Appleton v Queensland Building and Construction Commission [2026] QCAT 260

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Appleton v Queensland Building and Construction Commission [2026] QCAT 260 PARTIES: NICOLE AND ROHAN APPLETON (Joint applicants) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (Respondent) APPLICATION NO/S: GAR255-25 MATTER TYPE: General administrative review matters DELIVERED ON: 15 June 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member White ORDERS: The order of the Tribunal is that the decision of the Queensland Building and Construction Commission dated 18 March 2025 to wholly disallow a claim under the Statutory Insurance Scheme is confirmed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant sought external review of a decision in relation to the Home Warranty Insurance Scheme – whether Applicants eligible to claim under the Scheme – whether defective building works are structural defects – whether claim lodged within 3 months of becoming aware of defect Building Act 1975, s 12 Queensland Building and Construction Commission Act 2000 s 67X, s 67Y, s 69I, s 87 Queensland Building and Construction Commission Regulation 2018, schedule 6, s 14, s 15, s16 Queensland Civil and Administrative Tribunal Act 2009, s 20 Ahmet v Queensland Building and Construction Commission [2022] QCAT 417 Jackson & Ors v Queensland Building and Construction Commission [2018] QCAT 290 Lankheet v Queensland Building and Construction Commission [2025] QCAT 574 -- 1 of 12 -- 2 Walker v Queensland Building and Construction Commission [2021] QCAT 32 APPEARANCES & REPRESENTATION: 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 [1] This is an application by Nicole and Rohan Appleton (hereafter ‘the Applicants’) seeking external review of the internal review decision of a Senior Review Officer, from the Queensland Building and Construction Commission (hereafter ‘the QBCC’), dated 18 March 2025, to wholly disallow the Applicants’ claim for assistance under the statutory insurance scheme with respect to building work at Lot 14, 1 Picnic Street, Picnic Bay on Magnetic Island. [2] The statutory insurance scheme is an insurance scheme established by section 67X of the Queensland Building and Construction Commission Act 1991 (Qld) (the ‘QBCC Act’). Pursuant to section 25 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (the ‘QBCC Regulation’), the name of the Scheme is the Queensland Home Warranty Scheme. Jurisdiction of the Tribunal and powers on review [3] On 17 January 2025 the QBCC Assessment Officer, Mr Lou, made the initial decision to disallow a claim made by the Applicants under the Queensland Home Warranty Scheme. The Applicants had made the claim in their capacity as a ‘consumer’ under the QBCC Act. The term ‘consumer’ is defined in section 67WA of the QBCC Act as “for residential construction work – (a) means a person who contracts with a licensed contractor to carry out the work …”. The Applicants had jointly entered into a contract for residential construction work in December 2021 with a licensed contractor. Consequently, they are jointly the ‘consumer’ in this matter. [4] Mr Lou’s decision was a reviewable decision pursuant to section 86(1)(h) of the QBCC Act. Dissatisfied with that decision, the Applicants sought an internal review. Since section 86A of the QBCC Act prescribed that both Nicole and Rohan Appleton were entitled to be given a notice of a reviewable decision (as they were jointly ‘the consumer’) they were jointly entitled to seek an internal review. The internal review decision was finalised on 18 March 2025. The Applicants then applied for external review. [5] For external review purposes a reviewable decision is defined in section 86E of the QBCC Act as an internal review decision. [6] Section 17(1) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’) authorises the Queensland Civil and Administrative Tribunal (‘the Tribunal’) to review a reviewable decision if an enabling Act confers the power to review on the Tribunal. Section 6(2) of the QCAT Act defines an enabling Act as “an Act, other than this Act, that confers original, review or appeal jurisdiction on the tribunal”. [7] Section 87 of the QBCC Act states: -- 2 of 12 -- 3 a person affected by a reviewable decision of the commission may apply, as provided under the QCAT Act, to the tribunal for a review of the decision. [8] For completeness, a reference to a singular ‘person’ in section 87 of the QBCC Act is taken to include joint applicants. [9] Hence, the Tribunal has jurisdiction to review the decision. [10] Pursuant to section 20 of the QCAT Act, the purpose of the review of a reviewable decision is to produce the correct and preferable decision. The Tribunal must hear and decide a review of the reviewable decision by way of a fresh hearing on the merits. [11] Pursuant to section 24 of the QCAT Act, in a proceeding for a review of a reviewable decision, the tribunal may: (a) Confirm or amend the decision; or (b) Set aside the decision and substitute its own decision; or (c) Set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions of the tribunal considers appropriate. [12] Pursuant to section 32(2) of the QCAT Act, this matter has proceeded entirely on the basis of documents filed in the Tribunal (which includes an audio recording), without the parties or witnesses appearing at a hearing in person. Background and Evidence [13] In 2021, the Applicants resided in Victoria. They had engaged Counterpoint Architecture to design a home for them at Lot 14, 1 Picnic Street, Picnic Bay on Magnetic Island. The photos provided from a QBCC inspection show that it is an impressive site for a residential dwelling. According to the emails on the Tribunal’s file, Mark Kennedy and Zammi Rohan were the Directors of Counterpoint Architecture and Jun Joo was an architect who was also working on the project. In addition, the Applicants engaged Northern Consulting Engineers (NCE) and were dealing with Michael Burry from NCE. The Project Manager (for the initial stages, at least) was Aaron Mendo, from DM Group. [14] On 23 December 2021 the Applicants entered into an HIA Queensland Domestic Construction Cost Plus Contract with Adam John MacPherson (Builder’s licence 1181776). He operated under the name of AMC Builders. As described at Item 8 of the contract, the building works were for “all earthworks, foundations, concrete work and steel framing for the new home as per plans provided by Counterpoint Architecture” and it also included preparation for the pool. Item 12 stated that practical completion was 160 days after commencement, subject to Clause 16 (which addressed delays and extensions of time). Item 13 stated that the anticipated start date was 7 February 2022. [15] On 10 January 2022, a home warranty insurance policy for the building work for a total contract value of $2,100,000 (policy number 014367296) was taken out. [16] It appears that work commenced on the site in January 2022 and continued into 2023. [17] The issue for consideration by the Tribunal concerns the footings that were constructed in mid-2023. -- 3 of 12 -- 4 [18] Emails to and from the Applicants, and their architects, engineers, and project manager and builder, from mid to late 2023 have been filed in the Tribunal. That email correspondence is relevant to establishing the factual matrix in this matter. [19] Relevantly, on Thursday 29 June 2023 Mr Joo wrote to Mr Mendo and Mr Burry and stated that he had been advised by AMC that the final footings would be poured “next Tuesday, and they’ll be 3D scanning late next week”. [20] However, it appears that the work did not occur as expected. On 20 July 2023 Mr Mendo from DM Group sent an email to Mr MacPherson and asked, “Just checking where you are at with pouring the footings and getting the HD bolts sets & RLs surveyed?”. No response from Mr MacPherson has been provided to the Tribunal. [21] On 15 August 2023 Mr Appleton sent an email to Mark Kennedy and Zammi Rohan from Counterpoint Architecture stating, “I just rang Brazier Motti as I can’t get hold of Adam. They sent files to Adam last Friday 11th . Also just called Aaron Mendo at DM Group and he advised some major issues with the H.D. Bolts and had spoken to you.” [22] In response, later in the day on 15 August 2023, Zammi Rohan replied to Mr Appleton (copying in Mark Kennedy and Jun Joo) stating “Yes, it seems there may be some issues with what has been constructed. “Aaron has informed us of some errors that have been identified with as- constructed setouts of the HD bolts. We have been coordinating with Aaron to overlay DM Group setout drawings over our architectural drawings to check that is all okay. This all seems to be correct and consistent. So we are now trying to establish where the errors are and how this has come about and need to verify that the recent survey is correct and no errors with the data provided. We will respond with more info shortly.” [23] On 25 August 2023, Mr Joo sent an email with the subject “Appleton Residence Footing Update” to Mr MacPherson and Mr Burry, stating “Just seeking an update on this please. Could you outline what has been done this week/will be done next week for me to update the client”. [24] On 4 September 2023, Mr Burry from NCE sent an email to the architects in which he proposed preliminary rectification resolutions to a number of the bolt groups. He attached some plans, which referred to M20 Chemset Anchors and Ramset Chemset 801/502 or equivalent to be used. [25] At 5:38pm on 27 September 2023, Mr Burry sent an email to Mr Joo and Mr MacPherson stating, “Hi Jun & Adam, Following on for the site inspection, please find attached updated details which addresses the following: • The footings which were significantly offset. These require a footing extension; the location and detailing of the extension can be found in the attached. These footings have been clouded on the base plate rectification plan. • Where the footings have been poured too high in the garage alternative detail has been provided in the attached. -- 4 of 12 -- 5 To move forward from here following is required: • Footing Extensions to be provided as detailed and inspected • Where the footing HD’s have options, the selection option will need to be decided. • Geotech engineer to confirm suitability where HD’s directly fixed to rock. If you have any questions, please let me know.” [26] At 6:04pm on 27 September 2023, Mr Kennedy sent an email to Mr MacPherson, Mr Appleton, Zammi Rohan and Mr Joo, stating: “Hi Adam, Regarding the additional footing rectification methods provided by NCE below, could you please confirm your proposed timing for completing all of these, as well as the proposed program for re-surveying the footings/completing the shop drawing and the steel fabrication and installation.” [27] Nothing substantial occurred in response. The Notice to Remedy Breach, sent by Mr Appleton on or about 7 May 2024 (the document states 2026 which must be a typo) states that no works had been undertaken on the site since September 2023. [28] However, on 2 November 2023, Mr Mendo sent another email to Mr Joo, and Mr Burry, and copied in Mr Appleton, Mr MacPherson and Daniel Moore (from DM Group) stating, “Michael, Can you confirm final instructions for correcting hold down bolts please.” [29] Mr Burry replied on 3 November 2023 attaching “the updated requirements regarding the hold downs and base plates”. [30] On 12 December 2023, Mr MacPherson sent an email to Mr Appleton setting out an updated Construction Timeline including that Steel Fabrication and advised that installation would commence from 16 January 2024 and last 56 days. [31] On 9 May 2024, the Applicants (through their solicitors) sent a breach notice to Mr MacPherson. [32] On 22 May 2024, the Applicants sent a termination notice to Mr MacPherson. [33] On 23 July 2024, the QBCC received a non-completion claim from the Applicants. [34] On 29 July 2024, Ms Godfrey from the QBCC completed a Claim Assessment. [35] On 8 August 2024, Ms Godrey sent her decision to refuse the non-completion claim. [36] By 28 August 2024, a defective work complaint had been made to the QBCC and was being assessed by Ms Lorger. [37] On 4 November 2024, Peter Auditore, an inspector from the QBCC, conducted an inspection at the site. Mr Auditore was accompanied by Mark Kennedy. An audio recording was made during the site inspection (and provided to the Tribunal). Photographs were also taken which showed the footings and retaining walls. In addition to what Mr Auditore stated in the audio recording, he also wrote a Report, entitled, “Resolution Services – Initial Inspection Report” which was dated 7 November 2024. Mr Auditore’s expertise as a building inspector is not in dispute. The -- 5 of 12 -- 6 Tribunal accepts his observations and conclusions as accurate and reliable. He reported that, Based upon the information provided to the QBCC from the Owner, it has been determined that the Contractor has carried out structural defective building work which is considered faulty or unsatisfactory. As a result, the Contractor has compromised some significant construction issues in relation to the proposed new dwelling build. The owner has provided documentation from the design structural engineer on the rectification method to be completed to the ‘as constructed’ concrete foundations and hold down bolts in order for the proposed new dwelling build to comply with the relevant Australian Standards and the engineer’s original design criteria. [38] It is not in dispute by any party that the footings and the hold down (HD) bolts were not built according to the engineering and architectural plans. Legislative Framework [39] At the time that the Contract was entered, the QBCC Act (current as of 24 November 2021) and the QBCC Regulation (current as of 10 December 2021) were in force. They are the legislative enactments applicable to this matter. [40] As noted, the Applicants have made a claim under the Statutory Insurance scheme under the QBCC Act. Section 67X(2) of the QBCC Act states, The purpose of the statutory insurance scheme is to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete. [41] Section 67Y states, The terms of cover under which a person is entitled to assistance under the statutory insurance scheme are prescribed by regulation. [42] Section 30 of the QBCC Regulation states, (1) For section 67Y of the Act, the terms of cover are stated in Schedule 6. (2) The terms of cover apply to the following work – (a) Residential construction work; (b) ... (3) The terms of cover under the statutory insurance scheme for residential construction work are the terms of cover stated in schedule 6 when – (a) If the consumer for the work obtains optional additional cover – the optional additional cover comes into force for the work; or (b) Otherwise – cover under the statutory insurance scheme comes into force for the work. [43] Relevantly, section 69I(1)(b) of the QBCC Act states that the cover under the statutory insurance scheme for the work comes into force when “the consumer enters into the contract with a licensed contractor for the carrying out of the work.” [44] Schedule 6 of the QBCC Regulation prescribes the circumstances when a claim for assistance under the scheme may be validly made by a consumer. Relevant to this -- 6 of 12 -- 7 matter, Part 3 (consisting of sections 14 – 20) prescribes the Terms of Cover for Defective Work. Section 14 of Schedule 6 states, [45] This part applies to residential construction work that is primary insurable work if it is defective (defective work). [46] The term ‘residential construction work’ is defined in section 67WA of the QBCC Act as “primary insurable work or associated insurable work”. In turn, “primary insurable work” is defined in section 67WC of the QBCC Act and includes the “erection or construction of a residence or related roofed building if carried out by a licensed contractor and the insurable value of the work is more than the regulated amount.” [47] It is not in dispute in this matter that the Applicants had signed a contract for the construction of a residence and that their contractor, Mr MacPherson (of AMC Builders) was licensed at the time of entering into the contract and the value of the insurable value of the work was more than the regulated amount, given that the regulated amount was $3,300, pursuant to section 67WC(3) of the QBCC Act (there being no other amount prescribed by regulation). [48] Consequently, the Tribunal finds that this was residential construction work that is primary insurable work. [49] Section 14 only applies if the work is defective. [50] The term “defective” is defined in Schedule 2 of the QBCC Act and states, [51] Defective, in relation to building work, includes faulty or unsatisfactory. [52] This is a non-exhaustive definition. [53] However, as noted earlier, the Tribunal has accepted the evidence of Mr Auditore that the footings and the hold down bolts were defective because they were faulty or unsatisfactory. He drew that conclusion based upon what he observed on site as compared with the approved plans from the engineers and the architects. Thus, the Tribunal is satisfied that Part 3 of Schedule 6 applies in this case and that the requirements in section 14 are satisfied. [54] Section 15 of Schedule 6 of the QBCC Regulation then states, [55] The consumer of the residential construction work is entitled to claim assistance for the reasonable cost of the following work (rectification work) - [56] rectifying the defective work; [57] Any other building work reasonably required to be carried out to a relevant building as a consequence of the defective work. [58] Section 15(2) then provides an exemption to subsection (1), which does not apply in this instance because the grounds in section 15(2)(c), namely that “the use of the built work is not significantly affected as a result of the defective work” cannot be satisfied. It is not in dispute that the footings and HD bolts required significant rectification which really required work to stop on the site. [59] Section 16 of Schedule 6 then provides ‘Limit on Assistance’. It states, (1) A consumer is entitled to claim assistance mentioned in section 15 in relation to a structural defect in the residential construction work if the -- 7 of 12 -- 8 consumer first becomes aware, or ought reasonably to have become aware, of the structural defect within – (a) For residential construction work that is not substantially complete within 6 months after the cover commencement day for the work – the period – (i) starting on the day that is 6 months after the cover commencement day; and (ii) ending 6 years and 6 months after the period starts. (b) Otherwise – 6 years and 6 months after the cover commencement day for the work. [60] 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. [61] No assistance can be given to the consumer unless the consumer makes a claim mentioned in section 15 – [62] 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 [63] for another defect – within 7 months after the day the residential construction work is substantially complete. [64] In this section – cover commencement day, for residential construction work, means – (a) if the consumer for the work obtains optional additional cover … (b) otherwise – the day cover under the statutory insurance scheme comes into force for the work. [65] The term “structural defect” is defined in Schedule 6, section 2, structural defect, for primary insurable work, means – (a) If the work is for a residence or related roofed building - (i) A defect in the work that causes or contributes to deflection or movement of the footing or slab of the residence or building so the residence or building no longer complies with the building assessment provisions under the Building Act 1975; or (ii) The work does not comply with a performance requirement under the Building Code of Australia, part B1 or part 2.1 for the residence or building; (iii) A defect in the work that causes the residence or building to be uninhabitable or not reasonably accessible; or (b) If the work is for a swimming pool – a defect in the work that allows water to escape through the shell of the swimming pool; or (c) If the work is on or for a residence, related roofed building or swimming pool – a defect in the work that adversely affects the health or safety of persons who occupy or use the residence, building or swimming pool; or -- 8 of 12 -- 9 (d) If the work is on or for a residence or related roofed building – a defect in the work that allows water penetration of the residence or building. Were the defects ‘structural defects’? [66] Neither party have provided submissions on whether the defects were structural defects as per the definition in Schedule 6, section 2. It is a defined term rather than one that adopts the ordinary meaning of those words. Mr Lou, in the initial decision, merely recorded, “I acknowledge that the technical findings regarding the structural defects are not in dispute by the Applicants.” This does not take things very far. The submissions from the QBCC’s lawyers, whilst acknowledging the application of the definition is relevant, have not drawn the Tribunal’s attention to any evidence that might satisfy the necessary elements of the defined term. [67] As it is a defined term, the evidence must meet all of elements of the definition. [68] This is not an immaterial point. The exemption in section 16(3) of Schedule 6, upon which this external review turns, only applies if the defect is a structural defect. If it is not a structural defect, then time does not start to run against the Applicants until the building is substantially complete if that date is within 6 years and 6 months of commencement and within 6 months of substantial completion. [69] With respect to the first sub-definition of ‘structural defect’ in (a)(i), there is no evidence that the defects in the hold down bolts or the footings caused or contributed to deflection or movement of the footings or slab of the residence. That definition can be safely put aside. With respect to sub-definition (a)(ii), the Tribunal must be satisfied that the work does not comply with a performance requirement under the Building Code of Australia, Part B1 or part 2.1. [70] Schedule 8 of the QBCC Regulation defines ‘Building Code of Australia’ as ‘see the Building Act 1975, section 12.’ [71] Section 12 of the Building Act 1975 (Qld) states: (1) The Building Code of Australia (or BCA) is the document called ‘National Construction Code’, volume 1 and volume 2 (including the Queensland Appendixes) published by the entity known as the Australian Building Codes Board (the board). (2) The reference to the document called ‘National Construction Code’ in subsection (1) includes the edition of the code as amended from time to time by amendments published by the board. [72] Part 2.1 of the Code has no application as it applies to a building in a flood hazard area, which, would appear to not apply to 1 Picnic Street, Picnic Bay. It can be set aside. [73] Part B1 is entitled “Structural Provisions”, and states, This part focuses on safeguarding people from injury caused by structural failure, loss of amenity cause by structural behaviour (deflections, creep, vibrations, settlement and the like), protection of other property from physical damage caused by structural failure and safeguarding people from injury that may be caused by failure or, or impact with, glazing. [74] Part B1F1 states, -- 9 of 12 -- 10 A building or structure is to withstand the combination of loads and other actions to which it may be reasonably subjected. [75] As noted earlier, the rectification solution provided by NCE, via Mr Burry, referred to M20 Chemset Anchors and Ramset Chemset 801/502 or equivalent to be used. [76] According to the Ramset website, the Chemset Anchor stud complies with the Code at Part B1 and comply with Australian Standard AS 5216. The Code at B1D4(b) refers to post-installed and cast-in fastenings and AS 5216. [77] So, by rational extension, the rectifications proposed by NCE relate to a structural defect because the rectification proposal provides an engineering solution that directly references Part B1 of the National Construction Code. [78] In addition, Mr Auditore summarises the evidence in his report, The owner has provided QBCC with the rectification method report and full details/plans completed and approved by the design structural engineer…the Contractor has compromised some significant construction issues in relation to the propose new dwelling build. The owner has provided documentation from the design structural engineer on the rectification method to be completed to the ‘as constructed’ concrete foundations and hold down blots in order for the proposed new dwelling to comply with the relevant Australian Standards and the engineer’s original design criteria. [79] It is assumed that Mr Auditore’s reference to the “relevant Australian Standards” is taken to be a reference to AS 5216 and any other relevant standards that were applicable to the issues with the footings at 1 Picnic Street, Picnic Bay. [80] Consequently, the Tribunal is satisfied that these were ‘structural defects’. When did the Applicants become aware of the defects? [81] Under section 16(3) of the QBCC Regulation, the Applicants can be given no assistance unless they make a claim mentioned in section 15 within 3 months after the day they first became aware, or ought reasonably to have become aware, of the defect in the work. [82] The QBCC have consistently held that the Applicants first became aware of the defect in the work on 16 August 2023. In the Statement of Reasons (at [53] and [77]) the QBCC identifies that on 16 August 2023, “the Applicant’s architect advised the Applicants that the Amended Complaint Items were defective and needed rectification” and that the Applicant’s became aware of the defect “on or around 16 August 2023”. Further, the QBCC’s position is that the Applicant’s made their non- completion claim (which gave rise to the Defect Claim Decision) to the Commission on 23 July 2024. [83] The Applicants’ submissions and supporting documents are contained in their original application to the Tribunal, filed 14 April 2025 with further material filed on 4 August 2025. In their application to the Tribunal the Applicants stated that whilst their architects had relayed information about the footings to them in August 2023, they had relied upon representations from the builder that the rectifications would be completed by the builder. They submit that, in these circumstances, it would be reasonable to start the prescribed time frame from 22 May 2024 being the date that they terminated the contract with the builder. It was only at that point, they advance, that it was clear that the builder was not going to undertake the rectification works. -- 10 of 12 -- 11 The Applicants make the point that had the builder rectified the defective footings, as they believed he was going to do, then no claim would have been necessary. In other words, they submit, that they had no reason to make a claim because they believed, on reasonable grounds, that no claim was necessary. [84] What the email correspondence shows is that the technical nature of the problems with the footings was not immediately apparent to the professionals that had been engaged by the Applicants. The email exchange of 15 August 2023 includes this, “Aaron has informed us of some errors that have been identified with as-constructed setouts of the HD bolts …So we are now trying to establish where the errors are and how this has come about and need to verify that the recent survey is correct and no errors with the data provided.” [85] It is not until 4 September 2023 that greater understanding of the problems was articulated by Mr Burry, who exchanged a proposed solution. In addition, on 27 September 2023 the precise nature and degree of the defective footings was understood by Mr Burry who conveyed his refined solutions by email. He wrote, “Following on for the site inspection, please find attached updated details which addresses the following: The footings which were significantly offset. These require a footing extension; the location and detailing of the extension can be found in the attached. These footings have been clouded on the base plate rectification plan.” This email was onforwarded to the Applicants later that day. [86] It is also worth noting, that the Applicants had to jointly be aware or ought reasonably to have become aware of the defect, before time started to run against them. Whilst it is possible that Mr Appleton spoke to Mrs Appleton about the problem by 16 August 2023, there is no direct evidence to support that conclusion. However, it is accepted that Mr Appleton was aware, and Mrs Appleton ought to reasonably have been aware of the structural defect, by 4 September 2023. Applicable Case Law [87] The QBCC have referred the Tribunal to the decision of Jackson & Ors v Queensland Building and Construction Commission1 where the Tribunal stated 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. It is, in my view, sufficient if the consequences of a defect are evident, such that objectively it would be concluded that the work is defective in the sense indicated in the definition of a category 1 defect. Again, it seems unlikely that the drafter intended that the practical application of the time limit would depend upon the technical knowledge of the owner. [88] This case is a little different because in Jackson it was the consumers who identified the defects, based upon their observations. In this case, the Appletons resided in Victoria and were wholly reliant upon information being conveyed to them. On the evidence before the Tribunal they observed nothing and acted upon information that was given to them by experts in their relevant field. The early emails do not refer to defects. 1 [2018] QCAT 290 at [32]. -- 11 of 12 -- 12 [89] That case aside, in Ahmet v Queensland Building and Construction Commission,2 Ms Ahmet’s agent became aware of structural defects in July 2018, but a claim was not made within the three-month time limit. The Tribunal observed, 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. [90] Member Paratz in Walker v Queensland Building and Construction Commission3 observed that circumstances in that case had produced an “inherent injustice” where the owner had consulted ‘the builder, a certifier, a designer, and an engineer … and none of them had alerted her to the need to file a complaint within a period of three months of becoming aware of the defects’ (at [134] – [136]). [91] The Tribunal is required to decide this matter according to law. Whether the time period should be different is a matter of public policy. The Applicants have submitted that they have acted reasonably. If the legislation had granted a discretion to extend time, it may be that they would have been successful. Alas, it does not. Conclusion [92] The Tribunal has found that the Applicants became aware, or ought reasonably to have become aware, of the defective work by 4 September 2023. They were aware of the nature of the structural defect from that date. [93] Whilst this date is slightly later than the date found the internal reviewer, it makes no material difference. The Applicants made their claim to the QBCC on 23 July 2024, which was outside the statutory time limit allowed for under the legislation, which expired on 4 December 2023. [94] As observed by Member Haddrick (as His Honour then was) in Lankheet v Queensland Building and Construction Commission:4 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 [sic] for a defect is covered, and when it is not covered. 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. Order of the Tribunal [95] The order of the Tribunal is the decision of the Queensland Building and Construction Commission dated 18 March 2025 is confirmed. 2 [2022] QCAT 417. 3 [2021] QCAT 32. 4 [2025] QCAT 574 at [50] – [51]. -- 12 of 12 --