Li Wei v Decohouse Pty Ltd

[2023] QCATA 9

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Li Wei v Decohouse Pty Ltd  [2023] QCATA 9

PARTIES:

li wei

(appellant)

v

Dechouse Pty Ltd

(respondent)

APPLICATION NO/S:

APL243-21

MATTER TYPE:

Appeals

DELIVERED ON:

10 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Richard Oliver

ORDERS:

1.   Leave to appeal is granted

2.   The decision of the tribunal dated 22 July 2021 dismissing the application is set aside.

3.   The respondent must pay to the applicant the sum of $492.45 by 30 March 2023.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – where applicant brought a claim in the minor civil disputes jurisdiction of the tribunal – where claim brought was for the purchase of a flooring product – whether claim was a building dispute.

Queensland Civil and Administrative Tribunal Act section 3, 142(3)(a)(i) and Schedule 3

Queensland Building and Construction Commission Act 1991 (Qld), s 77,

Terera & Anor v Clifford [2017] QCA 181.

APPEARANCES & REPRESENTATION: The application was determined on the papers

1. The applicant commenced a proceeding in the minor civil disputes jurisdiction of the tribunal claiming $465.00 from the respondent for supply of a vinyl flooring product which did not match the sample as advertised. The product, described as mountain gum engineered hybrid click lock longboard, is supplied in packs with each vinyl board measuring 1800mm long and 228mm wide. The applicant purchased the product in April 2020 with the intention of laying the flooring himself which he began doing in August 2020. When he opened the packs he found that the boards were lighter in colour that than the sample he had received and the colour, although lighter, was also inconsistent between the boards. He says the product was unsuitable for his project.

2. He contacted the respondent to obtain a refund and return the boards but, according to the applicant, respondent refused to refund the purchase price or accept any responsibility. That is also evident from the fact that the applicant had to commence the proceeding to recover his outlay for the product. The respondent has not filed any material in the minor civil dispute proceeding responding to the claim.

3. The matter came on for hearing on 2 June 2021 before a tribunal adjudicator. The record shows the respondent did not appear. There was some concern about service of the application and whether the matter was a building dispute. As the respondent was interstate, directions were made for serving the respondent with the application in compliance with the Service and Execution of Process Act, and for the applicant to provide a letter or email from the Queensland Building and Construction Commission advising there was no process for resolving the dispute between the parties.

4. It would seem the applicant complied with the orders and filed an affidavit of service and an email from the Commission on 22 June 2021.

5. The file was then referred to an adjudicator for further consideration, on the papers. On 22 July 2021 the learned adjudicator made the following ex pate order.

   The application is dismissed for lack of jurisdiction.

6. Although there are no reasons accompanying the order, file notes suggest it was because the dispute was a building dispute and the requirements of s 77(2) of the Queensland Building and Construction Commission Act (“QBCC Act”) with respect to dispute resolution had not been complied with.

7. On 1 September 2021 the applicant filed the application for leave to appeal or appeal. The appeal is in time because he did not receive the order dismissing his claim until 6 August 2021. His grounds of appeal, such as they are, reiterate the basis of his claim against the respondent and asserts that having spoken to a Commission representative, he was told that his dispute was not “in their proceeding jurisdiction”. Also, his claim was dismissed without a hearing. He submitted that:

   I think this is not fair and I have no idea why my application was dismissed and couldn’t proceed at QCAT over this simple consumer and trade dispute. If QCAT cannot resolve my trade dispute, where could I go to get justice.

8. It seems fairly clear from the above that the applicant is contending that this is not a building dispute but a trade dispute under s 1(b)(i) or (iv) of the definition of Minor Civil Dispute in the Dictionary in Schedule 3 of the Queensland Civil and Administrative Tribunal Act 2009. If the claim falls within the definition of a Minor Civil Dispute, then clearly jurisdiction is conferred.

9. Here, the primary dispute concerns the supply of a defective product, or a product not as represented to a consumer by a trader. The product just happen to be flooring planks, which of course could be described as building materials if supplied as part of building works. However, this was a do it yourself project undertaken by the applicant. It was not building work involving a third party undertaking the work. It cannot be the case that the supply of building materials to a consumer automatically falls within the definition of a building dispute. A simple example is if a consumer goes to Bunnings and buys some gyprock to repair a wall in a home, and the gyprock is defective, how could that then be a building dispute?

10. In my view the learned adjudicator was in error in determining that the subject transaction was a building dispute. A building dispute is relevantly defined in Sch 2 of the QBCC Act:

    A domestic building dispute means:

    (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)  ………………………….

11. This appeal is brought under s.142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009. Leave to appeal is necessary in respect of an appeal from a decision made in minor civil dispute jurisdiction. Leave to appeal will usually only be granted where there is a reasonable argument the decision was attended by error, or that an appeal is necessary to correct the substantial injustice caused by the error.[1] The substantive ground of appeal here is on the basis of an error of law in construing this claim as a ‘building dispute”. As I have found to the contrary, leave to appeal should be granted and the appeal allowed on a question of law.

    [1]Terera & Anor v Clifford [2017] QCA 181.

12. Although there has been no determination on the merits, I note from the minor civil disputes file that the respondent did not file any response or statements of evidence nor did any representative of the respondent attend the initial hearing. It has not complied with the directions of the appeal tribunal made on 16 September 2021. The effect of this is that it is open for the appeal tribunal to conclude the respondent does not contest the claim by the applicant.

13. This is a small claim and given the respondents non-engagement with the process, and to best achieve the objects in section 3 of the QCAT Act as that is to “deal with matters in a way that accessible, fair, just, economical, informal and quick” I propose to make a final determination on the merits rather than send the matter back for rehearing.

14. As the respondent has not raised any objection to the claim, and having regard to the statements by the applicant I find that the product he purchased does not match the description as represented. He is entitled to a refund of $465.00 and return the product to the respondent. He is also entitled to the filing fee for the minor civil dispute in the sum of $27.45. The applicant must make the product available for collection by the respondent for a period of 6 months from the date of this decision, although collection of the product is not a pre-condition to payment of the money to the applicant in accordance with the  order below.

15. Therefore the order of the appeal tribunal will be:

    (a)Leave to appeal is granted.

    (b)The decision of the minor civil dispute tribunal dated 22 July 2021 is set aside.

    (c)The respondent pay to the applicant the sum of $492.45 by 30 March 2023.