Adam's Earthworks Pty Ltd v Empire Constructions Pty Ltd

[2010] QCAT 228

CITATION: Adam’s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228

PARTIES:	Adam’s Earthworks Pty Ltd
v
Empire Constructions Pty Ltd

APPLICATION NUMBER:   BN070-09

MATTER TYPE: Building matters

HEARING DATE:     On the papers

HEARD AT:  Brisbane 

DECISION OF: Member Fitzpatrick

DELIVERED ON: 2 June 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

(1)  That the Queensland Civil and Administrative Tribunal has jurisdiction to deal with Application BN070-09; and

(2)  The Applicant’s application for an order for costs and interest be dismissed.

CATCHWORDS :  Jurisdiction of the Commercial and Consumer Tribunal and the Queensland Civil and Administrative Tribunal, meaning of “building contractor”; costs order and interest.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Adam’s Earthworks Pty Ltd ABN 49 089 096 837
RESPONDENT:	Empire Constructions Pty Ltd ABN 78 126 517 682

REASONS FOR DECISION

1. This decision relates to:

(a)A request by the Commercial and Consumer Tribunal for submissions by the parties on the question of the Tribunal’s jurisdiction with particular reference to how the work performed by the Applicant, the subject of its claim, can be defined as “building work”; and

(b)The Applicant’s claim for costs and interest arising out of its original claim against the Respondent for moneys owing.  The Applicant’s original claim is set out in an Application – Commercial Building Dispute (BN 070-09), filed in the Commercial and Consumer Tribunal on 14 August, 2009.

Background

2. By Application BN070-09 the Applicant sought an order for payment of the sum of $33,426.61 from the Respondent, being “for machinery hire for the purposes of its commercial building project “.
3. It is not evident from the face of Application BN070-09 if the Applicants claim related solely to equipment hire or related to equipment hire and labour. 
4. The Commercial and Consumer Tribunal sought submissions from the parties as to its jurisdiction, in particular how the work performed by the Applicant can be defined as “building work”.
5. The Applicant filed submissions on 7 October, 2009.  The Respondent did not file submissions. 
6. On 1 December, the Queensland Civil and Administrative Tribunal (QCAT) commenced.  It assumed responsibility for matters formerly subject to the jurisdiction of the Commercial and Consumer Tribunal.  The question of jurisdiction had not been determined at the date of commencement of the QCAT and has remained undetermined until this Decision.
7. In the meantime, the Respondent paid to the Applicant most of the moneys claimed by it.
8. At a Directions Hearing held on 17 February, 2010, His Honour Justice Wilson ordered the Respondent to pay the sum of $544.50 to the Applicant.  That sum was paid on 19 February, 2010.  At that Directions Hearing the Applicant sought payment of its legal costs and interest on the moneys the subject of the claim.
9. His Honour Justice Wilson ordered that the parties file submissions in relation to the Applicant’s claim for costs and interest.

Jurisdiction

10. Pursuant to Directions of this Tribunal the Applicant has provided  copies of the invoices referred to in the Application.  Those invoices give a description of the work performed by the Applicant which includes various equipment hire together with various items of work such as “fall trees for house pad”, “load truck”, “cut house pad”, “cart fill”, “ripping and loading trucks” and “level house pad and tidy up”.
11. The Respondent has not taken issue with the fact that labour was performed by the Applicant as described in the invoices.
12. The lawyers for the Applicant advised the Tribunal by letter dated 26 May, 2010 that the services provided were “Machinery with operators to establish building pad, foundations and trench works”. It was said the nature of the building work on site was one detached single residential dwelling.
13. Section 77 of the Queensland Building Services Authority Act 1991 empowers the QCAT and previously empowered the former Commercial and Consumer Tribunal to decide a “building dispute”; to order payment of an amount found to be owing by 1 party to another; to award damages and interest on the damages at the rate and calculated in the way, prescribed under a regulation and award costs.
14. “Building dispute” is defined in Schedule 2 of the Queensland Building Services Authority Act 1991 as including a “domestic building dispute”.
15. “Domestic building dispute” is defined to mean, inter alia -

“(b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work…”

16. “Reviewable domestic work” is defined to mean ”domestic building work under the Domestic Building Contracts Act 2000…”
17. “Domestic building work” is defined in section 8(1) of the Domestic Building Contracts Act 2000 to include:

“(a)  the erection or construction of a detached dwelling”

18. Section 8(7) of the Domestic Building Contracts Act 2000 provides that domestic building work also includes site work relating to work mentioned in subsection (1).
19. In determining this Tribunal’s jurisdiction in this matter it is necessary for the definition of “domestic building dispute” to be met.  In particular, the Applicant and the Respondent must be “building contractors” and the dispute must arise out of a contract for the performance of  “reviewable domestic work”.
20. As the Applicant at the time of the Claim was carrying out domestic building work in respect of the erection of a single detached dwelling at 131 Kookaburra Drive, Cannon Valley I find that the Applicant was a building contractor within the meaning of the Domestic Building Contracts Act 2000. I draw from the Respondent’s description in its Defence, of the process of developing the site at Lot 22 Kookaburra Drive, Cannon Valley, that it is a building contractor.
21. The work in question was site works connected with a detached single dwelling at Lot 22 Kookaburra Drive, Cannon Valley. Accordingly, I find that the work performed was reviewable domestic work.


22. Given the Respondent’s admission in its Defence that it owed money claimed by the Applicant for the work, I find that the dispute has arisen out of a contract for the performance of site work related to the construction of a single detached dwelling. The Respondent’s most recent submissions suggest that the contract in question may have been entered into with the Applicant by the Respondent’s agent.  That fact does not alter the finding I made.
23. On these grounds, I find that the QCAT has jurisdiction to hear this matter, as did the former Commercial and Consumer Tribunal.

Costs and Interest

24. The Applicant filed a submission claiming costs and interest from the Respondent, on 1 March, 2010 and 6 May, 2010. The Respondent filed a submission in response on 29 March, 2010 and 12 May, 2010.
25. In relation to a pending proceeding such as this, as a result of section 271 of the Queensland Civil and Administrative Act 2009, the QCAT has and only has the functions that the former Commercial and Consumer Tribunal had and can and can only make a decision the former Tribunal could have made in relation to the matter under the Commercial and Consumer Tribunal Act 2003.
26. Section 70 of the Commercial and Consumer Tribunal Act 2003 provides that the main purpose of the Costs Division of the Act is to have parties pay their own costs unless the interests of justice require otherwise.
27. The Applicant has not made any submission as to why the interests of justice demand that the usual rule be departed from. In particular it has not addressed the matters set out in section 71 of the Commercial and Consumer Tribunal Act 2003, being the matters the Tribunal may have regard to in deciding whether to award costs, and the amount of the costs. The Applicant has asserted that it engaged a solicitor to pursue payment through letters, emails and lodgement of tribunal paperwork.
28.  Mere legal representation is not sufficient in my view, to entitle a party to an order for costs.  I decline to order costs in favour of the Applicant.
29. In this regard I am also persuaded by the fact that the Respondent made early admissions of fact which limited the dispute in the matter and that all moneys claimed have been paid.
30. In relation to the claim for interest, it is not asserted that there was any contractual agreement between the parties to pay a certain rate of interest on unpaid moneys. Section 77 of the Queensland Building Services Authority Act 1991 empowered the Commercial and Consumer Tribunal to order the payment of interest on awards of damages. There has been no award of damages in this matter, other than the order made by Justice Wilson on 17 February, 2010 that the Respondent pay to the Applicant the sum of $544.00.


31. I decline to order the payment of interest on that sum.  It is noted that the Respondent seeks in his submissions filed on 25 March, 2010 to reopen the question of its obligation to pay the Applicant the sum of $544.50.  I have no statutory power to reconsider that issue.  The remedy available to the Respondent is to appeal the order of Justice Wilson.

Orders

32. For the reasons set out in this decision I find that the Commercial and Consumer Tribunal and the QCAT have jurisdiction to deal with the Application.
33. I dismiss the Applicant’s application for an order for costs and interest.