Kime v Klepper - [2020] QCAT 207

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Kime & Anor v Klepper [2020] QCAT 207

PARTIES:
CATHERINE MARY KIME

CRAIG KIME

(applicants)

v

TONY KLEPPER

(respondent)

APPLICATION NO/S:

BDL 346-18

MATTER TYPE:

Building matters

DELIVERED ON:

2 June 2020

HEARING DATE:

On the Papers

HEARD AT:

On the Papers

DECISION OF:

Member Fitzpatrick

ORDERS:
1. The application for domestic building dispute filed by Catherine Mary Kime and Craig Kime on 3 December 2018 is dismissed for want of jurisdiction.

2. The counter-application filed by Tony Klepper on 21 December 2018 is dismissed for want of jurisdiction.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – whether compliance with s 77(2) Queensland Building and Construction Commission Act 1991 (Qld) – whether Queensland Civil and Administrative Tribunal has jurisdiction where no sufficient evidence the building dispute falls outside the Early Dispute Resolution Process of the Queensland Building and Construction Commission.

Queensland Building and Construction Commission Act 1991 (Qld), s 77(2), Schedule 1B s 46

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 51
Uniform Civil Procedure Rules 1999 (Qld), s 311

Bein v Brooks & Anor [2020] QCAT 5
Reddingv Simmons [2016] QCATA 100

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

REPRESENTATION:

Applicant:

D Riwoe of Aden Lawyers Pty Ltd

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

This dispute involves a claim by the applicants Mr and Mrs Kime against Mr Klepper arising out of what is alleged to be a contract with him for:
(a)the renovation of a shed at their home, so that it was suitable for the conduct of a small cake baking business; and
(b)the re-positioning of stumps under their home for the creation of two car parking spaces.
The work has not been completed. Mr Klepper does not hold an appropriate contractor’s licence for the work in question.
Mr Klepper has filed a counter-application seeking payment of an unpaid invoice.
The Tribunal does not have jurisdiction to determine a matter if an applicant has not complied with a process established by the Queensland Building and Construction Commission (QBCC) to attempt to resolve the dispute.[1]
[1]Redding v Simmons [2016] QCATA 100 at [24].
Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) provides:
(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal resolve 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.
A building dispute is defined in the QBCC Act as a domestic or commercial building dispute. Relevantly a domestic building dispute includes a dispute between a building owner and a building contractor relating to the performance or…

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 Kime v Klepper

Details

AGLC: Kime v Klepper [2020] QCAT 207
Case: [2020] QCAT 207
Decision Date: 2 June 2020

CaseChat Overview and Summary

In the matter of Kime v Klepper, the Queensland Civil and Administrative Tribunal (QCAT) addressed a dispute arising from a building contract. The applicants, Catherine Mary Kime and Craig Kime, sought to have their domestic building dispute resolved by QCAT, claiming that the respondent, Tony Klepper, was unlicensed and therefore their contract was terminated. The respondent argued that the dispute should be resolved by the Queensland Building and Construction Commission (QBCC) under its Early Dispute Resolution (EDR) process, and that QCAT lacked jurisdiction due to the absence of evidence that the dispute had been submitted to the QBCC.

The central legal issue before the Tribunal was whether the applicants had complied with the requirements of section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). This section stipulates that the QBCC has a broad role in resolving building disputes, and that QCAT’s jurisdiction is contingent upon the applicants' compliance with the QBCC’s dispute resolution processes. The Tribunal had to determine whether the applicants had taken steps to submit their dispute to the QBCC or attempted to comply with the QBCC’s processes, and whether the QBCC had any role in resolving the particular dispute.

The Tribunal found that the applicants had not provided evidence of compliance with section 77(2) of the QBCC Act, nor had they submitted their dispute to the QBCC for assessment. The Tribunal noted that while the QBCC's Consumer Building Guide and Fact Sheets indicated an EDR process for domestic building disputes, there was no clear evidence that this process applied to disputes involving terminated contracts. The Tribunal also highlighted the lack of clarity in the QBCC’s operational processes, which made it difficult to ascertain whether the dispute fell within the QBCC's jurisdiction. As a result, the Tribunal concluded that it did not have jurisdiction to hear the applicants' domestic building dispute.

Consequently, the Tribunal dismissed both the application filed by the applicants and the counter-application filed by the respondent. The orders reflected the Tribunal's findings, confirming that neither party's application was within its jurisdiction due to the lack of compliance with the QBCC's dispute resolution process.

Orders

Orders of the court

1. The application for domestic building dispute filed by Catherine Mary Kime and Craig Kime on 3 December 2018 is dismissed for want of jurisdiction.

2. The counter-application filed by Tony Klepper on 21 December 2018 is dismissed for want of jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Klepper has not filed any submissions which bear on the question of whether the requirements of s 77(2) of the QBCC Act have been met. He re-asserts his response to the application.Consideration The applicants do not have a letter from the QBCC indicating that they have either complied or attempted to comply with a process contemplated by s 77(2) of the QBCC Act. It appears that the applicants have not sought to submit to any QBCC process. On the face of s 77(2) of the QBCC Act, one might think the QBCC has a very broad dispute resolution role with respect to both domestic and commercial building disputes. For the public and QCAT alike there is a lack of clarity as to what the QBCC chooses to accept as part of its dispute resolution process. That lack of clarity can leave parties to building disputes in a difficult position if they do not submit their dispute to the QBCC for assessment as to whether it falls within the ambit of its dispute resolution process, or they make a wrong decision as to whether their dispute is covered by the process. It is unsatisfactory that the jurisdiction of the Tribunal should have to be determined by attempting to discern the operational processes of the QBCC as undertaken by the Commission from time to time. Section 46 of Schedule 1B of the QBCC Act requires the publication of a consumer building guide in a form prescribed by Regulation. The Guide “may” contain information about dispute resolution procedures. The Guide is available on the QBCC’s website. The Guide relates to domestic building contracts. Clause 17 of the Guide provides that QBCC’s EDR process is a free service which offers a facilitation-based approach to resolving disputes while the contract is “still on foot”. I have also noted the QBCC publishes some Fact Sheets which refer to the EDR process relevant to domestic building disputes. The Fact Sheets appear to be re-drafted from time to time. On 27 May 2020, I noted a Fact Sheet “Building complaints – Complaints about your contract”. That Fact Sheet does not refer to “termination” of a contract, but rather to whether the “contract is still active”, in which case EDR will aim to facilitate an acceptable agreement between both parties. The Fact Sheet contrasts that circumstance with a building contract which has been “completed”. Neither “still active” nor “completed” are defined. The applicants say that there is no process established by the QBCC to attempt to resolve their particular dispute because the contract between the parties has been terminated. They rely on the Fact Sheet attached to Mrs Kime’s affidavit for information about the extent of the dispute resolution process established by the QBCC. There is no evidence given of termination of the contract other than the submission that it came to an end when the applicants became “formally” aware that Mr Klepper was unlicensed. Mrs Kime’s statement filed in the Tribunal on 25 June 2019 sets out that the applicants were told by Mr Klepper that he was unlicensed on 28 July 2017. Thereafter Mrs Kime asked when more work would be done. Mrs Kime records that Mr Klepper attended at site and performed work on 2 August 2017. As at 28 July 2017 there appears to have been an affirmation of the contract.