Chand v Gedoun Constructions Pty Ltd - [2023] QCAT 313

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Chand v Gedoun Constructions Pty Ltd [2023] QCAT 313

PARTIES:

ANITA KAY CHAND

(applicant)

v

GEDOUN CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL120-23

MATTER TYPE:

Building matters

DELIVERED ON:

18 August 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application to transfer the proceeding to the District Court is refused.

CATCHWORDS:

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where the respondent says the Tribunal does not have the jurisdiction to determine the applicant's claim – where the applicant seeks a declaration regarding unfair contractual terms – whether the Tribunal has the power to declare contractual terms of no effect

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – OTHER MATTERS – where the applicant relies on various provisions under Australian Consumer Law – where the respondent says the Tribunal does not have jurisdiction to grant relief under Australian Consumer Law – where the applicant abandons this claim – whether all issues can be head and decided in the proceeding

Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(e)

Queensland Civil and Administrative Act 2011 (Qld), s 52

French v NPM Group Pty Ltd [2008] QSC 48

Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1

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 respondent has applied to transfer the proceeding to the District Court.
For the reasons that follow the application is refused.
QCAT Act – transfer of proceedings
Section 52 of the Queensland Civil and Administrative Act 2011 (Qld) (‘QCAT Act') provides:
52 Transfer to more appropriate forum
(1)     If the tribunal considers the subject matter of a proceeding or a part of a proceeding would be more appropriately dealt with by another tribunal, a court or another entity, the tribunal may, by order, transfer the matter to which the proceeding or part relates to the other tribunal, the court or the other entity.
(2)     If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to—
(a)     a court of competent jurisdiction; or
(b)another tribunal or entity having jurisdiction to deal with the matter or matters.
(3)     The tribunal may make an order under subsection (2)(a) even though the proceeding has previously been transferred from a court to the tribunal under section 53.
(4)     If the tribunal transfers a matter to another tribunal, a court or another entity (the relevant entity) under this section—
(a)a proceeding for the matter is taken to have been started before the relevant entity when it was started before the tribunal; and
(b)the tribunal may make the orders or give the directions it considers appropriate to facilitate the transfer, including an order that a party is taken to have complied with the requirements under an Act or other law for starting a proceeding before the relevant entity.
(5)     An order under subsection (4)(b) has effect despite any other Act or law.
(6)     The tribunal may act under this section on the application of a party to the proceeding or on its own initiative.
(7)     The tribunal’s power to act under this section is exercisable only by a legally qualified member.
(8)     In this section—
proceeding includes a process for the consideration of a matter.
The grounds relied upon by the respondent
The respondent says:
(a)The Tribunal does not have jurisdiction to determine the applicant’s claim; and
(b)The applicant’s case will benefit from being subject to strict rules of evidence, more rigorous Court rules and case management by the District Court.
Consideration
Jurisdiction of the Tribunal
In November 2020 the parties entered into a building contract for the renovation of a domestic dwelling. The contract price was $259,689.41. The construction period was 194 days subject to agreed extensions of time. The works reached practical completion.
The applicant pursues a number of grounds of relief:
(a)A declaration regarding unfair contractual terms;
(b)An order that the respondent undertake rectification of defective building work;
(c)An order that the respondent pay consequential damages relating to the performance of rectification work;
(d)An order for the payment of liquidated damages;
(e)An order for the delivery up of certain documents; and
(f)Costs.
The respondent submits that the Tribunal has no power to grant the relief sought at (a) above. Section 77(3) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) sets out the powers of the Tribunal to resolve a building dispute. By s 77(3)(e) the Tribunal may declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice. The effect of this provision is to extend the powers of the Tribunal beyond the determination and enforcement of contractual obligations.[1] The scope of the power under this section includes altering the work to be done under the contract when ordering remedial works.[2] The power is a broad one and is not confined, for example, to those circumstances in which rectification might be ordered. I do not accept the respondent’s submission that the relief sought by the applicant is beyond the jurisdiction of the Tribunal.
[1]French v NPM Group Pty Ltd [2008] QSC 48.
[2]Ibid.
The respondent submits that the Tribunal does not have the jurisdiction to grant relief under The Australian Consumer Law (‘ACL’). In the originating application the applicant refers to various provisions of the ACL as being applicable in respect of her claim. As was noted by the Appeal Tribunal in Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon:[3]
The Australian Consumer Law has been adopted as a law of Queensland by the Fair Trading Act 1989 (Qld) (“FTA”) and is to be referred to as the ACL (Qld). Division 4 of the FTA confers jurisdiction to deal with particular matters arising under the ACL (Qld). Section 50 of the FTA confers original jurisdiction on the Tribunal in respect of proceedings for the purposes of the provisions listed in the table contained within s 50 where the subject of the proceeding would be a minor civil dispute within the meaning of the QCAT Act. (underlining added and footnotes omitted)
[3][2019] QCATA 1.
The claim by the applicant is not a minor civil dispute nor could it be brought as a minor civil dispute. The Tribunal does not have jurisdiction to determine the applicant’s claim for breach of the ACL. However, the applicant says in her submissions that she abandons this part of her claim. That submission is a complete answer to the respondent’s contention.
The respondent complains of the applicant’s failure to properly particularise her claim. The Tribunal is not a pleadings jurisdiction. The identification and articulation of the issues required to be determined by the Tribunal usually arises out of the statements of evidence filed by the parties. The proceeding has not yet reached this stage. The respondent says that the applicant has failed to articulate the basis upon which she asserts that the warranties implied by schedule 1B of the QBCC Act arise. What is notable from the respondent’s submissions is what they do not say. The respondent does not, for example, assert that there was no level 2 regulated contract entered into between the parties. Nor does the respondent say that, if the parties did enter into a level 2 regulated contract, the warranties implied by operation of the provisions of Part 3 of schedule 1B of the QBCC Act do not arise. The respondent’s submissions are unpersuasive as the basis for an order transferring the proceeding to the District Court.
The respondent says that the proceeding should be transferred to the District Court for the following reasons:
(a)The proceeding will involve a high degree of complexity, legally and factually, and likely to require expert evidence and detailed legal argument;
(b)The appropriate forum is one where all of the issues can be determined in one hearing and there is control over the proceedings under one set of rules; and
(c)Once the applicant properly articulates her claim, the respondent may have cause to join certifiers, sub-contractors and other parties who were engaged in respect of the works as concurrent wrongdoers.
I will deal with each of these submissions in turn.
The Tribunal regularly deals with complex building disputes. Expert evidence is often adduced. The Tribunal has case management processes to deal with such evidence.[4] Parties may be granted leave to be legally represented, and I note in this proceeding that the parties have been given such leave.
[4]QCAT Practice Direction No. 4 of 2009.
There is nothing to suggest, on the basis of the foregoing and the submission by the applicant that she abandons any claim under the ACL, that all of the issues cannot be heard and decided in the proceeding.
It is not uncommon for parties to be joined to building dispute proceedings. The counter-application procedures provided for in the QCAT Rules are regularly relied upon in this this regard. It should also be noted that the provisions of the Civil Liability Act2003 (Qld) apply in Tribunal proceedings.[5] If, as the proceeding progresses, the respondent seeks to join a person and a question of jurisdiction arises, the matter can be addressed at that time. Unless and until that situation arises, the matter can remain in the Tribunal.
[5]See for example Brown v Havenfoot Pty Ltd t/as Ibis Pools and Anor [2019] QCAT 105; Murphy and Anor v GDS Building Services Pty Ltd t/as Zen Roofing and Anor [2022] QCAT 197; Cerda v Jacob [2020] QCATA 57.
Conclusion
The application to transfer the proceeding to the District Court is refused.