Carter t/as Hulk Constructions v Queensland Building and Construction Commission [2021] QCAT 181

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Carter t/as Hulk Constructions v Queensland Building and Construction Commission [2021] QCAT 181 PARTIES: JAMES NEIL CARTER T/AS HULK CONSTRUCTIONS (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR329-19 MATTER TYPE: General administrative review matters DELIVERED ON: 14 May 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes ORDERS: The Tribunal confirms the decision of the Queensland Building and Construction Commission dated 21 March 2019 that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where review of decision that domestic building contract validly terminated –- where applicant failed to adduce evidence – where Commission’s decision confirmed Queensland Building and Construction Commission Act 1991 (Qld), s 68I Queensland Building and Construction Commission Regulation 2018 (Qld), Schedule 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323 -- 1 of 2 -- 2 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226 Laidlaw v Queensland Building Services Authority [2010] QCAT 70 Walker v Queensland Building and Construction Commission [2014] QCAT 228 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] The Queensland Building and Construction Commission paid out a claim of $13,250.00 to a home owner due to James Neil Carter trading as Hulk Constructions not obtaining building approval.1 [2] Mr Carter applied to review the Commission’s decision that the home owner had validly terminated the contract. In a review application, the Tribunal’s purpose is to produce the ‘correct and preferable’ decision by way of a fresh hearing on the merits.2 However, Mr Carter did not provide any evidence to assist the Tribunal to arrive at the correct and preferable decision. [3] Mr Carter has an evidential onus to provide material to support the decision he seeks.3 This has also been described as a ‘practical onus’.4 The Tribunal cannot make findings where the evidence is insufficient – parties must be responsible for preparing their own case.5 [4] Without evidence and submissions to support Mr Carter’s review application, the Tribunal is unable to make the orders he seeks.6 It is not open to the Tribunal to make a finding that the home owner did not validly terminate the contract. [5] The correct and preferable decision is to confirm the decision of the Commission dated 21 March 2019 that a domestic building contract has been validly terminated, having the consequence of allowing a claim for non-completion under the statutory insurance scheme. 1 Contract dated 13 March 2018, Item 13, Clause 10, Clause 30; Statement of Carey William Humble dated 27 August 2020, [4], [5], [8], [9], [11], [13]; Council Certificate dated 28 August 2020; Queensland Building and Construction Commission Act 1991 (Qld), s 68I; Queensland Building and Construction Regulation 2018 (Qld), Schedule 6. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20. 3 Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23]. 4 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33]. 5 Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3]; Creek v Raine & Horne Real Estate Mossman [2011] QCATA 226, [13], citing with approval Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, 217. 6 Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [22] – [25]; Body Corporate for Parkwood Villas v Queensland Building and Construction Commission [2015] QCAT 59, [67]. -- 2 of 2 --