Magnan v Nikad Pty Ltd

[2024] QCAT 495

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Magnan v Nikad Pty Ltd & Anor [2024] QCAT 495

PARTIES:

HARVEY MAGNAN and ANGELA MAGNAN
(applicants)

v

NIKAD PTY LTD and CARL DAKIN

(respondents)

ORIGINATING APPLICATION NO/S:

MCDQ4661-24 (Gympie)

MATTER TYPE:

Minor Civil Dispute

DELIVERED ON:

11 November 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Magistrate Hughes

ORDERS:

The Application is dismissed for lack of jurisdiction for non-compliance with the Queensland Building and Construction Commission Act 1991 (Qld), section 77(2).

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act prescribed early dispute resolution process – where applicants did not comply with process – where early dispute resolution  process provides quick and cheap way of resolving building disputes – where early dispute resolution  process is gateway to jurisdiction - where non-compliance frustrates intent of legislature – where non-compliance with early dispute resolution process is fatal to application

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 12, s 47, Schedule 3

Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277
Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483
Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288
Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

Walsh v Australian Building and Construction Group [2016] QCAT 187

REPRESENTATION:

Applicant:

Self-represented 

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

What is this application about?

1. Harvey Magnan and Angela Magnan want Nikad Pty Ltd and Carl Dakin to pay them $25,000.00 in damages from “an agreement to do works” at their property.[1] Their claim relevantly states:

   Works were not completed as agreed, damages to property and substandard works resulted in substantial damages for Harvey and Angela, costs will be extensive to rectify and repair. Impact to the house from the 22 tonne excavator has resulted in $24,200 in house damage, and $6710 for damage to solar hot water system… Also approx. 12,000 (sic) for remedial repairs to property damaged by Carl, quotes for repair of the leaking dam varies from 10,000 and up. We would like 25000 (sic) dollars paid to us which is the maximum we can claim. Damages is more than this but 25000 (sic) is acceptable at this time…[2]

   [1]Application for minor civil dispute filed 27 June 2024.

   [2]Application for minor civil dispute filed 27 June 2024, Part E.

Does the Tribunal have jurisdiction to decide the claim?

1. Mr and Ms Magnan’s claim is properly characterised as a ‘building dispute’. That means they had to comply with the early dispute resolution process before filing their application. Because they did not, the Tribunal does not have jurisdiction. Their application must therefore be dismissed.

2. Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the Tribunal’s jurisdiction over minor civil disputes. A ‘minor civil dispute’ relevantly includes a claim to recover a debt or liquidated demand.[3] Mr and Ms Magnan’s claim requires an assessment of damages for alleged losses needing quantum evidence and is therefore not liquidated.[4]

   [3]QCAT Act, s 12(4)(a), Schedule 3.

   [4]Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297; QCAT Practice Direction 9 of 2010.

3. Although ‘minor civil dispute’ extends to a claim arising out of a contract between a consumer and trader,[5] the definition of ‘minor civil dispute’ also provides:[6]

   2   However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.

   [5]QCAT Act, s 12(4)(b), Schedule 3.

   [6]QCAT Act, Schedule 3.

4. The effect of sub-paragraph 2 is to remove a claim that can be characterised as both a ‘building dispute’ and a ‘minor civil dispute’ from the Tribunal’s minor civil disputes jurisdiction. This means that the claim will not be a ‘minor civil dispute’ if an enabling Act also confers jurisdiction on the Tribunal to deal with it.  

5. Here, the enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld). Section 77 of that Act gives the Tribunal jurisdiction over a ‘building dispute’. The process by which the Act confers jurisdiction is:

   (a)‘Building dispute’ relevantly includes a domestic building dispute;[7]

   (b)‘Domestic building dispute’ relevantly includes a claim or dispute between a building owner and building contractor relating to the performance of reviewable domestic work or a claim or dispute in negligence related to the performance of reviewable domestic work;[8]

   (c)‘Reviewable domestic work’ means ‘domestic building work’ that relevantly includes: renovation, alteration, extension, improvement or repair of a home; work associated with the renovation, alteration, extension, improvement or repair of a home such as landscaping, paving and driveways; the erection or construction of a building or fixture associated with a detached dwelling or home such as retaining structures, driveway and, fencing; the provision of services or facilities to the home or the property on which the home is situated such as water supply, sewerage and drainage; and related site work.[9]

   [7]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.

   [8]Ibid.

   [9]Queensland Building and Construction Commission Act 1991 (Qld), Schedules 1B, 2 (s 4).

6. Mr and Ms Magnan’s claim includes: damage to their house and solar hot water system; negligent landscaping work; work to the house driveway; “other works [done] randomly on the property”; sewerage pipes and drainage pipes; “repair and create roads, driveway and road approach from public road, during the works the retaining wall was modified from its original state, additional retaining walls were part of the landscaping around garden area and top pad”; damage to fencing; damaged pipes directly behind the house; and “house damages”.[10] Their Application is therefore a  ‘claim’ for work within the definition of ‘reviewable domestic work’ and thus a ‘domestic building dispute’.

   [10]Statement of Harvey and Angela Magnan filed 27 June 2024 with attachments including photographs and diagrams of property and alleged works; Additional evidence of Harvey and Angela Magnan undated; QBCC Complaint Form of Harvey Magnan dated 12 August 2024

7. Because the claim is a ‘building dispute’, the enabling Act prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the enabling Act prevails.[11]

   [11]Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 163, [31] (Wilson J).

8. Mr and Ms Magnan were required to file evidence of participating in early dispute resolution under section 77(2) of the enabling Queensland Building and Construction Commission Act 1991 (Qld). Mr and Mrs Magnan did not provide evidence of attempting to contact the Commission before filing its application on 27 May 2024. Instead, the file shows a letter from the Queensland Building and Construction Commission dated 16 August 2024 “serving as notification you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised.”[12]

   [12]Letter QBCC to Harvey Laurent Magnan dated 16 August 2024.

9. The letter refers to a decision to not issue a direction to rectify which is within the Tribunal’s review jurisdiction. Even if I put that issue aside and accept the letter as evidence, at best it is evidence of an attempt to retrospectively comply with section 77(2) of the Act – some four months after Mr and Mrs Magnan filed their application. It is not evidence of any attempt at compliance before Mr and Mrs Magnan filed their application.

10. Compliance cannot be retrospective. Because compliance with section 77(2) of the Act is the gateway through which an applicant must pass before filing an application for a building dispute,[13] the QBCC letter cannot be evidence of compliance. The early dispute resolution process is meant to provide a quick and cheap way of resolving building disputes. That is consistent with the objects of the QCAT Act to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[14]

    [13]Walsh v Australian Building and Construction Group [2016] QCAT 187, [8], citing with approval Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483.

    [14]QCAT Act, s 3(b).

11. Mr and Mrs Magnan have therefore not complied with the early dispute resolution process prescribed by section 77(2). Because compliance with section 77(2) of the Act is the gateway through which an applicant must pass before filing an application for a building dispute,[15] Mr and Ms Magnan’s non-compliance with section 77(2) of the Act is fatal to their application:

    Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.[16]

    [15]Walsh v Australian Building and Construction Group [2016] QCAT 187, [8], citing with approval Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483.

    [16]Walsh v Australian Building and Construction Group [2016] QCAT 187, [12].

12. It does not matter that Mr and Ms Magnan filed their application as a minor civil dispute.[17] The original application was misconceived and must therefore be dismissed as lacking in jurisdiction.[18] As Senior Member Brown has previously held, there are strong public policy reasons for this:

    The clear intention of the legislature, by enacting s 77(2) of the QBCC Act, was to require a party seeking to pursue a claim in the tribunal in respect of a building dispute to first comply with a dispute resolution process established by the QBCC. To permit a dispute, which may be both a minor civil dispute and a building dispute, to proceed as a minor civil dispute without a party complying with s 77(2) would have the effect of frustrating the intent of the legislature.

    [17]Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70.

    [18]QCAT Act, s 47; Walsh v Australian Building and Construction Group [2016] QCAT 187, [13].

13. Whether Mr and Ms Magnan should file a further application upon compliance with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) is a matter upon which they might wish to obtain independent legal advice.