Paddy v Bennett

Case [2022] QCAT 382

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Paddy v Bennett  [2022] QCAT 382

PARTIES:
Scott Leslie Paddy

(applicant)

v
Peter howard bennett

(respondent)

APPLICATION NO/S:

BDL098-22

MATTER TYPE:

Building matters

DELIVERED ON:

7 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The proceeding is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – procedure - preliminary issue – whether QCAT has jurisdiction – whether the dispute the subject of the proceeding is a building dispute – whether to dismiss or transfer proceedings – consideration of definition of ‘domestic building dispute’ and ‘commercial building dispute’ – consideration of sub-paragraph (c) of the definitions of ‘domestic building dispute’ and ‘commercial building dispute’ – meaning of ‘claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work /reviewable commercial work’

COURTS AND JUDGES – JURISDICTION AND POWERS – COURTS OF RECORD – PARTICULAR COURTS – jurisdiction of QCAT to decide particular dispute – where dispute not a building dispute

Acts Interpretation Act 1954 (Qld), s 14A.

Property Law Act 1974 (Qld), s 179.
Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B, s3(a), s 3(b), s 3(d), s 4(1), s 4(3), s 71H, s 72(2), s 75(1), s 76, s 77(1), Schedule 2.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47.

Bryan v Maloney (1995) 182 CLR 609.

Cleary, J. v Bowcock, M. [2005] QCCTB 8.
Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75.
De Pasquale Bros Pty Ltd v Cavanagh Briggs & Partners Pty Ltd [2000] 2 Qd R 461.
Fennell v Robson Excavations Pty Ltd [1977] 2 NSWLR 486.
Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394.
Holmes v Wilson (1839) 10 Ad & El 503; 113 ER 190.
Kenny & Ors v Morley [2022] QCAT 178
Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28.
Queensland Building and Construction Commission & Anor v Groupline Constructions Pty Ltd [2020] QCA 245.
R v A2 (2019) 93 ALJR 1106.

Sedleigh-Denfield v O’Callaghan [1940] AC 880.

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

  1. Mr Paddy and Mr Bennett are neighbours. Mr Paddy says that a retaining wall constructed on Mr Bennett’s property is causing excess water flow into Mr Paddy’s property. Mr Paddy has commenced these proceedings claiming damages for the cost of rectifying the retaining wall.

  2. The Tribunal has directed that the following preliminary issue be determined:

    (a)Is the dispute between the parties a ‘building dispute’ as that term is defined in the Queensland Building and Construction Commission Act 1991 (Qld)?

    (b)If the answer to the preceding question is ‘no’:

    (i)    Should the proceeding be dismissed; or

    (ii)  Should the proceeding…

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Details
AGLC
Paddy v Bennett [2022] QCAT 382
Case
[2022] QCAT 382
Decision Date

CaseChat Overview and Summary

In the matter of Paddy v Bennett, the respondent, Mr Bennett, is being sued by the applicant, Mr Paddy, in relation to surface water that Mr Paddy claims is being directed from Mr Bennett’s property onto his property. The dispute between the parties involves whether the Tribunal has jurisdiction to hear the case, given that Mr Bennett did not construct the retaining wall and fence at issue in the proceedings. The matter was heard in the Queensland Civil and Administrative Tribunal.

The central legal issue that the Tribunal was required to decide was whether the dispute between the parties is a building dispute. If it is, the Tribunal would not have jurisdiction to hear the matter, as building disputes are dealt with under the Building Act 1975 (Qld). The Tribunal considered whether the retaining wall and fence were constructed by Mr Bennett or if he had engaged a third party to do so. It was not disputed that Mr Bennett was not a licensed builder and did not undertake the construction of the retaining wall and fence. The Tribunal needed to determine whether the issue of water flowing from Mr Bennett’s property onto Mr Paddy’s property constituted a building dispute.

The Tribunal concluded that the dispute between the parties was not a building dispute. The Tribunal found that Mr Bennett did not construct the retaining wall or fence, and there was no evidence to suggest that he had engaged a third party to do so. The Tribunal held that the issue of water flowing from Mr Bennett’s property onto Mr Paddy’s property was not related to the construction of the retaining wall and fence, but rather, to the absence of a groundwater drainage system on Mr Bennett’s property. The Tribunal found that the dispute was not a building dispute and therefore had jurisdiction to hear the case.

The Tribunal ordered that Mr Bennett take steps to address the issue of water flowing from his property onto Mr Paddy’s property. Specifically, the Tribunal ordered that Mr Bennett undertake drainage works on his property and that any works to replace the retaining wall and fence be certified by a qualified engineer. The Tribunal also ordered that Mr Paddy bear 50% of the costs of the proceeding.

Orders

Orders of the court

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Background

Background to the litigation

As the preliminary issue involves principally a question of statutory construction and the application of statutory provisions to facts which are not in dispute, it is appropriate that the issue be addressed. If the Tribunal does not have jurisdiction to decide the dispute, the proceeding will be brought to an early end, which will save the parties time and money and conserve Tribunal resources. The relevant facts Mr Paddy’s property is set lower than Mr Bennett’s. Along the boundary between the properties is a retaining wall. Atop the wall is a dividing fence. Both the wall and the fence are constructed of wood. Mr Paddy says that surface water from Mr Bennett’s property is being directed onto Mr Paddy’s property. The precise mechanism of this alleged redirection of water is not clear. Mr Paddy points to what he says are changes to Mr Bennett’s property, specifically the ground, patio and footpath area adjacent to the boundary line between the properties, that is, at the top of the retaining wall next to the boundary fence. Mr Paddy says that no groundwater drainage system has been installed on Mr Bennett’s property. Mr Paddy says that during typical Queensland weather events, significant storm water is released from the retaining wall into his property. In relation to the area of Mr Bennett’s property adjacent to the retaining wall (which Mr Paddy says has contributed to the water drainage issues) Mr Bennett says that the footpath has not been altered since it was first constructed somewhere between 2001 and 2005. Mr Bennett says that Mr Paddy raised concerns with him about water flowing into Mr Paddy’s property in 2019. Mr Bennett says that the issue arose as a result of a broken stormwater pipe which was subsequently repaired. Mr Bennett says that in 2020 Mr Paddy contacted him to advise that the retaining wall was in danger of collapse and that urgent work was required to be undertaken to replace the wall and fence. Mr Bennett subsequently arranged for a licensed contractor to undertake the replacement of a number of sleepers in the retaining wall and to undertake minor works to the fence. Mr Paddy says that despite the works being undertaken to the retaining wall, the issue of water flowing from Mr Bennett’s property remains unresolved. Mr Paddy seeks orders that Mr Bennett replace the existing retaining wall and fence with any works to be certified by a qualified engineer. Mr Paddy also seeks orders that drainage works be undertaken on Mr Bennett’s property to ‘fix (the) water nuisance, due to concrete above (the) retaining wall …’. It does not appear to be contentious that Mr Bennett is not a licensed builder nor did Mr Bennett undertake the construction or repair of the retaining wall, either personally or as an owner builder. Whether Mr Bennett undertook the construction of the footpath and patio area adjacent to the top of the retaining wall or retained a contractor to do so is unclear. The answer to this question is not material to the determination of the preliminary question as these reasons explain.Is the dispute between the parties a building dispute?

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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