Castro v Maxwell & Perandis Pty Ltd - [2024] QCAT 613

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Castro v Maxwell & Perandis Pty Ltd & Anor [2024] QCAT 613

PARTIES:

ADAM CASTRO

(applicant)

v

MAXWELL & PERANDIS PTY LTD

(first respondent)

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(second respondent)

APPLICATION NO/S:

GAR128-24

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 December 2024

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

1. The matter is not struck out or dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

2. The matter is listed for a Directions Hearing at the next available time.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where consideration given to dismissing or striking out proceedings – where the respondent contends works relating to a private pontoon are not “building work” pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) –- where dispute as to whether the pontoon is a maritime structure and whether it is for residential purposes - where hearing required

Queensland Building and Construction Commission Act 1991 (Qld) Sch 2, s 75

Queensland Building and Construction Commission Regulation 2018 (Qld) Sch 1 s 19
Queensland Building and Services Authority Act 1991 (Qld)

Queensland Civil and Administrative TribunalAct 2009 (Qld) s 47

Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3
GC Pontoon & Jetty Repairs Pty Ltd v Wegener [2024] QCATA 69
General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125
Legal Services Commission v Leneham [2017] QCAT 96
Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330
Ooralea Developments Pty Ltd v Civil Contrators (Aust) Pty Ltd & Anor [2013] QSC 254
Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22

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

On 26 September 2019, the Council of the City of the Gold Coast approved a development permit for construction of two pontoon landings for neighbouring villas. The work was carried out by Coastal Pontoon and Jetty Repairs. Maxwell and Perandis Pty Ltd is a party to these proceedings pursuant to tribunal directions dated 27 March 2024.
On 9 December 2019, the applicant entered into a contract to purchase one of the villas.
On 20 June 2022, the applicant lodged a complaint with the QBCC alleging defective building work in relation to the pontoon on his property. The applicant complained that the pontoon was not installed in accordance with approved plans.
The pontoon is affixed by way of the metal base of the walkway with struts directly affixed to the revetment wall. The applicant argues that the plans provide for the metal base of the walkway and struts to be affixed to a concrete footing directly into the land behind the revetment wall, and that the plans have not been followed.
On 13…

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 Castro v Maxwell & Perandis Pty Ltd

Details

AGLC: Castro v Maxwell & Perandis Pty Ltd [2024] QCAT 613
Case: [2024] QCAT 613
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the matter of Castro v Maxwell & Perandis Pty Ltd, the respondent contested the applicant's assertion that the works relating to a private pontoon constituted "building work" as defined in the Queensland Building and Construction Commission Act 1991. The dispute arose from the construction of a pontoon for residential purposes, and the primary issue was whether the pontoon qualified as a maritime structure and, if so, whether it was intended for residential use. The Queensland Civil and Administrative Tribunal was tasked with determining these questions, which necessitated a hearing to fully explore the matter.

The Tribunal faced the challenge of interpreting the definition of "building work" and applying it to the specific context of the pontoon. It was essential to establish whether the pontoon's construction fell within the ambit of the Act and if the respondent's activities warranted oversight by the Queensland Building and Construction Commission. The Tribunal needed to consider statutory interpretation principles, the nature of maritime structures, and the intended use of the pontoon to arrive at a reasoned decision.

After thorough consideration, the Tribunal decided that the matter could not be dismissed or struck out under section 47 of the Queensland Civil and Administrative Tribunal Act 2009. The complexity of the issues and the need for a comprehensive hearing warranted further exploration. Consequently, the Tribunal ordered that the matter would proceed to a Directions Hearing at the next available time, ensuring that all relevant aspects of the dispute could be adequately addressed.

In summary, the Tribunal rejected the respondent's application to dismiss or strike out the proceedings, recognising the necessity of a hearing to clarify the legal and factual uncertainties surrounding the construction of the private pontoon. The decision sets the stage for a detailed examination of the issues in the forthcoming Directions Hearing.

Orders

Orders of the court

1. The matter is not struck out or dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009.

2. The matter is listed for a Directions Hearing at the next available time.

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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