Blackwhite Pty Ltd v Ryall Smyth Architects Pty Ltd - [2013] QCAT 142

CITATION:

Blackwhite Pty Ltd v Ryall Smyth Architects Pty Ltd [2013] QCAT 142

PARTIES:	Blackwhite Pty Ltd (ABN 63 123 813 981) (Applicant)
v
Ryall Smyth Architects Pty Ltd (ABN 71 096 060 409) (Respondent)

APPLICATION NUMBER:

MCD309-12

MATTER TYPE:

Other minor civil dispute matters

HEARING DATE:

13 July 2012

HEARD AT:

Brisbane

DECISION OF:

Andrew McLean Williams, Member

DELIVERED ON:

5 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Application dismissed

CATCHWORDS:

MINOR CIVIL DISPUTE – claim by Applicant for “monies due and owing” – judgement obtained in Magistrates Court on the basis of the decision of an Adjudicator under s 31 Building and Construction Industry Payments Act 2004 (BCIPA); claim by Applicant that the adjudicator’s decision wrong in law – meaning of minor civil dispute – relationship between BCIPA and QCAT Act – scope of declaratory power under QCAT Act s 60 – meaning of “trader” for QCAT Act s 12

Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 010;
Spencer v Jack & Grace Cheng Family Trust [2011] QCATA 26;

Surfabear P/L v GJ Drainage & Concrete Construction PL (2009) QSC 308;

Building and Construction Industry Payments Act 2004 (Qld), s 31
Magistrates Court Act 1921 (Qld), s 43
Civil Proceedings Act 2011 (Qld), s 10
Queensland Civil and Administrative Tribunal Act 1999, s 60

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr D Cliff, Clarke Kann Lawyers

RESPONDENT:

Mr Troy Smyth.

REASONS FOR DECISION

Preliminary

This matter was heard at Brisbane on 13 July 2012, after which the matter was reserved for decision. Regrettably, a delay has arisen due to the file in this matter having become misplaced. These now are my reasons.
For reasons that I shall elaborate, I determine that QCAT has no jurisdiction to hear and determine this matter.
The Respondent is a firm of architects, who were retained by the applicant pursuant to an agreement to provide design services in relation to the development of modular housing. These professional services were delivered pursuant to a contract entered into on 9 December 2010. The parties were the respondent, Ryall & Smyth Architects on one hand, and “New Wave Global” on the other. Professional services were then rendered by the respondent on behalf of New Wave Global. After a few invoices had been paid, Mr Tim McGary (a person associated with both New Wave Global and Black White Pty Ltd) sent an email to the respondent, requesting that all further invoices be made out in the name of the Black White Pty Ltd.
On 1 November 2011, the respondent submitted a payment claim dated 31 October 2011 to the applicant. This payment claim claimed the sum of $16 731 (inclusive of GST), and was referable to work performed by the respondent for New Wave Global, as instanced in invoices 0715/06, 0744/01, 0736/01 and 0715/07.
In response to that payment claim, the applicant provided a payment…

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.

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Details

Case: [2013] QCAT 142
Decision Date

CaseChat Overview and Summary

The case of Blackwhite Pty Ltd v Ryall Smyth Architects Pty Ltd involved a dispute between the applicant, Blackwhite Pty Ltd, and the respondent, Ryall Smyth Architects Pty Ltd. The applicant sought a sum of $16,299.74, which they claimed as "monies due and owing" following an adjudication decision under the Building and Construction Industry Payments Act 2004 (BCIPA). The respondent had obtained a judgment in the Magistrates Court based on this adjudication decision, which the applicant now sought to challenge in the Queensland Civil and Administrative Tribunal (QCAT). The legal issues revolved around the interpretation of the minor civil dispute jurisdiction under the Queensland Civil and Administrative Tribunal Act 1999, the relationship between the BCIPA and the QCAT Act, and the scope of declaratory powers available under QCAT.

The court examined whether QCAT had the jurisdiction to hear and determine the matter, particularly given that the adjudication decision had already been registered as a judgment in the Magistrates Court. The applicant argued that the adjudication decision was erroneous because the contract on which it was based was not between the applicant and the respondent. The court considered whether QCAT could entertain an appeal against the Magistrates Court judgment or grant declaratory relief. The court found that the Magistrates Court judgment was final and conclusive under s 43 of the Magistrates Court Act 1921, and QCAT did not have the jurisdiction to appeal such judgments. Furthermore, QCAT's power to grant declaratory relief was limited to matters within its jurisdiction, and the court was not satisfied that it had jurisdiction to provide the necessary declaration.

The court also noted that the respondent, being a firm of architects, did not qualify as a "trader" for the purposes of the minor civil disputes jurisdiction under the QCAT Act. Consequently, the court held that QCAT did not have the jurisdiction to hear and determine this matter. The application was dismissed.

The tribunal's final orders were that the application brought by Blackwhite Pty Ltd was dismissed.

Orders