Tait Management Services Pty Ltd v Rosa

[2012] QCAT 564

CITATION: Tait Management Services Pty Ltd v Rosa and Anor [2012] QCAT 564

PARTIES:	Tait Management Services Pty Ltd t/as BTA
v
John Rosa Laura Rosa

APPLICATION NUMBER: BDL126-12

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 7 November 2012

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The tribunal has no jurisdiction to determine the application.

2.    The application is dismissed.

CATCHWORDS:

BUILDING DISPUTE – where contract of sale included condition requiring rectification – where purchaser alleges rectification not done – where purchaser claims loss of income because rectification not done

Queensland Building Services Authority Act 1991, s 77(1), Schedule 2

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. Tait Management Services Pty Ltd bought a guest house.  It was a condition of the purchase that the vendor would attend to some rectification works.  Tait says that Mrs Rosa, acting for the vendor, engaged Mr Rosa to do the work.  Tait says that the work has not been completed in accordance with the contract.  It claims loss of income as a result of that failure.

2. The question I have to determine is whether the tribunal has jurisdiction to consider Tait’s claim.

3. Tait says that the tribunal does have jurisdiction.  It relies on a previous decision of the tribunal, Tait Management Services Pty Ltd v Boyle and Anor,[1] in support of its argument.  Tait says that this complaint is linked with the facts of the previous decision because Mr Boyle worked under Mr Rosa’s direction and that the work was undertaken at the guest house.

   [1] [2012] QCAT 90.

4. Tait says that Mrs Rosa is a building owner within the definition of the Queensland Building Services Authority Act 1991, that the work is “building work” within the Act, and that a person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.[2]

   [2] Section 77(1) QBSA Act.

5. Mr and Mrs Rosa say that this is a dispute about a breach of contract, not building work and, therefore, the tribunal has no jurisdiction.

6. Because this dispute involves a guest house, it can only be within the tribunal’s jurisdiction if it is a commercial building dispute.  A commercial building dispute means[3] a dispute between a building owner and building contractor, between two building contractors or a claim in negligence related to the performance of reviewable commercial work.  If Tait is correct in saying that Mrs Rosa was the building owner, then the only way that this dispute can be a commercial building dispute is if it is a claim in negligence related to the performance of reviewable commercial work.

   [3] Schedule 2 QBSA Act.

7. The claim against Mrs Rosa, as owner, can only be a claim for damages under the purchase contract.  The tribunal has no jurisdiction to hear that claim.  The claim against Mr Rosa cannot be “related to the performance of reviewable commercial work” because that claim has already been made, and determined, against Mr Boyle.

8. Tait claims damages for loss of income until Mrs Rosa complies with a previous order of the tribunal to pay $10,000.  The tribunal has no power to enforce compliance with its orders.  This claim is merely an attempt to sidestep that deficiency.  If the tribunal has no power to enforce its decisions, it cannot have power to award damages for a failure to comply with its orders, however cleverly that claim might be framed.

9. In any event, the tribunal’s order that Mrs Rosa pay Tait $10,000 has now been set aside on appeal[4].  As Mrs Rosa has no obligation to pay Tait, it cannot be said that Tait is suffering any loss of income.

   [4]          Rosa v Tait Management Services Pty Ltd [2012] QCATA 214.

[10]The application filed by Tait is an abuse of the tribunal process.  Even if the tribunal had jurisdiction to hear the claim, which I find it does not, it should be struck out under s 47.  Tait has now had three bites of the cherry.  It is time to put the dispute behind it and stop wasting the tribunal’s time.