Morley v See

[2015] QCATA 127

CITATION:	Morley v See [2015] QCATA 127
PARTIES:	Wade Morley (Applicant/Appellant)
v
Andrew See (Respondent)

APPLICATION NUMBER: APL127-15

MATTER TYPE: Appeals

HEARING DATE: 17 July 2015

HEARD AT: Brisbane

DECISION OF: Senior Member Stilgoe OAM
Member Traves

DELIVERED ON: 25 August 2015

DELIVERED AT: Brisbane

ORDERS MADE:

1.    Application for leave to appeal granted.

2.    The appeal is allowed.

3.    The decision of 2 March 2015 is set aside.

4.    The appellant is not required to repay the respondent any of the amount paid to him by the respondent in relation to this matter. 

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE - whether s42 of the Queensland Building and Construction Commission Act 1991 (Qld) applied - whether the contract between the parties was for “building work” within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the work was excluded from the definition of “building work” in Schedule 2 by Schedule 1AA, Item 11 of the Queensland Building and Construction Commission Regulation 2003 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3), s 147(2)
Queensland Building and Construction Commission Act 1991 (Qld) s42, Schedule 2
Queensland Building and Construction Commission Regulation 2003 (Qld), Schedule 1AA, Item 11

Moose Plastering Pty Ltd v Habul [2014] QCATA 354
Pickering v MacArthur [2005] QCA 294

APPEARANCES and REPRESENTATION (if any):

Applicant:	Wade Morley
Respondent:	Andrew See

REASONS FOR DECISION

1. Wade Morley carried out certain work relating to the unblocking and repair of a stormwater drain for Andrew See on 15 October 2013. He charged $4,323 for the work which included $1,430 for re-paving the affected area. Although Mr See had asked Mr Morley to arrange for the re-paving to be done, Mr See paid the paving contractors directly.  

2. This dispute relates to the remainder of the work - the unblocking and repair of a stormwater drain - for which Mr Morley charged $2,893.

3. At the time Mr Morley did the work for Mr See he did not hold a Plumbing and Drainage trade contractor’s licence under the Queensland Building and Construction Commission Act 1991 (Qld).

4. The Tribunal found on 2 March 2015 that Mr Morley was required to hold a contractor’s licence to do the relevant work because the work was “building work” within the meaning of the QBCC Act. The Tribunal found it was “building work” because it constituted “drainage work in connection with a building” within the meaning of Schedule 2 of the Act.

5. Being unlicensed, the tribunal found that Mr Morley was in breach of s 42 of the QBCC Act and was therefore only entitled to recover “reasonable remuneration” for the work within the meaning of s 42(4) of the Act. Mr Morley was ordered to repay part of the fees paid to him by Mr See for doing the work.

6. Mr Morley has applied for leave to appeal that decision.

Leave to Appeal

1. As this is an appeal from a decision of the Tribunal in its minor…