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…

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 Chand v Gedoun Constructions Pty Ltd

Details

AGLC: Chand v Gedoun Constructions Pty Ltd [2023] QCAT 313
Case: [2023] QCAT 313
Decision Date

CaseChat Overview and Summary

In Chand v Gedoun Constructions Pty Ltd, the applicant, Chand, brought an application against the respondent, Gedoun Constructions Pty Ltd, in the Queensland Civil and Administrative Tribunal (QCAT) seeking relief in relation to a building contract for the renovation of a domestic dwelling. The relief sought included a declaration regarding unfair contractual terms, an order for the respondent to undertake rectification of defective building work, and consequential damages. The respondent sought to transfer the proceeding to the District Court, arguing that QCAT did not have jurisdiction to determine the applicant's claim and that the case would benefit from being subject to the strict rules of evidence and more rigorous case management by the District Court.

The legal issues that the court had to decide included whether QCAT had jurisdiction to determine the applicant's claim, and whether QCAT had the jurisdiction to grant relief under The Australian Consumer Law (ACL). The respondent argued that QCAT did not have the power to grant the relief sought by the applicant and that QCAT did not have jurisdiction to grant relief under the ACL. The applicant argued that QCAT had jurisdiction to determine the claim and that she had abandoned her claim for breach of the ACL.

The court held that QCAT had jurisdiction to determine the applicant's claim, including the power to declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice. The court also held that QCAT did not have jurisdiction to determine the applicant's claim for breach of the ACL, but that the applicant had abandoned this part of her claim. The court concluded that the application to transfer the proceeding to the District Court was refused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.