The Queensland Civil and Administrative Appeals Tribunal has confirmed that an internal review decision of the Queensland Building and Construction Commission (QBCC) to allow a defective work claim under the Queensland Home Warranty Insurance scheme is reviewable externally in QCAT, however, the original QBCC decision to allow a defective work claim is not reviewable.
Section 86 of the Queensland Building and Construction Commission Act 1991 (QBCC Act) lists the decisions made by the QBCC that can be challenged by a contractor or a consumer. Those challenges can be made by way of an application to:
- internally review the QBCC’s decision to the QBCC’s Internal Review Unit; or
- externally review the QBCC’s decision to the Queensland Civil and Administrative Tribunal (QCAT).
The “reviewable” decisions listed in the QBCC Act are very specific and do not include all of the decisions that the QBCC may make in investigating a complaint about alleged defective building work. Relevantly, a decision made by the QBCC to allow an insurance claim for defective work under the Queensland Home Warranty Scheme (QHWS) is not included in the list of “reviewable decisions”.
However, section 86E(b) of the QBCC Act provides that an internal review decision is “reviewable” in QCAT. Previously, contractors have thought that they must apply to the Supreme Court of Queensland pursuant to the Judicial Review Act 1991 to review a QBCC decision (original or internal review decision) to allow a defective work claim under the QHWS.
Decision in QBCC v BLC
Recently, in Queensland Building and Construction Commission v B & L Constructions Qld Pty Ltd [2023] QCATA 71 (QBCC v BLC), the QCAT Appeal Tribunal upheld a QCAT decision that an internal review decision to allow a defective work claim under the QHWS was “reviewable” in QCAT. However, the QCAT Appeal Tribunal confirmed that an original decision of the QBCC’s Insurance Department to allow a defective work claim under the QHWS would not be “reviewable” in QCAT.
BLC was the contractor engaged to construct a house on land pursuant to a building contract. After the work was completed, the property was sold to a new owner who made a defective work claim on the QHWS (QHWS Claim).
On 10 November 2020, the QBCC’s Insurance Department disallowed the QHWS Claim (Claim Decision). The owner sought to internally review the Claim Decision and, on 21 December 2020, the QBCC Internal Review Unit made a new decision to allow the owner’s defective work claim pursuant to the QHWS (Internal Review Decision).
On 7 May 2021, BLC filed an application in QCAT to externally review the Internal Review Decision (External Review Application). On 16 July 2021, QCAT directed that it would determine the preliminary question of whether QCAT had jurisdiction to hear the External Review Application (Preliminary Issue).
On 31 March 2022, QCAT determined that it had jurisdiction to determine the Preliminary Issue (QCAT Decision). Not happy with that decision, the QBCC applied to the QCAT Appeal Tribunal to appeal the QCAT Decision.
The QCAT Appeal Tribunal considered that the QBCC Act clearly provides that an internal review decision is reviewable in QCAT, meaning that a contractor cannot review the QBCC’s original decision to allow a defective work claim under the QHWS, however, where an internal review decision was later made to allow a defective work claim under the QWHS, the affected contractor is entitled to apply to QCAT for an external review of the internal review decision.
Key takeaway from QBCC v BLC
This decision highlights the importance of ensuring that persons affected by QBCC decisions obtain legal advice regarding their rights to challenge those decisions.
Construct Law Group has significant experience in providing advice and preparing internal and external review applications challenging decisions of the QBCC.
This article is provided for general information and educational purposes only and should not be taken to be legal advice. Each QBCC decision and set of facts are different and therefore you should obtain specific legal advice.
If you have any questions regarding QBCC decisions or would like us to assist with challenging a QBCC decision, please do not hesitate to contact our team on (07) 3139 1874 or email us at info@constructlaw.com.au.
