Leyden v N J Tierney Constructions Pty Ltd

CITATION: Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483

PARTIES:	Ann-Maree Leyden (Applicant)
v
N J Tierney Constructions Pty Ltd ACN 002 438 459 (Respondent)

APPLICATION NUMBER: BDL086-15

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member Brown

DELIVERED ON: 8 December 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The stay of the proceedings ordered on 6 August 2015 is lifted;

2.    The application is listed for a Compulsory Conference on a date to be advised by the Registry.

CATCHWORDS:

BUILDING DISPUTE – s 77(2) Queensland Building and Construction Commission Act 1991 (Qld) – jurisdiction of Tribunal - requirement for applicant to comply with process established by QBCC to attempt to resolve dispute before filing application – QBCC pre-proceedings “process” to resolve building disputes

Queensland Building and Construction Commission Act 1991 (Qld), pt 5, pt 6, s 68, s 70, s 71J, s 72, s 77, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

REASONS FOR DECISION

1. N J Tierney Constructions Pty Ltd (‘Tierney’) undertook domestic building work for Ann-Maree Leyden. Ms Leyden has filed an application in the Tribunal seeking damages against Tierney for late and defective building work. Prior to filing an application for a building dispute in the Tribunal an applicant is required to comply with a process established by the Queensland Building and Construction Commission (‘QBCC’) to attempt to resolve the dispute.[1] Tierney says that Ms Leyden has not complied with her statutory obligations and her application should be struck out. Ms Tierney says that she has complied. It falls to the Tribunal to determine the issue.

   [1]Queensland Building and Construction Commission Act 1991 (Qld) (‘Act’ or ‘QBCC Act’), s 77(2).

2. The issues for determination are:

   a) Is there a process established by the QBCC to attempt to resolve Ms Leyden’s building dispute?

   b)    Has Ms Leyden complied with the process?

3. A person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[2] A person may not apply to the Tribunal however unless the person has first complied with a process established by the QBCC to attempt to resolve the dispute.[3] Compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘Act’ or ‘QBCC Act’) is therefore the gateway through which an applicant must pass before filing an application for a building dispute in the Tribunal.

   [2]Ibid s 77(1).

   [3]Ibid s 77(2).

4. Ms Leyden says that the ‘process established by the Commission’ is the Early Dispute Resolution process (‘EDR’). The EDR process commenced on 15 December 2014. The EDR only applies to disputes arising prior to the completion of a building contract.

5. Ms Leyden has received correspondence from the QBCC stating:

   1....the dispute under consideration by the Commission does not satisfy the…