Lieschke v Lifestyle Resorts Australia No 1 Unit Trust
[2014] QCAT 587
•17 November 2014
| CITATION: | Lieschke & Anor v Lifestyle Resorts Australia No 1 Unit Trust [2014] QCAT 587 |
| PARTIES: | Carl Lieschke Patricia Lieschke (Applicants) |
| v | |
| Lifestyle Resorts Australia No 1 Unit Trust ABN 14 705 786 681 (Respondent) |
| APPLICATION NUMBER: | BDL264-13 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Deane |
| DELIVERED ON: | 17 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application is transferred to the Minor Civil Disputes list. 2. The application is listed for Hearing in Brisbane commencing at 11.00am on Monday 15 December 2014. 3. The parties and their witnesses are given leave to appear at the hearing by telephone. |
| CATCHWORDS: | JURISDICTION – whether a domestic building dispute – no jurisdiction under the Queensland Building and Construction Commission Act 1991 (Qld) – whether a minor civil dispute – whether a claim by a consumer against a trader Queensland Building and Construction Commission Act 1991 (Qld) s 77, Schedule 2 Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65 |
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
This is a determination of the issue of whether the Tribunal has jurisdiction to hear this matter as a domestic building dispute having regard to the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and Domestic Building Contracts Act 2000 (Qld) (DBC Act).
Mr and Mrs Lieschke are residents in a residential park, Rockhampton North Retirement Resort. They initially commenced proceedings in the Manufactured Homes jurisdiction of the Tribunal seeking orders against the park owner for the repair of leaking bathrooms, for non-supply of a final building certificate and in relation to whether wall insulation had been installed.
The Tribunal is a creature of legislation and only has the powers conferred on it by the QCAT Act or by enabling Acts such as the Manufactured Homes (Residential Parks) Act 2003 (Qld) (Manufactured Homes Act), the DBC Act and the QBCC Act. Unlike some courts it has no inherent jurisdiction. Unless the Tribunal is expressly invested with power to make orders it is unable to do so and the dispute would be required to be determined by a court.
During the case management of this matter the Tribunal formed a view that the Manufactured Homes Act did not empower the Tribunal to make orders in respect of the dispute and that the dispute was more in the nature of a building dispute and so transferred the matter to the Tribunal’s building dispute list. Under the Manufactured Homes Act the Tribunal has powers to make various orders in respect of or associated with site agreements between a park owner and a resident.
The dispute in this case does not arise out a site agreement but rather arises out of a Manufactured Homes Sale Agreement[1] (the Sale Agreement), which in many respects has the look and feel of a building contract with instalment payments at various building stages.
[1]Dated 12 August 2010.
In this case the park owner entered into a contract with a building contractor, Acerange Constructions Pty Ltd, to build the manufactured home to be positioned on the site to be rented by Mr and Mrs Lieschke under a site agreement. The park owner on-sold the manufactured home to Mr and Mrs Lieschke.
Subsequent to settlement of the Sale Agreement, Acerange Constructions ceased to trade, apparently due to an insolvency event.
Under the Sale Agreement the park owner is obliged to rectify defective building work notified[2]. This is a claim to enforce those obligations.
[2]Clause 4(d) and Clause 18.
I find that the Tribunal does not have jurisdiction to determine this matter under the QBCC Act or the DBC Act.
Part 7 of the QBCC Act sets out the jurisdiction of the Tribunal. A person involved in a building dispute may apply to the Tribunal to have the tribunal decide the dispute.[3]
[3]QBCC Act s 77(1).
Building dispute is defined[4] to mean a domestic building dispute or a minor commercial building dispute or a major commercial building dispute if the parties consent to the tribunal hearing the dispute.
[4]Ibid, Schedule 2.
Domestic building dispute is defined to mean certain claims or disputes relating to the performance of reviewable domestic work.[5] Reviewable domestic work is defined by reference to the DBC Act.[6] Even if the subject matter does constitute reviewable domestic work I find that the claim does not fall within any of the paragraphs of the definition.
[5]Ibid.
[6]Ibid.
I find that the claim by Mr and Mrs Lieschke does not fall within paragraph (a) of the definition because this is not a claim by a building owner against a building contractor. Building contractor is defined to mean a person who carries on a business that consists of or includes carrying out building work.[7] There is no evidence to suggest that the park owner was a building contractor. The evidence is that Acerange Constructions rather than the park owner was a building contractor.
[7]Ibid.
I find that the claim does not fall within paragraph (b) of the definition because it is not a dispute between 2 or more building contractors. I find that the claim does not fall within paragraph (c) of the definition as this is not a claim in negligence, nuisance or trespass. The claim is pursuant to the Sale Agreement. I also find that the claim does not fall within paragraph (d) of the definition as this is not a claim against one of the professions listed.
For completeness, on a similar analysis and for essentially the same reasons I find that the subject of the dispute does not fall within the paragraphs of the definition of commercial building dispute[8].
[8]Ibid.
The DBC Act regulates the rights and obligations between a building contractor and a building owner. Building contractor is defined by the DBC Act to mean a person who carries out domestic building work or manages the carrying out of domestic building work either currently, in the past or in the future[9]. As stated earlier in these reasons this is not a dispute between a building contractor and a building owner so that the powers conferred on the Tribunal [10] by the DBC Act do not assist.
[9]DBC Act Schedule 2.
[10]Ibid s 55(4), s 60(3), s 84.
Mr and Mrs Lieschke submit that the Tribunal has jurisdiction to hear the matter under its original jurisdiction to determine minor civil disputes and agree to limit their claim to an amount below the prescribed limit.[11]
[11]QCAT Act s 12.
Minor civil dispute is defined[12] to relevantly mean a claim arising out of a contract between a consumer and a trader that is for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided.
[12]Ibid Schedule 3.
Consumer is defined to relevantly mean an individual who buys goods other than for resale or letting on hire. In this case I accept that Mr and Mrs Lieschke bought the manufactured home for the purpose of residing in it for the long term and not for some trading purpose.
Goods is defined to include everything that is the subject of trade or manufacture or merchandise.[13]
[13]Ibid.
A manufactured home is a good. It is defined[14] as
a structure, other than a caravan or tent, that –
(a)has the character of a dwelling house; and
(b)is designed to be able to be moved from one position to another; and
(c)is not permanently attached to the land.
[14]Manufactured Homes Act s 10(1).
Trader is defined to mean a person who in trade or commerce carries on a business of supplying goods or providing services or regularly holds itself out as ready to supply goods or to provide services of a similar nature.[15]
[15]QCAT Act Schedule 3.
The evidence before the Tribunal and in particular a letter from the park owner to Mr and Mrs Lieschke dated 24 July 2013[16] suggests that the park owner regularly entered into such sale agreements to sell manufactured homes as they were at that time engaging a private certifier to complete final inspections of a number of homes in the park.
[16]Attachment 2.3(d) to the original application dated 2 September 2013.
There is no evidence to suggest that the exclusion to the definition of trader applies, as there is no evidence that the park owner acted within the exercise of a discipline. The Appeal Tribunal has previously accepted that the phrase ‘trade or commerce’ is to be broadly interpreted and that ‘a discipline is ....a branch of instruction or learning’.[17]
[17]Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65.
I find that the park owner is a trader in the supply of manufactured homes.
To allow an early determination I order that the application is listed for a hearing as a minor civil dispute in Brisbane and give leave to the parties and their witnesses to appear by telephone.
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