Frost Constructions Pty Ltd v Zoja Pty Ltd - [2015] QCATA 24

CITATION:

Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 24

PARTIES:	Frost Constructions Pty Ltd (Appellant)
v
Zoja Pty Ltd (Respondent)

APPLICATION NUMBER:

APL271-14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

On the papers

DECISION OF:

Judicial Member Dodds

DELIVERED ON:

18 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal allowed.

2. The decision of the Tribunal given on 20 May 2014 dismissing the appellant’s counterclaim is set aside.

3. The matter be returned to the Tribunal who made the decision for reconsideration without the hearing of additional evidence.

4. The question of costs of the appeal is adjourned until final judgement of the appellant’s quantum meruit claim by the original Tribunal.

5. Submissions regarding costs of the appeal be in writing without oral submissions to be delivered within 28 days of final judgement of the quantum meruit claim by the original Tribunal.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – CONTRACT - PERFORMANCE OF WORK - APPEAL – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – ORDERS SET ASIDE - Whether Tribunal has jurisdiction to decide a quantum meruit claim in a minor commercial building dispute where there is no contract for the building work

Queensland Building Services Authority Act 1991 (Qld), Dictionary, s 75, s 76, s 77(1), s 77(3)(a), s 77(3)(d)

APPEARANCES:

APPLICANT:

On the papers

RESPONDENT:

On the papers

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

This is an appeal by a builder from a decision of a member of the Queensland Civil and Administrative Tribunal (the Tribunal) given on 20 May 2014.
The appeal is against the conclusion by the member that he had no jurisdiction to decide the appellant’s counterclaim for $20,399.26 on a quantum meruit.
Grounds of Appeal
I.The Tribunal erred as a matter of law in finding, at paragraph 88 and 89 of its decision, that the Tribunal did not have jurisdiction to determine the applicant’s quantum meruit counterclaim because the dispute between the parties was a minor commercial building dispute; and
II.The Tribunal erred as a matter of law in determining that evidence of the actual cost of the work undertaken by the applicant in its counterclaim was not evidence that could support a quantum meruit claim.
The original matter before the Tribunal
The respondent to this appeal brought an application to the Tribunal. It made various claims for sums of money and for relief said to arise in the context of building work done by the appellant for the respondent in the construction of a four unit multi-storey building. It included claims for engaging a cost estimator and for preparing the claim brought to the Tribunal.
The appellant counterclaimed for a sum of money as a quantum meruit for labour and materials provided for the building work done and not paid for.
The Tribunal’s decision
Both the respondent’s claim and the appellant’s counterclaim were…

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.

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Details

Case: [2015] QCATA 24
Decision Date: 18 February 2015

CaseChat Overview and Summary

The appeal in Frost Constructions Pty Ltd v Zoja Pty Ltd involved a dispute over building work between the appellant, Frost Constructions, and the respondent, Zoja Pty Ltd. The appellant argued that the respondent had not paid for work done and claimed a sum on a quantum meruit basis. The respondent disputed that there was any contract for the work in question and denied owing the appellant any money. The Queensland Civil and Administrative Tribunal (QCAT) dismissed both the respondent's claim and the appellant's counterclaim. The Tribunal concluded that there was no contract for the work in question and that there was no agreement about how payment for the work was to be calculated. The Tribunal also found that a claim for a quantum meruit would succeed if the Tribunal had jurisdiction to hear it, but that it did not have jurisdiction to hear such a claim in this case.

The legal issue before the court was whether the Tribunal had jurisdiction to determine a quantum meruit claim in a minor commercial building dispute where there was no contract for the building work. The court considered the definition of a "minor commercial building dispute" under the Queensland Building Services Authority Act 1991 (Qld) (the Act). The Act defined a "commercial building dispute" as a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work. The court found that a quantum meruit claim did not relate to the performance of reviewable commercial work or a contract for such work and therefore was not within the definition of a minor commercial building dispute. The court also considered the wide powers of the Tribunal in a building dispute under the Act, including the power to order the payment of an amount found to be owing by one party to another and ordering restitution. However, the court found that these powers were not sufficient to give the Tribunal jurisdiction to hear a quantum meruit claim in this case.

The court allowed the appeal and set aside the decision of the Tribunal dismissing the appellant's counterclaim. The court found that the Tribunal had erred in law by concluding that it did not have jurisdiction to hear the appellant's quantum meruit claim. The court remitted the matter to the Tribunal for reconsideration without the hearing of additional evidence. The court also adjourned the question of costs of the appeal until final judgment of the appellant's quantum meruit claim by the original Tribunal. The court ordered that submissions regarding costs of the appeal be in writing without oral submissions to be delivered within 28 days of final judgment of the quantum meruit claim by the original Tribunal.

Orders

Orders of the court

1. Appeal allowed.

2. The decision of the Tribunal given on 20 May 2014 dismissing the appellant’s counterclaim is set aside.

3. The matter be returned to the Tribunal who made the decision for reconsideration without the hearing of additional evidence.

4. The question of costs of the appeal is adjourned until final judgement of the appellant’s quantum meruit claim by the original Tribunal.

5. Submissions regarding costs of the appeal be in writing without oral submissions to be delivered within 28 days of final judgement of the quantum meruit claim by the original Tribunal.

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

The Tribunal’s decisionBoth the respondent’s claim and the appellant’s counterclaim were dismissed. The respondent had said there was a written contract for the building work in question. The appellant said there was not. No contract was produced. The member was not satisfied there was any agreement about calculation of payment for the work to be done. He said in his reasons for judgement “I am not satisfied that there was an agreement about the calculation of payment for the work to be done. It seems that claims were made and paid without a dispute about the basis of the claims made until the time of making an application to this Tribunal.”[1][1]Zoja Pty Ltd v Frost Constructions Pty Ltd [2014] QCAT 214 at 45. The Tribunal considered that if it had jurisdiction to determine the appellant’s quantum meruit claim, the basis of a claim for a quantum meruit would be made out. However, it concluded that the quantum meruit claim was not included within the definition of a minor commercial building dispute in the Queensland Building Services Authority Act 1991 (Qld) (the Act). The dictionary to the Act defined a “commercial building dispute” as, inter alia, “(a) a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work.”[2] The quantum meruit claim did not relate to the performance of reviewable commercial work or a contract for such work.[2]Queensland Building Services Authority Act 1991 (Qld), schedule 2. DiscussionThe Act provides the Tribunal with jurisdiction in building disputes.[3] In the dictionary to the Act a “building dispute” is defined as, inter alia, “(b) a minor commercial building dispute.”[4] A “commercial building dispute” is defined as, inter alia, “(a) a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work.”[5] “Reviewable commercial work” is defined in the dictionary to mean “Tribunal work other than reviewable domestic work.”[6] For the definition of “Tribunal work” the reader is referred to sections 75 and 76 of the Act. Tribunal work is there described as, inter alia, “the erection or construction of a building.”[7] Section 76 sets out what is not Tribunal work. It has no relevance here. [3]Ibid s 77(1).[4]Ibid schedule 2[5]Ibid.[6]Ibid.[7]Ibid s 75(1)(a). The Tribunal’s wide powers in a building dispute are set out in the Act. They include ordering the payment of an amount found to be owing by one party to another[8] and ordering restitution.[9] Both of these powers may arguably be appropriate where a quantum meruit claim is made.[8]Ibid s 77(3)(a).[9]Ibid s 77(3)(d). The appellant accepts that in this case a quantum meruit claim does not relate to a contract for the performance of reviewable commercial work. However, it submits that it does relate to the performance of reviewable commercial work. It submits that it is the performance of reviewable commercial work in circumstances where there is no contract governing the relationship between the parties that gives rise to a valid claim for a quantum meruit.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.