Karam v Chau's & Son Pty Ltd

[2020] QCATA 139

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Karam v Chau’s & Son Pty Ltd  [2020] QCATA 139

PARTIES:

ANTHONY KARAM

(applicant/appellant)

v

CHAU’S & SON PTY LTD ABN 59107089752 T/AS HOLIDAY AIR CONDITIONING AND REFRIGERATION ENGINEERING QLD

(respondent)

APPLICATION NO/S:

APL169-20

ORIGINATING APPLICATION NO/S:

0060618/18

MATTER TYPE:

Appeals

DELIVERED ON:

11 September 2020

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

1.   The application to stay a decision dated 23 April 2020 in MCDO60618/20 (Brisbane) is granted pending determination of APL169-20.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS- GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no leave to appeal yet granted – grounds for granting a stay – jurisdictional issues raised by Adjudicator ordering payment of money where claim is a building dispute seeking debt or liquidated demand – no compliance with s 77(2) Queensland Building and ConstructionCommission Act 1991 (Qld) – whether substantive or procedural requirement – observations as to whether s 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) is available

Acts Interpretation Act 1954 (Qld), s 20(2)

Domestic Building Contracts Act 2000 (Qld), repealed,
s 7, s 8, Schedule 2
Queensland Building and Construction Commission Act 1991 (Qld), s 77(2), Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61

Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphrey [2017] QCA 104
Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49
Hamilton v Merck and Co Inc [2006] NSWCA 55
Hessey-Tenny & Anor v Jones [2018] QCATA 131
LKB Holdings Pty Ltd v Gacayn [2019] QCATA 13
Maxwell v Murphy [1957] 96 CLR 261
Redding v Simmons [2016] QCATA 100
Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

Von Fahland v Virk [2019] QCATA 178

REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented
APPEARANCES:	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 applicant, Mr Karam, seeks a stay of a decision made in a minor civil dispute – minor debt proceeding, on 23 April 2020, that the applicant pay to the respondent the sum of $8,846.60, being the balance owing for a contract to supply and install air conditioning.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58 and s 145.

2. An application for leave to appeal or appeal was filed in the Tribunal on 19 June 2020.

3. The applicant has filed submissions in support of his application for a stay. The applicant submits that he has a complete defence to the original claim in that the installation of the air-conditioning system was defective; that he had a counterclaim for rectification arising out of the same set of facts and that he was not given a chance to put his case. The applicant says that material in relation to the defective work had previously been filed.

4. The respondent, Chau’s & Son, has not filed any submissions in response to the application for a stay of the decision.

5. Leave to appeal is required in this matter.[2] Circumstances must be exceptional before an order in the nature of a stay will be granted, pending the grant of leave to appeal.[3]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(a)(i).

   [3]Hessey-Tenny & Anor v Jones [2018] QCATA 131, [21] and [24].

6. Apart from demonstrating exceptional circumstances, the conventional principles relating to the granting of stays require this Tribunal to consider:

   (a)that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, the Tribunal should not delay the enforcement of its orders.[4]

   (b)Has a good reason been demonstrated why a judgment should not be given immediate effect?  The test reflects a wide discretion.  Relevant factors are whether:

   (i)      there is a good arguable case;

   (ii)      the applicant will be disadvantaged if the stay is not granted; and

   (iii)     there is some compelling disadvantage to the respondent if a stay is granted, which outweighs the disadvantage suffered by the applicant.[5]

   [4]Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453, [12].

   [5]Day v Humphrey & Ors [2017] QCA 104.

7. The application for leave to appeal or appeal and the application for a stay have thrown up some difficulties with this matter.

8. The respondent, Chau’s & Son, claimed a debt or liquidated demand for money related to the installation of air-conditioning in the applicant Mr Karam’s home. The contract is comprised of a quotation and certain email exchanges, including acceptance of the quotation by Mr Karam on 21 December 2012.

9. The work was performed in 2013.  Mr Karam paid two invoices but did not pay the last invoice on the basis that rectification work exceeding the value of the last invoice was required to correct defective work.

10. The money claimed is said to have fallen due for payment on 9 December 2013. The application for recovery of the debt was commenced in the minor civil dispute – minor debt jurisdiction of the Tribunal on 27 February 2018.

11. Without having received submissions on these points and without deciding the issues, the following issues emerge:

    (a)the matter has at all relevant times been a domestic building dispute, whether one applies the law in place at the date the money fell due or when proceedings were commenced.[6]

    (b)The claim is cast as a claim for a debt or liquidated sum. The Tribunal in its minor civil dispute jurisdiction cannot deal with a building dispute, involving a claim for a debt or liquidated sum, as a minor civil dispute.

    That position arises from the definition of minor civil dispute in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), which defines minor civil dispute as a claim to recover a debt or liquidated demand of money. The definition goes on to provide that if an enabling Act confers jurisdiction on the tribunal to deal with a claim, the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute. The Tribunal is given jurisdiction to deal with building disputes by the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). That Act does not describe building disputes as capable of being minor civil disputes.[7]

    (c)In order for the Tribunal to determine the building dispute it is possible that Chau’s & Son are required to comply with s 77(2) of the QBCC Act. Section 77(2) was inserted into the QBCC Act on 15 December 2014. Relevantly s 77 provides:

    (1)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.

    (2)However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.

    At the time the money claimed fell due from Mr Karam, s 77(2) was not part of the Act. By the time proceedings were instituted, s 77(2) had been inserted. A nice question arises as to whether s 77(2) is a substantive or procedural provision.[8] If the former, compliance with s 77(2) would not be required. If the latter, compliance is required as a necessary pre-condition to commencing proceedings in the Tribunal.[9]

    [6]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 : “building dispute”, “domestic building dispute”, “reviewable domestic work”; Domestic Building Contracts Act 2000 (Qld), s 8 meaning of “domestic building work” – includes the renovation, alteration, extension, improvement or repair of a home and work associated with that work. Associated work includes the provision of services or facilities to the home, for example air conditioning.

    [7]LKB Holdings Pty Ltd v Gacayn [2019] QCATA 13, [8]; Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49, [23]; Von Fahland v Virk [2019] QCATA 178, [20]; Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70, [10].

    [8]Acts Interpretation Act 1954 (Qld), s 20(2); Maxwell v Murphy [1957] 96 CLR 261, [7]-[8]; see also Hamilton v Merck and Co Inc [2006] NSWCA 55 (Spigelman CJ). By way of observation, an argument may be made that s 61 of the QCAT Act enables the Tribunal to waive compliance with a procedural requirement, if it is found that s 77(2) QBCC Act is a procedural requirement. To date the Tribunal has not categorised the section in this way or considered its power to use s 61 to waive compliance with s 77(2).

    [9]Redding v Simmons [2016] QCATA 100, [24], [27].

12. These issues go to the jurisdiction of the Tribunal. If the Tribunal has acted outside its jurisdiction an error of law arises. If the Tribunal has ordered the payment of money to Chau’s & Son without jurisdiction to do so, the order must be set aside.

13. A good arguable case exists that the order in favour of Chau’s & Son is not valid and must be set aside. I note that these matters have not been raised in the application for leave to appeal or appeal. The applicant may wish to amend his application.

14. In terms of the balance of convenience I consider that the jurisdiction issues outweigh any disadvantage to Chau’s & Son, particularly as any steps taken to recover the moneys ordered to be paid will be infected by invalidity if it is found that the order is invalid. That will result in a waste of resources.

15. For these reasons I grant a stay of the decision made 23 April 2020 in Claim No 0060618/18, pending the outcome of the appeal.