Mohammadi v Faraji - [2021] QCAT 311

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Mohammadi v Faraji [2021] QCAT 311

PARTIES:

SADIQ MOHAMMADI
(applicant)

v

FARSHAD FARAJI

(respondent)

APPLICATION NO/S:

BDL204-20

MATTER TYPE:

Building matters

DELIVERED ON:

9 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1. The application filed on 26 August 2020 is dismissed.

2. The counter-application filed on 21 October 2020 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants did not comply with process established by Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where application dismissed for lack of jurisdiction

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Harley v Di Russo [2018] QCATA 46

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

Mr Mohammadi is a painter.
Mr Faraji is a builder.
Mr Faraji engaged Mr Mohammadi to undertake painting work at a property owned by Jennifer Williamson.
Mr Mohammadi filed on application 26 August 2020 seeking payment of $5,400 from Mr Faraji.
Mr Faraji filed a counter-application on 21 October 2020 seeking payment of $7,000 from Mr Mohammadi.
Senior Member Brown made directions on 18 February 2021, relating to the filing of evidence. Senior Member Brown then directed that the matter be determined on the papers.
Accordingly, the matter has come before me for determination on the papers. For the reasons set out below, it is unnecessary for me to consider the evidence filed by the parties in accordance with the directions.
Attached to the counter-application filed on 21 October 2020 is a letter from the Queensland Building and Construction Commission (‘the QBCC’) dated 6 October 2020. The letter is addressed to Ms Williamson, and stated:
Thank you for speaking to me on 2 October about the building issues at [address omitted].
I am sorry I was not able to help you reach an agreement with Sadiq Mohammadi to resolve your dispute.
You have now reached the end of our dispute process.
Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) relevantly provides:
Tribunal may decide building dispute
(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
(2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.
In Harley v Di Russo [2018] QCATA 46, [9]-[10], Member Hughes (as he then was) made the following comments on the operation of s 77(2):
There is a fundamental flaw in Mr Hartley’s original application: he did not comply with section 77(2) of the QBCC Act until after he commenced the proceeding. Because compliance with section 77(2) is the gateway through which an…

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 Mohammadi v Faraji

Details

AGLC: Mohammadi v Faraji [2021] QCAT 311
Case: [2021] QCAT 311
Decision Date: 9 September 2021

CaseChat Overview and Summary

Mohammadi v Faraji involved a dispute between the applicants, Mohammadi, and the respondent, Faraji, relating to a building dispute. The matter was heard by the Queensland Civil and Administrative Tribunal. The applicants sought to commence proceedings in the tribunal without first complying with the dispute resolution process established by the Queensland Building and Construction Commission. The respondents argued that the tribunal lacked jurisdiction to hear the matter due to the applicants' failure to follow the prescribed dispute resolution process.

The central legal issue before the tribunal was whether it had jurisdiction to hear the applicants' claims, given their non-compliance with the mandatory dispute resolution process set out by the Queensland Building and Construction Commission. The tribunal needed to determine whether the failure to comply with the statutory process deprived it of the authority to entertain the matter. The tribunal also had to consider whether any exceptions or mitigating factors could justify its jurisdiction despite the procedural non-compliance.

In addressing the issue, the tribunal emphasised the importance of adhering to statutory processes designed to facilitate the resolution of building disputes. It found that the mandatory dispute resolution process was a prerequisite for accessing the tribunal's jurisdiction. The tribunal held that it was bound by the statutory requirements and could not exercise its jurisdiction if the applicants had not followed the established dispute resolution process. The tribunal dismissed the application for lack of jurisdiction, concluding that the applicants' failure to comply with the statutory process deprived it of the authority to hear the matter. Consequently, the tribunal also dismissed the counter-application brought by the respondents.

Orders

Orders of the court

1. The application filed on 26 August 2020 is dismissed.

2. The counter-application filed on 21 October 2020 is dismissed.

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:	Mohammadi v Faraji [2021] QCAT 311
PARTIES:	SADIQ MOHAMMADI (applicant)
v
FARSHAD FARAJI (respondent)
APPLICATION NO/S:	BDL204-20
MATTER TYPE:	Building matters
DELIVERED ON:	9 September 2021
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Member Cranwell
ORDERS:	1. The application filed on 26 August 2020 is dismissed. 2. The counter-application filed on 21 October 2020 is dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants did not comply with process established by Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where application dismissed for lack of jurisdiction Queensland Building and Construction Commission Act 1991 (Qld), s 77 Harley v Di Russo [2018] QCATA 46
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).