Brain v Tay - [2023] QCAT 197

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Brain v Tay [2023] QCAT 197

PARTIES:

EVAN BRAIN

(applicant)

v

LAA TAY

(respondent)

APPLICATION NO/S:

BDL042-23

MATTER TYPE:

Building matters

DELIVERED ON:

24 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. The proceeding is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – preliminary issue – whether the dispute the subject of the proceeding is a building dispute – whether a building certifier is a building contractor for the purposes of the QBCC Act – a building certifier cannot be a ‘building contractor’ within the meaning of that term in schedule 2 of the QBCC Act

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – COURTS OF RECORD – PARTICULAR COURTS – jurisdiction of QCAT to decide particular dispute – where dispute not a building dispute

Building and Construction Commission 1991 (Qld), s 75, s76, schedule 1

Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134

Monique Andrews v Trevor Bird & Anor [2023] QCAT

Paddy v Bennett [2022] QCAT 382

APPEARANCES & REPRESENTATION:

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

The following preliminary issue falls for determination:
Is the dispute, the subject of the application for domestic building disputes filed 16 February 2023, a ‘building dispute’ for the purposes of the Queensland Building and Construction Commission 1991 (Qld) (‘QBCC Act’)?
The applicant has filed submissions addressing the preliminary issue. The respondent has not.
The applicant says that he engaged the respondent to undertake building certification work in respect of residential building work. The applicant paid to the respondent $5,615.00. The applicant says that the respondent failed to carry out the agreed works and claims payment of the sum he paid to the respondent.
The Tribunal is invested with the jurisdiction to decide building disputes. That power is found in the QBCC Act. The Tribunal’s jurisdiction is however not one ‘at large’ and is strictly circumscribed by the QBCC Act.
In Monique Andrews v Trevor Bird & Anor[1] I said the following in relation to the jurisdiction of the Tribunal in respect of building disputes:
[1][2023] QCAT.
The tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. The tribunal has no general jurisdiction to decide building disputes in accordance with s 77(1) of the QBCC Act independent of the meanings ascribed in ss 75 and 76 of the Act.[2]
[2]Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134.
A ‘building dispute’ may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.
A domestic building dispute is defined as:
(a)a claim or dispute arising between a building owner and a building contractor relating to the performance of…

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 Brain v Tay

Details

AGLC: Brain v Tay [2023] QCAT 197
Case: [2023] QCAT 197
Decision Date

CaseChat Overview and Summary

In Brain v Tay, the applicant, Evan Brain, sought a determination from the Queensland Civil and Administrative Tribunal (QCAT) regarding a dispute with Laa Tay, who he engaged to perform building certification work. The dispute arose from Brain's claim that Tay failed to complete the agreed work and his subsequent attempt to recover the $5,615.00 he had paid to Tay. The central issue before QCAT was whether the Tribunal had the jurisdiction to adjudicate on this dispute, given that it pertained to building certification work rather than actual building construction.

The court considered the definitions and scope of "building disputes" as outlined in the Queensland Building and Construction Commission Act 1991 (Qld). It examined whether Tay, as a building certifier, could be classified as a "building contractor" within the Act's terms. The court found that building certifiers, whose work is regulated but not classified as "building work" under the Act, do not fall under the definition of "building contractor." Consequently, the dispute did not meet the criteria for being a "building dispute" as defined by the Act. The court further noted that the dispute lacked the necessary nexus with the building industry required for QCAT jurisdiction under the Act.

Based on these findings, the Tribunal concluded it did not have jurisdiction to hear the case. The proceeding was dismissed as it lacked substance. This outcome means that while Brain retains the right to pursue his claim against Tay, he must do so in a court or tribunal with appropriate jurisdiction.

Orders