Ellis and Anor v Queensland Building Services Authority [2012] QCAT 641

CITATION: Ellis and Anor v Queensland Building Services Authority [2012] QCAT 641 PARTIES: Shane Ellis Vicki Ellis (Applicants) v Queensland Building Services Authority (Respondent) APPLICATION NUMBER: GAR082-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: J Jerrard QC, Member DELIVERED ON: 24 December 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Set aside the decision of 2 February 2012; 2. Return the matter for reconsideration to the QBSA, with the following direction: a. The QBSA is to request the applicants to provide a statutory declaration signed by one of them, describing therein with particularity the building work performed at 40 Handel Avenue, Worongary by Michael Eston Homes Pty Ltd, the dates between which that work was performed, and the total cost of it; and of the position of the tiles about which complaint was made to QBSA Inspector Campbell on 19 November 2011, specifying whether or what portions of those are in a covered area; 3. Upon receipt of that statutory declaration, the QBSA is to determine the applicants’ claim for indemnity under the Statutory Insurance Scheme, -- 1 of 13 -- 2 and advise the applicants of the result, specifying therein whether the QBSA is following and applying the reasons and decision of this Tribunal in Jones v QBSA [2010] QCAT 563. CATCHWORDS: Meaning of ―Primary Building Work‖ – What constitutes a ―Path‖ – Need for agreement on the facts Queensland Civil and Administrative Tribunal Act 2009 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] This is a proceeding for the review, under s 86(1)(h) of the Queensland Building Services Authority Act 1991 (―the QBSA Act‖), of a decision by the Queensland Building Services Authority (―the QBSA‖) (communicated by letter dated 2 February 2012), to disallow a claim by the applicants Mr Shane Ellis and Mrs Vicki Ellis, made under the Queensland Home Warranty Scheme (―the Statutory Insurance Scheme‖). The applicants lodged a claim received on 6 October 2011, in respect of building work performed in June 2006 at the applicants’ residence at 440 Handel Avenue, Worongary, Queensland, and the complaint specified that in mid September 2001 the applicants had noticed that the tiles in a tiled area, described as being the ―pool and barbeque area‖, were lifting over most of the area and the tiles were moving, and dangerous. (The complaint is exhibit ―SOR-5‖ to a document headed ―Statement of Reasons for the Decision filed in this Tribunal on 9 July 2012 by the respondent QBSA‖). [2] The applicants submitted, with that complaint, a number of documents, which are listed in paragraph 25 of that ―Statement of Reasons.‖ They included a current title search of the property, dated 19 May 2006, a copy of a letter dated 4 October 2011 from the male applicant to the builder, advising that because the builder had been placed in the hands of a receiver and manager, he had lodged a formal complaint with the QBSA, noting that the builder had already corrected a lot of ―the defective work to my home, including replacing all water proofing and decks/tiling to the two balconies, and the associated repair of the rendering and surrounding works.‖ He advised the builder that the ―major tiling job‖ carried out around the swimming pool area had become a major safety hazard, due to tiles becoming loose and lifting in the major portion of areas tiled. [3] The other documents annexed to the complaint lodged with the QBSA were 15 invoices, two quotations, and a QBSA certificate of insurance, -- 2 of 13 -- 3 dated 22 June 2006. That certificate of insurance was in respect of the premises at 40 Handel Avenue, Worongary, and insured residential construction work (described as ―Alteration and/or Addition and/or Repairs‖) to a notified contract value of $300,000.00. The commencement date was recorded as 21 June 2006, and the date of expiry 21 December 2012. [4] The first six of those invoices were from B.P. and K.L. Jorgensen, addressed to the builder (Michael Easton Homes), and described as being for the supply of labour, materials and drawings for a job site at 40 Handel Avenue at Worongary. There was both a quotation, and an invoice, from an entity trading as Metro Tiles Factory Outlet, to the builder, in respect of the property at 40 Handel Avenue, invoices from an entity trading as Stone World Design Centre, two of which were addressed to the builder, one was to the male applicant, and one had no addressee. Those invoices from Metro Tiles Gold Coast and Stone World all identified the point of delivery as 40 Handel Avenue, Worongary. [5] There were four invoices from the builder to the applicants, bearing dates ranging from 4 October 2006 through to 7 December 2006, for an amount totalling $282,410.09, and an estimate dated 31 May 2006, in a total amount of $285,793.20. The figures appearing on the estimate total $127,472.00, and the estimate does not explain on its face how the remaining $132,340.00 cost was calculated. [6] The ―Statement of Reasons‖ treats the estimate dated 31 May 2006 as a quote for various items of work to be completed at 40 Handel Avenue, Worongary, and as the basis of the certificate of insurance issued on 22 June 2006 in the amount of $300,000.00, for the ―Alteration and/or Addition and/or Repairs‖ at 40 Handel Avenue. That Statement of Reasons described the statutory insurance scheme provided for in part 5 of the QBSA Act, in sections 67X to 71AA, and how under that Act a policy of insurance comes into force (because of section 69(2)) if a consumer enters into a contract for the performance of residential construction work, and the contract is with a licensed contractor who may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme. A consumer is a person for whom building work is carried out. [7] The effect of s 70(2) of the QBSA Act is that a person who has applied to the QBSA for a direction that a builder rectify building work is taken to have given notice of a claim to indemnity under the Statutory Insurance Scheme. The relevant insurance policy conditions applicable to contracts for the performance of ―residential construction work‖ appeared at annexure SOR-1 to the Statement of Reasons, and clause 2.1 of those insurance policy conditions, in edition 6, effective from 1 September 2003, provided that the QBSA agreed to pay the cost of rectifying defects in residential construction work that was ―primary building work‖. ―Primary building work‖ was defined in part 9 of the insurance policy conditions to mean primary building work as defined in section 11 of the Queensland Building Services Authority Regulation 2003 (―the Regulation‖), -- 3 of 13 -- 4 ―associated building work‖ was defined by part 9 of those conditions to mean associated building work as defined in section 12 of the Regulation, and ―residential construction work‖ was likewise defined in that part 9 to mean residential construction work as defined in section 10 of the Regulation. [8] Regulation 9 reads as follows: In this division— associated building work see section 12. primary building work see section 11. related roofed building means a building, other than a residence, that— (a) has a roof that is designed to be— (i) part of the structure of the building; and (ii) impervious to water or wind; and (b) is on the site of a residence or proposed residence, or proposed to be on the site of a residence or proposed residence; and (c) is used, or proposed to be used, for a purpose related to the use of the residence, or proposed residence. [9] The Regulation then goes on to give examples of a related roof building – a private garage, shed, carport, toilet building or change room on, or proposed to be placed on, the site of any existing or proposed residence; and continues: residence means a building or part of a building fixed to land and designed to be used for residential purposes, whether or not it is part of commercial or industrial premises, but does not include the following— (a) a boat, caravan, manufactured home, motor vehicle, tent, trailer, train or another similar thing; (b) a building designed as a temporary building, including, for example, a demountable building. [10] Regulation 10 provides: 10 Classification as residential construction work For the Act, schedule 2, definition residential construction work, the following is classified as residential construction work— (a) primary building work; (b) associated building work. [11] Section 11 provides as follows: 11 Meaning of primary building work (1) Subject to subsection (3), for section 10(a), building work mentioned in subsection (2) is primary building work if it is— -- 4 of 13 -- 5 (a) carried out by a building contractor; and (b) for a residence or a related roofed building; and (c) of a value of more than $3300. (2) For subsection (1), the following is the building work— (a) construction of the residence or related roofed building; (b) building work that affects the structural performance of the residence or related roofed building; (c) building work for relocation or replacement of a roof, wall, internal partition, floor or foundation; (d) building work for replacement or refitting of fixtures or fittings in a bathroom or kitchen in the residence or related roofed building; (e) building work for an unenclosed, elevated platform or verandah, including a deck, attached to a residence; (f) building work that increases the covered floor area of the residence or related roofed building; (g) building work for installation or repair of the primary water supply to, or sewerage or drainage for, the residence or related roofed building. (3) The following is not primary building work, but may be associated building work— (a) fencing; (b) landscaping; (c) painting; (d) installation, renovation, repair or replacement of any of the following— (i) airconditioning; (ii) driveways, paths or roads; (iii) units for heating water regardless of the source of energy for heating, and including units for heating swimming pools; (iv) refrigeration; (v) roller shades and shutter screens; (vi) security doors and grills; (vii) solar power units and associated electrical components; (viii) swimming pools, or spas that are not part of a bathroom; (ix) water tanks that are not part of a primary water supply for the residence or related roofed building. [12] Section 12 reads: 12 Meaning of associated building work -- 5 of 13 -- 6 (1) For section 10(b), associated building work is the following building work that is not primary building work, but is other building work carried out under a contract that includes primary building work (the other building work)— (a) if the primary building work under the contract is for a residence, other building work for anything on the site of the residence, but only if the other building work is for residential purposes; (b) if the primary building work is for a related roofed building, other building work on the site of the residence or proposed residence for which the related roofed building is to be used, but only if the other building work is for residential purposes. (2) Despite section 5, work mentioned in section 5(1)(b), (q), (r), (w), (z), (zb), (zg) or (zk) is building work that is associated building work if it is other building work. [13] Section 13 provides as follows: 13 Building work that is not classified as residential construction work (1) Each of the following is not classified as residential construction work— (a) building work on, or on the site of, a building or proposed building that is or forms part of any of the following— (i) a multiple dwelling of more than 3 storeys; (ii) a backpacker’s accommodation, boarding house, caravan park, guest house, holiday accommodation, hostel, hotel, lodging house or motel; (iii) a correctional centre, lockup, prison, reformatory or watch-house; (iv) a hospital, nursing home or other health care building; (v) an orphanage or children’s home; (vi) a retirement village under the Retirement Villages Act 1999; (vii) an educational institution; (viii) group accommodation for persons with a physical or mental disability; (ix) commercial or industrial premises, if the building or proposed building— (A) also serves the commercial or industrial purpose carried on at the commercial or industrial premises; and (B) is the only residential unit in the premises; (b) building work carried out by a building contractor for a person who is the holder of an owner-builder permit covering the work; -- 6 of 13 -- 7 (c) loading, unloading or transporting a building that, if it were fixed to land, could be a residence, or a related roofed building, regardless of whether the transport is within the boundaries of land where the building is located or otherwise; (d) off-site prefabrication of the whole of a building that could be a residence, or a related roofed building, whether or not the building is in its final form or in parts; (e) loading, unloading or transporting a completed prefabricated building that could be a residence or a related roofed building, whether the building is transported whole or in parts, regardless of whether the transport is within the boundaries of land where the Building is prefabricated, or to be located, or otherwise. (2) In this section— completed prefabricated building includes a prefabricated building— (a) that has not been placed on land where it is to be used; or (b) to which services have not been connected, including, for example, electricity or plumbing and drainage. [14] The complaint by Shane and Vicki Ellis received 6 October 2001 advised the QBSA that the builder (Michael Easton Homes Pty Ltd) had had receivers and managers appointed, and annexed a copy of the QBSA certificate of insurance for those premises. The QBSA satisfied itself that the builder’s ―Medium Rise‖ license had been cancelled, and that liquidators had been appointed. The QBSA then asked the applicants to provide a copy of their building contract and on 31 October 2011 Shane Ellis emailed the QBSA advising that he did not have a copy of any contract, he believed that the builder had done the work on a ―cost plus basis‖, he had spoken to the liquidator who had no copy of the building contract, and he had already supplied a copy of the insurance certificate with his complaint documents, together with a copy of all invoices paid by him. [15] On 19 December 2011 Mr Peter Campbell, a building inspector employed by the QBSA, conducted an inspection at 40 Handel Avenue in the company of Mr Shane Ellis and a Mr Steve Webb. Mr Campbell provided a report dated 19 December 2011, remarking by way of background that the complaint item related to floor tiling to the covered wet bar and pool area and that ―This work was undertaken as part of the building contract that involved major extensions to the dwelling‖. His report observed that visual inspection had noted that several areas to the floor tiles had detached from the substrate and tented. He described feeling movement under foot when walking on the surface, and that approximately 60% of the floor tiles had detached from the substrate. An affidavit from him, filed by the respondent, records that he had determined that the complaint item was ―category one‖ as defined in the Defects Policy, and was defective building work, as defined in the QBSA Act. His report recorded that he had advised the parties attending the meeting that he would refer the -- 7 of 13 -- 8 matter to a QBSA file manager for assessment of a possible insurance claim, under the QBSA home warranty scheme. On 21 December 2011 the QBSA advised both the applicants and the liquidator that because the builder was liquidated, the QBSA would not be issuing a Direction to Rectify to the builder, and that the complaint will now be assessed as a claim under the BSA home warranty insurance policy. [16] On 2 February 2012 the QBSA sent the applicants a letter stating that the tiles lifting around the pool and the barbeque area, which was the subject of the complaint, fell under the definition of ―associated works‖ (within the meaning of the policy and the Regulation) and not ―primary building work‖ (within the meaning of the policy and the regulation). [17] The provisions of the Regulation were considered by a Senior Member of the Tribunal in the matter Jones v Queensland Building Services Authority [2010] QCAT 563, decision published 10 November 2010. The judgment in that matter records that the applicant there, Sandra Jones, had contracted in July 2004 with a builder for the building of a house at Harron Close, Cashmere, which building works were completed in March 2005. In May 2009 problems began to develop with the tiling around an outside pool area at the rear of the house, which was on the same level as the living area. The pool area in those premises was adjacent to a main living area, and there was direct access to the tiled pool concourse area from the main bedroom, rumpus room, family room and entertainment area, in fact from the whole of the back of the house. [18] There was a distance of approximately 4-5 metres from the back wall of the house to the edge of the pool coping, at those premises. The judgment records that the plans showed that the area under the patio roof, and the eave or deck, as it was described on the plan, was tiled but there was no detail of the finished surface of the area between the notional line dropping down from the roof gutter to the edge of the pool. However one plan described the area as ―external slab on ground and part of pool paving‖, with an arrow pointing to under the patio and under the eaves. In addition, the area described as a deck had a gazebo type structure, which protruded into that open concourse space between the house and the pool. [19] The reasons for judgment in that matter further record that at the time of construction, the pool shell was poured first, followed by the house footings over the slab upon which the house frame was constructed, and that when the house structure was completed, a second slab was poured between the footings/slab of the house to the coping around the pool. The result was that from the patio to the master bedroom, adjacent to the main living area, was all concreted around the pool shell. Tiles were then laid on the concrete slab abutting the main house footing under the patio deck and veranda out to the waters edge of the pool. The end result was that one walked from the house directly onto a tiled area, which was then continuous from the house to the rear boundary. -- 8 of 13 -- 9 [20] At those premises, the tiles began lifting around the pool area and the Member concluded, consistent with the evidence of Mr Clayton, a QBSA Inspector who had undertaken an inspection after complaints, that the cause of the tiles lifting was as a consequence of the failure to install a control joint in the tiles. In that matter, as in this one, the QBSA wrote to the applicant Jones advising that it was the Authority’s decision to disallow a claim under the Statutory Insurance Scheme on the basis that the work the subject of the application to rectify (the lifting tiles, considered to represent a safety issue) was not ―primary building work‖ within the definition in the Regulation, but rather ―associated building work‖ to which the Statutory Insurance Policy did not respond. [21] The reasons for judgment in that matter record a definition in the Regulation of ―primary building work‖ in section 11 which is in the same terms as the Regulation now. Those reasons record that the QBSA contended to the Senior Member that in that case the tiling work from the perimeter of the roof area namely from the gutter of the house to the back boundary, was associated building work, as defined in section 12 of the regulation. Those reasons for judgment describe section 12 and what constituted ―associated building work‖, and it appears that the identical matters which section 12 then inclusively defined as ―associated building work‖, now appear in section 11(3) of the Regulation as a definition of matters that may be associated building work, providing that those fall within the definition of ―other building work‖, as now defined in section 12. That section identifies as ―associated building work‖ building work that is not ―primary building work‖ but is other building work carried out under a contract for a residence, providing that ―other building work‖ is for ―residential purposes‖. [22] That last expression is not defined in the Regulation. [23] The reasons for judgment in Jones record that the QBSA conceded that any defective work associated with the tiles from a notional line perpendicular from the edge of the gutter and back to the house footing would be ―primary building work‖ covered by the policy, even though that area was described on the plans as the external slab and part of the pool area paving. Beyond that notional line, that is to the swimming pool coping, the QBSA contended that the tiling work changed from being ―primary building work‖ to ―associated building work‖. [24] The QBSA also submitted in Jones to the Senior Member that the concourse area was a path. The Senior Member disagreed, concluding1 that ―if it is a path it is a path going nowhere.‖ The Member added that ―Such a proposition is not maintainable in my view because clearly it is an open usable space for the benefit of the occupants of the house.‖ [25] The Senior Member derived assistance from considering the definition in regulation 9 of residence as meaning ―a building or part of the building fixed to land and designed to be used for residential purposes.‖ The 1 At paragraph 20 of the reasons in Jones. -- 9 of 13 -- 10 Member then repeated that the QBSA had conceded that the section of the tiled area which was under the eave was part of the residence, and remarked that the tiled slab was constructed as part of the ―construction of the residence‖, as was evident by the plans, and was included in the contract price for the construction of the residence. He added that while those construction plans only showed tiles under the eaves the fact was that the contract provided that the builder, when constructing that tiled surface, continued it out to the pool. The Senior Member considered it somewhat artificial to contend that the continuous surface started off as primary building work and then at some notational line became associated building work, unless it clearly fell within the definition of associated building work. He concluded that the tiled surface area around the pool was quite obviously part of the living space of the residence. [26] The Member held that since that area was a usable living space of the residence, and was included in the ―construction of the residence‖, it was therefore part of the building within the definition of ―residence‖ and it had to be primary building work, because it was clearly not ―associated building work‖. The Member came to that conclusion because he considered that the tiling work did not fit comfortably with any of the descriptions of work that was defined as ―associated building work‖, being those appearing in section 12 as quoted in the judgment (and now listed in section 11(3) as matters that may constitute ―associated building work‖). [27] In the instant matter, the QBSA advised the applicants on 2 February 2012 that it had concluded that the tiles ―lifting around the pool and barbeque area‖ fell under the definition of ―associated building work‖. The affidavit of Glen Pring, who is employed as a Senior Assessment Officer in the Gold Coast office of the QBSA, filed in this Tribunal on 28 August 2012, advises in paragraph 23 that the QBSA determined that the applicants’ claim was disallowed in full, and that was certainly the effect of the letter sent to the applicants. It was signed by Mr Pring. [28] The wording of that letter dated 2 February 2012, and the affidavit of Mr Pring, convey the impression that the QBSA considered the complaint made to it, which it had appropriately treated as a request for an indemnity under the Statutory Insurance Scheme, was confined to a complaint that the tiles were lifting ―around the pool and barbeque area‖. [29] An application to review that decision, dated 28 February 2012, and received on 1 March 2012, annexed to it photographs numbered ―A1‖, ―A2‖, and ―A3‖ and an examination of those photographs, and of the report of BSA Inspector Campbell, attached to the application, shows that the applicants appeared to be describing that the builder had constructed a two storey addition to the house, with an upstairs roofed area and balcony, with a security fence, and an open downstairs area which covered and a bar and barbeque area, and the tiles the subject of the complaint included tiles underneath the newly constructed roofline, as well as those external to it. A large area was tiled when the work was performed, and the tiling extends from the edge of the building under the newly built roof line through that roof line and to the edge of the pool. All -- 10 of 13 -- 11 of the tiles appear to be of the same type, and their positioning and size is as such that if a line were dropped from the ―eaves‖ area of the newly constructed roof, a substantial number of tiles would fall partly on the inner, an partly on the outer, side of that line. This makes it rather artificial to consider that it is only the tiling work underneath the roofed area which is ―primary building work‖ and that the rest of the tiling is ―associated building work‖, because it would mean that part of a number of tiles fall within the ―primary building work‖, while the remainder of those individual tiles were ―associated building work‖. If the QBSA have maintained the same approach in this matter as they argued for in the Jones matter, then the tiling under the newly roofed area (the area underneath the balcony) would be ―primary building work‖. [30] Photo ―A3‖, submitted by the applicants to the QBSA, has written notations on it which include the following, ―defective external floor and tiling work is substantially under new roof line and covered areas as well as external.‖ [31] The Statement of Reasons filed on 9 July 2012 (in compliance with a direction given on 17 May 2012), signed by Mr Pring for the QBSA, contended in paragraph 35 that the QBSA had ―determined that the Applicants’ claim was disallowed in full‖, and in paragraph 48.2 that Mr Pring had determined that ―the tiled area surrounding the pool and barbeque was considered to be a path‖, and therefore considered to be ―associated building work‖ pursuant to section 11(3)(d)(ii) of the Regulation. The contention that that area was properly considered a ―path‖ repeated the position advanced by the QBSA in Jones, and was not a matter asserted in the letter by the QBSA dated 2 February 2012, although it may have been the basis of that decision. [32] The written submission of the QBSA, filed in this Tribunal on 28 August 2012, contends in paragraph 7.17 that the external tiled area is ―considered to be a path‖, and in 7.19 the following appears: ―The Authority notes that the question of whether an external tiled area is a ―path‖ was ventilated in Jones and was not accepted by the Tribunal.‖ [33] It is not quite clear to me what the QBSA mean by that submission. It may mean that it is inviting a reconsideration of the reasoning in Jones, which decision it did not appeal. In paragraph 7.24 of those submissions the QBSA argues that in Jones, ―the Tribunal determined that external tiling work would have been included within the Authority’s Statutory Insurance Scheme if the external tiling had been completed at the same time as the construction of the dwelling‖, and that this was not the case in this proceeding. In similar vein, in paragraph 7.23, the QBSA argues that the external tiling was installed as part of a separate quotation when the applicants were the owners, after the residence had been originally in approximately 1993, and that the external tiling area was not ―roofed‖. [34] That submission ignores the fact that, as the photographs submitted by the applicants demonstrate, part of the tiled area (about which there was a -- 11 of 13 -- 12 complaint that tiles are lifting) is roofed, and the report by BSA Inspector Campbell (dated 19/12/2011) describes the building contract as one that ―involved major extensions to the dwelling.‖ [35] An affidavit from Peter Campbell (the building inspector) remarks at paragraph 20 upon plans sent to the QBSA, on 14 August 2012, by Shane Ellis, and on how Mr Campbell has endeavoured to draw on the plan marked ―PC-5‖, annexed to his affidavit, the position of the pool relative to the balcony. It is apparent to me, when one compares his notation with the photographs submitted by Mr Ellis with his application of 1 February 2012, that Mr Campbell has mistaken the position of the pool, which is in fact closer than Mr Campbell realized or remembered to the (apparently) newly constructed balcony. [36] The applicants’ written submissions received 3 September 2012 repeatedly refer to the tiled areas as ―part of the works performed on the whole building contract for the residential extensions including a major roofed and undercover tiled extension to the usable living space of the residence.‖ They repeatedly state that, ―The tiling was never part of a separate contract.‖ Unsurprisingly, the applicants contend that the case of Jones should be applied to the facts in this matter, and the QBSA should ―apply it as merely supporting the applicants’ claim.‖ [37] An affidavit by a Stephen Roy Webb, received at this Tribunal on 3 September 2012, describes Mr Webb as now being a licensed builder, who in 2006 was employed as a leading hand/project manager for the builder, at the time the ―defective‖ building work was performed at the applicants’ site at 40 Handel Avenue. In paragraph 3 of that affidavit, the deponent refers to the photographs marked ―A1, A2 and A3‖, annexed to the application for review filed 1 March 2012, and says about them that, ―as can clearly be seen the building works performed were for major residential extensions including a large roofed area, an external living space including an undercover tiled extension of the residence.‖ [38] It appears to me that the applicants and respondent may have acted on a different understanding of the facts in this matter, perhaps resulting from the applicants’ failure to describe with clarity, in their original complaint to the QBSA, the building work which had been performed at the site by the builder, as distinct from complaining about the defective performance only of some of it. That may have resulted in the applicants asking for indemnification in respect of all of the tiled area (both covered or roofed and uncovered), without making it clear that portion of tiles were undercover, and the QBSA originally rejecting the application for indemnity simply because it did not grasp that some of the allegedly defective tiles were underneath a roofed area. It may be that the QBSA at all times considered the external tiles constituted a ―path‖, but I do not understand them to be arguing that the roofed or covered tiles are a path. [39] I consider it appropriate to exercise the power given in section 24(1)(c) of the QCAT Act 2009, and -- 12 of 13 -- 13 (1) Set aside the decision of 2 February 2012; (2) Return the matter for reconsideration to the QBSA, with the following direction: o The QBSA is to request the applicants to provide a statutory declaration signed by one of them, describing therein with particularity the building work performed at 40 Handel Avenue, Worongary by Michael Eston Homes Pty Ltd, the dates between which that work was performed, and the total cost of it; and of the position of the tiles about which complaint was made to QBSA Inspector Campbell on 19 November 2011, specifying whether or what portions of those are in a covered area; (3) Upon receipt of that statutory declaration, the QBSA is to determine the applicants’ claim for indemnity under the Statutory Insurance Scheme, and advise the applicants of the result, specifying therein whether the QBSA is following and applying the reasons and decision of this Tribunal in Jones v QBSA [2010] QCAT 563. -- 13 of 13 --