O'Connor v Classic Stone (Qld) Pty Ltd
[2010] QCAT 108
•17 March 2010
| CITATION: | O’Connor v Classic Stone (Qld) Pty Ltd [2010] QCAT 108 |
| PARTIES: | Mr Pat O’Connor |
| v | |
| Classic Stone (Qld) Pty Ltd |
APPLICATION NUMBER: BD470-09
| MATTER TYPE: | Building matters |
HEARD AT: Brisbane
| DECISION ON THE PAPERS OF: | Dr Bridget Cullen Mandikos |
DELIVERED ON: 17 March 2010
DELIVERED AT: Brisbane
| CATCHWORDS : | Jurisdiction - Queensland Building Services Authority Act 1991 and “minor civil disputes” under the Queensland Civil and Administrative Act 2009 |
ORDERS MADE: QCAT has jurisdiction to hear the dispute, pursuant to section 13 of the Queensland Civil and Administrative Tribunal Act 2009.
The Tribunal orders that this matter be dealt with as a minor civil dispute, with a hearing date at 9:00am 16 April 2010 in Brisbane.
REASONS FOR DECISION
Background
This application was filed by the Applicant, Mr Pat O’Connor (“Mr O’Connor”), in the former Commercial and Consumer Tribunal (“the CCT”) on 5 November 2009, arising out of a domestic building dispute.
In his application, Mr O’Connor alleged that some tile ordered and delivered by the respondent, Classic Stone (Qld) Pty Ltd (“Classic Stone”) was faulty, and not in accordance with the sample. In short, Mr O’Connor alleged that the tile was not suitable for the job, and seeks to return the goods to Classic Stone, and obtain a refund in the amount of $8,411.70.
Classic Stone filed a defence in the former CCT on 26 November 2009, disputing Mr O’Connor’s claim, and stated that the tiles supplied were suitable for installation, and were supplied in accordance with the sample.
On 1 December 2009, the former CCT amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the CCT: section 256 Queensland Civil and Administrative Tribunal Act 2009 (“the QCAT Act”). This includes matters arising under the Queensland Building Services Authority Act 1991 (“the QBSA Act”).
Jurisdiction – QCAT
Following a directions hearing before QCAT, the parties were ordered to make submission with regards to QCAT’s jurisdiction, as Classic Stone disputed QCAT’s jurisdiction in its defence. Classic Stone alleged that the former CCT would not have had jurisdiction over this dispute, and claimed that this was a matter to which federal law, specifically the Trades Practices Act 1974 (Cth), applies.
I have determined that QCAT has jurisdiction to deal with disputes like this as “minor civil disputes”, pursuant to the provisions of section 12 of the Queensland Civil and Administrative Act 2009. Section 12 of the QCAT Act provides that:
(1) The Tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
Section 12 (4) of the QCAT Act provides:
“(4) In this section –
relevant person means –
…
(b)Subject to paragraphs (c) to (g), for a claim arising out of a contract between a consumer and a trader – the consumer; or
(c) for a claim arising out of a contract between 2 or more traders – any of the traders; or
…”
It is clear that Mr O’Connor will satisfy the definition of either being a “consumer” or a “trader” under the QCAT Act.
This being a dispute that arises between a consumer and a trader, or a dispute arising between 2 or more traders, that is within the monetary jurisdiction of QCAT, QCAT would have jurisdiction to hear the dispute as a minor civil dispute, had it been commenced in that fashion.
Section 13(2)(a)(i) of the QCAT Act provides the Tribunal with the power to order a party to the proceeding to pay a stated amount to a stated person, and section 13(2)(a)(iv) of the QCAT Act provides the Tribunal with the power to make an order requiring return of goods. This is the nature of the relief sought by Mr O’Connor.
However, as this matter was commenced in the CCT, QCAT has, and only has, the functions and decision making power that the CCT had: section 271 QCAT Act.
Jurisdiction – CCT
Section 77 of the QBSA Act provides that:
“(1) 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.”
The term “building dispute”, as it is used in section 77 of the QBSA Act is defined in Schedule 2 of the QBSA Act as including a “domestic building dispute”. In turn, “domestic building dispute” is also defined in Schedule 2 of the QBSA Act to mean (relevantly):
“…
(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.”
It is my view that this is a “claim or dispute arising between a building owner” Mr O’Connor and “a supplier or manufacturer of materials used in the tribunal work” Classic Stone.
Following on from this, the term “tribunal work” is defined by s 75 of the QBSA Act as including, relevantly, the erection or construction of a building and reviewable domestic work. To determine the definition of “reviewable domestic work”, it is first necessary to turn to Schedule 2 of the QBSA Act, which says:
“reviewable domestic work means domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.”
Next, turning to section 8 of the Domestic Building Contracts Act 2000 (Qld), “domestic building work” includes work, and work associated with, the erection, construction, removal or resiting of a detached dwelling.
Meaning of “relating to the performance of reviewable domestic work”
In order to have attracted the jurisdiction of the CCT, and therefore QCAT, in this matter, I must then find that Mr O’Connor’s application relates “to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work”. As I explained in Want v Majer Tiles Pty Ltd BD417-09, citing the decision of Member Wensley in Chard Roberts Construction Pty Ltd v Johnson Tiles Pty Ltd and Queensland Building Services Authority, [1993] QBT C066-92 and R040-92, the words “related to” should be given a wide meaning, and ultimately the phrase “performance of domestic building work” includes the supply of materials. In this case, Mr O’Connor’s application relates to the supply of building materials by Classic Stone.
Procedures for Hearing
Having determined that the subject matter of this dispute would have attracted the jurisdiction of the CCT and therefore now falls within QCAT’s jurisdiction pursuant to section 62 of the QCAT Act, I Order that this matter be heard as a minor civil dispute. This will ensure that these proceedings are conducted in an economical and informal manner that minimises the costs to both Mr O’Connor and Classic Stone, in keeping with the objectives set forth in section 3 of the QCAT Act.
Decision
The Tribunal Orders that this matter be heard as a minor civil dispute on 9:00am 16 April 2010.
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