Northbuild Construction Pty Ltd v Body Corporate for Harmony Broadwater

CITATION:

Northbuild Construction Pty Ltd v Body Corporate for Harmony Broadwater [2015] QCAT 33

PARTIES:	Northbuild Construction Pty Ltd (Applicant)
v
Body Corporate for Harmony Broadwater CTS40761 (Respondent)

APPLICATION NUMBER:

BDL197-14

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member O’Callaghan

DELIVERED ON:

5 February 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

CATCHWORDS:

BUILDING DISPUTE – JURISDICTION – whether claim was building dispute – whether power to make declaration – where no other relief sought

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 60

Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10; cited

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Northbuild Construction Pty Ltd (‘Northbuild’) built an apartment complex known as ‘Harmony Broadwater Apartment Complex’ at Runaway Bay, Queensland in 2009.
In June 2014 a problem apparently arose concerning water leakage from the exterior of the building into apartments.[1]
[1]See application at [6].
Northbuild says the Body Corporate allowed the exterior to be over coated in 2011 which meant that Northbuild could not ask its subcontractors who originally did the works to attend to any rectification.
Northbuild say they have carried out some rectification works.
In August 2014 Northbuild filed an application in the Tribunal for a commercial building dispute against the Body Corporate seeking three orders:
1.The Body Corporate arrange for action to be taken to prevent further water leakage.
2.Alternatively that the Body Corporate instruct certain unit holders to allow a certain subcontractor to take such action.
3.Alternatively that Northbuild is no longer under an obligation to take action to prevent water leaking from the exterior of the complex.
The Body Corporate requested that the Tribunal consider whether it had jurisdiction to determine the matter before it went to the expense of filing a response.
Orders were made by the Tribunal requiring Northbuild to provide written submissions setting out the basis upon which it considered the Tribunal had jurisdiction to make the orders sought.
Northbuild advised in its submissions that it no longer sought orders 1 and 2 and only:
sought a determination on order 3 absolving Northbuild from a contractual requirement to warranty the work that the respondents contractor has interfered with.
Northbuild says the Tribunal has jurisdiction to make the order pursuant to a combination of s 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) and s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
Section 77 of the QBCC Act provides:
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.

Is this a ‘building dispute’?

‘Building dispute’ is defined in the QBCC Act[2] as:
(a)a domestic building dispute; or
(b)a minor commercial building dispute; or
(c)a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.
[2]QBCC Act, Schedule 2.
Northbuild suggest in its application that their claim is likely to involve a ‘minor commercial dispute’ that is a commercial dispute less than $50,000.
Northbuild further suggests its application comes within the definition of ‘a commercial building dispute’ in that it is:
(a)a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
(b)a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work … or
(d)a claim or dispute arising between a building owner or a building contractor and …
(vi)a supplier or manufacturer of materials used …
relating to the performance of reviewable commercial work.
The facts as outlined in the claim indicate that the Body Corporate made a complaint to the QBCC in relation to water leakage from the exterior into certain apartments in the complex.
Northbuild says that it has taken certain action to rectify the leaking. It says that its subcontractors have refused to carry out further works because the Body Corporate subsequent to the construction carried out further coating to the exterior thereby avoiding any warranties.
Northbuild does not think it should be responsible for any further rectification work because of these works carried out by the Body Corporate.
I have some difficulty identifying any current dispute in the absence of any suggestion of a claim by the current Body Corporate against Northbuild. There is also no claim made in these proceedings against any subcontractors.
It seems that Northbuild is asking the Tribunal to make a pre-emptive declaration as to its liability or otherwise prior to a dispute arising.

Orders sought

Northbuild in its submissions has stated that its claim is now only for an order that it has no future obligation to take action to prevent water leaking from the exterior.
This is in effect a claim for a declaration.
QCAT has power under s 60 of the QCAT Act to ‘make a declaration about a matter in a proceeding’.[3]
[3]QCAT Act s 60(1).
It has been held previously by the Appeal Tribunal[4] that s 60 does not give the Tribunal power:
Simply to make a declaration, not ancillary to, or in lieu of, another order which it could make’. That is, it does not have a power similar to that of the Supreme Court that is confirmed by s 128 of the Supreme Court Act 1995 (Qld). In the absence of an expressed power to entertain a proceeding simply for the purposes of giving a declaration, it does not have the power to grant and make a declaration unless such power is expressly given to it by an enabling act.
[4]Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 10 at [31]-[34].
The relevant enabling act is the QBCC Act. Section 77(2) sets out the Tribunal’s express powers for building disputes. No power is given to grant a declaration.
As such, even if a commercial building dispute was on foot, QCAT has no power to grant the relief sought in isolation.
It would be different if, for example, the Body Corporate had made a claim for rectification against Northbuild in which case it may be appropriate to make an order in the terms of that sort.
The application should be dismissed for want of jurisdiction and I order accordingly.

Northbuild Construction Pty Ltd initiated proceedings against Body Corporate for Harmony Broadwater in the Queensland Civil and Administrative Tribunal (QCAT). The dispute pertains to an alleged breach of contract concerning a building dispute. Body Corporate sought a declaration that QCAT lacked jurisdiction to entertain the claim, arguing that it was not a building dispute as defined by the Building Act 1975 (Qld). Additionally, they contended that QCAT did not have the authority to make a declaration without providing other relief. The matter was heard and determined by QCAT, which needed to decide if the claim was a building dispute within its jurisdiction and whether it could make a declaration without granting further relief.

QCAT first examined whether the claim constituted a building dispute. It found that the claim involved a dispute over the quality of work, which is within the ambit of a building dispute. However, the tribunal then considered whether it had the power to make a declaration without granting further relief. It concluded that its power to make declarations was ancillary to its ability to grant other relief. As no other relief was sought, QCAT held that it did not have jurisdiction to make a declaration in the absence of a request for additional relief.

Accordingly, QCAT dismissed the application, finding that the claim was a building dispute but that it did not have the authority to make a declaration without granting further relief. The tribunal's decision underscores the importance of understanding the scope of QCAT's jurisdiction in building disputes and the limitations of its declaratory powers in the absence of other sought relief.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established