Maboudi v Haque
[2015] QCAT 149
•6 May 2015
| CITATION: | Maboudi v Haque [2015] QCAT 149 |
| PARTIES: | Saied Maboudi t/as Vakuke Pty Ltd (Applicant) |
| v | |
| Erfan Haque (Respondent) |
| APPLICATION NUMBER: | BDL054-14 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 4 May 2015 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan |
| DELIVERED ON: | 6 May 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The proceedings are transferred to the Brisbane Magistrates Court. |
| CATCHWORDS: | BUILDING – where major commercial building dispute – where consent required for Tribunal to have jurisdiction – where consideration of whether consent could be withdrawn Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 78, s 79, s 81 |
APPEARANCES:
| APPLICANT: | Mr Gol with Saied Maboudi |
| RESPONDENT: | Erfan Haque |
REASONS FOR DECISION
Mr Maboudi carried out renovation work at a medical centre owned by Dr Haque.
In March 2014, Mr Maboudi commenced proceedings in QCAT to recover $33,000.00 he said was owing for that work done.
Dr Haque filed a response to that application and counter-claimed for the cost of rectifying alleged defective building work in an amount he estimated to be in excess of $80,000.00.
The proceedings reached the point where they were set down for a two day hearing in March 2015. The hearing did not proceed for a number of reasons. Directions were made for the parties to file further material and the application relisted for hearing in June 2015.
Mr Maboudi wants the proceedings transferred to the Magistrates Court on the basis that QCAT does not have jurisdiction to determine the proceedings. The application, although filed as a domestic building dispute is in fact a commercial building dispute.
QCAT does have jurisdiction to hear a commercial building dispute however if the dispute involves a claim or counter-claim in excess of $50,000.00 then the Tribunal can only hear the matter if the Tribunal is satisfied that all parties to the dispute consent to it hearing the matter.[1]
[1]Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), s 78.
The QBCC Act sets out in s 79 the procedure to decide whether all parties consent.
It provides relevantly that:
(1)An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute.
(2)The written consent must include an acknowledgement by the consenting party that the consent can not be withdrawn.
Section 81 provides:
A party that gives written consent to have a major commercial building dispute heard and decided by the tribunal can not withdraw the consent.
When Mr Maboudi filed the application it was for an amount below $50,000.00 and as such consent was not required. When Dr Haque filed the counter-claim in excess of $50,000.00 then it became a major building dispute for which consent was required for the Tribunal to hear it.
The matter was listed for a directions hearing before a Senior Member on 16 April 2014.
Subsequent to the directions hearing the Senior Member made an order that ‘The parties consent to the Tribunal proceeding with the application for a commercial building dispute’.[2]
[2]Order 1 Tribunal’s Directions 16 April 2014.
I have listened to the recording of the directions hearing.
The Senior Member raised with the parties the concern that as the counter-claim had exceeded $50,000.00 the Tribunal only had jurisdiction to deal with the matter if all parties consented.
The Senior Member put it to Mr Maboudi that he must have consented as he filed the claim. He didn’t disagree. Mr Haque’s representative said Dr Haque consented to the matter proceeding in QCAT. The learned Senior Member made the direction accordingly.
Towards the end of the directions hearing Mr Maboudi said that he intended to increase his claim beyond the $30,000.00 to an amount in excess of $50,000.00. At this point Dr Haque’s representative indicated that they may wish to rethink their consent to the matter being heard in the Tribunal.
The Senior Member left it on the basis that if Mr Maboudi filed an amended claim then Dr Haque would have to seek some advice about whether he could challenge the jurisdiction of the Tribunal at that point.
Mr Maboudi has not filed an amended claim but has filed a statement indicating that his claim is for an amount exceeding $50,000.00.
The Member who was scheduled to conduct the hearing in March 2015 made directions adjourning the hearing. He also required the parties to file further material and ordered:
Both parties file a written consent that they consent to this major commercial building dispute being heard by the Tribunal such written consent to be accompanied by an acknowledgement that their consent cannot be withdrawn.
Dr Haque has provided the written consent. Mr Maboudi has not and says therefore QCAT has no jurisdiction and the matter should be transferred.
The issue I have to determine is whether the parties have given consent in accordance with the QBCC Act to enable QCAT to hear and determine the matter.
The fact that Mr Maboudi increased the amount of his claim subsequently to an amount beyond $50,000.00 in my view is irrelevant. If appropriate consent was given in April 2014 then the Tribunal still has jurisdiction regardless of an increase in the claim.
Having listened to the directions hearing I am satisfied that the parties to the dispute consented to the Tribunal deciding the matter. Although the consent given at the directions hearing was given orally I consider the Senior Member waived the procedural requirement that the consent be in writing.
The recording of the directions hearing however records no discussion which might indicate the parties acknowledged that the consent could not be withdrawn. Indeed there was some discussion with Dr Haque’s representative about whether the consent could subsequently be withdrawn.
In circumstances where there has been no acknowledgement by the parties that the consent cannot be withdrawn as required by s 79 of QBCC Act, I am of the view that the consent previously given by Mr Maboudi has been withdrawn.
It is unfortunate in circumstances where the matter is ready for hearing for the respondent now to have to defend the matter in the Magistrates Court. However QCAT has no jurisdiction to determine the matter.
I order that the application be transferred to the Magistrates Court.
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