Perry v Queensland Building and Construction Commission [2026] QCATA 23

Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 6, s 1(3), s 64

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 142

Cronin v Queensland Building and Construction Commission [2019] QCAT 14

Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342

Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257

Gebremariam v Queensland Building and Construction Commission [2024] QCAT 411

Interlink Developments Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 480

Khalil v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] HCA 33

Perry v Queensland Building and Construction Commission [2022] QCAT 234

Shi v Migration Agents Registration Authority [2008] HCA 31

Ms HL Lilley, counsel instructed by Norton Rose Fulbright Australia

[1] Mr Perry had work done in July 2018 to replace a section of roof over a 'dance studio' that formed the space between two buildings on his property. The contract was for labour only and provided that Mr Perry was to supply all materials. The quote for the works totalled $7 150.

[2] The QBCC refused Mr Perry's claim for assistance under the Home Warranty Scheme twice, on 21 November 2019 and on internal review, on 13 January 2020. On both occasions cover was refused on the basis the work was excluded by s 67WB(1)(a)(i) of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act').

[3] On 5 February 2020 Mr Perry filed an application in the Tribunal seeking external review of the internal review decision of the QBCC to refuse his claim for insurance.

[4] In or about July 2020 Mr Perry engaged All Seasons Roofing Qld to do work on his roof. All Seasons Roofing Qld invoiced Mr Perry $5 761.80 for this work on 14 July 2020.

[5] On 20 July 2023 the Tribunal, on review, refused cover but for a different reason. The Tribunal ordered as follows:

The respondent's decision of 13 January 2020 is set aside and substituted with a decision to decline the applicant's claim under the Statutory Insurance Scheme on the basis that the applicant failed to obtain written approval from the respondent prior to rectifying the defective work.

[6] On 23 October 2023 Mr Perry filed an application for leave to appeal and/or appeal.

[7] Mr Perry has not addressed the question of leave and has provided only a brief outline of the grounds upon which he seeks leave to appeal. Mr Perry seeks an order setting aside the Tribunal's decision of 20 July 2023 on the following grounds:

(a) The Queensland Building and Construction Commission used an irrelevant section 67WB;

(b) The Queensland Building and Construction Commission incorrectly applied section 64;

(c) The rectification work required has not been undertaken;

(d) It is four years since the defective and incomplete work was reported to the Queensland Building and Construction Commission;

(e) It is three years since the preliminary works was undertaken.

[8] The appeal was conducted on the basis that Mr Perry's appeal grounds are as follows:

(a) Ground One: The Tribunal erred in relying on s 67WB of the QBCC Act.

(b) Ground Two: The Tribunal erred in applying s 64 of Schedule 6 of the Queensland Building and Construction Commission Regulation ('QBCC Regulation').

(c) Ground Three: The rectification work has not been undertaken.

[9] A party may appeal on a question of law without leave, unless the decision is one listed in s 142(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'), neither of which apply here. Generally a party may appeal on a question of fact, or a question of mixed law and fact, only if leave is first obtained.[1]

[10] Ground one involves a question of law as, in effect, Mr Perry submitted that the Tribunal based its decision in relation to s 67WB of the QBCC Act on findings which were not available on the evidence. Leave is not required in respect of this ground.

[11] Ground two involves a question of mixed law and fact. Mr Perry submitted, in effect, that the Tribunal erred in relying on s 64 of Schedule 6 of the QBCC Regulation because it did not cover the nature of the work performed. Ground two involves a question of mixed law and fact. Leave is required in respect of this ground.

[12] Ground three involves a question of fact, that is, whether any rectification work had been done and whether, in any event, Mr Perry had sought and obtained approval for the work. Leave is required in respect of this ground.

[13] In determining whether to grant leave to appeal the Appeal Tribunal considers whether:

(a) there is a reasonably arguable case of error in the primary decision;

(b) there is a reasonable prospect that the applicant will obtain substantive relief;

(c) leave is necessary to correct a substantial injustice caused by some error; and

(d) there is a question of general importance upon which further argument and a decision of an appellant court or tribunal would be to the public advantage.[2]

[14] I will deal with the issue of leave separately in respect of each of the grounds of appeal.

Ground One: The Tribunal erred in relying on s 67WB of the QBCC Act

[15] This appeal ground can be dispensed with quickly. This is because the Tribunal did not rely on s 67WB in making the decision to decline Mr Perry's claim under the statutory insurance scheme. The Tribunal makes clear that its decision was made on the basis that Mr Perry failed to obtain written approval from the respondent prior to rectifying the defective work.

[16] The learned Member at [62] to [63] said as follows:

I am not in a position on the material before me to decide whether or not the claim related to building work to a 'backpacker's accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, lodging house or motel' either at the time the work was carried out or when the claim for assistance was made.

However, even if more evidence was provided to address the issue, it would not be possible to overcome section 64 of the Terms of Cover due to Mr Perry's failure to obtain written approval from the QBCC prior to rectifying the defective work.

[17] I note that the QBCC when it made the original decision to refuse cover and when it confirmed that decision on internal review, relied on s 67WB of the QBCC Act. However, the Tribunal is not confined by the reasons given by the original decision-maker and can make its decision afresh, which is precisely what it did. There is no error in that approach.[3]

[18] This ground is misconceived and, as such, shows no appealable error. As this was a question of mixed law and fact, leave is required to appeal on this ground.[4] For the reasons above, leave is refused.

Ground Two: The Tribunal erred in applying s 64 of Schedule 6 of the QBCC Regulation

[19] Section 64 of Schedule 6 of the QBCC Regulation (that is, the terms of cover) provides:

(1) A consumer for residential construction work is not entitled to claim assistance in relation to the work if the consumer does any of the following without the prior written approval of the commission -

(a) demolishes the built work;

(b) rectifies the work;

(c) reinstates the built work.

[20] Mr Perry submitted that s 64 did not apply because the defective work had still not been rectified and that the work done by the sub-contractor was only preliminary, minor work to try to minimise water ingress and the risk of injury. Further, that the quote from the relevant sub-contractor responsible for that work (All Seasons Roofing Qld Pty Ltd) had been sent to the QBCC along with his application for internal review. Mr Perry submitted that, as he did not receive a response from the QBCC he was entitled to assume the work was 'approved'.

[21] During the hearing, I directed the parties to provide supplementary submissions addressing:

Whether the Member below erred in taking into account the rectification work undertaken by the Applicant between the period of July 2020 and September 2020, or if the Tribunal was limited to considering whether the reviewable decision was the correct and preferable decision at the time it was made.[5]

[22] Counsel for the QBCC provided helpful supplementary submissions addressing this issue to which Mr Perry was given an opportunity to respond. Mr Perry elected not to make any supplementary submissions.

[23] I turn first to the arguments raised by Mr Perry in his appeal submissions in relation to s 64 of Schedule 6 of the QBCC Regulation.

Was there error in the application of s 64 to the facts?

[24] I note the issue as to whether rectification work was in fact undertaken forms the basis of ground three, so I will deal with that issue under that ground. Insofar as Mr Perry submits s 64 could not apply because not all the work was rectified, the submission is rejected. Whether all the rectification is completed is in my view, on the proper interpretation of s 64, irrelevant. The issue was considered in Gebremariam v QBCC,[6] where some, but not all necessary rectification work had been completed without approval. There Member Lumb held:

In my view:

(a) it is plain that the work performed by ALP Building involved the completion of incomplete work at the Applicants' dwelling and, consequently, constituted rectification of the work for the purposes of s 64(1)(b) of Schedule 6;

(b) it is immaterial that the incomplete work was not wholly completed; s 64 applies if a homeowner has commenced to 'rectify' the incomplete work. I consider that the intent of the provision is that no work is to be rectified without the prior written approval of the QBCC. An alternative interpretation could lead to absurd results, for example, a homeowner could complete 99% of the incomplete work without approval yet argue that the work had not been (wholly) rectified.[7]

[25] In relation to Mr Perry's submission that he had notified the QBCC of his intention to have the work completed by including the quote with his application for internal review, this argument was dealt with by the learned Member at [49] to [51]. In summary, the Member found the invoice had been provided with the application for internal review made by Mr Perry on 10 December 2019. Further, that the mere provision of a quotation could not be taken to be a request for approval to undertake the rectification work pursuant to s 64.[8] I see no error in that approach. The QBCC cannot be deemed to have constructive knowledge of a request for consent to perform rectification work simply because a quote with nothing more is submitted with an application for internal review.[9] In any case, I would add that no approval was given.

Relevance of circumstances that occurred after the QBCC refused cover but before the Tribunal's decision was made.

[27] I turn now to consider the issue the subject of the directions made at the conclusion of the hearing.

[28] Generally, the Tribunal in reviewing a decision is required to make a fresh decision based on the facts and law current at the time of the review.[10] The Tribunal's role is to review the actual decision, as opposed to the reasons for it.[11] In this respect, it was open to the Member to rely on different reasons for refusing Mr Perry's claim under the statutory insurance scheme.

[29] In considering what is the correct and preferable decision the Tribunal must address the same question the original decision-maker was required to address.[12] Once the question is properly identified it should be relatively clear which facts may be taken into account in reviewing that decision.[13]

[30] Where the decision under review contains no temporal element, evidence of matters occurring after the original decision may be taken into account by the Tribunal in the process of informing itself. As Keifel J said in Shi:

Cases which state that the Tribunal is not limited to the evidence before the original decision-maker, or available to that person, are to be understood in this light. It is otherwise where the review to be conducted by the Tribunal is limited to deciding the question by reference to a particular point in time.[14]

[31] In Freeman v Secretary, Department of Social Security[15] Davies J emphasised the importance of determining the nature of the decision under review which would, in turn, determine the facts the Tribunal could take into account. For example, in reviewing a decision to cancel a pension, the Tribunal is generally required to determine the question as at the date the original decision-maker cancelled the pension, that is, whether the decision to cancel was the correct and preferable decision when it was made (not at the date of the Tribunal's decision). However, a review of a decision about whether a person is entitled to a pension the position may be different. In that case, the Tribunal might not be limited to facts existing at a particular time, since the entitlement might be a continuing one.

[32] The decision the subject of review by the Member below was whether the decision to disallow Mr Perry's claim under the scheme was the correct or preferable one. The issue is whether that decision, in view of the QBCC Act and Regulation, has a temporal element. The Member below decided it did not. The Member found that Mr Perry had not sought the approval of the QBCC prior to having the rectification work done in circumstances where that the work was done after the QBCC had disallowed the claim.[16] The Member reasoned as follows:

(a) The terms of s 64 do not provide any discretion to allow an insurance claim if work described in the section has been done without prior written approval;

(b) The Tribunal cannot do more than can be done by the original decision-maker;

(c) It is necessary to obtain written approval from the QBCC to carry out rectification after it has disallowed the claim when a review application is on foot because the outcome of the review application might be to set aside that decision and allow the claim. If a claimant has unilaterally undertaken rectification and the claim is allowed, the QBCC will have lost the ability to recover the cost of rectification work from the contractor who failed to comply with the direction to rectify.[17]

[33] Part 1 section 1 of the Terms of Cover provides, relevantly:

(2) 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 incomplete.

(3) However, the assistance provided under part 2 or 3 is subject to -

(a) any limitations stated in the part, including limitations about the time for making a claim; and

(b) the maximum amount of assistance the commission may pay for the work under part 4; and

(c) the general provisions stated in part 5; and

(d) the provisions about claims stated in part 6.

[34] Part 3 is headed Defective work. Section 15 provides that the consumer of the residential construction work is entitled to claim assistance for the reasonable cost of rectification work. Section 16 sets out limits on assistance and provides, relevantly, that a consumer is entitled to claim assistance in relation to a structural defect if the consumer first becomes aware, or ought reasonably to have become aware, of the structural defect within 6 years and 6 months after the cover commencement day for the work. Section 16(3) provides that "no assistance can be given" to the consumer unless a claim is made, for a structural defect, within 3 months after the consumer first becomes aware, or ought reasonably to have become aware, of the defect; or, for another defect, within 7 months after the work is substantially complete.

[35] Part 5 is headed "General Provisions about entitlement to assistance". Division 2 is headed "No entitlement to assistance in particular circumstances". Section 64 (contained within Part 5, Division 2) provides that a consumer is not "entitled to claim assistance" if work is demolished, rectified or reinstated without first obtaining the written approval of the commission.

[36] Although some of the terms of cover use the phrase not "entitled to claim assistance" as opposed to "no assistance can be given", nothing turns on this. The terms of the statutory scheme make plain that cover or assistance will be given provided the homeowner has complied with the Terms of Cover. Those terms clearly include s 64 which provides that there is no cover where rectification work has been performed without the consent of the QBCC.

[37] Section 64 of the Terms of Cover was considered in Cronin v Queensland Building and Construction Commission[18] where some of the rectification work was done before the claim for assistance was made and the balance after the claim but prior to the decision by the QBCC to disallow the claim. In that case the Tribunal affirmed the decision to disallow the claim and, in doing so, held that the work contemplated by s 64 was not limited to work done prior to the submission of a claim and also applied to work done after the initial claim.[19]

[38] Subsequently, in Gebremariam v Queensland Building and Construction Commission[20] the Tribunal relied on s 64 in striking out an application for review of a decision to disallow a claim, on the basis that unapproved rectification work had been performed by the homeowner after the claim had been accepted and a scope of work approved. The loss to complete the work was still to be quantified by a quantity surveyor and therefore the claim was still on foot, so the homeowner was still obliged to comply with s 64 of the Terms of Cover.

[39] In my view, considering the nature of the insurance decision in the context of the statutory scheme, a claim for assistance must be assessed at the time of the Tribunal's decision, in other words, a temporally fluid approach should be applied. The situation can be readily distinguished from the review of a decision to issue a direction to rectify, which does have a temporal element.[21]

[40] I have arrived at that conclusion for the following reasons:

(a) The Terms of Cover, when read as a whole, use the phrases "entitled to claim assistance" (emphasis added) and "no assistance can be given" interchangeably, in other words, that if a person is not entitled to claim assistance, they are not entitled to be given assistance. Section 64 is a precondition to receiving assistance under the scheme, not just a precondition to the making of a claim for assistance.

(b) The terms of s 64 do not provide any discretion to allow an insurance claim if work described in the section has been done without prior written approval. The absence of any discretion in the decision-maker is a strong indicator that the entitlement to assistance must be determined on the evidence at the time the issue of entitlement to assistance is being determined.

(c) Section 64 does not purport to confine the application of the section to a particular point in time. For example, by way of contrast see s 61(1)(c) which imports the time "when a claim for assistance is made".

(d) The few cases which have considered s 64 in the Tribunal in the context of a decision to refuse cover under the scheme have applied a temporally fluid approach.[22]

(e) The cover under the scheme applies for 6 years and 6 months after the work is completed. In this sense, the entitlement is a continuing one, similar to the cases referred to in Freeman about reviewing a person's entitlement to a pension or benefit which is assessed at the time of the Tribunal's decision. Refusing a claim does not mean the cover under the policy is cancelled.

(f) If the consumer applies for review of the insurance decision, the Tribunal's decision is part of an "administrative continuum" and the Tribunal's function is part of that continuum[23] and the Terms of Cover must therefore be adhered to until the Tribunal makes the ultimate determination as to whether assistance under the scheme should be given.

(g) This construction is consistent with the purpose of s 64 which is to deter homeowners from interfering with the QBCC's ability to assess the validity or amount of a claim. When a homeowner rectifies defective work the subject of a claim without prior written approval, the homeowner frustrates the claim as the QBCC is then unable to properly assess the validity or amount of the claim.

(h) Accordingly, the relevant statutory question when reviewing a decision to refuse a claim under the scheme is whether the consumer is entitled to assistance at the time of the Tribunal's decision, not whether the decision to refuse the claim was correct at the time it was made.

[41] It follows, based on the above, that Mr Perry's claim for assistance under the scheme was still afoot by reason of his application for external review. As submitted by the respondent, he did not accept the Decision was correct and maintained the position that he was entitled to the benefit of the scheme. It was therefore incumbent on him to continue to abide by the Terms of Cover, including s 64.

Ground Three: The rectification work has not been undertaken

[42] Mr Perry in his appeal submission prior to the appeal hearing said that having tolerated two and a half years of having to mop up and dry the wet floor, he was fed up with QBCC and he instructed All Seasons Roofing to undertake the rectification. Further, that the work undertaken was not rectification work within the meaning of s 64 as it did not rectify the major defect and the roof trusses were not installed in accordance with the approved building plans and manufacturers specifications.

[43] The QBCC submitted that the only way Mr Perry could have succeeded on this point at the hearing was to satisfy the Tribunal that he did not require approval from the QBCC prior to rectifying the defective work. Mr Perry was not able to do this in the hearing or in the appeal submissions.

[44] I agree with the respondent's submissions in relation to this ground. Mr Perry had the onus of establishing that the work was not rectification work which he has not been able to do.

[45] I reject Mr Perry's submission that the Member below erred in finding rectification work was undertaken. The learned Member was entitled to find, on the material before her, that rectification work to the roof had been undertaken by All Seasons Roofing as evidenced by the invoice dated 14 July 2020 which was put before the Tribunal by Mr Perry.

[46] Further, Mr Perry is not entitled on appeal to raise new arguments about the nature of the work, in particular that it was more in the nature of emergency work which is outside s 64. This argument was considered in Cronin v Queensland Building and Construction Commission[24] which was a case relied upon by the learned Member. There is no mention of the nature of the work being emergency work and outside the scope of s 64 in the material before the learned Member or in her Reasons. The invoice issued to Mr Perry by All Seasons Roofing for $5 761.80 describes the work as:

Remove custom Orb cladding from both sides of gable roof and [re]place with new, including barge flashing.

Replace 7 lm of ridge and scribe.

Remove 8 lm of square gutter to access box gutter, repair and make [go]od.

[Su]pply and install new ridge capping and scribe.

[47] In the absence of any submissions by Mr Perry as to the nature of the work, and considering the work described in the invoice, there is no error in the conclusion reached by the Member that the work was rectification work.

[48] As this ground involves a question of fact, leave is required. Given there is no reasonably arguable case that the Member erred in finding rectification work was undertaken, leave to rely on this ground must be refused.

[49] For the reasons above, leave to appeal is refused in respect of grounds 2 and 3. In respect of ground 1 the appeal is dismissed.

[2] Lida Build Pty Ltd v Miller [2011] QCATA 219, [9].

[3] In Frugtniet v Administrative Decisions Tribunal (Appeal Panel) & Anor [2005] NSWCA 257, [45] the Court of Appeal held that in deciding the correct and preferable decision, the Tribunal must not confine the inquiry 'within the particulars of the reason, ground or matter specified in the original notice or notices.'

[5] Tribunal Directions dated 21 August 2025.

[6] [2024] QCAT 411.

[9] See by analogy Macfie v SGIO (Qld) (1985) 3 ANZIns Cas 60-606.

[11] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [141]- [147] citing Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 429-430.

[12] Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 citing Hospital Benefit Fund of WA Inc v Minister for Health, Housing and Community Services [1992] FCA 599; (1992) 39 FCR 225 at 234.

[15] [1988] FCA 294; (1988) 19 FCR 342 at 345.

[18] [2019] QCAT 14.

[20] [2024] QCAT 411.

[21] See Interlink v Queensland Building and Construction Commission [2020] QCAT 480 at [32] where the statutory question to be answered in a review of a decision to issue a direction to rectify is confined to the time the original decision was made that the building work was defective.

[22] Cronin v Queensland Building and Construction Commission [2019] QCAT 14; Gebremariam v Queensland Building and Construction Commission [2024] QCAT 411.

[23] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250 at [53].

[24] [2019] QCAT 14.