Mt Cotton Constructions Pty Ltd v Brisbane City Council

[2013] QCAT 119

CITATION: Mt Cotton Constructions Pty Ltd v Brisbane City Council [2013] QCAT 119

PARTIES:	Mt Cotton Constructions Pty Ltd (Applicant)
V
Brisbane City Council (Respondent)

APPLICATION NUMBER: BDL012-13

MATTER TYPE: Building matters

HEARING DATE: 25 March 2013

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 27 March 2013

DELIVERED AT: Brisbane

ORDERS MADE:     1.    The proceeding be transferred to the Magistrates Court at Brisbane.

CATCHWORDS:

JURISDICTION – where Council provided fill for hockey field – where builder claims fill unsuitable – where builder claims damages for removal of fill and reinstatement – whether tribunal has jurisdiction – whether a building dispute – whether commercial building dispute – whether reviewable commercial work – whether tribunal work

Queensland Building Services Authority Act1991 ss 75(1)(e), 77(1)

Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] Qd R 394

Saliba v Bethscheider [1998] QBT 87

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	S Loudon of Michael O’Brien Lawyers
RESPONDENT:	R Schulte of Counsel, instructed by Brisbane City Legal Practice

REASONS FOR DECISION

1. Mt Cotton Constructions Pty Ltd was building a new library for Moreton Bay College. The contract was varied to include the levelling and resurfacing of the top oval so that it could be used as a hockey field.

2. Brisbane City Council provided fill for that purpose at no cost. Mt Cotton says that the fill delivered did not comply with samples provided earlier by Council and the fill was not fit for the purpose. Mt Cotton removed the fill and reinstated the site at a cost of $11,123.20, which it is claiming from the Council.

3. The Council says that the Tribunal does not have jurisdiction to hear the claim. The answer to that question involves interpreting provisions which the Court of Appeal has described as “labyrinthine and poorly integrated”[1]. It is best to start at the beginning.

   [1]        Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] Qd R 394 at 401.

4. A person who is involved in a building dispute may apply to the Tribunal[2]. A “building dispute”, for these parties, means a minor commercial building dispute[3].

   [2] Queensland Building Services Authority Act 1991 s77(1).

   [3]        QBSA Act Schedule 2.

5. “Minor  commercial building dispute” means, relevantly:

   A claim or dispute between … a building contractor and … a supplier or manufacturer of materials used in the tribunal work … relating to the performance of reviewable commercial work

6. The Council concedes there is a claim or dispute arising between a building contractor and a supplier. It denies that the fill was material used in the tribunal work.

7. The definition of “reviewable commercial work” does not assist in unravelling this puzzle. It is defined[4] as “tribunal work other than reviewable domestic work”.

   [4]        QBSA Act Schedule 2.

8. “Tribunal work”  is defined, relevantly, as[5]:

   Any site work (including … landscaping…) related to tribunal work of a kind mentioned in paragraphs (a) to (d)

   [5] QBSA Act s75(1)(e).

9. Paragraph (a) refers to “the erection or construction of a building”. The Council says that the work is not related to the erection or construction of a building because it is simply the provision of fill for a hockey field. Mt Cotton says that it is tribunal work because it was part of its contract to build the College library.

10. Mt Cotton referred me to Saliba v Bethscheider[6] as an example where the Tribunal exercised jurisdiction in a dispute involving an earthworks contractor. In that case, though, the earthworks were directly related to the building work. The contractor was engaged to perform earthworks in preparation for the slab that the builder constructed and was the subject of the dispute.

    [6]        [1998] QBT 87.

11. Here, the only relationship between the erection of the building and the landscaping is that they appear in the same contract. Even so, it appears that the landscaping was an afterthought. There is no suggestion that the landscaping was related to the erection of the library in the sense that the landscaping work was necessary for, or connected to, the erection or completion of the library, as was the case in Saliba.

12. McPherson J.A. reiterated the long standing rule that nothing shall be intended to be within the jurisdiction of an inferior court (or tribunal) but that which is expressly alleged[7]. I am therefore obliged to interpret the QBSA Act conservatively.

    [7]        Fraser Property Developments Pty Ltd supra at 401.

13. I am satisfied that the provision of fill was not site work related to tribunal work. It follows, therefore that the provision of fill was not used in tribunal work or related to the performance of reviewable commercial work. Following the labyrinth back up the line, it also follows that this is not a commercial building dispute and, therefore, is not within the Tribunal’s jurisdiction.

14. Mt Cotton agreed that, if I found the Tribunal had no jurisdiction, I should transfer the proceedings to the Magistrates Court[8]. I order accordingly.

    [8] Queensland Civil and Administrative Tribunal Act 2009 s52.