D’Arcy v Queensland Building and Construction Commission [2026] QCATA 6

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: D’Arcy v Queensland Building and Construction Commission [2026] QCATA 6 PARTIES: MICHELE D’ARCY (applicant/appellant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: APL020-23 ORIGINATING APPLICATION NO/S: GAR090-22 MATTER TYPE: Appeals DELIVERED ON: 12 February 2026 HEARING DATE: 4 July 2025 HEARD AT: Brisbane DECISION OF: Judicial Member Rinaudo AM ORDERS: IT IS THE DECISION OF THE APPEAL TRIBUNAL THAT: The decision in GAR090-22 made on 16 December 2022 is confirmed. There is no order as to costs. CATCHWORDS: INSURANCE – THE POLICY – CONDITIONS, WARRANTIES AND EXCEPTIONS – EXCLUSION CLAUSES – where appellant’s claim under Queensland Home Warranty Scheme disallowed as appellant ineligible – where appellant claimed for work done in residential unit in a multiple dwelling over three storeys – where work done ‘on or for’ multiple dwelling over three storeys excluded by s 26(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld) – where example at s 26(a) included ‘work for renovating the bathroom of a single residential unit in a 10-storey multiple dwelling’ – whether ‘on or for’ in the substantive provision implicitly included work ‘in’ the dwelling – whether ‘on or for’ in the substantive provision contradicted ‘in’ in the example – whether the provision contradicted the example or the example extended the meaning of the provision -- 1 of 9 -- 2 APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where member below did not consider s 14D(c) of the Acts Interpretation Act 1954 (Qld) allowed the implicit meaning of a substantive provision to exclude the explicit text of an example provided in legislation – whether member’s consideration was correct Acts Interpretation Act 1954 (Qld), s 14A, s 14D Queensland Building and Construction Commission Act 1991 (Qld), s 67WA, s 67WB, s 67WC, s 67WE, s 67X, s 68 Queensland Building and Construction Commission Regulation 2018 (Qld), s 26(a) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 142, s 146 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Ericson v Queensland Building Services Authority [2013] QCA 391 Esso Australia Pty Ltd v Australian Workers Union (2017) 350 ALR 404 APPEARANCES & REPRESENTATION: Applicant: Wilson, C, i/b Lovel, J, solicitor Respondent: Schmidt, T, i/b Queensland Building and Construction Commission REASONS FOR DECISION [1] On 16 December 2022 the Tribunal below confirmed a decision by the Queensland Building Construction Commission (‘QBCC’) not to allow a claim under the Queensland Home Warranty Scheme (‘Scheme’). [2] The appellant in this proceeding, the original applicant for the claim, Ms D’Arcy, appealed the Tribunal’s decision on 16 January 2023. Background [3] The appellant was the owner of a residential unit, part of a high-rise apartment building, at Surfer’s Paradise. [4] On or about 25 October 2021 the appellant contracted with a licenced builder to perform renovation work on the unit’s kitchen and bathroom. [5] On or about 20 December 2021 the contractor paid an insurance premium and QBCC issued the appellant a notice of cover under the Scheme advising the work to be performed was covered. -- 2 of 9 -- 3 [6] Between about 16-20 December 2021 the contractor stopped work and after the appellant issued a Notice to remedy breach the contractor refused to return to complete it. [7] On 16 February 2022 the appellant terminated the contract, and on 24 February 2022 lodged a non-completion claim with QBCC for assistance with respect to the incomplete work. [8] QBCC declined to provide assistance because: (a) pursuant to s 67WB(1)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’) and s 26(a) of the Queensland Building Construction Commission Regulation 2018 (Qld) (‘Regulation’) the work was excluded from the Scheme. Section 26(a) precluded cover for ‘work on or for renovating…a single residential unit in a 10-storey multiple dwelling’; (b) the appellant’s apartment was in a building that constituted a multiple dwelling; (c) the contract work was ‘on or for’ the building containing the apartment; (d) the work was therefore excluded from the Scheme. [9] The proceeding below was a review of that decision. Appeal grounds and orders sought [10] The appellant asserts the Tribunal erred in law, by (a) finding the applicant’s residential unit was within the definition of ‘multiple dwelling’; and (b) failing to find the example set out at s 26(a) of the Regulation was invalid as being inconsistent with ss 67WA to 68 of the Act. [11] In submissions filed 28 March 2024 the appellant elected not to pursue further grounds which asserted the Tribunal erred in failing to find QBCC was estopped from deciding the appellant was not entitled to cover and finding QBCC could terminate the respondent’s cover under the Scheme in circumstances other than as enumerated under s 69 of the Act. [12] The appellant seeks the decision of the Tribunal below be set aside and the matter be remitted to QBCC for reconsideration according to law. The appellant also seeks costs. Appeals in the Appeal Tribunal [13] A party to a proceeding may appeal to the Appeal Tribunal against a decision of the Tribunal in the proceeding.1 Leave is required if the appeal involves a question of fact or mixed law and fact.2 [14] In deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the Tribunal for reconsideration.3 The Appeal 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(1) (‘QCAT Act’). 2 Ibid s 142(3)(b). 3 QCAT Act s 146. -- 3 of 9 -- 4 Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.4 Original decision Statutory basis [15] The Scheme is managed by Part 5 of the Act. Section 67WA contains general definitions for the Part; s 67WB lists work not covered under the Scheme; s 67WC defines ‘primary insurable work’; and s 67WE defines ‘residence’. [16] It is not contentious that (per s 67WA of the Act) (a) the appellant was a consumer, a person who contracted with a licenced contractor to carry out the work; (b) the appellant applied for assistance, payment for the completion of residential construction work by a licenced contractor appointed by QBCC; and (c) the work was incomplete (had not reached practical completion). [17] The unit is a ‘residence’ as it is part of a structure which is fixed to land and designed to be used, and is used, for residential purposes (s 67WE(2) of the Act). [18] The renovation was performed within the ‘building envelope’ of the apartment (s 67WC(1)(b) of the Act) and it was therefore ‘primary insurable work’. [19] ‘Primary insurable work’ is ‘residential construction work’ (s 67WA of the Act). [20] Cover under the Scheme applies to ‘residential construction work’ (s 30 of the Regulation). [21] Absent exceptions the appellant would be entitled to cover. [22] Section 67WB lists excluded works. Subsection (1)(f) excludes ‘other work prescribed by regulation’. [23] Relevantly s 26(a) of the Regulation excludes from cover work on or for a duplex or multiple dwelling if the duplex or multiple dwelling is more than 3 storeys; Examples for paragraph (a)— • work for tiling the kitchen in a single residential unit in a 4-storey duplex • work for renovating the bathroom of a single residential unit in a 10-storey multiple dwelling… (emphasis mine) [24] Based on this section QBCC has refused to provide the appellant cover under the Scheme. 4 Ericson v Queensland Building Services Authority [2013] QCA 391. -- 4 of 9 -- 5 Appellant’s submissions [25] The appellant argued QBCC misconstrued s 26(a) of the Regulation and she is in fact entitled to cover. [26] The term ‘multiple dwelling’ did not apply to the appellant’s apartment. Even if it constituted a multiple dwelling, the work done in the apartment was not work done ‘on or for’ a multiple dwelling. [27] ‘Multiple dwelling’ at s 26(a) referred to a building containing multiple units, but not to the individual units. [28] The term ‘on’ refers to works done to the building exterior, and ‘for’ refers to, for example, the construction of drainage to improve the building’s structural integrity. A reference to work ‘in’ the building would clearly have referred to the residential lots, but the section did not include the word ‘in’. [29] In support of this construction, by analogy, section 49C of the Land Titles Act 1994 (Qld) identifies the boundary of a lot under a Building Format Plan as being the centre of the floor, wall or ceiling between the lot or other lots and common property. In this Act, lots are distinguished as not being ‘on’ the building. [30] Including work ‘in’ a residential unit in the definition of ‘work on or for’ is inconsistent with ss 67WA and 67WC(1)(b) of the Act and s 30 of the Regulation. It is also inconsistent with the operative provision of s 26(a). [31] Further, it contradicts the purpose of the Scheme, which is consumer protection (citing s 67X of the Act). The inclusion of ‘in’ under the umbrella of ‘on or for’ would mean insurance is available for residential units in a building of fewer than three storeys, but not units in a building with more storeys, and that licenced contractors are not exposed to claims under the Scheme for the same work, and same quality of work. There is no rational explanation for this limitation and it is uncertain what the policy justification is for the exclusion or what mischief it is seeking to remedy.5 [32] ‘On or for’ does not refer to work done ‘in’ the building and therefore the work done for the appellant does not fall within the exclusion at s 26(a). [33] However, the appellant submitted, this narrowed reading of s 26(a)’s operative provision conflicts with the example given in that section, ‘work for renovating the bathroom of a single residential unit in a 10-storey multiple dwelling’. [34] Citing s 14D(c) of the Acts Interpretation Act 1954 (Qld) (‘AIA’), the appellant held the operative part of the section should prevail over the example to the extent of the inconsistency. [35] The appellant submitted this priority, and the reading of the words ‘on or for’ as excluding ‘in’, are the correct reading. They would allow the appellant to lodge a valid claim under the Scheme, consistent with the consumer protection purpose of Part 5 of the Act. Respondent’s submissions [36] QBCC submitted rather than contradicting it, the example extended the meaning of the provision (s 14D(b) AIA). Work ‘on or for’ a residential unit in a building with 5 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27. -- 5 of 9 -- 6 over three storeys therefore included work ‘in’ a residential unit. The appellant’s claim was therefore caught under the exclusion and she was not entitled to lodge a claim under the Scheme. [37] The definition at s 26(a) should be given a literal meaning by reference to the example, which is clear and unambiguous. The example clearly excludes from cover building work done on the inside of a lot. [38] QBCC cited Esso Australia Pty Ltd v Australian Workers Union:6 The Court's ability to construe a statutory provision in a manner that departs from the natural and ordinary meaning of the terms of the provision in the context in which they appear is limited to construing the provision according to the meaning which, despite its terms, it is plain that Parliament intended it to have. It is not the Court's function to attempt to overcome unintended consequences of the intended operation of a provision by construing the provision as if it had a meaning that Parliament did not intend it to have. To do so would go beyond the judicial function of construing legislation according to established precepts of statutory construction and into the legislative realm of amending the Act by reference to what it may be supposed Parliament might have provided if it had considered the specific circumstances before the Court. Member’s consideration [39] The member held that adopting QBCC’s submission defeated the consumer protection purpose of the Scheme. QBCC relied on the example (and implicitly on AIA s 14D(b)) to extend the ambit of the provision to include works ‘in’ a multiple dwelling. The provision was only given a clear meaning by the example. [40] The member held that, even applying the example, the natural and ordinary meaning of s 26(a) itself did not include the residential units in the building. [41] The learned member held that he was inclined to accept the appellant’s argument. However, the example was a ‘roadblock’ to its adoption. The example is clear and expresses what cannot be included under the Scheme, despite its inconsistency with the operative provision. To ignore it would be to engage in an illegitimate legislative exercise as referred to by the High Court in Esso. The member decided on this basis to confirm the respondent’s decision. Appellant’s appeal submissions [42] On appeal the appellant repeated the arguments made above. The appellant submitted the member had erred in law in deciding that to adopt the appellant’s argument would be an overreach of judicial authority. [43] During the hearing, as further support for the distinction of ‘in’ from ‘on or for’, counsel for the appellant stated elsewhere in the Act (Schedule 6 s 6(d)) the preposition ‘in’ is used explicitly, as a deliberate choice in the drafting of the Regulation, to refer to work inside a residential unit. Section 26(a) should therefore be read as implicitly excluding ‘in’. [44] The appellant stated when the meaning of a statute is in question the interpretation that best serves the purpose of an Act is the preferred one (AIA s 14A). The purpose 6 (2017) 350 ALR 404 [52] (‘Esso’). -- 6 of 9 -- 7 of the Scheme is consumer protection, which is stymied by QBCC’s interpretation of s 26(a). [45] In her submissions the appellant also restated three points not explicitly dealt with by the member in his decision: (a) the example should yield to the substantive provision of s 26(a) to the extent of the inconsistency between them (s 14D(c) AIA); (b) the example was invalid to the extent of the inconsistency; and (c) the legislative history of the section did not support an inclusive construction of the section (including ‘in’ in ‘on or for’). [46] The appellant stated this inconsistency can be avoided by several interpretive approaches: (a) ‘On’ and ‘for’ in the expression ‘on or for’ might be treated as separately considerable terms. ‘On’ refers to work done on the building or work done ‘in’ the building envelope of the multiple dwelling. Work done in the appellant’s apartment is technically work done in the building envelope, but that construction is inconsistent with the availability of work done in accordance with ss 67W and 67WC (noting cover is expressly extended for work ‘within the building envelope of a residence’). To say the work done for the appellant is work done ‘on’ a multiple dwelling strains common sense and usage. Work ‘on’ the apartment is not the same as work done on the building containing the apartment. Work ‘for’ the apartment is also not work for the building. The meaning is confined consistent with the consumer protective objective of the Scheme. (b) ‘On or for’ may be read narrowly, given the consumer protection purpose of the legislation and the otherwise permissive s 67WA, to avoid inconsistency between s 67WC(1)(b) of the Act and s 26 of the Regulation. (c) The operative provision can be allowed to prevail, where a narrow reading makes the examples at s 26 incompatible with the provisions. (d) The consistent approach could be adopted where subordinate legislation is open to construction and one construction is inconsistent. If construed broadly s 26 would be invalid on grounds of inconsistency. (e) Considering the legislative history of the Scheme indicates against a broad approach. The prior version of the Scheme was not entirely replaced by the replacement of the Queensland Building Services Authority Act 1991 (Qld) with the QBCC Act. Section 67X of the Act posits the prior Scheme is continued. Therefore its provisions may serve as interpretive guidance. The prior analogous section to s 26 lacked its ambiguity and would have allowed the appellant’s claim (cl 1.9 of the Queensland Building Services Authority Insurance Policy Conditions). Further, the legislative and policy materials that informed the drafting of the new Act did not evince any intention to limit the scope of the Scheme. The continuation of this Scheme through s 67X of the Act is a strong factor in allowing the previous broader cover. (f) Considering ‘on or for’ as a compound expression conveying one idea. This entails construing ‘or’ as a conjunctive, meaning work will not fall under the -- 7 of 9 -- 8 exception unless it is both on and for the building. This approach is warranted as the inconsistency is of a higher order than a construction that simply leads to an unpalatable result, and it does not appear ‘or’ was used deliberately or with awareness of the inconsistency. Such a construction would not exclude the work done on the appellant’s property. QBCC’s appeal submissions [47] QBCC states ‘on or for’ should be read to include work performed ‘in’ the building. QBCC relies on a different section of the Act to provide an interpretive basis for s 26(a). [48] Section 68D of the Act provides for the setting of insurance premiums, stating their method of calculation may be stated in the Regulation. Part 6, Div 4 of the Regulation contains the process for calculation. Section 34, in that Division, applies the calculation to multiple dwellings. It is headed ‘Work for multiple dwellings’. Sections 35, 37 and 38 also deal with multiple dwellings. These sections imply the Scheme does respond to residential construction work performed for multiple dwellings, including work done for the building (s 34(1)(a)-(d)) or for two or more units within the building (s 34(1)(e)). [49] Section 34 is directed at calculating the value of work done in a multiple dwelling – all the work mentioned in that section must be a part of the Scheme because it is included in section 34 for the purpose of calculating the value of a claim under the Scheme. [50] Section 34(1)(e) contemplates work inside a unit and is headed by ‘for’. Work ‘for’ a multiple dwelling can therefore include work inside a residential unit. That ‘for’ is the same ‘for’ as the one in section 26(a). ‘On or for’ at s 26(a) therefore includes ‘in’ per s 34(1)(e). [51] When read in that context the words ‘on or for’ at s 26(a) are unambiguous. The Scheme responds to works within a unit in a multiple dwelling under three storeys, and the exclusion at s 26(a) applies if the work is done on a building over three storeys. The example merely makes s 26(a)’s implied meaning explicit. [52] It follows there is no ambiguity in the section and no need to resolve a statutory inconsistency by an interpretation exercise. The appellant’s case falls within the clear exception and the appeal should be dismissed. Consideration [53] The member in the hearing below correctly identified the nature of the problem as the interpretation of s 26(a). The member would have accepted the appellant’s logic in full but for his concerns about going beyond judicial function by ignoring the clearly set out example. [54] Does s 26(a)’s exclusion of work ‘on or for’ a multiple dwelling include work done ‘in’ one of the residential units in that multiple dwelling? [55] If it does, there is no need to interpret the statute further. The appellant’s claim is clearly excluded. [56] If it does not, -- 8 of 9 -- 9 (a) the appellant contends there is an inconsistency between the operative text and the example and the operative text should prevail. (b) QBCC contends the provision is extended by the example. [57] I find the appellant’s argument compelling. It seems to me there is a clear distinction between works ‘on or for’ and works ‘in’ a multiple dwelling, both when the language is considered naturally and when it is interpreted according to other sections of the Act. It follows that there is a discord between the substantive provision of s 26(a) and the example. [58] However, in my view, the member’s concerns about overstepping the bounds of judicial authority are well-founded. The member did not make an error of law in this respect. The appellant submits the policy reasons for the exclusion of multiple dwellings over three storeys are unclear. That may be so, but this is not a matter for judicial consideration. Paragraph [52] of Esso is particularly relevant in this case. While s 26(a) is arguably self-contradictory there is no justification for going against its clear wording as drafted and intended by Parliament. [59] For this reason I find the example at s 26(a) extends the meaning of the provision. I therefore order the member’s decision in the proceeding below is confirmed. Costs [60] Each party usually bears its own costs in QCAT proceedings.7 The Tribunal may make an order for costs in the interests of justice.8 I have considered the factors relevant to making a costs order and find no factors justify a departure from standard practice. There is no order as to costs. 7 QCAT Act s 100. 8 Ibid s 102. -- 9 of 9 --