Background
Michele D’Arcy owned and lived in a tenth-floor apartment in a high-rise residential building at Surfers Paradise. In October 2021, she engaged a licensed builder to renovate her bathroom and kitchen. The builder collected and paid a premium to the Queensland Building and Construction Commission (QBCC), which issued Ms D’Arcy a notice of cover under Queensland’s Home Warranty Scheme.
After the builder began work but refused to complete it following a dispute, Ms D’Arcy sought assistance under the Scheme for the reasonable cost of completion. The QBCC refused the claim, concluding that the work was on or for a multiple dwelling of more than three storeys and was therefore excluded by s 26(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld). QCAT, and then the QCAT Appeal Tribunal, upheld that decision. Ms D’Arcy sought the Court of Appeal’s leave to appeal on questions of law.
The Court’s Holding
The Court of Appeal dismissed the leave application with costs. It held that the proposed statutory-interpretation ground had no reasonable prospects of success. Section 26(a) excludes “work on or for” a multiple dwelling exceeding three storeys, and that language encompasses renovation work within an individual residential unit in such a building. The definition of “multiple dwelling” as a building comprising separate residential units supported that conclusion.
The Court also relied on the regulation’s express example of bathroom renovation in a unit in a 10-storey multiple dwelling. It rejected the contention that the exclusion was confined to exterior or common-property work. Nor was s 26(a) invalid subordinate legislation: s 67WB(1)(f) of the Queensland Building and Construction Commission Act 1991 (Qld) expressly permits regulations to prescribe further work excluded from the Scheme, and the three-storey threshold was a permissible legislative policy boundary.
Key Takeaways
- Home Warranty Scheme assistance is unavailable for renovation work within an apartment in a multiple dwelling over three storeys.
- “Work on or for” a multiple dwelling includes work on one of its constituent residential units.
- Leave to appeal from the QCAT Appeal Tribunal requires a viable legal error and reasonable prospects of success.
Why It Matters
The decision confirms that a notice of cover and payment of a premium do not overcome a statutory exclusion from Queensland’s Home Warranty Scheme. Owners and builders undertaking work in high-rise residential buildings should assess scheme eligibility against the building-type and storey exclusions before relying on insurance assistance.
It also illustrates the narrow role of the Court of Appeal in QCAT statutory appeals: where the text, context and examples of the regulation support the tribunal’s construction, leave will not be granted merely because a different policy outcome is preferred.