Ahmet v Queensland Building and Construction Commission [2022] QCAT 417

Fane v Queensland Building and Construction Commission [2017] QCAT 59

Walker v Queensland Building and Construction Commission [2021] QCAT 32

Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT290

Harley v Department of Justice and Attorney General [2012] QCAT620

Mr McKechnie of Counsel instructed by Norton Rose Fulbright lawyers for Queensland Building and Construction Commission.

Craig Lyall Low (only for 21 September 2022 hearing)

• [1] By Application to review a decision filed 7 February2020 Jessica Ahmet applies to review the Queensland Building and Construction Commission (the Commission ) decision to disallow her claim for defective building work at 32 Thorn St Red Hill under the Queensland Statutory Insurance Scheme because she did not claim within time.
• [2] Ms Ahmet can only apply for assistance under the Queensland Statutory Insurance Scheme for structural defects if a claim is made within three months of the day she became aware or ought reasonably to have become aware of the defect in the work.
• [3] In a review application the Tribunal is tasked with producing the correct and preferable decision by way of a fresh hearing on the merits. It is not necessary for Ms Ahmet to prove an error in the Commission's original decision. The original decision is not presumed correct.[1] Here the Commission's decision is properly reviewable.

• [4] Ms Ahmet purchased 32 Thorn St Red Hill on 25 May 2018.
• [5] On 5 November 2018 Ms Ahmet complained to the Commission about defective renovation work at the property completed by a then licenced builder, Mr Craig Low, prior to Ms Ahmet's purchase in the period December 2017 through May 2018. The complaint was primarily completed by Mr Alistair Cowan, Ms Ahmet's builder/ agent/friend.
• [6] The complaint recorded under the heading, Initial Complaint Items, subheading Date Item Noticed some six items of complaint as at 20 July 2018 as follows:

(a) Kitchen floor - bouncing floorboards. No joist support under floor- dangerous. > > (b) Deck and patios - deck has been built incorrectly -very dangerous- six bolts hold it up. > > (c) Deck and patios- incorrect timber sizes and application (very dangerous). > > (d) Deck and patios- rafters incorrect size (very dangerous). > > (e) Deck and patios- roof held up incorrectly (very dangerous). > > (f) Stairs and steps- incorrectly installed risers, different sizes (very dangerous).

• [7] The complaint then listed some fourteen faults and major defects.
• [8] On 18 February 2019 the Commission's inspector Mr Hulme attended site with an initial defects report being prepared the next day. On 25 February 2019 the Commission issued a direction to rectify (DTR) to Mr Low in respect of non-compliant building work.
• [9] On 8 April 2019 Mr Low not having complied with the Commission's DTR, Ms Ahmet's complaint proceeded as a claim for defective construction work under the Commission's Statutory Insurance Scheme.
• [10] On 1 October 2019 the Commission advised the Home Warranty Scheme claim had been impartially assessed and a decision made. Outcome- a scope of works was approved by the Commission's specialist building inspector to direct rectification work. Steps were set out for the rectification work to get underway. Six complaint items were approved, one was not covered. The Commission utilised Sedgwick Building Consultancy to coordinate/manage rectification work. Following, on 29 October 2019 Sedgwicks advised Ms Ahmet and Mr Cowan that tender report and builders' quotes had been submitted to the Commission for review.
• [11] On 13 November 2019 the Commission's management team requested some further information to assist with the consideration of Ms Ahmet's request for a cash settlement. About this time, according to the Commission, it was discerned or discovered that it had erred in assessing the timeframe from when Ms Ahmet first noted defects (being 6 July 2018) to when Ms Ahmet lodged her complaint on 5 November 2018. Ms Ahmet should have lodged her complaint by 6 October 2018. Such failure did not mean the Commission's decision-making powers were exhausted but rather as part of it's own checks and balances before a cash settlement could be made a file review was to be undertaken. In this instance the Commission concluded the three month time frame had been mistakenly assessed.
• [12] On 19 November 2019 the Commission advised again the Home Warranty Scheme claim had been impartially assessed and a decision made. Outcome-Queensland Home Warranty Scheme unable to provide cover for any of the claims for the reason Ms Ahmet had indicated on her complaint form that she first became aware of the complaint items on 20 July 2018 with the complaint being lodged on 5 November 2018 ie outside the three month notification period for lodgement of any such claim.
• [13] On 16 December 2019 Ms Ahmet applied for an internal review of the decision.
• [14] On 8 January 2020 Mr Cowan attended the Commission's premises. He provided a Statutory declaration attaching a timeline of events declared that day. In that Declaration he stated he incorrectly filled out dates that did not reflect exact dates all defects were noticed. The dates recorded in the initial complaint were the dates when on site he noticed poor workmanship not the dates listed defects were discovered.
• [15] However, in his own timeline, Mr Cowan states he discussed the matter with Ms Ahmet on Sunday 22 July 2018. Then on 23 July 2018 Mr Cowan asked staff at the Commission's head office the correct procedure for dealing with the matter.
• [16] Then on 24 July 2018 Mr Cowan arranged to meet the certifier, Mr Chris Easton, on site. There he obtained the builder's name and number.
• [17] Then on 25 July 2018 Mr Cowan met Craig Low on site to discuss defects and faulty workmanship and the tidying up of unfinished work.
• [18] On 28 July 2018 Craig Low said he would fix basic defects
• [19] On 30 July 2018 Mr Cowan emailed Mr Low for details of works he would undertake and a time frame.
• [20] On 6 August 2018 Mr Low advised he would only be doing tidying up.
• [21] On 7 August 2018 AMA Engineers agreed to come on site. More defects were identified. The engineer stated he believed the rear deck and front stairs were unsafe.
• [22] Mr Cowan said he and Ms Ahmet, until that day, were unaware that the defects:

(a) adversely affected the structural performance of the building > > (b) adversely affected health and safety > > (c) adversely affected function > > (d) allowed water penetration.

• [23] Thereafter from 8 August 2018 through 5 November 2018 Mr Cowan communicated on Ms Ahmet's behalf with the engineer, the builder and the certifier without any progress of consequence.

• [24] There are some conclusions that can readily be drawn at this point. Mr Cowan is a licensed builder - low rise with years of experience. In Ms Ahmet's complaint to the Commission he, effectively on Ms Ahmet's behalf, identifies six defects clearly structural in nature and dangerous or very dangerous as well as fourteen additional defects. Those initial six defects are clearly identified and articulated well in short form and compiled in early November 2018 only some four months after identification. In that relatively short time span it is unlikely he could be so mistaken dating his observations. Moreover, there is no mention in the complaint of any engineer. Mr Cowan was, for the purposes of the complaint, clearly relying on his own observations.
• [25] In his own material Mr Cowan states when AMA Engineers came on site on 7 August 2018 to inspect and assess the engineer believed the rear deck and front stairs were unsafe. Unsurprisingly that accords with a number of Mr Cowans own observations of 20 July 2018 recited in the initial complaint.
• [26] The Tribunal considers Mr Cowans latter-day reduction of observations of 20 July 2018 to nothing but noting poor workmanship, based on incorrect filling out of dates, is directed more, if not entirely, to bringing the complaint within the three month period for an insurance claim lodgement.
• [27] Continuing with the chronology then, on 13 January 2020, the Commission issued a decision notice whereby it disallowed Ms Ahmet's claim under the Statutory Insurance Scheme. Reasons were given. Section 16 (3), Part 3, Schedule 6 of the QBCC Regulation 2018 provides under the heading Limits of Assistance:

No assistance can be given to the consumer unless the consumer makes a claim mentioned in Section 15-

(a) For a structural defect-within three months after the day the consumer first becomes aware, or ought reasonably to have become aware of the defect in the work.

• [28] There is no discretion to extend the time limit in Section 16 or elsewhere.
• [29] Estoppel was raised by Ms Ahmet the argument being that the decision to allow the claim initially on 1 October 2019 could not or should not have been further reviewed leading to a different decision on 19 November 2019. However, the Commissions change of position on the claim was never challenged. Even if it was there was no evidence of any detriment, delay or obstruction occasioning loss in that period. The subject matter of this application is the Commission's decision of 13 January 2020 to disallow the claim.

Queensland Building and Construction Commission's position

• [30] At the request of Mr Cowan and in his presence EL Consulting Engineers (EL) in the person of Mr Manwin together with certifier Chris Easton attended site on 6 July 2018. EL considered the building addition had been certified with obvious defects with unacceptable quality of work by a licenced builder. Major defects were identified compiled into a list, fourteen in all. These fourteen major defects are those recited in the complaint of 5 November 2018, described as faults and major defects and referred to in a report by EL dated 12 February 2019.
• [31] A statement by Christopher James O'Shannessy a Commission Senior Building Inspector dated 6 July 2022 considered the complaint, EL'S report dated 12 February 2019 and the Commissions own inspection report of 19 February 2019. In particular the list of defects identified in EL'S report of 12 February2019 are those defects discussed with Mr Cowan at the time of the site inspection on 6 July 2018. Mr O'Shannessy considered those to be obvious structural defects. He stated he would have expected any competent builder holding a builder - low rise Commission licence to be able to identify such defects on sight. He was not required to be cross examined at hearing.
• [32] EL's report of 12 February 2019 makes it clear that Ms Ahmet through Mr Cowan was aware of defects on 6 July 2018, well prior in any event to 20 July 2018. That being so, the Statutory insurance claim was out of time, either way, with the complaint period expiring on the 6 October 2018. It was contended by the Commission that Schedule 6 Section 16 (3) of the QBCC Regulation did not require the nature of the defect, that is, whether a defect is a structural defect to be known before the three month complaint period begins.

• [33] In Fane v Queensland Building and Construction Commission, Member Hughes observed that Mr Fane as homeowner, had an obligation to act in his own best interests and not wait until the defect became more pronounced before acting.[2]
• [34] Here Mr Cowan, as Ms Ahmet's builder/agent was aware of the defects at the premises or ought reasonably to have been aware, given the attendance of EL on 6 July 2018 and that firm's identification of structural defects at that time. The Tribunal concludes that Mr Cowen in his capacity as a builder was aware or should have been aware of structural defects as of 6 July 2018.
• [35] In Jackson & Ors v Queensland Building and Construction Commission, Member Olding stated, referring to a similar provision, in the Statutory Insurance Scheme at that time

I do not take the clause to require the precise nature of the defect to be evident. The policy would be practically unworkable if the time for lay consumers to exercise their rights were to run from the time the technical nature of a defect became evident[3].

• [36] Here Ms Ahmet did not act in her own best interests. If she had, she would have claimed within three months of 6 July 2018. She did not.
• [37] Nor was it ever necessary that the precise nature of the defect be evident. It is a case of awareness. Nor is it a pre-requisite that the cause of any such defect be identified. The bar is set low. There is no requirement for any technical expertise[4]. It is not a case of waiting for a defect to become more pronounced. From the moment there is an awareness of a defect time runs.
• [38] The time for lodgement of a Home Warranty Insurance claim is short and strict, arguably perhaps unreasonably so. The consequences of such a short time frame were lamented by Member Paratz in his decision in Walker v Queensland Building and Construction Commission[5]. Here the consequence, as there, is that the decision of the Commission must be confirmed.

1. The decision of the Queensland Building and Construction Commission, made on 13 January 2020 to disallow the claim, under the Queensland Home Warranty Scheme is confirmed.

[1] Harley v Department of Justice and Attorney General [2012] QCAT 620 at [8], citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 at [9].

[2] Fane v Queensland Building and Construction Commission [2017] QCAT 59 at [42].

[3] Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT290 at [32].

[5] Walker v Queensland Building and Construction Commission [2021] QCAT32 at [133] to [138].