Kenny v Morley - [2022] QCAT 178

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kenny & Ors v Morley [2022] QCAT 178

PARTIES:

GREGORY KENNY

(first applicant)

THOMAS JEBBINK

(second applicant)

FRASER TRUEMAN

(third applicant)

v

STEPHEN PAUL MORLEY

(respondent)

APPLICATION NO/S:

BDL287-21

MATTER TYPE:

Building matters

DELIVERED ON:

16 May 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The proceeding is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where the property owners brought an application for domestic building disputes against a private certifier – where the property owners alleged defects in the original construction of the dwellings – where the defects were alleged to have been the result of certification by the private certifier in circumstances where the builder had not complied with the Building Code – consideration of whether private certification work falls within the scope of a ‘domestic building dispute’ or ‘commercial building dispute’ – finding that ‘building work’ and ‘associated work’ relate to the physical activities associated with building work, that is, actual construction work – finding that certification work is excluded as building work by the QBCC Regulation – finding that the private certifier was not a ‘building contractor’ who carried out ‘building work’ – finding that the work undertaken by a private certifier is not physical construction work and is therefore not ‘domestic building work’ or ‘associated work’ – consideration of a claim in negligence related to the performance of reviewable domestic work – finding that the words ‘related to’ have the effect of confining claims to those directly arising out of the physical performance of domestic building – finding that private certification work does not fall within the meaning of ‘tribunal work’ and is therefore not ‘reviewable commercial work’ – where the dispute is neither a domestic nor a commercial building dispute, the tribunal does not have jurisdiction to decide the dispute.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47

Queensland Building and Construction Commission Act 1991 (Qld) s 75, s 76, s 77(1), schedule 1B, s 4, schedule 2
Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1, s 34

Cleary, J. v Bowcock, M. [2005] QCCTB 8 (2 March 2005).

Eaves, J. & A. v Laghai, S. & Wilkins, B. [2004] QCCTB 20 (30 July 2004)
Fraser Property Developments Pty Ltd v Sommerfeld & Ors [2004] QSC 363
Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394
R v Smith [2009] 1 Qd R 239
Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd; Lanigan Baldwin Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159

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

This proceeding has been brought by the applicants as a building dispute. On 29 November 2021 the Tribunal made directions for the determination of a preliminary issue:
Does the Tribunal have jurisdiction…

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 Kenny v Morley

Details

AGLC: Kenny v Morley [2022] QCAT 178
Case: [2022] QCAT 178
Decision Date

CaseChat Overview and Summary

The proceeding was brought by the applicants, who are lot owners in a three-lot scheme on the Gold Coast, against the respondent, a private certifier, alleging defects in the original construction of their dwellings. The applicants claim that the respondent is responsible for these defects as he certified the frame stage of the build in circumstances where the steel stumps supporting the flooring of the dwellings did not have the minimum level of corrosion protection as required under the Building Code of Australia. The applicants assert that the dispute between the parties is a domestic building dispute and that the Queensland Civil and Administrative Tribunal (QCAT) has jurisdiction to decide the dispute. The respondent contends that the QCAT does not have jurisdiction to decide a claim against a private certifier. The central legal issue in this case is whether the QCAT has jurisdiction to decide a claim against a private certifier in the context of a dispute over the certification of building work. The court found that private certification work does not fall within the meaning of ‘domestic building work’ or ‘associated work’ as defined in the Queensland Building and Construction Commission Act 1991 (Qld). The court held that certification work is excluded as building work by the Queensland Building and Construction Commission Regulation 2018 (Qld) and that a private certifier is not a ‘building contractor’ who carried out ‘building work’. Consequently, the court determined that the work undertaken by a private certifier is not physical construction work and therefore not ‘domestic building work’ or ‘associated work’. The court further held that a claim against a private certifier does not fall within the meaning of ‘tribunal work’ and is therefore not ‘reviewable commercial work’. As the dispute between the parties is neither a domestic building dispute nor a commercial building dispute, the QCAT does not have jurisdiction to decide the dispute. The proceeding was dismissed.

Orders