O'Connell v JHA No 11 Pty Ltd (In Liquidation)
[2014] QCATA 124
•8 May 2014
| CITATION: | O’Connell v JHA No 11 Pty Ltd (In Liquidation) [2014] QCATA 124 |
| PARTIES: | Cathy Maree O’Connell (Applicant/Appellant) |
| v | |
| JHA No 11 Pty Ltd (In Liquidation) (Respondent) |
| APPLICATION NUMBER: | APL561-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judicial Member Cullinane |
| DELIVERED ON: | 8 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDER MADE: | The application for leave to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – JURISDICTION OF TRIBUNAL – where the applicant engaged the respondent to complete a report on property she sought to buy – where the report failed to consider the state of an escarpment on the property – where the applicant sought relief in the Tribunal from the respondent in the order of $200,000 – whether the Tribunal has jurisdiction to determine the matter Domestic Building Contract Act 2000 (Qld) Collector of Customs v Davis (1991) FCR 378 |
APPEARANCES and REPRESENTATION (if any):
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
This is an appeal from a determination of the Tribunal delivered on 4 December 2013.
The matter raises a single issue, namely whether the Tribunal had jurisdiction to hear and determine this matter. The Tribunal held that it did not. The Applicant now seeks leave to appeal against that determination.
As the matter involves a question of whether the facts meet the terms of legislation, the language of which is used in its ordinary sense, the issue involves a question of fact. See Beaumont J in Collector of Customs v Davis.[1]
[1](1991) FCR 378 at 382.
The matter proceeded over a number of days before the Tribunal. It proceeded to set out what its findings would have been in the event the finding on jurisdiction was set aside. This includes an assessment of compensation.
The factual background is set out in an extensive summary in the decision appealed from and I will not repeat it here.
For present purposes, it is sufficient to set out a brief statement of what lies behind the appeal.
The Applicant owns a dwelling at Burleigh Heads which she purchased in October 2011. She engaged the Respondent to prepare a report regarding the state of the building. The contract was conditional on a satisfactory report being obtained. The terms and conditions of the engagement are set out in detail in the reasons and it is not necessary to repeat them here.
There is an escarpment about eight to ten metres midway towards the rear of the block. There is a concrete deck constructed over the top of the escarpment. The escarpment is comprised of exposed columnar basalt rock which has a cracked surface and has vegetation growing on the rock face. The cracks are filled with dirt and debris.
The report did not deal with the state of the escarpment. The escarpment has proven to be unstable. The Tribunal found that the escarpment was ‘an observable item that constituted a present or imminent serious safety hazard’. The failure to deal with this and certain other matters gives rise to the dispute.
The Applicant filed an application under the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’) seeking an order the Respondent pay the sum of $200,000.
Jurisdiction is conferred on the Tribunal to decide building disputes on the application of a person involved in such a dispute. Section 77 provides for the powers of the Tribunal in such a case. They include power to award damages.
‘Building dispute’ is defined in Schedule 2 of the Act in the following terms:
(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 matter being heard by the tribunal under section 79.
No such consent has been given.
Elsewhere in the Schedule ‘minor commercial building dispute’ is defined:
a commercial building dispute where neither the claim nor the counter claim exceed $10000.
The Tribunal after reviewing the extensive provisions of the Act and the relevant provisions of the Domestic Building Contract Act 2000 (Qld) concluded that the dispute was not a Domestic Building Dispute.
My reading of the legislation leads me to the same conclusion. It follows that the matter is not within the jurisdiction conferred upon the Tribunal by the Act.
The application for leave is refused.
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