Terera v Clifford - [2014] QCAT 534

CITATION:

Terera v Clifford [2014] QCAT 534

PARTIES:	Sandra Phyllis Terera (Applicant)
v
Alan Clifford (Respondent)

APPLICATION NUMBER:

BDL137-14

MATTER TYPE:

Building matters

HEARING DATE:

11 July 2014

HEARD AT:

Brisbane

DECISION OF:

Dr Cullen, Member

DELIVERED ON:

30 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Queensland Building and Construction Commission is removed as a party to these proceedings.

CATCHWORDS:

Domestic Building Dispute – Differences in jurisdiction between domestic building dispute and administrative review of reviewable decision made by the Queensland Building and Construction Commission – no jurisdiction to join QBCC to domestic building dispute

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 24, 32

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 (Qld) (QCAT Act).

REASONS FOR DECISION

This is a domestic building dispute, between the homeowner (Ms Terera) and builder Mr Clifford), in relation to domestic building work performed at Ms Terera’s home. In short, Ms Terera is not happy with the tiling work performed by Mr Clifford, alleging bulging along the length of some areas, “lippage across the tiles” and difficulties with the wall tiles having not adhered properly, amongst other concerns. She has also alleged that Mr Clifford allowed the little plastic crosses utilised to space tiles to fall into the drains, causing them to become blocked.
It appears that Ms Bolhar provided Mr Clifford with an opportunity to rectify the work she claims is defective. Unfortunately, she says that this only resulted in further defects, including chipping and cracking of tiles that were previously acceptable. It is this frustration that led her to commence these proceedings, in which she appropriately names Mr Clifford as a respondent, and initially also named the Queensland Building and Construction Commission as a second respondent.
The QBCC is not an appropriate respondent to these proceedings, cast in the nature of a domestic building dispute, for the reasons that follow. On 11 July 2014, the Tribunal ordered that the QBCC be removed as a party to these proceedings for want of jurisdiction. This Order was made following the QBCC’s 4 July 2014 application, wherein the QBCC sought to be removed as a respondent to this domestic building dispute for the reason that the Tribunal did not have jurisdiction to make any decisions that might affect it.
The Tribunal agrees with the QBCC in this respect. In a domestic building dispute, which arises out of a contractual relationship between a builder and homeowner, there is no basis for joinder of the QBCC. The QBCC is not a contracting party – they are the industry regulator.
That is not to say that the QBCC may not ultimately become a respondent to proceedings commenced by Ms Terera, but that cannot happen in a domestic building dispute. It frequently happens that homeowners, who are in dispute with a builder, have difficulty unpacking the labyrinth of legislation that exists in the building area.
The QBCC, as the industry regulator, cannot involve itself in the contractual matters that exist between homeowners and a builder. Rather, when a homeowner (as Ms Terera has done here) makes a complaint to the QBCC about allegedly defective work, the obligation of the QBCC is to look into the complaint, and to make a decision as to whether or not it will require the builder to rectify and/or complete the allegedly defective building work.
The Tribunal does not know whether the complaint process commenced by Ms Terera has been finalised by the Queensland Building and Construction Commission. If it has been resolved, then the QBCC should have provided Ms Terera with a letter advising her of its decision.
There is a letter contained in the file from the QBCC to Ms Terera and her partner, requesting additional information, which would suggest that the process may not be finalised. There is also a letter indicating that the QBCC conducted an inspection of the work, and engaged an independent expert, Frank Moebus, to provide advice about the cause of discoloured floor tiles. It appears that the QBCC concluded that Mr Clifford was not responsible for the discoloration of floor tiles.
At some point after Ms Terera and her partner were provided with the QBCC’s inspection report, they wrote back, acknowledging receipt of the inspection report and raising concerns they had in relation to same. However, as previously indicated, there is no decision letter on the file from the QBCC. Receipt of the decision letter would afford Ms Terera an administrative right of review in the Tribunal of the QBCC’s decision. An administrative right of review is not the same type of proceeding as a domestic building dispute, although both types of proceedings are properly commenced in this Tribunal.
A review of a “reviewable decision” by the QBCC (not all decisions are reviewable), is commenced pursuant to the Queensland Civil and Administrative Tribunal Act 2009 (Qld), Chapter 2, Part 1, Division 3. In a review proceeding, the options available to the Tribunal are to (1) confirm the decision, meaning it is correct; (2) amend the decision; or (3) set aside the decision and substitute a new decision.[1] In a domestic building dispute, the Tribunal will make a determination about the contractual issues in dispute between the parties.
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.
Administrative review has a different purpose from the litigation of private rights. Administrative review ensures that decision makers like the QBCC make the correct and preferable decision according to the governing legislation.
In a domestic building dispute, it is possible for the Tribunal to determine that even though a direction to rectify was not issued to the builder, the work was done in such haphazard fashion that the homeowners should recover for the cost of rectification. At the final hearing of this matter, the Tribunal will need evidence about the conversations that the homeowners and builder had in relation to the work performed, what was agreed between them (in writing and otherwise), who was responsible for the selection of tile; amongst other matters.
The QBCC has indicated to Ms Terera that it cannot issue a direction to rectify to Mr Clifford in relation to the plastic crosses that have somehow clogged her drains. This is correct, as this is not “defective building work” as that term is defined in the legislation. That does not mean that Ms Terera has no potential remedy in the domestic building proceedings, however. It is conceivable, depending upon the evidence of the parties, that the Tribunal could find this work so careless that it was in breach of the contract, and order damages.
In summary, the Tribunal understands that disgruntled homeowners have difficulty working out precisely how to pursue their dissatisfaction with the building process. There are two possible avenues:
a) Commencing a domestic building dispute against the builder/supplier; and
b) Commencing administrative review proceedings in relation to a reviewable decision made by the Queensland Building and Construction Commission.
Here, Ms Terera has properly pursued her contractual rights against Mr Clifford, in circumstances where it appears that the QBCC has not made, or has not yet made, a reviewable decision. In her domestic building application, Ms Terera asks that the Tribunal order that the defective work be repaired by the QBCC, or that the QBCC allow her access to the home warranty insurance scheme operated by it, in order to have another tiler complete the work. This will not happen, as such relief against the QBCC can be pursued only as a matter of administrative review.
In these proceedings, if Ms Terera is successful, it is likely that her damages would consist of a monetary sum that would enable her to engage another tiler.
I note that the final hearing in this matter is scheduled to take place on 2 February 2015, with a directions hearing to be held on 14 December 2014. It is always sensible that parties, in addition to preparing the materials the Tribunal requires for hearing, utilise this timeframe to explore any possible avenues of settlement.

Order

The Queensland Building and Construction Commission is removed as a party to BDL137-14.