Bebendorf v Uebergang - [2018] QCAT 132

CITATION:

Bebendorf v Uebergang [2018] QCAT 132

PARTIES:	Darryn Bebendorf (Applicant)
v
Greg Uebergang (Respondent)

APPLICATION NUMBER:

BDL218-17

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

22 March 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application filed 11 September 2017 is dismissed.

2. Greg Uebergang must file in the Tribunal two (2) copies and serve on Darren Bebendorf one (1) copy of any further submissions on costs within 7 days of the date of this decision.

3. Darren Bebendorf must file in the Tribunal two (2) copies and serve on Greg Uebergang one (1) copy of any submissions on costs in reply within 7 days of receipt by him of Greg Uebergang’s further costs submissions, or 14 days from the date of this decision, whichever is the later.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where respondent undertook pre-purchase inspection of dwelling – where applicant claimed inspection failed to identify defects – whether dispute is a domestic building dispute or major commercial building dispute pursuant to the Queensland Building and Construction Commission Act 1991 (Qld)

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where dispute is a major commercial building dispute – jurisdiction of tribunal to hear and decide major commercial building dispute – where parties have not consented to tribunal’s jurisdiction – whether proceeding should be transferred to Magistrates Court – where it is appropriate to dismiss proceeding

Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(g), s 77(1), s 77(3)(h), Schedule 1B, s 4(1)(a), Schedule 1B, s 4(8), Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(3)(d), s 32, s 42,
s 47(1), s 47(2), s 52(1), s 100, s 102(1)

M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454, cited
Rainbow Builders Pty Ltd v The State of Queensland [2016] QCAT 415, cited
Walton v Gardiner (1993) 177 CLR 378, cited
Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292, cited
2 Business Advisory Pty Ltd v Walltech Systems Australia Pty Ltd [2013] QCAT 198, cited

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).

REASONS FOR DECISION

Mr Bebendorf purchased a property at Pine Creek on which was located a dwelling. Mr Bebendorf says that he engaged Mr Uebergang to undertake a building inspection of the dwelling. Mr Bebendorf has filed an application for domestic building disputes claiming damages in the amount of $100,000.[1] Mr Uebergang has filed an application to dismiss the proceeding.[2] The application to dismiss falls for determination.
[1]Application for domestic building disputes filed 11 September 2017.
[2]Application for miscellaneous matters filed 15 November 2017.
Mr Bebendorf’s application
The lack of clarity with which Mr Bebendorf has presented his claim has…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bebendorf v Uebergang

Details

AGLC: Bebendorf v Uebergang [2018] QCAT 132
Case: [2018] QCAT 132
Decision Date: 22 March 2018

CaseChat Overview and Summary

In the matter of Bebendorf v Uebergang, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether a dispute between the parties, relating to a pre-purchase inspection of a dwelling, was a domestic building dispute or a major commercial building dispute. The respondent, Uebergang, had conducted the inspection, and the applicant, Bebendorf, alleged that the inspection failed to identify defects. The central issue for the tribunal was to classify the nature of the dispute correctly under the Queensland Building and Construction Commission Act 1991 (Qld).

The tribunal needed to ascertain if the dispute qualified as a major commercial building dispute, which would invoke the tribunal's jurisdiction to hear and decide the matter. If the dispute was categorised as a domestic building dispute, the tribunal's jurisdiction would not apply, and the matter would need to be transferred to the Magistrates Court. The tribunal also considered whether the proceeding should be dismissed if it was determined to be a major commercial building dispute, given that the parties had not consented to the tribunal's jurisdiction.

The tribunal dismissed the proceeding filed on 11 September 2017, concluding that the dispute was indeed a major commercial building dispute. As the parties had not consented to the tribunal's jurisdiction, the proceeding was deemed inappropriate to be heard by QCAT. Consequently, the matter was to be transferred to the Magistrates Court. The tribunal ordered that Uebergang must file two copies and serve one copy of any further submissions on costs within seven days of the decision date. Bebendorf was required to file two copies and serve one copy of any submissions on costs in reply within seven days of receiving Uebergang's further costs submissions, or fourteen days from the decision date, whichever was later.

Orders

Orders of the court

1. The application filed 11 September 2017 is dismissed.

2. Greg Uebergang must file in the Tribunal two (2) copies and serve on Darren Bebendorf one (1) copy of any further submissions on costs within 7 days of the date of this decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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