Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections

Ms Swe Brinin, a building owner, purchased a property in north Queensland. The contract of sale was subject to Ms Brinin obtaining a satisfactory building and pest inspection. Kasabel Investments Pty Ltd, trading as Twin Cities Building & Pest Inspections, was contracted to perform the inspection and provided two reports: a building inspection report and a pest inspection report. Ms Brinin claims the reports failed to identify a number of issues concerning the property and commenced proceedings in the Queensland Civil and Administrative Tribunal (QCAT) for a domestic building dispute. Kasabel has filed an application seeking orders that the proceedings be dismissed on the basis that QCAT lacks jurisdiction to hear Ms Brinin’s claim. The application to dismiss falls for determination.

The tribunal, being a creature of statute, has only those powers conferred upon it by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and any relevant enabling Act. In this matter, the enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld). The QBCC Act confers upon the tribunal jurisdiction to hear and decide building disputes. Building disputes may be domestic building disputes, minor commercial building disputes or major commercial building disputes. Whether a building dispute is a domestic building dispute or a commercial building dispute depends upon the nature of the dispute. A domestic building dispute is a dispute about the performance of domestic building work or a contract for the performance of domestic building work. Domestic building work does not include the inspection of a completed building. A dispute between a building owner and a building contractor about the inspection of a completed building is a commercial building dispute. The dispute between Ms Brinin and Kasabel is a commercial building dispute as it is a dispute about the performance of reviewable commercial work, which is the inspection of a completed building. The amount claimed by Ms Brinin is $127,867.29. I am satisfied that, in the absence of any indication by Ms Brinin that the amount she claims will be reduced to an amount not exceeding $50,000.00, the amount claimed exceeds $50,000.00. In its submissions in support of the application to dismiss, Kasabel says that it does not consent to QCAT having jurisdiction to hear and decide the claim by Ms Brinin. I make further findings as follows:(a)The dispute between the parties, the subject of these proceedings, is a major commercial building dispute;(b)Kasabel does not consent to QCAT having jurisdiction to hear and decide the dispute;(c)The application filed by Ms Brinin was not accompanied by the written consent of the parties as required by s 79(1) of the QBCC Act;(d)QCAT does not have jurisdiction to hear and decide the dispute.

In circumstances where QCAT lacks jurisdiction, the proceeding may be said to be vexatious or misconceived and is liable to be dismissed pursuant to s 47 of the QCAT Act. This is the order sought by Kasabel. I am satisfied that the appropriate order, in the absence of QCAT having jurisdiction to hear and decide the matter, is that the proceeding is dismissed. I will make directions for the parties to file and exchange submissions on costs. I would, for completeness, add the following observations. Ms Brinin is not left without a recourse despite the orders I have made. If Ms Brinin is of the view that her claim exceeds $50,000.00 then she may commence proceedings in a court of competent jurisdiction. If Ms Brinin is of the view that her claim does not exceed $50,000.00 then she may wish to give consideration to commencing further proceedings in the tribunal however the QCAT Act has something to say about such further proceedings.