurance scheme Mr Currall must have known about the defects within six years and six months period which ended on 13 July 2018.  He did not.

    Conclusion

18. The application to review a decision is dismissed.