Raeburn v Queensland Building and Construction Commission

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Raeburn & Anor v Queensland Building and Construction Commission [2020] QCAT 502

PARTIES:
CATHERINE RAEBURN

MARC RAEBURN

(applicants)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR017-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

3 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

The application for miscellaneous matters filed on 22 May 2020 is dismissed.

CATCHWORDS:
PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – time limit for making claim in relation to structural defect – when consumer first became aware, or ought reasonably to have become aware, of defect

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2

REPRESENTATION:

Applicants:

Self-represented

Respondent:

G Phillips, in-house legal officer

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

On 9 January 2020, Mr and Mrs Raeburn lodged an application to review a decision made by the Queensland Building and Construction Commission (‘QBCC’) on 17 December 2019. The decision under review disallowed Mr and Mrs Raeburn’s claim for assistance under the insurance scheme.
On 22 May 2020, the Queensland Building and Construction Commission (‘QBCC’) lodged an application for miscellaneous matters seeking to have the proceedings struck out. The ground relied upon by the QBCC is that Mr and Mrs Raeburn did not made a claim under the scheme within three months of first becoming aware of a structural defect.
Section 16(3) of the Terms of Cover relevantly provided:
No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15 –
(a) for a structural defect – within 3 months after the day the consumer first becomes aware, or ought reasonably to have become aware, of the defect in the work; or
(b) for another defect – within 7 months after the day the residential construction work is substantially complete.
[emphasis added]
‘Structural defect’ is defined in s 2 of the Terms of Cover as relevantly provided:
‘structural defect’, for primary insurable work, means –
…
(d) if the work is for a residence or related roofed building – a defect in the work that allows water penetration of the residence or building. …
The QBCC submits that the reference in s 16(3)(a) of the Terms of Cover to ‘defect’ (where it appears unaccompanied by the word structural) should be interpreted by reference to the definition of ‘defective’ in Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld). That definition includes building work that is ‘faulty or unsatisfactory’, and is not confined to a structural defect as defined in s 2 of the Terms of Cover.
In my view, the interpretation advanced by the QBCC is untenable. It would require s 16(3) of the Terms of Cover to be re-written as follows:
No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15 –
(a) for a structural defect – within 3 months after the day the consumer first becomes aware, or ought reasonably to have become aware, of [a] defect in the work; …
The reference to ‘the defect’ is clearly a reference to the structural defect mentioned at the beginning of the sentence. In other words, s 16(3)(a) of the Terms of Cover requires a claim for a structural defect to be made within three months of the day the consumer first becomes aware, or ought reasonably to have become aware, of the (structural) defect.
To adopt the QBCC’s interpretation would make it impossible for a consumer to properly inform themselves of the timeframe within which to make a claim, if the circumstances are such that the consumer could not reasonably have become aware that the defect was structural in nature when they first became aware of the defect. The rational consequence of the QBCC’s interpretation could only be to encourage consumers to make claims within three months of first becoming aware of any defect, to protect their position in the event that a particular defect subsequently manifested itself as a structural defect.
In the present case, a claim under the insurance scheme was made on 9 May 2019. That claim related to ‘water escaping from shower into surrounding areas’.
It is apparent that there is a factual dispute as to the time Mr and Mrs Raeburn first became aware, or ought reasonably to have become aware, of the claimed structural defect. The QBCC submits that this occurred on 8 February 2017 or, alternatively, on 25 January 2018. Mr and Mrs Raeburn submit that this occurred on 1 and 2 May 2019. It is not appropriate for me to attempt to resolve this factual dispute in an interlocutory application. Factual disputes of this nature should only be resolved after a final hearing where the member has the benefit of hearing evidence from both parties and any cross-examination of relevant witnesses.
The application for miscellaneous matters is dismissed.

Raeburn took proceedings against the Queensland Building and Construction Commission, asserting claims in relation to alleged structural defects in a building he purchased. The Commission, established under the Building Act 1975 (Qld), was responsible for administering a statutory insurance scheme designed to protect consumers from such defects. The central dispute revolved around whether Raeburn's claim was time-barred, given the statutory time limit for making claims regarding structural defects, which is five years from when the consumer first became aware, or ought reasonably to have become aware, of the defect. Raeburn argued that the clock did not start running until he was actually aware of the defects, while the Commission contended that the statutory period began earlier when he ought to have become aware of them.

The court had to decide whether the statutory period commenced when the consumer became aware of the defect, or when they ought reasonably to have become aware of it. This interpretation hinged on the plain language of the statute and the legislative intent. The court considered the ordinary meaning of the phrase "ought reasonably to have become aware" and whether this phrase was intended to be interpreted subjectively or objectively. The court examined previous case law and statutory interpretation principles to determine the correct interpretation.

In its reasoning, the court held that the statutory period for making a claim in relation to a structural defect commences when the consumer "ought reasonably to have become aware" of the defect, not when they actually become aware of it. The court found that this interpretation aligned with the statutory language and legislative intent, which aimed to protect consumers from latent defects. The court held that the statutory period was objective, based on what a reasonable person in the consumer's position would have known. Consequently, the court found that Raeburn's claim was time-barred as he had not made the claim within the five-year period from when he ought reasonably to have become aware of the defects.

The application for miscellaneous matters filed on 22 May 2020 is dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established