Ahmet v Queensland Building and Construction Commission and Low [2022] QCAT 169

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Ahmet v Queensland Building and Construction Commission and Low [2022] QCAT 169 PARTIES: JESSICA AHMET (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (first respondent) CRAIG LOW (second respondent) APPLICATION NO/S: GAR048-20 MATTER TYPE: General administrative review matters. DELIVERED ON: 27 April 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Matthews ORDERS: 1. The application for miscellaneous matters filed on or about 26 March 2021 by the first respondent is dismissed. 2. The parties are granted 21 days from the date of decision to file and serve any further amended statement of reasons, and statements of evidence of all witnesses they intend to rely upon at the hearing. 3. The review application is to be listed for a further direction hearing for a date to be determined, no later than 21 days after the filing of additional materials. CATCHWORDS: BUILDERS – STATUTORY INSURANCE SCHEME – PROFESSIONS AND TRADE – TIME LIMITATIONS – was insurance claim made outside of time when considering when consumer first became aware, or ought reasonably to have become aware, of structural defect. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 (2), s 47 (1) (b) 20 Queensland Building and Construction Commission Act 1991 (Qld), s 86 (1) (h), Schedule 2 -- 1 of 3 -- 2 Queensland Building and Construction Regulation 2018, s16 (3) a Raeburn & Anor v Queensland Building and Construction Commission [2020] QCAT Appearances: This matter was determined and heard on the papers pursuant to s 32 (2) of the Queensland Civil and Administrative Tribunal Act 2009 Reasons for decision [1] This is an application filed by the Queensland Building and Construction Commission “(QBCC”) pursuant to section 47(1)(a)-(1)(b) of the Queensland Civil Administrative Tribunal Act 2009 (Qld) (‘The QCAT Act’). [2] The QBCC seeks that the application of Ms Ahmet filed 20 February 2020 to review a decision be dismissed on the basis that the application is misconceived and is lacking in substance.1 [3] The QBCC relies upon strict time limitations contained within s 16(3)(a) of the terms of cover, namely that no assistance can be given to the consumer, unless the consumer makes a claim mentioned in section 15 for a structural defect within three (3) months after the day the consumer first becomes, or ought to have become aware, of the (structural) defect in the work2. [4] The act provides that consumers if making a claim outside of time, then the QBCC has no discretion to make allowances for additional time for a claim to be made. [5] The QBCC relies upon 6 July 2018 as the commencement of the strict time limitation and therefore, the applicant needed to have claimed under the scheme by 6 October 2018. [6] The records indicate that Ms Ahmet applied under the scheme on 5 November 2018. [7] On the papers before the tribunal, there are factual disputes between Ms Ahmet and QBCC when the structural defects became evident, or ought to have been known by Ms Ahmet which warrant consideration on their merits. [8] In the statement of Alistair Bruce Cowan dated 23 July 2021, Mr Cowan details his visit to Ms Ahmet’s home on or about late June, early July to provide Ms Ahmet some quotes for additional renovations and to determine the scope of works he had been asked to undertake for Ms Ahmet. [9] During this visit, Mr Cowan claims to have noticed that some elements of the rear deck of Ms Ahmet’s home had been built in a way that was not consistent with common building practices and suggested to Ms Ahmet that she try to find out who did the works because he believed that they would be able to easily rectify those issues. 1 s 47(1)(a)-(b) Queensland Civil Administrative Tribunal Act 2009 (Qld). 2 Queensland Building and Construction Commission Regulation 2018. -- 2 of 3 -- 3 [10] At this point Mr Cowan considered the defects to be cosmetic and not structural.3 [11] What Ms Ahmet at this point knew, or ought to have known, is not yet fully confirmed which includes what she ought to have known following the 6 July 2018 inspection of the property by Mr Manwin of El Consulting engineers, and certifier Mr Easton when they met with Mr Cowan and prior to the QBCC inspection at her home on 18 February 2019, and the subsequent report of Resolution Services dated 19 February 2019. [12] Certainty as to whether it was known, or not known, to be a structural defect at that stage is a factual dispute the tribunal considers is still unsettled between the parties. [13] In following Raeburn,4 it is established that where factual disputes remain, especially regarding when the consumer has, or ought to have become aware of (structural) defects, it is not appropriate by way of an interlocutory application to attempt resolution of such matters. [14] Where there are factual disputes (whether apparent or not) about when Ms Ahmet first became aware, or ought to reasonably have become aware of a structural defect is an important and pertinent fact and is central in determining the commencement of the strict time limitation of when consumers need to apply to be eligible for insurance claims. [15] To dismiss an application when those disputes still exist, would amount to a curtailment of review rights for affected persons. [16] Therefore, the application for miscellaneous matters brought pursuant to s 47 of the QCAT Act by the QBCC when those disputes are still unsettled is misplaced and would be contrary to Ms Ahmet’s rights to procedural fairness to review of a reviewable decision by way of a fresh hearing on the merits, which includes, hearing the full evidence of the parties to the matter, and cross examination of all relevant witnesses. Orders of the tribunal [17] The Application for miscellaneous matters filed on or about 29 March 2021 is dismissed. [18] The parties are granted 21 days from the date of decision to file and serve any further amended statement of reasons, and statements of evidence of all witnesses they intend to rely upon at the hearing. [19] The review application is to be listed for a further direction hearing for a date to be determined, no later than 21 days after the filing of additional materials. 3 Statement of Brett Cowan. 4 Raeburn &Anor V Queensland Building and Construction Commission [2020] QCAT 502 at 10. -- 3 of 3 --