Lankheet v Queensland Building and Construction Commission [2025] QCAT 574

[2] This Tribunal has jurisdiction by way of the operation of ss 86(1)(h), 86E(b) and 87 of the QBCC Act, and s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the 'QCAT Act'). Specifically, the Respondent has identified (and the Tribunal accepts) the following provisions as enlivening jurisdiction:

(a) pursuant to section 17 of the QCAT Act, the Tribunal's review jurisdiction is the jurisdiction conferred on it by an enabling Act to review a decision made or taken to have been made by another entity under that Act;

(b) section 87 of the QBCC Act confers jurisdiction on the Tribunal to review a "reviewable decision" of the Respondent;

(c) a decision to disallow a claim under the statutory insurance scheme wholly or in part is a "reviewable decision" under section 86(1)(h) of the QBCC Act; and

(d) section 86E(b) of the QBCC Act further confirms that a "reviewable decision" for an external review also includes an "internal review decision".

[3] On or about 21 October 2021, the Applicant entered into a domestic construction contract with Dixonbuild Pty Ltd, trading as Dixon Homes (the 'Contractor') to construct a dwelling at Lot 96 Cascades Lane, Greenlands, in the State of Queensland (the 'Property') (and the 'Contract'). Work under the Contract commenced on or about 6 January 2022.

[4] On 19 April 2023, the Contractor issued a Form 21 - Final Inspection Certificate.

[5] On 4 August 2023, the Respondent received a "Residential and Commercial Construction Work Complaint Form" and the relevant supporting attachments from the Applicant, advising or informing the Respondent of 30 complaint items (the 'Complaint Items') in relation to the work carried out by the Contractor at the Property.

[6] On 13 September 2023, the Respondent asked the Applicant to complete the dates the Complaint Items were first noticed in order to progress his complaint, and on 15 September 2023, the Applicant provided the dates that all Complaint Items were first noticed.

[7] On 7 February 2024, Mr Rodney Turkington, a building inspector in the employ of the Respondent, attended the Property and performed an initial inspection of the Complaint Items (the 'Initial Inspection'). On 19 June 2024, following the Initial Inspection, a report was prepared by the Respondent which outlined the Respondent's findings in relation to the 30 Complaint Items (the 'Initial Inspection Report'). That Initial Inspection Report identified that Complaint Items 4, 15, 16 and 17 were non-structural defects, and a direction to rectify would be issued to the Contractor.

[8] On 15 July 2024, the Respondent issued a Direction to Rectify or Remedy. That Direction was numbered No. 0112813 (the 'DTR'). The DTR was issued to the Contractor for Complaint Item 4 ('DTR Item 1'), Complaint Item 15 ('DTR Item 2'), complaint Item 16 ('DTR Item 3'), and Complaint Item 17 ('DTR Item 4').

[9] The Tribunal was informed that on 29 August 2024, the Respondent:

(a) issued what was described as a "work not fixed or completed" notice, which outlined that the Contractor had not satisfactorily rectified DTR Items 1, 2, 3 and 4; and

(b) advised the Applicant that the case would be assessed to determine if he was entitled to insurance assistance under the statutory insurance scheme (the 'Scheme'), given the Contractor had not complied with the DTR.

[10] The Tribunal was further informed that on 24 September 2024, the Respondent and the Applicant exchanged emails to the effect that:

(a) the Respondent requested confirmation of whether payments to be made by the Applicant under the Contract had been completed, together with evidence of the Practical Completion invoice and payment, in order to proceed with the insurance assessment; and

(b) the Applicant responded advising the Respondent that the Applicant took possession of the Property on 28 April 2023 and enclosed a letter from the Contractor, which included a signed Tax Invoice for the final completion stage and an RTGS Request Form.

[11] Further to this, three days later, on 27 September 2024, the Applicant informed the Respondent that the Contractor had not issued a receipt for the payment request but had instead provided the certificate of occupancy, a certificate issued after full payment has been received.

[12] On 11 October 2024, the Respondent advised the Applicant of its decision to wholly disallow the Applicant's claim under the Scheme (the 'Original Insurance Decision').

[13] On 20 October 2024, the Applicant sent an email to the Respondent expressing disappointment with the outcome of the Original Insurance Decision, saying that:

These directions included that the QBCC could not assist me until practical completion and the contract is paid out. So after doing exactly what I was advised to do by yourselves it appears I should have not noticed the defects until after the works were substantially completed and not given the builder the opportunity to fix the defects.

[14] Consequently, on 7 November 2024 the Applicant lodged an internal review application with the Respondent, seeking the review of the Original Insurance Decision as it related to Complaint Items 4, 15, 16 and 17 (the 'Internal Review Application').

[15] On 18 December 2024, the Respondent issued the Internal Review Decision (which was dated 17 December 2024), which confirmed the Original Insurance Decision to wholly disallow the Applicant's claim under the Scheme (the 'Decision').

[16] The Respondent says that the basis for the Decision was that Complaint Items 4, 15, 16 and 17 were first noticed by the Applicant prior to the works becoming "substantially complete".

[17] At the time the Contract was entered, the QBCC Act (current as at 1 May 2021) and the Queensland Building and Construction Commission Regulation 2018 (Qld) (the 'QBCC Regulation') (current as at 27 September 2021) were in force. They are the legislative enactments applicable to this dispute.

[18] Part 5 of the QBCC Act establishes the statutory insurance scheme. Section 67Y of the QBCC Act provides that the terms of cover under which a person is entitled to assistance under the Scheme are prescribed by regulation. Relevant to this dispute, the terms of cover for the Scheme, as provided for by Schedule 6 of the QBCC Regulation (the 'Terms of Cover'), are applicable.

[19] Section 1(2) of the Terms of Cover state that:

Part 3 provides for the assistance a consumer for residential construction work is entitled to claim under the statutory insurance scheme if the work is defective.

[20] Section 14 of the Terms of Cover further states that:

This part applies to residential construction work that is primary insurable work if it is defective (defective work).

[21] Section 15 of the Terms of Cover provides that a consumer is entitled to claim assistance for the reasonable cost of rectifying the defective work and any other building work reasonably required to be carried out to a relevant building as a consequence of the defective work.

[22] Section 15 is qualified by the operation of s 16; it acts as a carve out of the s 15 entitlement. By operation of s 16 of the Terms of Cover, a consumer's entitlement to claim assistance for non-structural defects is limited. Section 16 (of Schedule 6) provides, in part:

(2) Also, a consumer is entitled to claim assistance mentioned in section 15 in relation to a defect, other than a structural defect, in the residential construction work if the consumer first becomes aware, or ought reasonably to have become aware, of the defect within 6 months after the day the work is substantially complete.

(3) No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15 -

(a) ...

(b) for another defect - within 7 months after the day the residential construction work is substantially complete.

[23] Furthermore, s 59 (of Schedule 6) provides that:

59 Defect in work apparent before work substantially complete

A consumer for residential construction work is not entitled to claim assistance in relation to a defect in the work if -

(a) the residential construction work is substantially complete; and

(b) the defect was apparent, or ought reasonably to have been apparent, to the consumer before the work was substantially complete.

[24] Against this legislative backdrop, in assessing whether the Terms of Cover have been satisfied, so as to permit a claim for defective works under the Scheme, the issues (expressed as questions) for this Tribunal to determine (by way of a fresh hearing on the merits, pursuant to s 20 of the QCAT Act) are:

(a) was the work "primary insurable work" pursuant to section 67WC of the QBCC Act;

(b) was the work "defective work" within part 3 of the Terms of Cover;

(c) was the defective work structural or non-structural; and

(d) are there are any limitations to the claim under the Terms of Cover, including:

(i) for a defect other than a structural defect, whether the consumer first becomes aware, or ought reasonably to have become aware, of the defect within six months after the day the work is substantially complete, in accordance with section 16(2) of the Terms of Cover;

(ii) for a defect other than a structural defect, whether the consumer makes a claim within seven months after the day the residential construction work is substantially complete, in accordance with section 16(3)(b) of the Terms of Cover; and

(iii) if the residential construction work is substantially complete and the defect was apparent, or ought reasonably to have been apparent, to the consumer before the work was substantially complete, as set out in section 59 of the Terms of Cover.

[25] In relation to Complaint Items 4, 15, 16 and 17, the Respondent submitted (and this Tribunal accepts) that it is not contentious that:

(a) the work was "primary insurable work";

(b) the work was non-structural "defective work";

(c) the work was "substantially complete"; and

(d) the Applicant made the claim within seven months after the day the residential construction work was "substantially complete".

[26] Therefore, as a consequence of these findings above, the remaining issues to be determined by the Tribunal (again, expressed as questions) are:

(a) when was the work "substantially complete";

(b) was the defect apparent, or ought reasonably to have been apparent, to the Applicant before the work was "substantially complete".

[27] This Tribunal now answers those two questions.

When were the works "substantially complete"?

[28] Section 2 (of Schedule 6) of the Terms of Cover defines "substantially complete", for residential work as meaning at least one of the following applies in relation to the work:

(a) the final payment under the contract for the work is made;

(b) if the residential construction work is for the erection or construction of a residence - the residence is occupied;

(c) the built work is able to be used for its intended purpose despite the work not complying with the contract because of a cosmetic difference.

[29] On 19 April 2023, the Contractor issued a tax invoice to the Applicant for the "Practical Completion Progress Payment" (the 'Final Invoice').

[30] In the Applicant's Submissions (filed on 10 October 2025) the Applicant conceded that he "paid out the contract". However, as the Respondent concedes in its submissions, there is no evidence before the Tribunal of when that payment for the Final Invoice was made. The Applicant relevantly advised the Respondent on 27 September 2024 that the Contractor never provided a receipt for payment, and no other evidence has been filed by the Applicant in this these proceeding to confirm when payment was made.

[31] Therefore, in the absence of such evidence to satisfy the first limb of the definition of "substantially complete" in s 2 of the Terms of Cover, it is necessary to consider when the residence was occupied for the purposes of the second limb of that definition.

[32] The Applicant advised the Respondent by email that he took possession of the Property on 28 April 2023. The Respondent therefore submitted that the date the works were "substantially complete" (pursuant to s 2 of the Terms of Cover), was 28 April 2023. The Tribunal finds that the date upon which the works were substantially complete is, and was, 28 April 2023.

Were the defects apparent to the Applicant before the work was "substantially complete"?

[33] The evidence is that the Applicant advised the Respondent by email on 15 September 2024 that he (the Applicant) first became aware of the defects in the works on the following dates:

(a) Complaint Item 4 on 27 March 2023;

(b) Complaint Item 15 on 15 November 2022;

(c) Complaint Item 16 on 15 November 2022; and

(d) Complaint Item 17 on 15 November 2022.

[34] The Respondent submitted that (as a consequence of the admissions identified above) the Applicant became aware of the defects on 15 November 2022 and 27 March 2023, respectively.

[35] As has already be found, the works were substantially complete by 28 April 2023.

[36] As 15 November 2022 and 27 March 2023 bot pre-date 28 April 2023, it is apparent that these defects (being Complaint Items 4, 15, 16 and 17) were apparent to the Applicant prior to the substantial completion of the works. The Tribunal makes this finding. And as a consequence of this finding the Tribunal also finds that the Applicant is not entitled to assistance under the Scheme, pursuant to section 59 of the Terms of Cover.

[37] Furthermore (as the Respondent noted in paragraph 6.5 of its submissions), in the Applicant's Submissions he also concedes that he "observed these defects before completion". This admission against interest must have determinative effect.

[38] In arriving at these findings, the Tribunal has had regard to the decision of Tyas v Queensland Building and Construction Commission & Anor [2025] QCAT 278, in which Member Bertelsen considered s 59 and the Terms of Cover. Specifically, this Tribunal has been guided by the observations made by the presiding member in that decision, set out in paragraphs [26] and [30].

[39] In his application, the Applicant included the following reasoning as to why he considers the Decision is wrong, or not properly made:

I was previously advised by the QBCC (Recorded conversation) that they could take no action until handover had taken place and the contract was paid out. As a result we took possession of the house as advised believing the issues could then be remedied. So it would seem had I not complied with QBCC directions the insurance would have been paid.

[40] In his written submissions, the Applicant further states that:

I was informed by the QBCC that they could not assist me until contract completion backed up by Volume 1 Para 3.46 B subparagraph2. Therefore as per their instructions I arranged for practical completion and paid out the contract.

I was then given a decision notice which stated that the insurance would not cover me due to the defects being observed prior to paying out the contract. / lived on the block naturally I observed these defects before completion.

So, had I not complied with the directions of the QBCC the insurance would have covered me.

[41] As far as the Tribunal can ascertain, there is no evidence before it of the Respondent providing the Applicant with any advice to the effect that assistance could not be provided under the Scheme until practical completion had been achieved and the Contract was paid out.

[42] The reference to correspondence identified at paragraph 3.46(b)(ii) of the statement of reasons is an email from the Respondent to the Applicant, dated 24 September 2024, requesting the following information to complete its insurance assessment:

(a) confirmation that all payments under the Contract had been completed;

(b) evidence of the Practical Completion invoice and payment; and

(c) confirmation of what date the Applicant took possession of the Property.

[43] This correspondence, or documentation, does not amount to the Applicant being provided with any that might be described as advice.

[44] Again, in his written submissions before this Tribunal, the Applicant makes the following assertion:

I was given legal advice by a lawyer and the QBCC that before the QBCC could take action that the build had to be completed and the contract paid out. As a result I did as advised and accepted the house and paid out the contract expecting something could then be done. Then I find out because I did this I was not eligible to make a claim.

[45] As to the legal advice that the Applicant was given by a lawyer (presumably his own lawyer), that is a matter between him and his lawyer. The "advice" that the Applicant received from the Respondent was procedural in nature, as the statutory agency is entitled and expected to give to members of the public. It is not "legal advice" in the sense that the Applicant is receiving professional legal advice that he is entitled to rely upon. As to the assertion "I did as advised"; this is an unfair characterisation of what occurred. As set out above, the Respondent has sought certain information from the Applicant. The Respondent has not "advised" the Applicant to take any course of action; nor has the Respondent "advised" the Applicant to take any course of action.

[46] Furthermore, other than these assertions in the application, and in the Applicant's written submissions, this Tribunal has not been provided with any other testimony, or detail, as to how the Applicant says that he was, in essence, mislead into relying upon the alleged legal advice.

[47] There is no merit in the Applicant's argument.

[48] This Tribunal is a creature of statute. The Tribunal is given original, appellate and review jurisdiction. In exercising its review jurisdiction, the Tribunal is required (by subs 20(1) of the QCAT Act) to arrive at the "correct and preferable decision". The correct and preferrable decision means that that Tribunal must correct any jurisdictional errors, and arrive at a meritorious decision, having regard to the subject-matter being reviewed. Pursuant to subs 19(a) of the QCAT Act, this Tribunal must exercise its review jurisdiction in accordance with both the QCAT Act, and "the enabling Act under which the reviewable decision being reviewed was made".

[49] In this case, the enabling Act under which the reviewable decision being reviewed was the QBCC Act. Therefore, this Tribunal was required to arrive at the correct and preferrable decision under the QBCC Act, the QBCC Regulation, and the Scheme.

[50] The Terms of Cover provide for a very specific, and precisely drawn line between when entitlement under ss 15 and 16 of the QBCC Act for a defect is covered, and when it is not covered.

[51] As unsatisfactory or unjust as it might seem to the Applicant, this Tribunal is simply not at liberty to apply a free-standing and ill-defined fairness standard which is untethered to the provisions of the QBCC Act.

[53] The Tribunal has been greatly assisted by the written submissions filed by the parties, and thanks the parties for the provision of their submissions.

1. The application to review a decision, filed by the applicant on 14 January 2025, is dismissed.