Demaio v Queensland Building and Construction Commission [2026] QCAT 365

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Demaio v Queensland Building and Construction Commission [2026] QCAT 365 PARTIES: FRANCESCO DEMAIO (applicant) v QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (respondent) APPLICATION NO/S: GAR410-24 MATTER TYPE: General administrative review matters DELIVERED ON: 6 August 2026 HEARING DATE: On the papers HEARD AT: Cairns DECISION OF: Member Auld ORDERS: The decision of the Respondent of 10 June 2024 is confirmed. The Applicant’s application for a review of a decision of the Respondent of 10 June 2024 is otherwise dismissed. CATCHWORDS: PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – where a claim was made under the Queensland Home Warranty Insurance Scheme – where the issue was whether the claim was made more than three months after the owner became aware of the defects – where the owner became aware of the defects before the works were substantially complete – where the claim was disallowed Queensland Building and Construction Commission Act 1991 (Qld), sections 67WA, 67WC, 86(1)(h), 86E, 87, Queensland Civil and Administrative Tribunal Act 2009 (Qld) sections 17, 20, Ahmet v Queensland Building and Construction Commission [2022] QCAT 417 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). -- 1 of 6 -- 2 REASONS FOR DECISION Background [1] The Applicant engaged a contractor to construct five (5) large sheds, five (5) smaller sheds, and one (1) barn at the Applicant’s property (the Work). The various contracts for the Works were entered into between 19 July 2021 and 14 October 2021. [2] The Work commenced on or about 16 September 2021 and was completed on 9 August 2022. [3] On 15 February 2022, a Form 16 Inspection Certificate and a Form 21 Final Inspection Certificate were issued for the completion of the Work at the Applicant’s property. [4] The agreed value of the Work was $378,415.00. [5] As at 17 February 2022, the Applicant had paid the contractor $343,306.00, leaving a balance owing of $35,109.00. [6] On 15 June 2023, the Applicant lodged a Residential and Commercial Construction Complaint Form (the Complaint) with the Respondent in regards to work undertaken by the contractor at the Applicant’s property. [7] There were eight (8) complaints listed on the Complaint: (1) – Screw used to hold up Colourbond are going rusty. Not up to BCA standard as required for moderate corrosion area. (2) – Bolts used to hold shed together are going rusty. Not up to BCA standard as required for moderation corrosion area. (3) – Nuts used to hold shed together are going rusty. Not up to BCA standard as required for moderate corrosion area. (4) – Colourbond is going rusty. Not up to BCA standard as required for moderate corrosion area. (5) – Durogal posts used to hold up sheds are going rusty. Not up to BCA standard as required for moderate corrosion area. (6) – Purlins used in sheds are going rusty. Not up to BCA standard as required for moderate corrosion area. (7) - Girts used in sheds are going rusty. Not up to BCA standard as required for moderate corrosion area. (8) – Bracing used to hold sheds together are going rusty. Not up to BCA standard as required for moderate corrosion area. [8] The Complaint states that all items were first noticed on 3 February 2022. [9] On 26 February 2024, the Respondent sent an inspector in their employ to the Applicant’s property to undertake an inspection on the items contained in the Complaint. -- 2 of 6 -- 3 [10] On 5 April 2024, the Respondent notified the Applicant of its decision not to issue a direction to rectify or complete building work to the contractor in respect of the eight (8) items contained in the Complaint (Original Decision). [11] On 20 April 2024, the Applicant applied for an internal review of the Original Decision. [12] On 17 May 2024, the Respondent notified the Applicant of the internal review Decision to disallow a claim under the Scheme in accordance with part 5 of the QBCC Act and schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (Terms of Cover) (the Decision). [13] On 10 June 2024, the Applicant filed this application for a Review of that Decision. The Legislation Jurisdiction [14] Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that the tribunal’s review jurisdiction is conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act. [15] Given the Decision is a decision under the QBCC Act (being an enabling Act) to disallow a claim under the statutory insurance scheme, the Decision is a reviewable decision. [16] The Tribunal decides an application for review with a fresh hearing of the matter on the merits and must arrive at the correct and preferable decision.1 [17] Therefore, the Tribunal has jurisdiction to hear the review application of the Decision. Scheme & Terms of Cover [18] The Scheme is established under the QBCC Act in Part 5, sections 67W to 71F. [19] Where a contract is entered into for the performance of “residential construction work”, the statutory policy of insurance pursuant to the Scheme will come into force.2 [20] Section 67WA of the QBCC Act provides a definition of what is a consumer, and what is residential construction work. [21] The Scheme only provides coverage for a consumer in respect of certain defined events. Those events are contained in schedule 6 of the Queensland Building and Construction Commission Regulation 2018 (Qld)(the QBCC Regulation). Those events are: (a) Incomplete residential construction work; (b) Defective work; and (c) Vandalism, forcible removal, fire, storm, or tempest.3 1 QCAT Act, s 20. 2 QBCC Act, s 68H. 3 QBCC Regulation Terms of Cover, s 10, 11, 12. -- 3 of 6 -- 4 [22] The QBCC Regulation provides limitations on assistance. Section 16 provides that a consumer is entitled to claim assistance mentioned in section 15 in relation to a structural defect in the residential construction work if the consumer first becomes aware, or ought to have reasonably become aware, of the structural defect within – (a) For residential construction work that is not substantially complete, within 6 months after the cover commencement day for the work – the period – (i) Starting on the date that is 6 months after the cover commencement day; and (ii) Ending 6 years and 6 months after the period starts; or (b) Otherwise – 6 years and 6 months after the commencement day for the work. [23] A consumer may also claim assistance in relation to a defect other than a structural defect if the consumer becomes aware or ought to have reasonably become aware of the defect within 6 months after the date that the work is substantially complete.4 [24] Section 16 (3) provides that no assistance can be given unless the consumer makes the claim mentioned in section 15: (a) Within 3 months after the date the consumer became aware or ought to have reasonably become aware of the defect for a structural defect; or (b) Within 7 months after the day the residential construction work is substantially complete for any other defect. Consideration [25] There are three key issues for the Tribunal to consider in this matter: (a) Whether or not the Applicant is a “consumer”; (b) Whether the Work complained of is “defective work”; and (c) If there are any limitations on assistance. [26] Looking at the first consideration, it is undisputed in these proceedings that the Applicant is a consumer, and the Work is residential construction work that is primary insurable work under section 67WC(1)(a) of the QBCC Act. [27] The Work in this case falls into the category of erection or construction of residence or related roofed buildings as it related to the construction of sheds. [28] In this matter, the Respondent submits that: (a) Complaint Items 1, 2, 3, 4, 6 and 7 are not defective; and (b) Complaint Items 5 and 8 are considered structurally defective. [29] This submissions is supported by a Statement of Findings by a building inspector from the Respondent was filed in the Tribunal on 27 May 2025 (the Findings). [30] In the absence of contradicting evidence, I accept the Respondent’s submissions, and the Findings. 4 QBCC Regulation Terms of Cover, s 16(2). -- 4 of 6 -- 5 [31] I turn now to the limitations to the assistance under the Scheme that are present in this matter. [32] Firstly, the Applicant identified that he noticed and/or became aware of the defective work on 3 February 2022. Further, the Form 21 was issued in respective of the Work on 15 February 2022, meaning that the Work was substantially complete by no later than 15 February 2022. [33] Based on the above, the Applicant should have lodged his claim by the following dates to be eligible for assistance under the scheme: (a) By 3 May 2022, being three months from the date the Applicant became aware of the defects; or (b) By 15 September 2022, being seven months after the day the work became “substantially complete”. [34] Instead, the Applicant lodged his complaint on 15 June 2023, being: (a) One year, four months and twelve days after becoming aware of the defective work; and (b) One year and four months after the Work became substantially complete. [35] The Applicant submits that he was not aware of the rust being a result of the non- compliant materials for moderate corrosion environment under the Building Code of Australia, and therefore the Applicant was not aware of the defect for the purposes of the statutory time limits. [36] In coming to this decision I adopt the Tribunal’s reasoning in the decision of Ahmet v Queensland Building and Construction Commission [2022] QCAT 417 that the time commences when a consumer/complainant becomes aware of the defect, not when the defect becomes more pronounced. [37] Therefore, I find that the Applicant is limited from assistance under the scheme in relation to Complaint Items 5 and 8 in that regard. [38] Secondly, the Terms of Cover at section 59 provide that if the building work was substantially completed, and the Applicant became aware of the defect before this time, there will be no entitlement to assistance under the Scheme. [39] As stated above (being the issuing of the Form 21), the Works became substantially complete on 21 February 2022. [40] The Applicant submits that existence of the defect means that the Works were not substantially complete. [41] The criteria for substantial completion are set out in section 59 of the Terms of Cover. Relevantly to this matter, the issuing of the Form 21 on 15 February 2022 would satisfy that criteria and render the Works substantially complete on 15 February 2022. [42] As a result of this, no assistance can be given under the Scheme as the Applicant became aware of the defects on 3 February 2022, which is a date prior to the Works being substantially complete. -- 5 of 6 -- 6 [43] The time frames provided for in the Terms of Cover are strict and no discretion can be applied by the Tribunal. As such, the Decision of the Respondent dated 10 June 2024 must be confirmed. -- 6 of 6 --