Peter Broadbelt Electrical Pty Ltd v Harrison - [2022] QCATA 91

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCATA 91

PARTIES:

PETER BROADBELT ELECTRICAL PTY LTD

(applicant/appellant)

v

MICHAEL HARRISON

(respondent)

APPLICATION NO/S:

APL183-21

ORIGINATING APPLICATION NO/S:

MCDQ101/21 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

20 June 2022

HEARING DATE:

26 May 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL – APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – Where adjudicator found dispute between the parties was a ‘building dispute’ within the meaning of that term as defined in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) – where adjudicator found the applicant had failed to comply with s 77(2) of the QBCC Act before commencing proceedings – where adjudicator dismissed application

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where applicant an electrical contractor regulated under the Electrical Safety Act 2002 (Qld) – whether dispute between an electrical contractor and a building owner is a ‘building dispute’

Electrical Safety Act 2002 (Qld), s 20, s 55(1)(a), s 56(1)

Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(c), s 75(2), s 77(1), sch 1B; s 1, s 4(1)(b), s 4(3), s 4(3)(b), s 4(6), s 9, s 9(1), sch 2
Queensland Building and Construction Commission Regulation 2018 (Qld), sch 1, s 20

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11 s 142(3)(a)(i), sch 3, s 1(a), s 2

Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43
Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29
Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394
Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49
Harrison and Anor v Meehan [2016] QCATA 197
Ogdens Ltd v Weinberg (1906) 95 LT 567
Redding v Simmons [2016] QCATA 100
Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

Von Fahland v Virk [2019] QCATA 178

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal in the minor civil disputes jurisdiction dismissing an application by Peter Broadbelt Electrical Pty Ltd (PBE) claiming monies due and owing by Michael Harrison.
Being an appeal from a decision in a proceeding for a minor civil dispute, leave is required.[1] Leave to appeal will only be granted in accordance with well-established principles: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(a)(i).
[2]See Harrison and Anor v Meehan [2016] QCATA 197 and the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Peter Broadbelt Electrical Pty Ltd v Harrison

Details

AGLC: Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCATA 91
Case: [2022] QCATA 91
Decision Date: 20 June 2022

CaseChat Overview and Summary

The case of Peter Broadbelt Electrical Pty Ltd v Harrison involved an electrical contractor, Peter Broadbelt Electrical Pty Ltd (PBE), suing the building owner, Mr Harrison, for recovery of a debt or liquidated demand of money. The dispute was initially heard and dismissed by an adjudicator who found that the dispute was a building dispute within the meaning of the Queensland Building and Construction Commission Act 1991 (QBCC Act). The adjudicator found that PBE had failed to comply with the requirement under s 77(2) of the QBCC Act before commencing proceedings. PBE appealed against this finding to the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues in the case were whether the dispute between an electrical contractor and a building owner constituted a 'building dispute' under the QBCC Act and whether PBE was required to comply with s 77(2) of the QBCC Act before proceeding to court. The Tribunal had to consider whether the work done by PBE was 'domestic building work' or 'tribunal work', which would bring the dispute within the scope of the QBCC Act. The Tribunal also had to consider the requirements of s 77(2) of the QBCC Act and whether PBE had complied with them before commencing the proceeding.

The Tribunal found that the dispute was indeed a 'building dispute' as PBE was an electrical contractor and the work involved renovation, alteration, extension, improvement or repair of a home. Even if the work was not domestic building work, it was 'tribunal work' as it involved electrical work. Therefore, the dispute was a building dispute. The Tribunal also found that PBE had not complied with s 77(2) of the QBCC Act before commencing proceedings. The Tribunal dismissed the appeal and refused leave to appeal.

No further orders were made by the Tribunal.

Orders

Orders of the court

Leave to appeal refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is well established authority in this Tribunal that compliance with s 77(2) is a pre-condition to the jurisdiction of the Tribunal to decide a building dispute.[27] [27]See Redding v Simmons [2016] QCATA 100. Consideration For the following reasons the dispute between the parties is a domestic building dispute:(a)PBE is an electrical contractor;(b)Mr Harrison is a building owner;[28](c)The dwelling at which the works were undertaken by PBE is a ‘home’ within the meaning of that term;[29](d)The dispute is about work undertaken by PBE which was ‘domestic building work’ within the meaning of that term on the basis that the work involved the renovation, alteration, extension, improvement or repair of a home;[30](e)Further, or in the alternative, the dispute is about work undertaken by PBE which was ‘associated work’ within the meaning of that term;[31](f)Further, or in the alternative, the dispute is about work undertaken by PBE which involved the provision of services or facilities to the home.[32][28]QBCC Act, schedule 1B, s 1.[29]Ibid, s 9.[30]Ibid, s 4(1)(b).[31]Ibid, s 4(3)(b).[32]Ibid, s 4(6). Even if the work undertaken by PBE was not domestic building work, it was otherwise ‘tribunal work’ on the basis that PBE undertook electrical work.[33] [33]Ibid, s 75(1)(c). It follows that even if the dispute between the parties was not a domestic building dispute it is a dispute about reviewable commercial work and therefore a minor commercial building dispute.[34] [34]Ibid, schedule 2 (definition of ‘minor commercial building dispute’). Either way, the dispute between the parties is a ‘building dispute’.[35][35]Ibid, (definition of ‘building dispute’). As can be seen from the foregoing analysis, despite the fact that electrical contractors and electricians are not subject to the regulatory provisions of the QBCC Act on the basis that the work performed by such persons is electrical work under the ESA,[36] a dispute involving an electrical contractor or electrician is nevertheless a building dispute. [36]And thus work that is not building work, QBCC Regulation, schedule 1, s 20. The claim by PBE was one to recover a debt or liquidated demand of money. Accordingly, the claim fell within schedule 3, s 1(a) of the definition of ‘minor civil dispute’ in the QCAT Act. As the dispute between the parties is a building dispute, it is the QBCC Act, as the relevant enabling Act, that confers jurisdiction on the Tribunal to deal with the claim by PBE. As the QBCC Act does not expressly state that a building dispute involving a claim to recover a debt or liquidated demand of money up to $25,000.00 is a minor civil dispute, the claim by PBE is not a minor civil dispute, it is a building dispute. It is clear from the transcript of the hearing before the Tribunal below that PBE made no attempt to comply with s 77(2) of the QBCC Act before commencing the proceeding for a minor civil dispute.[37] It is noted that compliance with s 77(2) will not be possible in circumstances where the QBCC has no process to attempt to resolve a particular dispute.[38] However, there was no evidence before the learned adjudicator that there was no QBCC process which could have been utilised to attempt to resolve the dispute. [37]Transcript T1-5, lines1 - 4. [38]Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43.