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

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]

Queensland Civil and Administrative Tribunal|2020-12-03

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

[1] 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.
[2] 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.
[3] 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]

[4] '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. ...

[5] 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.
[6] 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; ...

[7] 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.
[8] 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.
[9] 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'.
[10] 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.
[11] The application for miscellaneous matters is dismissed.

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties