D’Arcy v Queensland Building and Construction Commission [2026] QCA 200

Sian Keast | Elissa Morcombe | Oliver Conroy

Key takeout 

Work done on an individual residential unit within a building of more than 3 storeys falls within the exclusion in section 26(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCC Regulation) and is not eligible for cover under Queensland’s Home Warranty Scheme (Scheme).

The consumer protection purpose of the Scheme does not override the plain words of the exclusion. Section 67WB(1)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) expressly authorises regulations to exclude types of building work from the Scheme. Where that line is drawn is a policy decision, not a matter for the courts.

Owners should not assume renovation work is covered by the Scheme simply because a premium has been paid and the Queensland Building and Construction Commission (QBCC) has issued a notice of cover.

Facts

In October 2021, D’Arcy engaged a licensed builder to renovate the bathroom and kitchen of her tenth-floor apartment in Surfers Paradise. The builder collected the Scheme premium from D’Arcy and paid it to the QBCC, which issued D’Arcy a notice of cover.

The builder started but refused to complete the work after falling into dispute with D’Arcy. D’Arcy made a claim under the Scheme for assistance with the reasonable cost of completing the work.

The QBCC refused the claim on the basis that section 26(a) of the QBCC Regulation excluded work ‘on or for’ a ‘multiple dwelling‘ of ‘more than 3 storeys‘.

D’Arcy applied to the Queensland Civil and Administrative Tribunal (QCAT) for an external review of the QBCC’s decision. Both QCAT and the QCAT Appeal Tribunal upheld the QBCC’s decision to reject D’Arcy’s claim.

D’Arcy then sought leave to appeal the decision to the Queensland Court of Appeal under section 150(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

Decision

The Court of Appeal dismissed the application for leave to appeal with costs.

D’Arcy raised 2 proposed grounds of appeal in support of her application for leave:

1. that section 26(a) of the QBCC Regulation had been incorrectly interpreted; and
2. that section 26(a) of the QBCC Regulation was invalid.

The Court of Appeal ruled that neither ground had any prospect of success and therefore refused leave to appeal the decision.

Ground 1: Statutory interpretation of section 26(a) of the QBCC Regulation

D’Arcy argued that, on its proper interpretation, the words ‘work on or for a… multiple dwelling’ in the section 26(a) exclusion did not include work done on part of a multiple dwelling, such as an individual residential unit, and should be confined to work on the building itself (for example, exterior walls or common property).

The Court rejected this submission. The Court held that the text of the legislation ‘unambiguously encompasses’ work done on a residential unit within the building. The provision does not distinguish between work on the structure of the building and work done within it, and D’Arcy’s interpretation introduced a restriction not found in the provision. This was reinforced by the definition of ‘multiple dwelling’ as ‘a building comprising 2 or more separate residential units, other than a duplex’. Since the multiple dwelling consists of residential units, work done on one of those units is work done on part of the multiple dwelling itself, and therefore ‘work on or for’ the multiple dwelling. The Court further noted that the examples given in section 26(a), which expressly refer to renovating the bathroom of a single residential unit in a 10-storey multiple dwelling, were consistent with this interpretation.

Ground 2: Validity of section 26(a) of the QBCC Regulation

D’Arcy also contended that section 26(a) of the QBCC Regulation was invalid as subordinate legislation on the basis that it was inconsistent with the QBCC Act or beyond the proper scope of the regulation-making power.

The Court rejected this submission. Section 67WB(1) of the QBCC Act lists categories of building work not eligible for assistance under the Scheme and, in section 67WB(1)(f), expressly authorises regulations that exclude other types of building work. Nor was the regulation so lacking in reasonable proportionality that it was not a real exercise of power. The Court emphasised that the three-storey threshold reflects a policy choice made by Parliament and it is not for the courts to replace that choice with their own. Section 26(a) was therefore found to be valid.