Beck v Kerry M Ryan Pty Ltd

Case [2019] QCAT 38

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

PARTIES:

PIOTR BECK
(applicant)
v

KERRY M RYAN PTY LTD

(respondent)

APPLICATION NO/S:

BDL100-18

MATTER TYPE:

Building matters

DELIVERED ON:

11 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.   The application for miscellaneous matters filed by Kerry M Ryan Pty Ltd on 29 June 2018 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – whether applicant’s claim without prospects of success

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS - where contract for supply and delivery of removal house – where contract for additional building work – whether contract for domestic building work – whether dispute a domestic building dispute

Queensland Civil and Administrative Tribunal Act 1999 (Qld), s 47
Queensland Building and Construction Commission Act 1991 (Qld), s 77, sch 1B, sch 2

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232
Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 (31 July 2007)
Reardon v Deputy Commissioner for Taxation (2013) 275 FLR 9

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. Mr Beck entered into a contract with Kerry M Ryan Pty Ltd (‘KMR’) for the supply and delivery of a removal house to land owned by Mr Beck. The parties have fallen into dispute. Mr Beck has commenced proceedings in the tribunal in which he claims damages. KMR filed an application for miscellaneous matters seeking an order that the proceedings be dismissed. The application was refused. KMR has requested reasons for the decision. My reasons follow.

    The proceedings

  2. Mr Beck filed an Application for a domestic building dispute. In the application, Mr Beck says that he entered into a contract with KMR for the delivery and resiting of a house and for the performance by KMR of building work on the house. Mr Beck says that KMR has failed to deliver the house and that building work performed by KMR is defective. Mr Beck claims damages for, inter alia, the cost of rectification of defective building work and consequential loss.

  3. The response filed by KMR is brief. KMR says that the dispute is not a domestic building dispute, that the tribunal lacks jurisdiction to hear and decide the dispute and that Mr Beck has not complied with the requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld).

  4. As the tribunal is not a pleadings jurisdiction, it is often the statements of evidence filed by the parties that serve to identify the issues in dispute and which the tribunal is required to decide. In…

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AGLC
Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38
Case
[2019] QCAT 38
Decision Date

CaseChat Overview and Summary

Beck v Kerry M Ryan Pty Ltd is a case involving a contractual dispute over the supply and delivery of a house, and additional building works. The matter was before the Queensland Civil and Administrative Tribunal, where Kerry M Ryan Pty Ltd sought a summary dismissal of Beck's claim on the basis that it was frivolous or vexatious. The central legal issues were whether the dispute was a domestic building dispute and whether the tribunal had jurisdiction to hear it. The court examined whether the house was intended for permanent habitation, which would make it a 'home' under the Queensland Building and Construction Commission Act 1991. The court concluded that it was reasonably arguable that the house was a home, and thus within the tribunal's jurisdiction.

The tribunal considered the submissions made by Kerry M Ryan Pty Ltd, rejecting their arguments that the dispute was outside the tribunal's jurisdiction and that Beck had not complied with the Queensland Building and Construction Commission's dispute resolution process. The tribunal found that the characterisation of the dispute by the Commission did not determine its jurisdiction, and that Beck had indeed complied with the dispute resolution process. Therefore, the tribunal was not satisfied that Beck had no real prospect of success, nor that there was no need for a hearing of the claim. The application for summary dismissal was refused, as the tribunal found that the case did not meet the stringent criteria for such an order.

In summary, the tribunal ruled that the dispute was not frivolous or vexatious and that it had jurisdiction to hear it. The tribunal rejected Kerry M Ryan Pty Ltd's arguments and found that Beck had complied with the necessary dispute resolution process. The application for miscellaneous matters was refused, and the case was allowed to proceed to a hearing.

ORDERS:
1. The application for miscellaneous matters filed by Kerry M Ryan Pty Ltd on 29 June 2018 is refused.

Orders

Orders of the court

1. The application for miscellaneous matters filed by Kerry M Ryan Pty Ltd on 29 June 2018 is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

KMR says a number of things about this correspondence. KMR relies upon the reference to the dispute being a contractual matter and therefore outside the jurisdiction of the QBCC and says that the corollary of this is that the dispute is outside the jurisdiction of the tribunal. This submission is rejected. The characterisation of a dispute in a particular way by the QBCC is not determinative of whether a dispute, the subject of a proceeding before the tribunal, is a building dispute. It is for the tribunal to make the determination. In further developing its argument, KMR says that because the dispute is a contractual matter and therefore outside the jurisdiction of the tribunal, the dispute is not one in respect of which a resolution process can be, and has been, completed. For the reasons I have set out, this submission must be rejected. Finally, KMR says that it has not participated in a dispute resolution process nor has Mr Beck placed before the tribunal evidence that he has complied with a process established by the QBCC to attempt to resolve the dispute. The flaw in this submission is apparent from the terms of the correspondence from the QBCC. There is before the Tribunal evidence in the form of the letter from the QBCC stating that Mr Beck has complied with the QBCC’s dispute resolution process. KMR has placed no evidence before the Tribunal to the contrary. Mr Beck has satisfied the requirements of s 77(2) of the QBCC Act. Conclusion I am satisfied that this is not a case in which it is appropriate to summarily dismiss Mr Beck’s claim.[34] I am not satisfied that KMR has established that Mr Beck has no real prospect of success nor that there is no need for a hearing of Mr Beck’s claim.[34]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3]. The application for miscellaneous matters is refused.

Ratio Decidendi

Legal Principle Established

By s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), in circumstances where the tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process, the tribunal may order that the proceeding or part be dismissed or struck out.[12] [12]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 47 (2). Consideration Section 47 of the QCAT Act is, in effect, a summary judgment power. In an application for summary judgment under the Uniform Civil Procedure Rules 1999 (Qld) current QCAT President Daubney J found in Elderslie Property Investments No 2 Pty Ltd v Dunn:… the court needs to be satisfied not only that the defendant has no real prospect of successfully defending all or a part of the claim, but also that ‘there is no need for a trial of the claim or the part of the claim’.[13][13][2007] QSC 192 (31 July 2007), [6]. As to the onus of proof in an application for summary judgment, Daubney J held:[14]As this is the plaintiff’s application, the burden of satisfying the court of the matters referred to in UCPR 292(2)(a) and (b) rests on the plaintiff: see Qld Park Pty Ltd v Lott; as his Honour observes there, this approach is consistent with that under the former rules. As under the former rules, where a plaintiff leads evidence to make out a prima facie entitlement to judgment, the evidentiary onus shifts to the defendant: see Qld Park Pty Ltd v Lott.[14]Ibid, [7] (citations omitted). Summary judgment will be granted in only the clearest of cases.[15] The power conferred by s 47 should only be exercised in those cases where it is clear that a party has no real prospects of success and there is no need for a hearing. For KMR to be successful in the application for summary dismissal, I must be satisfied that has no real prospect of success in the proceeding and that there is no need for a hearing in respect of his claim against KMR. As McMeekin J observed in Reardon v Deputy Commissioner for Taxation[16]:The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.[15]Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3].[16](2013) 275 FLR 9. In adopting the approach identified by Daubney J in Elderslie, it is for KMR to make out a prima facie entitlement to a final decision in its favour. It is not contentious that the parties entered into a contract for the supply by KMR of a house to Mr Beck. What is contentious is whether the dispute between the parties is a building dispute in respect of which the tribunal has jurisdiction to hear and decide. A ‘home’ is a ‘building or portion of a building that is designed, constructed or adapted for use as a residence’.[17] By s 46(a) of the Queensland Building and Construction CommissionRegulation 2018 (Qld),[18] for the purposes of the definition of ‘home’ under Schedule 1B of the QBCC Act, a ‘home’ does not include premises not intended to be used for permanent habitation. Mr Beck deposes to purchasing the house for permanent habitation. He says that he intends to live in the house once it is re-sited and the building works complete.[19] I am satisfied that it is reasonably arguable that the house is a ‘home’ being a building or portion of a building that is designed, constructed or adapted for use as a residence.[20] [17]Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 9.[18]Formerly s 27AD.[19]Affidavit of Peter Beck dated 22.10.18.[20]Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 9.