Martin v Jung - [2021] QCAT 320

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Martin v Jung [2021] QCAT 320

PARTIES: PAUL MARTIN

(applicant)

v

DANNY (WON KYO) JUNG

(respondent)

APPLICATION NO/S:

BDL010-20

MATTER TYPE:

Building matters

DELIVERED ON:

21 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.    The application for miscellaneous matters filed 18 November 2020 is refused.

2.    Danny (Won Kyo) Jung must file in the Tribunal two (2) copies and give to Paul Martin one (1) copy of:

(a)      Danny (Won Kyo) Jung’s statement of evidence, which must be page numbered;

(b)     The statements in response from each witness to give evidence for Danny (Won Kyo) Jung at the hearing, including any experts, and;

(c)      Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by:

4:00pm on 15 October 2021.

3.    Paul Martin must file in the Tribunal two (2) copies and give to Danny (Won Kyo) Jung one (1) copy of Paul Martin’s statements of evidence in reply by:

4:00pm on 29 October 2021.

4.   The matter is to be listed for a Directions Hearing in Brisbane on a date and time to be advised.

CATCHWORDS:

PROCEDURE - STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where respondent undertook domestic building work – where the building work was not complete - where an application for domestic building dispute was filed by the applicant against the respondent - where the respondent claims to be the incorrect party to the proceeding – where respondent claims he was an employee of company undertaking domestic building work - whether the application should be dismissed before hearing.

Queensland Building and Construction Commission Act 1991 (Qld) sch 1B s 4, sch 1B s13, sch 1B s13(5)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1).

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

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

Mr Martin had a bathroom renovation undertaken. Mr Martin says that he entered into an agreement with Mr Jung to carry out the work and that Mr Jung did in fact carry out the work. Mr Martin says that the building works are defective and has commenced these proceedings. Mr Jung has applied to dismiss the proceedings.
The tribunal may dismiss a proceeding in circumstances where the proceeding is frivolous, vexatious or misconceived, is lacking in substance or is otherwise an abuse of process.[1] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers upon the tribunal what is, in effect, a summary judgment power.[2] The power to order summary judgment is one that should be exercised…

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.

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Details

Case: [2021] QCAT 320
Decision Date

CaseChat Overview and Summary

In the matter of Martin v Jung, the applicant, Mr Martin, has brought proceedings against the respondent, Mr Jung, in the context of a domestic building dispute. The dispute arose from renovation works conducted by Mr Jung, who was allegedly operating under the name of Point Tiling and Construction Pty Ltd, a company that Mr Martin claims is not licensed to undertake building work. Mr Martin further alleges that Mr Jung is attempting to evade responsibility for the works, leaving Mr Martin to pursue a company that does not exist without Mr Jung. The core legal issues in the case revolve around the proper identification and naming of parties in the proceedings, as well as the jurisdictional reach of the Tribunal over the dispute.

The court was tasked with determining whether Mr Martin had correctly named the parties in the proceedings and whether Point Tiling and Construction Pty Ltd is the appropriate entity to be held accountable for the building works. The evidence presented includes a quote for the renovation works under the name of ‘Point tiles & Construction Pty Ltd’ with an ABN held by Point Tiling and Construction Pty Ltd, but the name on the quote differs from the holder of the ABN. Additionally, there is no evidence that Point Tiling held a license to undertake building work, while Mr Jung was licensed to undertake wall and floor tiling. The court also had to consider the submissions of both parties and the relevant statutory provisions governing domestic building disputes.

In its reasoning, the court emphasised that the proceedings were clearly within the scope of domestic building disputes, and therefore, the Tribunal had the jurisdiction to hear and determine the matter. The court highlighted that while Mr Martin had complied with the directions to file statements of evidence, Mr Jung had not. Instead, Mr Jung had filed an application to dismiss the proceedings, supported by a statement of evidence. The court noted that Mr Martin's evidence largely mirrored his submissions in response to Mr Jung's application. The court concluded that the proceedings were properly before it and that the evidence did not support Mr Jung's contention that he was not the appropriate party to be held accountable for the building works. The application to dismiss the proceedings was dismissed.

The court's final orders included a direction for Mr Jung to file his statement of evidence within a specified time frame and a dismissal of Mr Jung's application to dismiss the proceedings. The court also noted that the proceedings would continue, and both parties were reminded of their obligations to comply with further directions from the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Martin says:(a)Mr Jung provided the quote for the renovation works;(b)Mr Jung told him that he owned Point Tiling and had been operating for 10 years;(c)Point Tiling is not licensed to undertake building work;(d)Mr Jung is licensed to undertake waterproofing and tiling work;(e)Mr Jung is not an employee of Point Tiling;(f)Mr Jung is attempting to avoid responsibility for the building works, leaving Mr Martin to ‘sue a company that does not exist without him’;(g)Mr Jung told Mr Martin that he ‘owned the company’ and, for that reason, Mr Martin employed Mr Jung to undertake the renovation works.Consideration There can be no doubt that the building work, the subject of the proceedings, was domestic building work and that the dispute between the parties is a domestic building dispute. The Tribunal has jurisdiction to hear and determine the dispute. The present application requires consideration of whether the correct parties to the dispute have been named in the proceedings. The parties were directed to file their statements of evidence some time ago. Mr Martin complied with the directions while Mr Jung did not. Mr Jung responded to the directions by bringing the present application. Mr Jung has filed a statement of evidence in support of the application to dismiss the proceedings. Mr Martin’s statement of evidence largely mirrors his submissions in response to the present application. Attached to Mr Martin’s statement is an ASIC company extract for Point Tiling and Construction Pty Ltd. The search reveals that Mr Jung is not an officer of the company. Attached to Mr Jung’s statement is a quote dated 29 July 2019. The quote is under the name of ‘Point tiles & Construction Pty Ltd’ and refers to an ABN. The ABN is held by Point Tiling and Construction Pty Ltd.[5] Curiously, the name on the quote is different to the holder of the ABN. The quote is not signed. Also attached to Mr Jung’s statement is a PAYG payment summary detailing Mr Jung as the payee and Point Tiling and Construction Pty Ltd as the payer. [5]Australian Government – Australian Business Register search. Attached to Mr Martin’s originating application for a building dispute is a letter from the QBCC to Mr Martin in which the QBCC states that it will not be directing Mr Jung to rectify the complaint items raised by Mr Martin. Also attached to the originating application is a copy of the complaint form lodged by Mr Martin with the QBCC. The contractor is identified in the complaint form as ‘Point Tiles & Construction Pty Ltd Danny Jung’. The form references a QBCC licence number. The licence is held by Won Kyo Jung, presumably one and the same person as the respondent.[6] [6]QBCC Licence Search – Individual. There are a number of things to say about the evidence, such as it is. Firstly, Mr Martin does not dispute that the quote attached to Mr Jung’s statement was the quote provided to him. Secondly, there is no evidence that the quote was signed by the parties. Thirdly, the name on the quote is different to the holder of the ABN referenced on the quote. Fourthly, there is no evidence that Point Tiling held a license to undertake building work. Fifthly, at the relevant time, Mr Jung was licensed to undertake wall and floor tiling. Sixthly, Mr Jung appears to have been an employee of Point Tiling during the period 23 September 2019 to 30 June 2020 although there is no evidence of how much he earned, if anything, during this period.

CITATION:	Martin v Jung [2021] QCAT 320
PARTIES:	PAUL MARTIN
(applicant)
v
DANNY (WON KYO) JUNG
(respondent)
APPLICATION NO/S:	BDL010-20
MATTER TYPE:	Building matters
DELIVERED ON:	21 September 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The application for miscellaneous matters filed 18 November 2020 is refused. 2. Danny (Won Kyo) Jung must file in the Tribunal two (2) copies and give to Paul Martin one (1) copy of: (a) Danny (Won Kyo) Jung’s statement of evidence, which must be page numbered; (b) The statements in response from each witness to give evidence for Danny (Won Kyo) Jung at the hearing, including any experts, and; (c) Any documents referred to in a statement of evidence which must be identified, explained and attached to the appropriate witness statement by: 4:00pm on 15 October 2021. 3. Paul Martin must file in the Tribunal two (2) copies and give to Danny (Won Kyo) Jung one (1) copy of Paul Martin’s statements of evidence in reply by: 4:00pm on 29 October 2021. 4. The matter is to be listed for a Directions Hearing in Brisbane on a date and time to be advised.
CATCHWORDS:	PROCEDURE - STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where respondent undertook domestic building work – where the building work was not complete - where an application for domestic building dispute was filed by the applicant against the respondent - where the respondent claims to be the incorrect party to the proceeding – where respondent claims he was an employee of company undertaking domestic building work - whether the application should be dismissed before hearing. Queensland Building and Construction Commission Act 1991 (Qld) sch 1B s 4, sch 1B s13, sch 1B s13(5) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47(1). Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)