Harrigan v Linton - [2024] QCAT 580

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Harrigan v Linton [2024] QCAT 580

PARTIES:

JOHN J HARRIGAN

(applicant)

v

WAYNE GEORGE LINTON

(respondent)

APPLICATION NO/S:

BDL146-24

MATTER TYPE:

Building matters

DELIVERED ON:
HEARING DATE:

12 December 2024

On the papers

DECISION OF:

Senior Member Brown

ORDERS:

Proceeding dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the Tribunal has jurisdiction – where the builder is not a ‘building contractor’ – where the matter is not a domestic building dispute or commercial building dispute

Queensland Building and Construction Commission Act 1991 (Qld) s 47, s 75, s, 76, s 77, sch 1B, sch 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 52

Andrews v Bird [2023] QCAT 176

Beaumont v McGill [2008] QCCTB 17
Bryan v Maloney [1995] HCA 17
Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134
Holley v Knezovic [2021] QCAT 422
Paddy v Bennett [2022] QCAT 382
Weston & Anor v Worthington [2023] QCAT 264

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

At a directions hearing on 8 August 2024, the Tribunal made directions for the parties to show cause why the proceeding should not be either transferred to the District Court or dismissed by final order of the Tribunal (the preliminary issue). Directions were made for the parties to file written submissions and thereafter for the preliminary issue to be determined on the papers.
The background to the dispute
Mr Harrigan purchased from Mr Linton a domestic residence in North Queensland. After settlement of the purchase, Mr Harrigan visited the residence. He says that he discovered numerous construction defects. Mr Harrigan complained to the QBCC. The QBCC inspected the dwelling and issued a direction to rectify to Mr Linton. Mr Harrigan says that the direction was not complied with. Mr Harrigan then commenced this proceeding.
Mr Harrigan’s claim and Mr Linton’s response
Mr Harrigan says that Mr Linton was an owner-builder. He says that he was not made aware, prior to purchasing the house, that the building work was not covered by the Queensland Home Warranty Scheme (QHWS), the insurance scheme administered by the QBCC in respect of residential construction work. Mr Harrigan says that had he been made aware of this issue he would not have purchased the property. Mr Harrigan seeks the repayment of the purchase price and payment of his ‘expenses and interest on my money lost.’
Mr Linton says that Mr Harrigan should have been aware that the building work was not the subject of cover under the QHWS. He says that Mr Harrigan did not inspect the property prior to purchase, either personally or by way of pre-purchase building inspection. Mr Linton says that he communicated to Mr Harrigan that he was prepared to rectify the defective items identified by the QBCC however Mr Harrigan dismissed the offer.
The submissions…

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 Harrigan v Linton

Details

AGLC: Harrigan v Linton [2024] QCAT 580
Case: [2024] QCAT 580
Decision Date: 12 December 2024 On the papers

CaseChat Overview and Summary

In Harrigan v Linton, the respondent, Mr Harrigan, sought the repayment of the purchase price of a domestic residence in North Queensland from the appellant, Mr Linton, following the discovery of numerous construction defects. The Queensland Civil and Administrative Tribunal (QCAT) was asked to determine whether it had jurisdiction to decide the matter. This arose as neither party had addressed the substantive issue of jurisdiction in their submissions. The Tribunal directed the parties to show cause why the proceeding should not be either transferred to the District Court or dismissed by final order of the Tribunal.

The legal issue before the Tribunal was whether it had jurisdiction to decide the dispute between Mr Harrigan and Mr Linton. This hinged on whether the matter constituted a building dispute and whether Mr Linton was a ‘building contractor’ within the meaning of the Queensland Building and Construction Commissioner Act 1991 (Qld) (QBCC Act). A building dispute could be a domestic building dispute, a minor commercial building dispute, or a major commercial building dispute, but only if it involved a building contractor or a building owner and a building contractor. The QBCC Act defined ‘building contractor’ as a person who carries on a business that includes carrying out building work. If Mr Linton was not a building contractor, then the dispute did not fall within the definition of a building dispute and QCAT would have no jurisdiction.

The Tribunal found that Mr Linton was not a building contractor as he was an owner-builder and not carrying on a business that included carrying out building work. Therefore, the dispute was not a building dispute as defined in the QBCC Act. Consequently, QCAT did not have jurisdiction to decide the matter. The Tribunal dismissed the proceeding.

The Tribunal’s decision was based on the plain language of the QBCC Act and the definition of a ‘building contractor’. Since Mr Linton was not a building contractor, the dispute did not fall within the Tribunal’s jurisdiction under the Act. The Tribunal dismissed the proceeding on the basis that it did not have jurisdiction to decide the matter.

Orders

Orders of the court

Proceeding dismissed.

Background

Background to the litigation

At a directions hearing on 8 August 2024, the Tribunal made directions for the parties to show cause why the proceeding should not be either transferred to the District Court or dismissed by final order of the Tribunal (the preliminary issue). Directions were made for the parties to file written submissions and thereafter for the preliminary issue to be determined on the papers. The background to the dispute Mr Harrigan purchased from Mr Linton a domestic residence in North Queensland. After settlement of the purchase, Mr Harrigan visited the residence. He says that he discovered numerous construction defects. Mr Harrigan complained to the QBCC. The QBCC inspected the dwelling and issued a direction to rectify to Mr Linton. Mr Harrigan says that the direction was not complied with. Mr Harrigan then commenced this proceeding. Mr Harrigan’s claim and Mr Linton’s response Mr Harrigan says that Mr Linton was an owner-builder. He says that he was not made aware, prior to purchasing the house, that the building work was not covered by the Queensland Home Warranty Scheme (QHWS), the insurance scheme administered by the QBCC in respect of residential construction work. Mr Harrigan says that had he been made aware of this issue he would not have purchased the property. Mr Harrigan seeks the repayment of the purchase price and payment of his ‘expenses and interest on my money lost.’ Mr Linton says that Mr Harrigan should have been aware that the building work was not the subject of cover under the QHWS. He says that Mr Harrigan did not inspect the property prior to purchase, either personally or by way of pre-purchase building inspection. Mr Linton says that he communicated to Mr Harrigan that he was prepared to rectify the defective items identified by the QBCC however Mr Harrigan dismissed the offer. The submissions filed by the parties The parties have filed submissions in accordance with the Tribunal directions. I do not have the benefit of the transcript of the directions hearing at which the directions were made. I proceed however on the basis that the presiding Member made clear to the parties why the directions were being made. It is apparent from the above summary that there is a clear issue about whether the Tribunal has jurisdiction to decide the dispute. Neither Mr Harrigan’s nor Mr Linton’s submissions address the substantive issue of jurisdiction.Consideration The Tribunal may decide a building dispute. Section 77(1) of the Queensland Building and Construction Commissioner Act 1991 (Qld) (‘QBCC Act’) provides that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. The Tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. The Tribunal cannot decide building disputes in accordance with s 77(1) other than as provided for in ss 75 and 76 of the Act.[1] [1]Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134.

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

Neither Mr Harrigan’s nor Mr Linton’s submissions address the substantive issue of jurisdiction.Consideration The Tribunal may decide a building dispute. Section 77(1) of the Queensland Building and Construction Commissioner Act 1991 (Qld) (‘QBCC Act’) provides that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. The Tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. The Tribunal cannot decide building disputes in accordance with s 77(1) other than as provided for in ss 75 and 76 of the Act.[1] [1]Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134. A ‘building dispute’ may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute. A domestic building dispute is defined as:(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(b)a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or(c)a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or(d)a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work—(i) an architect;(ii) an engineer;(iii) a surveyor;(iv) a quantity surveyor;(v) an electrician or an electrical contractor;(vi) a supplier or manufacturer of materials used in the tribunal work.[2][2]Queensland Building and Construction Commissioner Act 1991 (Qld) (‘QBCC Act’) sch 2. A commercial building dispute is defined in similar terms to a domestic building dispute other than using the phrase ‘reviewable commercial work’ in place of ‘reviewable domestic work’. ‘Reviewable domestic work’ means ‘domestic building work’ as defined in s 4 of sch 1B of the QBCC Act. ‘Reviewable commercial work’ means ‘tribunal work’, other than reviewable domestic work, as defined in ss 75 and 76 of the QBCC Act. A ‘building contractor’ means:(a)generally, means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor; but(b)for sch 1B, see sch 1B, s 1.[3][3]Ibid. A ‘building owner’ means:(a)generally, means a person for whom tribunal work is to be, is being, or has been carried out, but does not include a building contractor for whom tribunal work is carried out by a subcontractor; but(b)for sch 1B, see sch 1B, s 1.[4][4]Ibid.