GC Pontoon & Jetty Repairs Pty Ltd v Wegener

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

GC Pontoon & Jetty Repairs Pty Ltd v Wegener [2024] QCATA 69

PARTIES:

GC PONTOON & JETTY REPAIRS PTY LTD

(applicant/appellant)

v

MICHELLE WEGENER

(respondent)

APPLICATION NO/S:

APL117-23

ORIGINATING APPLICATION/S

MCDQ544/22 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member Lumb

ORDERS:

1.       Leave to appeal is granted.

2.       The appeal is allowed.

3.       The Decision of the Tribunal made on 12 April 2023 is set aside.

4.       The matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the Respondent on 13 October 2022 and the matter the subject of the counter-application filed on 4 April 2023 are returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.

5.       Unless, within 14 days of the date of the Decision, a party files with the Tribunal, and gives to the other party, a copy of written submissions (limited to five (5) pages) seeking an order for costs of the appeal, there shall be no order as to costs.

6.       If a party files written submissions in accordance with Order 5:

(a)      the other party must, within 14 days of receipt of the written submissions,  file with the Tribunal, and give to the first party, a copy of written submissions in response;

(b)      the Appeal Tribunal will decide the issue of costs on the papers without an oral hearing.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where appellant constructed boat ramp at respondent’s residential property – where respondent claimed refund of money paid to appellant and an unspecified amount for removal of ramp and restoration of property – where appellant made claim by way of Application for minor civil dispute raising a consumer/trader dispute –  where relief claimed under the Australian Consumer Law (Qld) – where Adjudicator ordered refund of money and granted miscellaneous relief – where appellant contends that dispute was a ‘building dispute’ within the meaning of  the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) – where appellant contends that the Tribunal had no jurisdiction because of respondent’s non-compliance with s 77(2) of the QBCC Act – whether Tribunal had jurisdiction to decide the dispute – whether Tribunal had jurisdiction and power to grant the relief ordered – where appellant filed counter-application in the proceeding – where appellant claimed moneys owing under the contract between the parties – where Adjudicator did not deal with counter-application – whether Tribunal erred in law in failing to deal with counter-application – whether the Tribunal had jurisdiction to decide the counter-application

Fair Trading Act 2011 (Qld), s 50, s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 11A, s 12, s 13, s 142, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 51

Berry v Treasure & Anor [2021] QCATA 61
Lucas v Habul [202] QCATA…

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Details
Case
[2024] QCATA 69
Decision Date

CaseChat Overview and Summary

The matter in GC Pontoon & Jetty Repairs Pty Ltd v Wegener involved a dispute between the appellant, a company that constructed a boat ramp at the respondent's residential property, and the respondent, who claimed a refund of the money paid to the appellant and an unspecified amount for the removal of the ramp and restoration of the property. The dispute was initially raised by the respondent by way of an Application for minor civil dispute under the Australian Consumer Law (Qld). The appellant filed a counter-application seeking payment under the contract between the parties. The Adjudicator ordered a refund of the money paid and granted miscellaneous relief to the respondent, but did not address the appellant's counter-application. The appellant sought leave to appeal against the Adjudicator's decision on the basis that the dispute was a 'building dispute' within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) and that the Tribunal had no jurisdiction because of the respondent's non-compliance with section 77(2) of the QBCC Act. The appellant also argued that the Tribunal erred in law by failing to deal with the counter-application.

The primary legal issue before the court was whether the Tribunal had jurisdiction to decide the dispute and grant the relief ordered. The court noted that the dispute involved a contract for the construction of a boat ramp, which fell within the definition of a 'building dispute' under the QBCC Act. The court further noted that the respondent had not complied with section 77(2) of the QBCC Act, which required the respondent to notify the appellant of the dispute and give the appellant an opportunity to resolve it. The court held that the Tribunal did not have jurisdiction to decide the dispute because it was a 'building dispute' within the meaning of the QBCC Act. The court also held that the Tribunal had no jurisdiction and power to grant the relief ordered because the respondent had not complied with section 77(2) of the QBCC Act. Finally, the court held that the Tribunal erred in law by failing to deal with the appellant's counter-application.

The appeal was allowed, and the decision of the Tribunal made on 12 April 2023 was set aside. The matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the respondent on 13 October 2022 and the matter the subject of the counter-application filed on 4 April 2023 were returned to a differently constituted Tribunal exercising the Tribunal's minor civil dispute jurisdiction for reconsideration. Unless a party filed written submissions seeking an order for costs of the appeal, there would be no order as to costs. If a party filed written submissions in accordance with Order 5, the Appeal Tribunal would decide the issue of costs on the papers without an oral hearing.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The Decision of the Tribunal made on 12 April 2023 is set aside.

4. The matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the Respondent on 13 October 2022 and the matter the subject of the counter-application filed on 4 April 2023 are returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.

5. Unless, within 14 days of the date of the Decision, a party files with the Tribunal, and gives to the other party, a copy of written submissions (limited to five (5) pages) seeking an order for costs of the appeal, there shall be no order as to costs.

6. If a party files written submissions in accordance with Order 5:

(a) the other party must, within 14 days of receipt of the written submissions, file with the Tribunal, and give to the first party, a copy of written submissions in response;

(b) the Appeal Tribunal will decide the issue of costs on the papers without an oral hearing.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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