CITATION:	Tucker v Queensland Building and Construction Commission [2017] QCAT 130 	
PARTIES:	Jeffrey Tucker
(Applicant)	
	v	
	Queensland Building and Construction Commission
(Respondent)	
APPLICATION NUMBER:	GAR204-16	
MATTER TYPE:	General administrative review matters	
HEARING DATE:	10 April 2017	
HEARD AT:	Brisbane	
DECISION OF:	Member Olding	
DELIVERED ON:	10 April 2017	
DELIVERED AT:	Brisbane	
ORDERS MADE:	1.	The Tribunal decides that it has jurisdiction to hear and decide the review.
2.	The application is to be listed for a directions hearing at a date to be advised.
	
CATCHWORDS:	ADMINISTRATIVE REVIEW – QUEENSLAND HOME WARRANTY SCHEME – whether jurisdiction to review – whether insurance claim disallowed in part – where liability accepted – where decision to pay for loss in value rather than rectification as claimed - meaning of “disallow a claim under the statutory insurance scheme wholly or in part”

Queensland Building and Construction Commission Act 1991 (QBCC Act), s 86(1)(h)	

APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES:		
APPLICANT:	Self-represented	
RESPONDENT:	Represented by Mr E Tan, Senior Lawyer for the Queensland Building and Construction Commission 	
REASONS FOR DECISION
[1]	These reasons concern whether the Tribunal has jurisdiction to review a decision of the Queensland Building and Construction Commission in relation to a claim by the applicant, Mr Tucker, under Queensland’s statutory insurance scheme for defective residential construction work.
[2]	The Tribunal has jurisdiction to review a decision “to disallow a claim under the statutory insurance scheme wholly or in part”.
[3]	Mr Tucker says that the Commission has partly disallowed his claim, as it has not rectified the faulty work or paid him an amount sufficient to rectify it.  Rather, it has decided to pay an amount it considers to be the difference between what would be the value of Mr Tucker’s residence, but for the faults, and its actual value.
[4]	The Commission says that it wholly allowed the claim when it accepted that it is liable under the insurance scheme.  Once liability for a claim is accepted, the amount to be paid is for the Commission to determine in accordance with the terms of the policy and that determination, the Commission says, is not reviewable.
The statutory framework
[5]	Part 5 of the QBCC Act provides for the statutory insurance scheme, known as the Queensland Home Warranty Scheme. 
[6]	It is common ground that a policy of insurance under the scheme came into force for Mr Tucker’s building work.  The applicable policy document is Insurance Policy Conditions Edition 6 made by the Queensland Building and Construction Board on 1 September 2003.
[7]	Generally under the policy, the Commission agrees to pay the reasonable cost of undertaking work necessary to remedy defects.
[8]	However, clause 2.2(c) provides that:
“Where, in the opinion of the [Commission], the undertaking of remedial works is unnecessary or unreasonable, the payment will be limited to the loss in value, if any, in the residential construction work, produced by the departure from the plans or specifications or by the defective workmanship or materials.”
[9]	“Residential construction work” includes construction of a residence.
[10]	Pursuant to s86(1)(g) and (h), and s87, of the Act, a person affected by Commission decisions of the following character may apply to the Tribunal for a review of the decision:
“(g) a decision about the scope of works to be undertaken under the statutory insurance scheme to rectify or complete tribunal work; 

 (h) a decision to disallow a claim under the statutory insurance scheme 
wholly or in part.”
Background
[11]	This matter has a long and unfortunate history. I understand that the following truncated summary would not be in contention:
a)	In 2006, Mr Tucker entered into a contract for the construction of a residence on his land at Willowvale in Queensland. 
b)	On 29 August 2011, Mr Tucker, being dissatisfied with various aspects of the construction, made a complaint to the Commission.
c)	The items covered by the complaint included defects relating to misalignment and other issues with the brickwork. The defects affect the whole of the external brickwork of the home.
d)	The Commission followed its practice of treating the complaint as a claim under the statutory insurance scheme. 
e)	On 9 April 2015, the Commission issued a scope of works for remediation of the defective work.
f)	Mr Tucker sought an internal review of the scope of works.
g)	The internal review by the Commission determined on 13 July 2015 that the original scope of works did not fully address the extent of the brickwork defects and substituted a new scope of works in these terms:

“Allow to suitably conceal (render/cladding or other agreed method as approved) defective face brickwork as a result of misaligned bricks and inconsistent pointing to all external walls of the dwelling. (approx. 190 sqm).”
h)	Because remedying the defects would involve removing and replacing the whole of the brickwork, Mr Tucker advised that, as a compromise, he would accept sandstone cladding.  
i)	The Commission’s external service provider, described by the Commission as the rectifying builder, provided a revised scope of works on 25 August 2015, as follows:
“External face brickwork. Allow to suitably conceal defective brickwork with Sandstone Wall Façade from Sandstone Works to all external walls of the dwelling.”
j)	However, when providing its quote dated 4 November 2015, the builder included a notation: 
“Sealing of sandstone not included I have concerns if the existing brickwork is strong enough to clad.”
k)	Because of various concerns raised by three cladding companies, Mr Tucker also advised the Commission by email dated 1 December 2015 that cladding would not be suitable and asserted that it would be necessary to return to rectification by replacing the faulty brickwork.
l)	However, he also provided an email from a sandstone cladding installer quoting the cost of sandstone cladding at $94,326.00 plus necessary associated works at $25,000, plus GST in both cases, making a total of $131,259.  
m)	Mr Tucker does not accept that a suggested alternative of rendering and painting is suitable in the context of the design and location of the residence and has produced advice from an architect confirming this view.
n)	Based on the advice received about the impact of sandstone cladding on the structural integrity of the residence, the Commission formed the opinion that undertaking remedial work would be unreasonable.  
o)	The Commission therefore determined that, in accordance with the terms of the insurance policy, the payment to Mr Tucker under the policy would be based on the loss in value of Mr Tucker’s residence as a result of the faulty brickwork.
p)	A valuer engaged by the Commission quantified the loss in value at $65,000.  
q)	The Commission advised Mr Tucker on 21 March 2016 that it had determined to finalise the insurance claim by paying Mr Tucker the amount of $65,000.
r)	Mr Tucker sought an internal review of this decision. (I infer that the amount of $65,000 is less than the cost of remedying the defective work.)
s)	On 19 July 2016 the Commission determined that there was no decision that could be reviewed by the Commission’s Internal Review Unit.
t)	In the current application to the Tribunal, Mr Tucker seeks a review of that “decision”.
The decision under review
[12]	Given the history set out above, the Commission submits, and I accept, that the decision that should be treated as the subject of Mr Tucker’s application for review is the decision of the Commission to finalise the claim on the basis of a cash payment of $65,000.
Mr Tucker’s claim under the statutory insurance scheme
[13]	The policy contemplates claims being made in writing, clause 6.1(b) stating “All claims will be in writing and will be in such form and contain such information as [the Commission] may direct.”
[14]	However, the Commission advised that its practice is that:

“[T]here is no separate claim that is lodged by an Applicant.  Once a complaint is made and assessed, it is automatically referred to insurance if an entitlement is determined.” 
[15]	Accordingly, I have treated Mr Tucker’s complaint as the claim for insurance.  The complaint, and therefore on the basis of the Commission’s practice, the insurance claim, sought rectification of the brickwork and related defects. 
Has the Commission disallowed Mr Tucker’s insurance claim wholly or in part?
[16]	The Commission submits that it has wholly allowed the claim and calculated the amount payable in accordance with the terms of the policy. 
[17]	The Commission’s view, although not specifically articulated as such, seems to be that “allowing” a claim merely encompasses accepting that the insurer has a liability.  It does not extend to accepting the amount claimed as payable in respect of the claim or the basis on which that amount should be calculated.
[18]	On that view, I assume, a claim would only be wholly disallowed if the Commission denied liability.  A claim would only be disallowed in part if the claim related to two or more insured events and the insurer accepted liability in respect of one or more events but denied liability in respect of one or more other events.
[19]	The Commission has not referred to, nor have I located, any authorities or extraneous materials that shed light on what s 86(1)(h) means when it refers to a decision to disallow a claim wholly or in part.
[20]	As a matter of logic, a determined claim that has not been disallowed wholly or in part must have been wholly allowed.  Is the Commission’s response to Mr Tucker’s claim properly characterised as wholly allowing the claim? 
[21]	To answer this question, it is necessary to first identify the claim and then ask whether the claim has been wholly allowed or has been disallowed in part.  
[22]	In this case, Mr Tucker claimed rectification of the defective brickwork.  The Commission accepts that it is liable under the policy but does not accept that it must rectify or pay for rectification of the defective work.  Rather, the Commission decided it will pay a lesser amount, which it has determined is the reduction in value of the residence as a consequence of the faulty work.
[23]	On an ordinary reading of the provision, I am unable to agree that disallowing a claim is limited to denying liability and does not extend to accepting that there is a liability but declining to pay the amount claimed.  
[24]	The Commission had several opportunities to make submissions on the meaning of s 86(1)(h).  It has not directed attention to anything in the context of s 86 or other provisions of the Act; its evident policy or legislative history; extraneous materials; previous authorities in this or other contexts; or evidence of trade or technical meanings, which would support the Commission’s more restrictive reading of s 86(1)(h).
[25]	I have considered whether the presence of s 86(1)(g) - which provides separately for decisions relating to the scope of works to be carried out under an insurance policy to rectify defective work to be reviewable - indicates that s 86(1)(h) is to have a more restrictive meaning.  That is to say, whether s 86(1)(g) would be unnecessary on the broader construction of s 86(1)(h).  
[26]	However, even on the broader view of s 86(1)(h), s 86(1)(g) has remaining work to do.  It allows a claimant whose claim under a policy for rectification has been wholly accepted by the Commission – that is, where the Commission both accepts liability and accepts that rectification is appropriate - to seek review of the actual work considered to be necessary to carry out the rectification work.
[27]	In the absence of any other contrary indicators, I consider that the more natural characterisation of the Commission’s decision in this case is that it has not allowed Mr Tucker’s claim in full.  It has disallowed the claim in part because it has not accepted Mr Tucker’s claim for rectification of the faulty work and instead has determined to pay the lesser amount calculated by reference to the reduction in value of Mr Tucker’s residence.
[28]	It follows that the Tribunal has jurisdiction to review the Commission’s decision.