Subramaniam v Queensland Roofing Pty Ltd - [2019] QCAT 70

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

PARTIES:

NEERMALA SUBRAMANIAM
(first applicant)

LEELA SUBRAMANIAM
(second applicant)

v

QUEENSLAND ROOFING PTY LTD
(first respondent)

DAVID MARSHMAN

(second respondent)

APPLICATION NO/S:

BDL319-18

MATTER TYPE:

Building matters

DELIVERED ON:

20 March 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.   The proceeding is dismissed.

2.   Neermala Subramaniam and Leela Subramaniam have leave to file an Application for domestic building dispute.

3.   All documents filed in BDL319-18 and in MCDO1123/18 will be taken to have been filed in any further proceeding commenced in accordance with Direction 2.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where applicants contracted with respondents for the performance of building work – where applicants commenced proceedings for minor civil dispute – where proceedings transferred to QCAT building list – where applicants failed to comply with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) prior to commencing proceedings – where compliance with s 77(2) before commencing proceedings mandatory – where applicants complied with s 77(2) after commencing proceedings – where proceedings dismissed

Hartley v Di Russo [2018] QCATA 46
Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483;
Redding v Simmons [2016] QCATA 100, (Unreported, QCATA, Dr J R Forbes, 23 February 2016);
Walsh v Australian Building and Construction Group [2016] QCAT 187

Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 7, s 47, s 61

REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

APPEARANCES:

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

The parties entered into a contract in or about October 2017 for the performance by the respondent of building work at the applicants’ property.
The parties subsequently fell into dispute.
The applicants commenced proceedings in the Tribunal for a minor civil dispute by Application filed 3 August 2018.
By order made 13 November 2018 the proceeding was transferred to the Tribunal’s building list.
By s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld), a person involved in a building dispute may not apply to the tribunal to have the tribunal decide the dispute unless the person has complied with a process established by the Queensland Building and Construction Commission to attempt to resolve the dispute.
On 26 February 2019 the QBCC wrote a letter to the applicants setting out, among other things, the following:
(a)The QBCC referred to the applicants’ complaint about the building work performed by the respondent;
(b)The QBCC referred to an inspection of the building work on 5 February 2019;
(c)The QBCC advised the applicants that they had participated in the QBCC’s dispute resolution process as prescribed by legislation.
I am satisfied as to the following:
(a)The dispute, the subject of 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.

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Details

Case: [2019] QCAT 70
Decision Date: 20 March 2019

CaseChat Overview and Summary

Neermala Subramaniam and Leela Subramaniam, the applicants, entered into a contract with Queensland Roofing Pty Ltd, the respondent, for building work. The applicants initiated minor civil dispute proceedings against the respondent due to alleged breaches of contract. The proceedings were subsequently transferred to the Queensland Civil and Administrative Tribunal (QCAT) building list. The respondents argued that the applicants failed to comply with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) prior to initiating proceedings. Section 77(2) of the Act mandates that any party must comply with certain conditions before initiating proceedings. The applicants contended that they had complied with section 77(2) after the proceedings were commenced.

The court had to determine whether the applicants' failure to comply with section 77(2) prior to initiating proceedings justified the dismissal of the case. The court considered the mandatory nature of the section 77(2) compliance requirement and the fact that the applicants had complied with the provision post-commencement of the proceedings. The court also considered the principle of procedural fairness and whether the applicants had acted reasonably in the circumstances. Ultimately, the court found that the failure to comply with section 77(2) before initiating proceedings was a fundamental procedural defect that could not be cured by subsequent compliance. The court held that the mandatory nature of the requirement and the need for parties to adhere to statutory provisions before seeking judicial redress necessitated the dismissal of the proceedings.

The court dismissed the proceeding and granted the applicants leave to file an Application for domestic building dispute. All documents filed in the previous proceedings were to be taken as filed in any further proceeding. The court's decision underscored the importance of strict compliance with statutory requirements in building and construction disputes, emphasising the need for parties to adhere to legislative mandates to ensure procedural fairness and the proper administration of justice.

Orders

Orders of the court

1. The proceeding is dismissed.

2. Neermala Subramaniam and Leela Subramaniam have leave to file an Application for domestic building dispute.

3. All documents filed in BDL319-18 and in MCDO1123/18 will be taken to have been filed in any further proceeding commenced in accordance with Direction 2.

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

Full text does not contain this section.

CITATION:	Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70
PARTIES:	NEERMALA SUBRAMANIAM (first applicant) LEELA SUBRAMANIAM (second applicant)
v
QUEENSLAND ROOFING PTY LTD (first respondent) DAVID MARSHMAN (second respondent)
APPLICATION NO/S:	BDL319-18
MATTER TYPE:	Building matters
DELIVERED ON:	20 March 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown
ORDERS:	1. The proceeding is dismissed. 2. Neermala Subramaniam and Leela Subramaniam have leave to file an Application for domestic building dispute. 3. All documents filed in BDL319-18 and in MCDO1123/18 will be taken to have been filed in any further proceeding commenced in accordance with Direction 2.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where applicants contracted with respondents for the performance of building work – where applicants commenced proceedings for minor civil dispute – where proceedings transferred to QCAT building list – where applicants failed to comply with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) prior to commencing proceedings – where compliance with s 77(2) before commencing proceedings mandatory – where applicants complied with s 77(2) after commencing proceedings – where proceedings dismissed Hartley v Di Russo [2018] QCATA 46 Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483; Redding v Simmons [2016] QCATA 100, (Unreported, QCATA, Dr J R Forbes, 23 February 2016); Walsh v Australian Building and Construction Group [2016] QCAT 187 Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 7, s 47, s 61
REPRESENTATION:
Applicant:	Self represented
Respondent:	Self represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).