D’Arcy v Queensland Building and Construction Commission [2022] QCAT 435

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: D’Arcy v Queensland Building and Construction Commission [2022] QCAT 435 PARTIES: MICHELE JANE D’DARCY (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR090-22 MATTER TYPE: General Administrative Review DELIVERED ON: 16 December 2022 HEARING DATE: 1 September 2022 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The decision of the respondent is confirmed. CATCHWORDS: ADMINISTRATIVE LAW – PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where applicant engaged a builder to undertake renovations on her residential unit – where residential unit in a 10 storey building – where a building dispute arose – where applicant terminated the contract with the builder – where applicant made a claim for defective and incomplete building work under the respondent’s Home Warranty Insurance Scheme – where the respondent rejected the claim – where grounds for rejection of the claim was on the basis that the applicant’s residential unit was in a multiple dwelling building in excess of 3 storeys which is excluded under the s 26 of the Regulations to Queensland Building and Construction Act 1991 – whether on its proper construction s 26 of the Regulations excludes insurance cover under the Home Warranty Insurance Scheme Queensland Building and Construction Act 1991 (Qld), s 67WA, s 67WB(1)(f), s 67WC(1)(c). Queensland Building and Construction Regulations 2018 (Qld), s 26(a), s 30 Act Interpretation Act 1954 (Qld), 14D(b) and 14D(c) Land Titles Act 1994 (Qld), 49(c) -- 1 of 11 -- 2 Wallaby Grip (BAE) Pty Limited (in liq) & Anor v Workcover Queensland; CSR Limited v WorkCover Queensland [2022] QCA 204 CIC Insurance Ltd v Bankstown Football Club Ltd (1997)187 CLR 384 Lange v Queensland Building Services Authority [2012 2 QD R 457 Cowan v Queensland Building and Construction Commission [2021] QCATA 103 Schneider v Queensland Building and Construction Commission [2021] QCA 155 Esso Australia Pty Ltd v Australian Workers Union (2017) 350 ALR 404 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 APPEARANCES & REPRESENTATION: Applicant: Mr Charles Wilson of counsel instructed Lovels, solicitors Respondent: Mr Schmidt of counsel instructed by the respondent REASONS FOR DECISION [1] Ms D’Arcy is the owner of a residential unit on the 10 th level in a high-rise apartment block of 10 storeys in Surfers Paradise. She purchased the unit in August 2021 with the specific purpose of renovating it for permanent occupation as her home. The proposed renovation was started but not completed as a result of a dispute with her builder. She made a claim under the Queensland Building and Construction Commission’s Home Warranty Insurance Scheme but the Commission told Ms D’Arcy that the Scheme did not respond to her claim. This is a review of that decision. Further Background [2] After purchasing the unit Ms D’Arcy sourced a builder to carry out the renovation work. She entered into a contract with Marbepi Pty Ltd (“the builder”), trading as Refresh Renovations, to carry out the works. The contract was entered into on or about the 13 th of October 2021. The contract is a standard HIA Queensland Alteration, Addition and Renovation Contract (QC3). Included in the Contract is reference to the Queensland Building and Construction Commission’s Consumer Building Guide1. In capitals and bold type at the commencement of the Guide is the following: YOUR CONTRACTOR MUST GIVE YOU THIS GUIDE BEFORE YOU SIGN A CONTRCT PRICED AT OR OVER $20,000 [3] In fact it is mandatory for the building contractor to give the owner a copy of the Guide. The Guide made reference to the Home Warranty Scheme (“Scheme”) which “provides protection for home-owners against non-completion, defective work and subsidence for ‘up to 6 years from completion…”. The Guide does not make reference to any exclusions from the Scheme. However, despite any reference to exclusions from the Scheme, the Queensland Building and Construction Commission contends that there are exclusions, 1 Version 3, Effective from December 2020 -- 2 of 11 -- 3 and the Scheme does not apply in Ms D’Arcy’s situation. Therefore on the Commission’s own case, the Guide misrepresents to the general public, who are reliant on the Scheme as deposed to by Ms D’Arcy, that insurance under the Scheme is available when clearly it is not. In a sworn affidavit she attests that: I placed reliance on the fact that the Consumer Building Guide on the front of the contract and the contract itself indicated that the building works to be completed would be covered for non- completion and defects under the respondent’s Qld Home Warranty Scheme. [4] Work commenced on the renovation soon after the contract was signed. However, by mid-December problems arose with the job and the builder stopped work. Ms D’Arcy’s lawyer contacted the builder to enquire whether a policy had been taken out under the Scheme. She was advised that there was no record of “cover” having been taken out but later that day, after Ms D’Arcy’s solicitor wrote to the builder she received a ”Notice of Cover” under the Scheme.2 The builder paid the premium under the Scheme and although Ms D’Arcy assumed cover was in place that assumption was misplaced. Given the conclusions below one can only wonder at the how many premiums have been paid to the Commission for work in high rise residential units, and kept, in circumstances where insurance cover was not in fact available. [5] The dispute with the builder continued into the following year and ultimately Ms D’Arcy instructed her solicitor to terminate the contract which occurred on 16 February 2022 as a consequence of the builder’s default. There is no dispute that the work under the contract was incomplete at the time of termination. [6] On 24 February 2022, Ms D’Arcy lodged a non-completion claim with the Commission under the Home Warranty Scheme. The claim was rejected by the Commission on 17 March 2022 on the grounds that the work was not covered by the Scheme. [7] In its statement of reasons the Commission advised that: (a) pursuant to s 67WB(1)(f) of the Act3 and s 26(a) of the Queensland Building and Construction Commission Regulation 2018 work excluded from the Scheme included work ‘on or for’ a ‘multiple dwelling’ which is more than three storeys, an example of which (which was cited by the Commission in its reasons) was in the examples under s 26(a), namely ‘work for renovating […] a single residential unit in a 10-storey multiple dwelling’; (b) the apartment was part of a building that constituted a ‘multiple dwelling’ with ten levels; (c) the work under the contract was ‘on or for’ the building that the apartment was in; (d) accordingly, the work was excluded from the Scheme. [8] Ms D’Arcy filed an application to review the Commission’s decision on 18 March 2022. It is the Tribunal’s function under s 20 of the Queensland Civil and Administrative Tribunal Act to produce the correct and preferable decision by way of a fresh hearing on the merits. The hearing brief filed by the Commission includes all relevant material upon which the decision is to be made including submissions prepared by counsel for both parties. 2 Exhibit to Ms D’Arcy’s affidavit sworn 7 June 2022. 3 Queensland Building and Construction Commission Act 1991 (Qld). -- 3 of 11 -- 4 [9] The only issue in dispute in this review proceeding is whether the Home Warranty Scheme responds to Ms D’Arcy’s claim for incomplete and defective building work. There is a potential side issue and that relates to whether the contract between Ms D’Arcy and the builder was validly terminated by Ms D’Arcy. That was not a ground for rejecting the claim and not specifically addressed in the statement of reasons. Mr Schmidt raised it for the first time in his written submissions, belatedly it would seem on instructions from the solicitor having the conduct of the matter in the Commission, submitting that if there is a finding that the Scheme does respond to the claim, the matter should be remitted to the Commission so it can consider the termination issue.4 Obviously this matter should have been addressed much earlier. [10] The application of the Scheme is set out in Part 5 of the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”). Section 67WA of the Act is the definition section which includes “assistance” meaning arranging and paying for rectification or completion of residential construction work. Residential construction work is “primary insurable work” as defined in s 67WC and relevantly here is, ‘building work within the building envelope of a residence or related roofed building”.5 There is no dispute that the work on Ms D’Arcy’s residential unit satisfies the definition however the definition of “residence” under s 67WE creates a problem. The section provides: Each of the following structures is a residence if the structure is fixed to land and used for residential purposes: (a) A single detached dwelling; (b) 1 or more attached dwellings that are separated by a common wall; (c) A building, of not more that 3 storeys, containing 2 or more separate residential units. [11] Also, the assistance available is referred to in s 67Y as follows: The terms of cover under which a person entitled to assistance under the statutory insurance Scheme as prescribed by regulation. [12] Section 30 of the QBCC Regulations sets out the conditions of cover which are set out in Schedule 6 but under subsection (2), the cover applies to residential construction work. As described in the Ms D’Arcy’s counsel’s submission this “is a gateway provision”.6 Ms D’Arcy says she satisfies the condition but it is the Commission’s position that she falls foul of s 67WE as her residential unit does not satisfy the definition of “residence” because she is in an apartment building of more than 3 storeys. [13] Section 67WB of the QBCC Act sets out what work is not covered by the Scheme. Amongst those listed there is also, pursuant to subsection 1(f) “other work prescribed by regulation”. One then goes to s 26 of the QBCC Regulations which further sets out work not covered under the Scheme which includes, similar to s 67WE of the Act, as follows: Work on or for a duplex or multiple dwelling if the duplex or the multiple dwelling is more than 3 storeys: 4 Respondent’s submissions dated 8 September 2022 at [24]. 5 QBCC Act s 67WC(1)(b). 6 Applicant’s submission dated 9 June 2022 at [24]. -- 4 of 11 -- 5 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 [14] Despite there being some apparent ambiguity between ‘work on or for’ a duplex or multiple dwelling, the example contemplates that the exclusion relates to work inside the habitable space of a duplex or multiple dwelling, more specifically here, to the inside of a residential lot within the community title Scheme. Bearing in mind that the lot comprises the internal area of residential unit with the centre of the external walls being the common boundary between the lot and the common property. There is no dispute that Ms D’Arcy’s residential unit is in a multiple dwelling of more that 3 storeys. [15] The Commission contends that Ms D’Arcy’s claim under the insurance Scheme is also caught by the exclusion in regulation 26. It submits that the regulation should be given its literal meaning by reference to the example. The example clearly and unambiguously excludes any building work to the internal part on the residential unit. [16] Ms D’Arcy submits that because of the ambiguity as to what part of the building the regulation actually refers to, the example should be ignored. The words work “on or for” the multiple building do not specifically refer to work done on a residential unit “inside” the multiple dwelling therefore on a literal reading of the exclusion it only applies to work done on the building, i.e. on the common property or for the building which again does not relate to the residential unit or lot. An example might be that the exclusion would apply to work on the internal fire escape stairs on common property but not on internal stairs within a lot, e.g. between floors of a single lot. [17] Therefore the issue for determination is the correct construction of s 26 of the Regulations and whether the example used to exclude Ms D’Arcy’s claim under the Scheme. Or should a purposive approach to the construction of s 26 be adopted consistent with the intent of the Scheme to provide consumer protection to home owners who are caught by defective and incomplete building work. [18] In the recent case of Wallaby Grip (BAE) Pty Limited (in liq) & Anor v Workcover Queensland; CSR Limited v WorkCover Queensland [2022] QCA 204 the Court of Appeal provided a useful summary of the principles of statutory construction. At [22] the Court said: [22] The relevant principles of statutory interpretation were not in dispute. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,7 the joint judgment said: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general 7 (2009) 239 CLR 27, 46-47 [47] (Hayne, Heydon, Crennan and Kiefel JJ). -- 5 of 11 -- 6 purpose and policy of a provision, in particular the mischief it is seeking to remedy.” [23] In Certain Lloyd’s Underwriters v Cross,8 the joint judgment said: “The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. ... ‘[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have’ (emphasis added).” [24] It is also relevant to note that s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred. [19] In Mr Wilson’s written submission, he refers to CIC Insurance Ltd v Bankstown Football Club Ltd9 where the joint judgment said: ..the modern approach to statutory interpretation (a) insist that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses ‘context’ in its widest sense to include such things as the existing state of the law and the mischief with which, by legitimate means such as [reference to reports of law reform bodies], one may discern what the statute was intended to remedy: Attorney-General v Prince Ernest Augustus of Hanover, cited in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd. Instances of general words in a statute being so construed by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by steps identified above, is reasonably open and more closely conforms to the legislative intent: Cooper Brookes (Wollongong) Pty Ltd v FCT. [20] He also relies on Lange v Queensland Building Services Authority10 which involved a consideration of the Home Warranty Scheme, the policy conditions of which were then set out in the Queensland Building Services Authority Policy Conditions, Edition 7. The case concerned the construction of clause 1.9 which limited the claims to which the 8 (2012) 248 CLR 378, 389-390 [24]-[25] (French CJ and Hayne J). 9 (1997) 187 CLR 384 at 408. 10 [2012] 2 Qd R 457. -- 6 of 11 -- 7 Policy would respond. In construing clause 1.9 the Court made the following statement which is relevant here. At [26]: Because the policy is a statutory instrument, the interpretation of clause 1.9 which will best achieve the purpose of the QBSA Act is to be preferred to any other. [21] Then after referring to the objects of the QBSA Act in particular that it is to achieve a reasonable balance between the interests of building contractors and consumers the Court said at [30]: Thus, the purpose of Pt 5 of the Act is consumer protection, and the policy is to be construed in a way which will best achieve that purpose. [22] Adopting the above statements of principle, I turn to a consideration of Ms D’Arcy’s primary submission that firstly, the example used in s 26 of the Regulations should not be adopted on the proper construction of “multiple dwelling’ because of the use of the connecting phrase in s 26 work ‘on or for’ a multiple dwelling. In support of this contention the applicant also relies on s 14D of the Acts Interpretation Act (“AIA”) which provides that: If an Act includes an example of the operation of a provision: (a) the example is not exhaustive; and (b) the example does not limit, but may extend, the meaning of the provision; and (c) the example and the provision are to be read in the context of each other and the other provisions of the Act, but, if the example and the provisions so read are inconsistent, the provision prevails. [23] In reliance on subsection (c) the applicant submits the example is inconsistent with other provisions of the act and also inconsistent with the purpose of the Scheme under the Act. Therefore, in this case it is permissible to ignore the example in construing s 26. [24] It is also submitted that s 26 is or operates like an exclusion clause in a policy of insurance and therefore the principles in relation to the proper construction of exclusion clauses should be applied in this case. This submission is consistent with what Judicial Member McGill discussed in Cowan v Queensland Building and Construction Commission11 by reference to what the Court of Appeal, per Morrison JA, said in Schneider v Queensland Building and Construction Commission as follows: The QBCC Act provides for the statutory insurance Scheme in Part 5. Its purpose is “to provide assistance to consumers of residential construction work for loss associated with work that is defective or incomplete”: s 67X(2). The Scheme was explained by Morrison JA, with whom the other members of the Court agreed, in Schneider v Queensland Building and Construction Commission [2021] QCA 155, and I respectfully adopt what his Honour said. It is clear that, when cover under the Scheme is provided to a consumer under the QBCC Act, the consumer is in a position analogous to that of an insured under a policy of insurance issued by the respondent as insurer. The terms of cover under the Scheme are set out in the Regulation under the QBCC Act. The Regulation provides relevantly a limit in the amount of the cover available in various circumstances of $200,000 [25] Judicial Member McGill went so far as to say that the relationship was one of insured and insurer and that the statutory insurance Scheme was very similar to contractual insurance. Also suggesting that if the statutory insurer failed to respond to a claim under 11 [2021] QCATA 103 at [31]. -- 7 of 11 -- 8 the Scheme, he could not see why the insured could not sue in a court to enforce the statutory entitlement.12 This may well extend to any misrepresentation by the Commission, such as in the Guide. [26] Accepting that to be the case Ms D’Arcy submits that as 26(a) is analogous to an exclusion clause in a contract of insurance, it therefore should not be interpreted so as to not circumscribe excessively the cover extended under the Scheme. That is because the purpose of the Scheme as set out in s 67X of the Act: (2) 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 [27] There can be no doubt that the purpose of Part 5 of the Act is consumer protection. Therefore, the phrase ‘on or for’ should be construed in a way which best achieves this purpose.13 [28] Also in prudential theory, premiums paid under the Scheme should provide sufficient capital for the Insurer to meet claims made for defective or incomplete work. Ms D’Arcy’s submission [29] Bearing in mind the purpose of the Scheme and the need to provide assistance to consumers, it is contended if Ms D’Arcy’s residential unit is not a multiple building then the Scheme should respond to her claim for incomplete and defective building work. [30] Her argument is that, firstly ‘multiple dwelling’ means the building comprising 2 or more separate residential units14 but not the individual units. The term ‘building’ is not defined. However and obviously the building, as a structure, comprises both the common property and the residential units. The definition makes no distinction between the common property which is the building and the registered lots in a community title Scheme. [31] So the exclusion, clearly relates to the building structure containing the residential units, but does it include the residential units? Some assistance can be gained from s 26 itself by reference to ‘on or for’. The exclusion operates to exclude claims ‘on’ the building being, by way of example the external surface of the building structure which is common property. Similarly, the exclusion operates to exclude claims ‘for’ the building being, by way of example, providing drainage around the building to secure its structural integrity. The latter work would not be ‘on’ the building. [32] Had the exclusion referred to work ‘in’ the building then this would clearly be a reference to the residential units and also, for completeness, the common property. Section 49C of the Land Titles Act 1994 (Qld) (“LTA”) identifies the boundary of a lot under a Building Format Plan as being the centre of the floor, wall or ceiling between the lot and other lots or common property. The point being there is a clear distinction between the lot and common property. The lot is not “on’ the building. [33] Ms D’Arcy concedes that work ‘on’ a multiple building could conceivably include work within the building envelope, such as work on the common property, e.g. the foyer, but to include work in a residential unit is inconsistent with ss 67WA and 67WC(1)(b), s 30 of the Regulation and the purpose of the Scheme being consumer protection. In effect what this means is that unlike other residential premises, detached houses, duplex and 12 Ibid at [32]. 13 Applicant’s submissions [54]. 14 Dictionary Sch 8 of the Regulation. -- 8 of 11 -- 9 residential units in a building of 3 storeys or less, there is no consumer protection for residential unit owners in complexes over 3 storeys, and licenced building contractors are not exposed to claims for incomplete and defective building work under the Scheme. A residential unit owner’s only resort is at common law and in many cases the contractor has no resources to meet a judgement. Mr Wilson has made a convincing argument which is attractive and consistent with the principles of statutory construction. [34] To adopt the construction urged by the Commission would defeat the purpose of the Scheme and only provide protection to a limited number or owners of residential units, being those up to 3 storey buildings. There seems to be no rational explanation as to why this is the case. Adopting what was said in Alcan, it remains uncertain what the general purpose and policy of the exclusion is and, in particular the mischief it is seeking to remedy.15 [35] Whereas one might suppose that if the cover was extended to high rise apartment buildings, excluding the residential lots, this could result in significant claims on the capital of the fund. An example might be to reclad a high rise building to meet complaint fire protection measures. It makes sense that external part of a high building, and also the common property, would not be included in the Scheme. This then gives some rational basis as to why the cover is limited to “on or for” the building. [36] When considered in this light the example used in regulation 26, is inconsistent with the phrase “on or for” in the regulation. Also, given that is it an exclusion, if there is any ambiguity, Ms D’Arcy should get the benefit of a broader interpretation consistent with the purpose of the consumer protection provided by the Scheme. The Commission’s submission [37] Mr Schmidt, counsel for the Commission, has referred to Esso Australia Pty Ltd v Australian Workers Union16 where the High Court said: The Courts 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 the parliament intended it to have. It is not the Courts 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 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. [38] Despite what might seem to be an ambiguity by limiting the application of regulation 26 to “on or for”, the Commission submits that this is clarified by reference to the example which expresses the intention of the Parliament as to the application of s 26. Therefore having regard to example there is no need to embark on an exercise of construing s 26 where the intention is unambiguous by reference to the example. [39] What this approach does not take into account is, by reference to the passage above from Esso, that it is not clear is just what the natural and ordinary meaning of the words in s 26 mean in the context of the intended purpose of the Scheme. Also, it does not take into account application of ss 14A and 14D(c) of the AIA, which in the latter provision 15 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue supra. 16 (2017) 350 ALR 404 at [52]. -- 9 of 11 -- 10 provides, of ignoring the example if inconsistent with the provision read in the context of other provisions of the Act as submitted by Mr Wilson. Discussion [40] To adopt the Commission’s submission as to the construction of s 26 by reference to the example would defeat the consumer protection provided by the Scheme for defective and incomplete building work in a residential unit in a building of more than three (3) stories. The exclusion in s 26 insofar as it relates to building work “on or for” includes by reference to the example the work “in” a residential unit. No rational reason for this exclusion has been provided, nor does it have to be, if the wording of the exclusion leaves no doubt as to its application. The exclusion is contained in a statutory instrument even though it could be said to be a term of the policy of insurance entered into between the consumer and the Commission along the lines referred to in Cowan. [41] Although the Commission relies on the above statement in Esso, that case was concerned with the interpretation of a specific provision of the Fair Work Act, which did not involve the application of the example to determine its true meaning. Here, the natural and ordinary meaning of the provision is not clear, “on or for” does not necessarily include “in” the building. The Commission relies on the example to support its position that “on or for” must be construed to mean “in” as well. In other words to extend the meaning of s 26 under s 14D(b) of the AIA. That is because the residential units are “in” the building by reference to s 49C of the LTA. It is only the application of the example which gives the provision clarity of meaning. Once that point is reached, then the exclusion defeats the consumer protection purpose of the Scheme as provided for in the Act. Is this what the legislature intended? [42] Even applying the example, the plain meaning of s 26 itself still does not include the residential units in the building. Ms D’Arcy submits that by reference to s 14D(c) of the AIA the example, when read with the consumer protection provisions of the Act, is inconsistent with those provisions and the therefore the wording of s 26 should prevail. That being the case, the absence of example confines the application of s 26 to “on or for” the building which necessarily excludes the residential units which are “in” the building. [43] Mr Wilson has put forward a compelling and persuasive argument as to how I should approach the construction of s 26. However, despite the sections loose wording, and its consequences, it is difficult to ignore the precision of the words used in the example which excludes the very building work the subject matter of this review. [44] Had it not been for the example, I would have been minded to adopt Mr Wilson’s submission in its entirety but the example is a roadblock to doing so. The example is very clear and expresses a legislative intent of what cannot be included in the Scheme. To ignore it completely and construe s 26 as though the example was not there at all, which is what I would have to do, would be venturing into the legislative realm as referred to by the High Court in Esso. [45] It would have been helpful (particularly for Ms D'Arcy) if the Commission provided some rationale for the exclusion of residential units in buildings of 3 storeys or more. Mr Schmitt has helpfully provided the explanatory note17 relating to the introduction of the 17 Queensland Building and Construction Commission and Other Legislation Amendment Bill 2014 – Explanatory Notes – page 12. -- 10 of 11 -- 11 amendment, which was not included in the Commissions s 21 documents.18 The relevant note provides: New section 67WB (Work not covered under the statutory insurance Scheme) encompasses various types of building work other than building work for residential houses and some units, as the scope of the Scheme is intended to be limited to such dwellings. The section is consistent with new section 67X which states that 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. (my emphasis) [46] The only feature of the Explanatory Note that would seem to provide any understanding of the exclusion is the reference to “some units”. It is not much, but it does give some support as to why the example was included. [47] The unfortunate consequence for Ms D’Arcy is that I have decided that the exclusion does apply because on its proper construction, by reference to the example, s 26 excludes defective and incomplete building work on a multiple building of more that 3 storeys. That of course means the Scheme does not respond to Ms D’Arcy’s claim. [48] That being the case the decision of the respondent is confirmed. 18 Despite the obligations under s 21 of the QCAT Act to assist the Tribunal and which the Commission’s representative also blatantly failed to observe at the commencement of the hearing. -- 11 of 11 --