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?

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?

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.
Section 12 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers the Tribunal’s jurisdiction…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Magnan v Nikad Pty Ltd

Details

AGLC: Magnan v Nikad Pty Ltd [2024] QCAT 495
Case: [2024] QCAT 495
Decision Date: 11 November 2024

CaseChat Overview and Summary

The case of Magnan v Nikad Pty Ltd was heard in the Queensland Civil and Administrative Tribunal (QCAT). The dispute involved an application by the applicant, Magnan, against the respondent, Nikad Pty Ltd, regarding a building contract. The crux of the issue was whether the Tribunal had jurisdiction to hear Magnan's application, given that the enabling Act required an early dispute resolution process which Magnan had not followed.

The central legal question before the Tribunal was whether it had jurisdiction to hear Magnan's application, despite the non-compliance with the mandated early dispute resolution process. This process, as prescribed by the Queensland Building and Construction Commission Act 1991 (Qld), is intended to provide a quick and inexpensive way of resolving building disputes. The Act explicitly states that compliance with this process is a prerequisite to the Tribunal's jurisdiction, thus serving as the gateway to its authority.

The Tribunal found that Magnan's failure to comply with the early dispute resolution process as mandated by section 77(2) of the Act was fatal to their application. The Tribunal held that non-compliance with the statutory requirement not only frustrated the legislative intent behind the early dispute resolution process but also deprived the Tribunal of the necessary jurisdiction to hear the matter. Consequently, the Tribunal dismissed Magnan's application for lack of jurisdiction.

The final order of the Tribunal was that the application was dismissed for lack of jurisdiction due to Magnan's non-compliance with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). This decision underscores the importance of adhering to statutory requirements designed to streamline the resolution of building disputes in Queensland.

Orders

Orders of the court

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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).