SMJ Projects Pty Ltd v THTC Family Trust

[2013] QCAT 394

CITATION: SMJ Projects Pty Ltd v THTC Family Trust [2013] QCAT 394

PARTIES:	SMJ Projects Pty Ltd (Applicant)
V
THTC Family Trust (Respondent)

APPLICATION NUMBER: BDL016-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member

DELIVERED ON: 17 July 2013

DELIVERED AT: Brisbane

ORDERS MADE: 1.   Proceeding BDL016-13 (incorporating MCD 2674) be transferred to the District Court of Queensland.

CATCHWORDS:

JURISDICTION – where major commercial building dispute – where the party objects to the Tribunal hearing the application – whether power to order joinder of a third party before transferring the file to the District Court.

Queensland Civil and Administrative Tribunal Act 2009 ss 4, 42 and 52.
Queensland Building Services Authority Act 1991 s 78

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. This proceeding started life in the Tribunal as a minor civil dispute.  SMJ Projects’ filed a claim for $8,061.18 being the balance of monies owed for the construction of a concrete slab at THTC’s commercial business premises.

2. THTC was dissatisfied with the quality of the work and filed a response claiming damages for breach of contract in the sum of $532,686.00. 

3. Section 78 of the Queensland Building Services Authority Act 1991 (QBSA Act) says that QCAT has jurisdiction to decide a major commercial building dispute, which this is because the counterclaim is over $50,000.00, if the Tribunal is “satisfied all parties to the dispute consent to it doing so.”

4. There was no immediate objection to the Tribunal hearing the dispute from THTC and therefore the matter proceeded in the usual way with standard directions for the filing of material.

5. After receiving the response with the counterclaim, SMJ Projects filed an application on 6 May 2013 to join Neil McKenzie & Associates Pty Ltd, consulting engineers, as a party to the proceeding. The reason for the application is because SMJ Projects contends that it built the slab in accordance with the design drawings of the engineer and if there is any fault with the slab, the design must be defective and that is the responsibility of the engineer.

6. Directions were made to serve Neil McKenzie & Associates Pty Ltd with a copy of the application to join it as a party and for submissions to be filed by the interested parties.  The submissions from Neil McKenzie & Associates Pty Ltd opposed the application for joinder on various grounds but it also submitted that if it was joined as a party it would not consent to the jurisdiction of the Tribunal and the proceeding would have to be transferred to an appropriate forum with jurisdiction, namely the District Court.

7. Late in the day, on 4 July 2013, the solicitors for THTC, Messrs Hemming & Heart Lawyers, wrote to the Tribunal indicating that they did not consent to the Tribunal having jurisdiction under section 78 of the QBSA Act.

8. At a directions hearing held on 11 July 2013 I indicated, having read the material, I was minded to make an order joining Neil Mackenzie & Associates Pty Ltd under s 42 Of the QCAT Act because it is a party whose interest may be affected by the proceedings. SMJ Projects’ representative, Ms Jennison, conceded that if the parties did not consent to the jurisdiction, the proceeding would have to be transferred to the appropriate Court but asked the Tribunal to make a decision with respect to the joinder application before the matter was transferred.

9. The suggestion made perfectly good sense and was consistent with the objects of the QCAT Act to proceed in an informal way that minimises cost to the parties[1] because once transferred, there will have to be a further application filed to join the third party and the parties will again have to incur the costs associated with that application, whereas I would have been prepared to make a decision on the material currently before me. In addition the parties will not have the opportunity to utilise QCAT’s alternate dispute resolution procedures which would also be a saving in costs to them. In all probability they will now have to incur the cost of pleadings and now follow the more formal processes under the Uniform Civil Procedure Rules. However, faced with the objection to jurisdiction by the solicitors for THTC, I am now constrained from making any order about joinder of parties because the Tribunal lacks jurisdiction under the enabling Act.

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 4(c).

10. In the circumstances I have no alternative but to make an order under section 52 of the QCAT Act that this proceeding be transferred to the District Court of Queensland.