Allen & Anor v Queensland Building and Construction Commission [2024] QCA 24

David Pearce  |  Megan Sharkey  |  Lochlan Andrew

Key takeout

The Home Warranty Insurance Scheme (Scheme) established under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) will only be available to an applicant who terminates a construction contract, where the applicant can demonstrate that the contract was validly terminated.  

In seeking to appeal a decision of the QCAT Appeal Tribunal under s 150 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), an appeal may only be made to the Court of Appeal with leave (ie the court’s approval) and only on a pure question of law.  This requires that the subject matter of the appeal is a question of law, not an appeal on mixed questions of fact and law or in which a question of law is merely involved.

Facts

Mr Allen (Allen) engaged a contractor to design and construct a house in Brisbane. Allen terminated the contract when the build was about 70% complete.  The contractor disputed Allen’s entitlement to terminate, treated Allen’s conduct repudiatory, and terminated the contract itself.

Allen made an insurance claim under the Scheme established under the QBCC Act.  However, the Scheme would only permit recovery for loss, which Allen suffered as a result of the contract failing to complete the contract, if Allen had ‘properly terminated’ the contract.

The QBCC rejected the claim on the basis that Allen failed to demonstrate that the contract had been properly terminated. This refusal was upheld by the Queensland Civil and Administrative Tribunal (QCAT) and on appeal to the QCAT Appeal Tribunal.

Allen sought to appeal the decision to the Court of Appeal on questions of mixed fact and law, however, Allen had not obtained the Court’s leave to appeal as required.  Allen invited the Court to overlook the procedural errors in his application and to treat his notice of appeal as an application for leave to appeal on the grounds identified in the notice.

Decision 

The Court refused Allen’s application for leave to appeal in relation to each of the proposed grounds of appeal.

Section 150 of the QCAT Actprovides a person may appeal to the Court of Appeal against a decision of the QCAT Appeal Tribunal only on a question of law and only if the party has obtained the court’s leave to appeal.

The court upheld previous case law that its jurisdiction under s 150 is limited to pure questions of law, such that the court cannot review mixed questions of fact and law.  In these circumstances, the very subject matter of the appeal had to be a question of law, not an appeal in which a question of law is merely involved.

The court set out the principles guiding its discretion to grant leave to appeal.  In particular, the discretion is unfettered and exercisable according to the nature of the case, but will not be granted lightly given that an applicant will have already had the benefit of two hearings in QCAT. It will usually be necessary to persuade the court that there is a reasonable argument that there is an error of law to correct.  The court will also consider whether leave is necessary to correct a substantial injustice and whether the appeal raises a question of general or public importance.

Allen put forward various grounds of appeal, each of which were refused on the basis that they could not be characterised as an appeal only on a question of law. Of particular note was the Allen’s contention that the QCAT Appeal Tribunal denied him natural justice in failing to give proper and genuine consideration to the material before it and failing to act fairly in accordance with the merits of the case.  The court refused this appeal ground on the basis that it involved a mixed question of fact and law, as Allen was inviting the court to analyse the facts of the proceeding and the entirety of the procedural record, and then to apply legal standards in order to reach a judgment different to that decided by the QCAT Appeal Tribunal.