Habul v Trinity Green Pty Ltd

[2010] QCAT 198

CITATION: Habul v Trinity Green Pty Ltd [2010] QCAT 198

PARTIES:	Mr Omar Habul
v
Trinity Green Pty Ltd

APPLICATION NUMBER:   BDL027-09   

MATTER TYPE: Building matters

HEARING DATE:	15 March 2010
DECISION OF:	Mr Richard Oliver, Senior Member

DELIVERED ON: 5 May 2010

DELIVERED AT:      Brisbane

ORDERS MADE: The Application filed on 11 December 2009 is dismissed.

CATCHWORDS :  Jurisdiction; construction of a retaining wall on common boundary; whether “building work” within the definition “Domestic Building Work” or “Commercial Building Work” within the definition of the Queensland Building Services Authority Act and the Domestic Building Contracts Act.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Omar Habul self represented
RESPONDENT:	Trinity Green Pty Ltd represented by Mr Mark Johnston of counsel instructed by Plastiras Lawyers

REASONS FOR DECISION

1. The applicant is the owner of Lot 70 on SP188520 which is located at Lapford Circuit, Drewvale in Queensland.  The land was purchased from the respondent in September 2006 for the sum of $226,000. The relevant fact for the purposes of determining jurisdiction are as follows.

(a) .Subsequent to the purchase of the land, the respondent, which is the    owner of land adjacent to Lot 70, erected a masonry block retaining wall partially off the common boundary into the applicant’s property without the consent or knowledge of the applicant[1].  he purchased Lot 70 from the respondent in September 2006;

(b). the respondent was at all material times the owner of the adjoining lots, being Lots 193 and 194;

(c). there was not in existence a boundary fence or retaining wall between Lot 70 and Lots 193 or 194 at the time of the applicant’s purchase of Lot 70 in September 2006: see paragraph 4 of the SOC.  It now appears that the applicant seeks to amend that pleading to say there was a retaining wall in existence when he purchased Lot 70;

(d). in late 2008, the respondent erected a retaining wall and manhole partly on Lot 70 and partly on an adjoining lot without the applicant’s consent: paragraph 5 of the SOC. 

[1] Statement of claim paragraph 3

2. As a consequence of that work, the applicant filed an application in the Tribunal seeking compensation and other relief. 

3. The respondent has defended the application on grounds that this Tribunal does not have jurisdiction to hear and determine the applicant’s application.

4. The application was brought on for hearing on 15 March 2010 at which time, the respondent handed up detailed written submissions on the question of jurisdiction.  The applicant was self represented and out of an abundance of caution, he was given an opportunity to file submissions in response to the applicant’s submissions which have now been received by the Tribunal.

5. For the reasons set out below, I have come to the conclusion that the Tribunal does not have jurisdiction in this matter.

6. Jurisdiction to hear and determine building disputes is found in section 77 (1) of the Queensland Building Services Authority Act (“QBSA Act”) it provides:

“A person involved in a building dispute may apply, as provided under the QCAT Act, to the Tribunal to have the Tribunal decide the dispute”.

7. Section 75 (1) defines Tribunal work as relevantly:

(a) the erection or construction of a building;

(b) the renovation, alteration, extension, improvement or repair of a building;

…

(e)any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool) related to tribunal work of a kind mentioned in paragraphs (a) to (d).

8. Further, a “building dispute” is defined in Schedule 2 to the QBSA Act as:

(a) a domestic building dispute; or

(b) a minor commercial building dispute;

9. To determine what is meant by a domestic building dispute, one has regard, again to the Schedule which provides:

(a)  a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or

…

10. From the submissions delivered from both parties, it is clear that the applicant is not a “building owner” within the definition of the QBSA Act, nor is the respondent a “building contractor” within the meaning of the QBSA Act, it is the owner of the adjacent land. Further the work undertaken by the respondent does not fall within the definition of Tribunal work pursuant to section 75 of the QBSA Act.

11. In addition, the work undertaken by the respondent clearly does not fall within the definition of “domestic building work” under the Domestic Building Contracts Act.

12. The applicant has particularised the conduct of the respondent as being the construction of the retaining wall on the boundary and installation of the manhole partly on the applicant’s land.  This is not site works which relate to the erection or construction of an attached dwelling or renovation, nor does it create an extension improvement or repair to a home.

13. I accept the respondent’s submission that interference with another’s property by the erection of a retaining structure or manhole does not belong to a genus of work to a home.  Furthermore, it seems that the work undertaken by the respondent was for the purposes of subdivision to create separate lots for sale.

14. In so far as it is necessary here, I agree with the comments of Member Lohrish in Coxs Andrews Engineers Pty Ltd v White and White [2] in that there must be some nexus between the work complained of and domestic building work as defined. 

[2] (2006) CCTBD251-06

15. If the applicant has any claim against the respondent, in negligence or in nuisance, then this claim must be determined elsewhere.

Conclusion

16. Consistent with the written submissions of counsel for the respondent, which I accept, the conclusion of the Tribunal is that it does not have jurisdiction to hear this application.

17. Therefore the order of the Tribunal will be that the application filed on 11 December 2009 is dismissed.

Costs

18. The respondent, being successful in the application seeks its costs.  The power to award costs is set out in division 6 of the Act.  Importantly, section 100 provides:

“Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.”

19. Despite that mandate, the Tribunal does have a discretion pursuant to section 102 where the interests of justice require it, to make such an order.

20. Subsection 3 sets out the criteria which the Tribunal can take into account and that includes the nature and the complexity of the dispute, relevant strengths and claims made by the parties and financial circumstances of the parties.  The Tribunal can also consider anything else that is relevant.

21. One matter that is relevant here, is the conduct of the respondent.  Although no findings of fact can be made at this preliminary stage, it does appear that the respondent undertook works on the common boundary without the consent of the applicant because it is not suggested otherwise.

22. I also take into account that the applicant is self represented.

23. Having regard to the objects of the QCAT Act as set out in section 3 and 4 and despite that there was a determination in favour of the respondent, I’m not convinced that the interests of justice do require a deviation from the requirement that the parties must bear their own costs therefore I do not  propose to make any order or direction about costs.