Monique Andrews v Trevor Bird - [2023] QCAT 176

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Monique Andrews v Trevor Bird & Anor [2023] QCAT 176

PARTIES:

MONIQUE ANDREWS

(applicant)

v

TREVOR BIRD

(first respondent)

JODI BIRD
(second respondent)

APPLICATION NO/S:

BDL185-22

MATTER TYPE:

Building matters

DELIVERED ON:

19 May 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application for domestic building disputes filed 22 June 2022 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – preliminary issue – whether QCAT has jurisdiction – whether the dispute the subject of the proceeding is a building dispute – whether an owner-builder is a building contractor – whether a subsequent purchaser of a property is a building owner – whether a dispute between a subsequent owner of a domestic dwelling and an owner-builder is a domestic building dispute or a commercial building dispute.

Queensland Building and Construction Commission 1991 (Qld) s 3, s 77(1), sch 2

Beaumont v McGill [2008] QCCTB 17

Holley v Knezovic [2021] QCAT 422

Paddy v Bennett [2022] QCAT 382

APPEARANCES & REPRESENTATION:

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

The Tribunal is to determine the following preliminary issue:
Is the dispute the subject of the proceeding a building dispute for the purposes of section 77(1) of the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’).
The background to the dispute
The applicant, Ms Andrews, purchased a home in 2018 from the respondents, Mr and Mrs Bird. The home had been built by Mr Bird as an owner-builder.
Ms Andrews says that in early 2022 she discovered mould on the ceiling of one of the downstairs rooms. Investigations revealed water leaking from an upstairs shower. Ms Andrews says that rectification work is required to remedy the issue. She says that Mr and Mrs Bird are liable in respect of the rectification work.
The jurisdiction of the Tribunal to decide building disputes
The Tribunal is invested with jurisdiction to decide building disputes. However, that jurisdiction is not at large, and is strictly circumscribed by the relevant enabling Act, the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
Section 77(1) of the QBCC Act provides that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. The Tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. However the tribunal has no general jurisdiction to decide building disputes in accordance with s 77(1) independent of the meanings ascribed in ss 75 and 76 of the Act.[1]
[1]Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134.
A ‘building dispute’ may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.
A domestic building dispute is defined as:

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: [2023] QCAT 176
Decision Date

CaseChat Overview and Summary

In the matter of Monique Andrews v Trevor Bird, the Tribunal was tasked with determining whether a dispute over alleged mould in a residential property constructed by the defendant, Mr Bird, constituted a "building dispute" within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). The applicant, Ms Andrews, claimed that the mould was due to water leakage from an upstairs shower, and sought rectification costs from the defendants, Mr and Mrs Bird, who sold her the house. The central legal issue before the Tribunal was whether the dispute could be classified as a "building dispute" as defined in the QBCC Act, which would afford the Tribunal jurisdiction to decide the matter.

The Tribunal considered the definitions provided in the QBCC Act for both domestic and commercial building disputes. A domestic building dispute is defined as a claim or dispute between a building owner and a building contractor, or among contractors, relating to the performance of reviewable domestic work. It was noted that for the dispute to fall under this category, one of the parties must be a "building contractor." An owner-builder, like Mr Bird, does not fall under the definition of a building contractor as provided in the Act. The Tribunal also examined the broader objects and provisions of the QBCC Act, which primarily focus on regulating the building industry and protecting consumers. The Act distinguishes between owner-builders and building contractors, with owner-builders subject to different regulations, such as the requirement to hold a permit and complete a course.

Based on the definitions and legislative context, the Tribunal concluded that the dispute did not fit within the definition of a domestic or commercial building dispute as set out in the QBCC Act. Consequently, the Tribunal found that it lacked jurisdiction to decide the dispute. The Tribunal further noted that where it lacks jurisdiction, a proceeding is considered lacking in substance or misconceived. Accordingly, the Tribunal dismissed the application filed by Ms Andrews on 22 June 2022. The Tribunal's decision highlights the importance of correctly classifying disputes to determine the appropriate jurisdiction for resolution.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The Tribunal is to determine the following preliminary issue:Is the dispute the subject of the proceeding a building dispute for the purposes of section 77(1) of the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’).The background to the dispute The applicant, Ms Andrews, purchased a home in 2018 from the respondents, Mr and Mrs Bird. The home had been built by Mr Bird as an owner-builder. Ms Andrews says that in early 2022 she discovered mould on the ceiling of one of the downstairs rooms. Investigations revealed water leaking from an upstairs shower. Ms Andrews says that rectification work is required to remedy the issue. She says that Mr and Mrs Bird are liable in respect of the rectification work. The jurisdiction of the Tribunal to decide building disputes The Tribunal is invested with jurisdiction to decide building disputes. However, that jurisdiction is not at large, and is strictly circumscribed by the relevant enabling Act, the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). Section 77(1) of the QBCC Act provides that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute. The Tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. However the tribunal has no general jurisdiction to decide building disputes in accordance with s 77(1) independent of the meanings ascribed in ss 75 and 76 of the Act.[1] [1]Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134. A ‘building dispute’ may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute. A domestic building dispute is defined as:(a)a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or(b)a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or(c)a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or(d)a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work—(i) an architect;(ii) an engineer;(iii) a surveyor;(iv) a quantity surveyor;(v) an electrician or an electrical contractor;(vi) a supplier or manufacturer of materials used in the tribunal work.[2][2]QBCC Act, sch 2. A commercial building dispute is defined in similar terms to a domestic building dispute save for the use of the phrase ‘reviewable commercial work’ in place of ‘reviewable domestic work’.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that the present dispute does not fall within sub-paragraph (c) of the definition of ‘domestic building dispute’ or ‘commercial building dispute’.Conclusion The dispute between the parties is neither a domestic building dispute nor a commercial building dispute and is therefore not a ‘building dispute’ as defined in the QBCC Act. The Tribunal does not have jurisdiction to decide the dispute. Where a proceeding is frivolous, vexatious or misconceived, or lacking in substance, or otherwise an abuse of process, the Tribunal may dismiss the proceeding.[15] Where the Tribunal does not have jurisdiction, a proceeding lacks substance or is otherwise misconceived. [15]QCAT Act, s 47. The application for domestic building disputes filed 22 June 2022 is dismissed.

Ratio Decidendi

Legal Principle Established

Building work is defined and means:(a)the erection or construction of a building; or(b)the renovation, alteration, extension, improvement or repair of a building; or(c)the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or(e)any site work (including the construction of retaining structures) related to work of a kind referred to above; or(f)the preparation of plans or specifications for the performance of building work; or(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or(g)fire protection work; or(ga) mechanical services work; or(h)carrying out site testing and classification in preparation for the erection or construction of a building on the site; or(i)carrying out a completed building inspection; or(j)the inspection or investigation of a building, and the provision of advice or a report, for the following—(i) termite management systems for the building;(ii) termite infestation in the building;but does not include work of a kind excluded by regulation from the ambit of this definition.ConsiderationDoes the dispute fall within sub-paragraphs (a) or (b) of the definition of domestic building dispute or commercial building dispute? To come within the ambit of sub-sections (a) or (b) of the definition of domestic building dispute or commercial building dispute, one of the parties to the dispute must be a ‘building contractor’ within the meaning of that term in schedule 2 of the Act. It is not contentious that Mr Bird was an owner-builder. Is an owner-builder a ‘building contractor’? In order to answer this question it is necessary to briefly examine the QBCC Act and the legislative regime relating to the regulation of the building industry and the role played by owner-builders within that regime. The objects of the QBCC Act are set out in s 3 and include:(a)to regulate the building industry to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers; (b)to provide remedies for defective building work;(c)to provide support, education and advice for those who undertake building work and consumers;(d)to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners. The focus of the QBCC Act is upon consumer protection. The Act regulates the building industry and building contractors. As I have noted, a building contractor means a person who carries on a business that consists of or includes carrying out building work. The Act deals with owner-builders in a number of specific ways and differently to building contractors. One of the responsibilities of the QBCC commissioner is to provide courses of instruction for persons proposing to carry out building work as owner-builders.[5] The Act provides that an owner requires a permit to carry out owner-builder work on the owner’s land.[6] Among other things, an owner applying for a permit must successfully complete an owner-builder course prescribed under the QBCC Regulation.[7] The commissioner may grant a permit if, inter alia, the owner or a company of which the owner is or was a director has not been issued with a permit in the 6 years preceding the application.[8] Building work carried out by a building contractor for a person who is the holder of an owner-builder permit covering the work is not eligible for assistance from the statutory insurance scheme.[9] The commission must maintain a register of holders of owner-builder permits and must remove the particulars when the term of the permit ends.[10] [5]QBCC Act, s 20J(1)(m)(iii).[6]Ibid, s 43E.[7]Ibid, s 44. [8]Ibid, s 44B.[9]Ibid, s 67WB(1)(b).[10]Ibid, ss 103, 103A.