Dvorak v Jensen

[2023] QCAT 437

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dvorak v Jensen [2023] QCAT 437

PARTIES:

RENATA DVORAK

(applicant)

v

BEN JENSEN

(respondent)

APPLICATION NO/S:

BDL328-22

MATTER TYPE:

Building matters

DELIVERED ON:

20 September 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The application to dismiss a proceeding filed 15 August 2023 is refused.

2.     The time for Ben Jensen to comply with direction 4 of the Directions made 21 June 2023 is extended to 4:00pm on 18 October 2023.

3.     Direction 7 of the Directions made 21 June 2023 is confirmed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – jurisdiction of Tribunal to decide a building dispute – where the respondent constructed a concrete driveway for the applicant – whether the construction of a concrete driveway is within the definition of domestic building work and reviewable domestic building work

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – PURPOSIVE APPROACH – GENERAL PRINCIPLES – consideration of Queensland Building and Construction Commission Act 1991 (Qld) – consideration of schedule 1B – consumer protection focus of legislation – meaning of ‘domestic building work’ – meaning of ‘associated work’ – when is a home improved by building work – whether a driveway constructed on land on which there is a home is an ‘improvement’ of the home

Queensland Building and Construction Commission Act 1991 (Qld), s 67AZN, s 77(1), schedule 1B s 4, schedule 1B s 9

Anderton & Anor v Parks Horticultural Services Pty Ltd [1996] QDC 281

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

1. The respondent (Mr Jensen) undertook building work for the applicant (Ms Dvorak), specifically, the construction of a concrete driveway at Ms Dvorak’s home. Ms Dvorak says that the building work undertaken by Mr Jensen is defective and incomplete and has commenced this proceeding seeking damages for rectification and completion works.

2. Mr Jensen has applied to have the proceeding dismissed on the basis that the dispute between the parties is not a building dispute. The application to dismiss the proceeding falls to be determined.

3. The application raises the following issues:

   (a)The meaning of ‘associated work’ in schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act);

   (b)When is domestic building work an ‘improvement’ of a home.

4. For the reasons that follow, I have concluded that:

   (a)The construction of the driveway is ‘associated work’ and therefore domestic building work;

   (b)The dispute is a domestic building dispute.

5. The Tribunal has jurisdiction to decide a building dispute[1] which may be a domestic building dispute or a commercial building dispute. A domestic building dispute includes a dispute between a building contractor and a builder owner relating to the performance of ‘reviewable domestic work’ or a contract for the performance of ‘reviewable domestic work’.[2]

   [1]QBCC Act, s 77(1).

   [2]Ibid.

6. It is…