VDW Property Group Pty Ltd v Ben Thomas Architects - [2013] QCAT 525

CITATION:

VDW Property Group Pty Ltd v Ben Thomas Architects [2013] QCAT 525

PARTIES:	VDW Property Group Pty Ltd (Applicant)
v
Ben Thomas t/as Ben Thomas Architects (Respondent)

APPLICATION NUMBER:

BDL140-13

MATTER TYPE:

Building matters

HEARING DATE:

5 September 2013

HEARD AT:

Brisbane

DECISION OF:

Christine Jones, Member

DELIVERED ON:

10 October 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed.

2. I direct that:

If the respondent Ben Thomas, t/a Ben Thomas Architects wishes to pursue his application for costs:

(a) Ben Thomas must file 2 copies of an itemised list of costs together with 2 copies of his written submissions in respect of the application for costs with the Tribunal, and give one copy to VDW Property Group, by 4pm on Friday, 25 October 2013.

(b) VDW Property Group Pty Ltd must file 2 copies of its written submissions in response with the Tribunal, and give one copy to Ben Thomas, by no later than 4 pm on Friday, 8 November, 2013.

(c) The application for costs will be determined by me on the basis of the documents filed, without an oral hearing, not before 22 November, 2013.

CATCHWORDS:

BUILDING MATTERS - Definition of “domestic building dispute” under the Queensland Building Services Authority Act 1991 - jurisdiction of Tribunal over domestic building disputes involving 2 dwellings - obligations of architect in relation to obtaining building approval

Queensland Building Services Authority Act 1991

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

VDW Group Pty Ltd represented by Stephan Adriaan van der Walt

RESPONDENT:

Ben Thomas t/as Ben Thomas Architechts represented by Benjamin Thomas

REASONS FOR DECISION

Introduction

The VDW Group (VDR) is subdividing a single block of land with a single detached house into 2 small blocks with 2 detached houses. Mr van der Walt is the project manager. Mr Thomas was the architect.
The building approval application for the project was cancelled by the private certifier (BCG). It was cancelled because some BCG requests for further information had not been met. The information included town planning requirements for the subdivision, such as sealing of the subdivision plans by Council.
The question for the Tribunal is whether Mr Thomas should bear responsibility for the cancellation and any resulting damages.

Issues

Does the Tribunal have the jurisdiction to decide the case?

Before considering whether VDW has established its claim against Mr Thomas, I need to decide whether the Tribunal has jurisdiction to hear and determine the claim.
VDW commenced proceedings on the basis that the claim is a ‘domestic building dispute” within the Tribunal’s jurisdiction. It used the standard QCAT form for this. Mr Thomas says the claim is not a “domestic building dispute” because the work performed by him was for 2 dwellings or homes and a “domestic building dispute” only relates to single properties. He says that the proceedings were therefore not properly commenced and should fail.
The argument for this proposition follows a somewhat bewildering trail through various sections and definitions in the Queensland Civil and Administrative Tribunal Act, 2009 (the QCAT Act), the Building Services Authority Act, 1991 (the BSA Act), and the Domestic Building Contracts Act, 2000 (the DBC Act). The trail is outlined in the footnote below.[1]
1. S9 of the QCAT Act - gives QCAT original jurisdiction for matters it is empowered to deal with under an enabling act
s77(1) of the QBSA Act (an enabling act) – empowers QCAT to decide a “building dispute”
Schedule 2 of the QBSA Act – definitions - “building dispute” is defined as a “domestic building dispute” or a “minor commercial building dispute” or a “major commercial building dispute”, if the parties agree
Schedule 2 of the QBSA Act – definitions - “domestic building dispute” is defined to include a dispute between an owner and an architect relating to “reviewable domestic work”
Schedule 2 of the QBSA Act – definitions - “reviewable domestic work” is defined by reference to section 8 of the QBC Act
Section 8 of the QBC Act – see paragraph 7 of the decision
The argument hinges on a particular interpretation of section 8(1) of the DBC Act. Section 8(1) says that domestic building work is:
a)    The erection or construction of a detached dwelling;
b)    The renovation, alteration, extension, improvement or repair of a home or
c)    Removal or resiting work for a detached dwelling.
Mr Thomas argues that as the singular is used (“a detached dwelling” and “a home”) that this excludes such work in relation to more than one detached dwelling or home from being “reviewable domestic building work” under the QBSA Act. He argues that therefore disputes about such work for more than one property cannot be a “domestic building dispute” for the purpose of the Tribunal’s jurisdiction.
The use of the singular under usual principles of statutory interpretation would include the plural, that is, “detached dwellings” or “homes”.[2] Mr Thomas has pointed to section 7(2) of the DBC Act in support of his position. This section defines “domestic building contracts” for the purposes of the DBC Act, and by clear language limits such contracts to those for single dwellings. However, I do not consider this definition to be of much assistance. This is because it defines particular contracts for the purpose of one particular Act. There is no direct or necessary link between it and the definitions for jurisdiction of the Tribunal under another Act, the QBSA.
[2] See for example, section 32C of the Queensland Acts Interpretation Act 1954.
I have interpreted section 8(1) to include more than one detached dwelling in line with usual statutory interpretation principles. It follows that this dispute falls within the Tribunal’s jurisdiction as a domestic building dispute.
If I am wrong about this, my view is that the Tribunal has jurisdiction over the matter as a “minor commercial building dispute”. These are disputes that are not domestic building disputes and that are for less than $50,000.[3] VDW should not be prevented from bringing its claim because of a mistake in categorising the claim, if that is the case.
[3]Section 77(1) of the QBSA Act and Schedule 2 definition of “building dispute” and “minor commercial building dispute”.
What obligations did Mr Thomas have in relation to the Building Approval?
At the hearing Mr van der Walt and Mr Thomas gave evidence and also relied on the previous statements that each had filed with the Tribunal.
VDW says that the Fee Proposal “Stage 3” read with clause 4 of the Conditions of Engagement obliged Mr Thomas to be responsible for the co-ordination and integration of secondary consultants, including the private certifier, for the purpose of obtaining building approval. VDW are particularly concerned that Mr Thomas did not alert them to the imminent prospect of cancellation of the building approval application. This prospect was indicated to Mr Thomas in a phone conversation with the BCG certifier, Mr Harrison, in mid April 2013.
Mr Thomas did not dispute that initially he had an obligation to perform co-ordination and integration services with secondary consultants, including with the certifier. He denied that the terms of his engagement extended this obligation to the point of responsibility for obtaining the building approval. He says that in any case, his legal obligations in relation to the building approval had been fulfilled and the contract had come to an end when he provided final drawings and submitted his final account, around mid April 2011. He says that when he received the indication from Mr Harrison that BCG wanted to “close its file,” he assumed that VDW would be notified as part of the statutory process of cancelling the application and that this was not his responsibility.
The Terms of the Engagement
The Fee Proposal – Stage 3 is headed “Building Application/Construction Drawing”. It is focussed on the preparation of drawings of the approved design, lodgement of drawings and provision of architectural drawings, including a window and door schedule. It also provides for “co-ordination of consultants”, including the certifier. The work contemplated here in my view does not suggest responsibility of Mr Thomas for obtaining building approval. It outlines his obligation to provide the drawings, in consultation with consultants as required, that would be needed to gain building approval and facilitate construction.
Clause 4 of the Conditions of Engagement says that where secondary consultants are engaged by the Client, BTA (Mr Thomas’ architectural firm) shall only be responsible for co-ordination and integration of their services. Again, I cannot see that this extends responsibility to Mr Thomas to oversee or ensure the completion of the building approval process.
In any event, I find that the evidence supports the conclusion that the contract had come to an end around 14 April, 2011 when the material terms of the agreement had been completed. At or around this time Mr Thomas had provided the final drawings and had a meeting with members of the VDW Group where the outstanding matters for the building approval had been discussed. This included a discussion of the additional requirements set out in the request for further information issued by BCG on 11 April 2011.
Mr Thomas’ evidence is that at that meeting it was agreed that VDW would handle the sub-division plans and that VDW should keep in contact with the certifiers so as to meet the requirements for the building approval. This position was confirmed by Mr Thomas in emails on 14 April 2011 and 9 September 2011. VDW does not dispute the meeting, or receiving the drawings or the emails of 14 April 2011 and 9 September, 2011, or receiving the final account.
The email of 14 April 2011 is worth quoting in some detail. Relevantly it says:
“I have provided the mobile number and email of Kurtis as contact person to the building certifier. The certifier assessing the application is Mark Harrison … . [All contact details for Mr Harrison were then set out in the email].
“I suggest you keep in contact with Mark to check the status of the application while you finalise the plan sealing as discussed”.
The intention to put VDW and BCG into direct contact is clear. The implication that Mr Thomas was no longer the contact point is also clear. Kurtis (Mr Kurtis McNamara, the builder with the VDW Group) was nominated to the certifier as the most appropriate contact person from VDW.
From this point (apart from some limited contact discussed below) Mr Thomas was effectively out of the picture. Members of the VDW Group handled the dealings with the various trades and service and utility providers that needed to be completed before the survey plans for the subdivision could be endorsed. They also handled dealings with the various approval bodies. This work took close to 18 months to complete.
A further request for additional information from BCG dated 10 June 2011 was sent to the VDW Group in care of Mr Thomas was passed on by Mr Thomas to VDW on the day received. Mr Thomas also forwarded a revised drawing and third party account for payment to VDW during June 2011.
Both the initial request for additional information and the subsequent request on 10 June 2011 included the note “NB: under the requirements of the SPA 2009 (s279(1)(b) an application lapses if documents required are not received within 6 months of the date of this letter, resulting in cancellation”.
From late August to 9 September, 2011 Mr Thomas’ provided some clarification about the building approval requirements to Mr McNamara at his request. The email of 9 September 2011 from Mr Thomas to Mr McNamara, Mr van der Walt and other members of the VDW Group, re-iterates the responsibility of VDW in relation to the building approval conditions, including sealing of the subdivision plans by Council:
“Upon my request the certifier has again followed up with Council and confirmed that the plan sealing must occur prior to issue of BA.
As per my previous advice on the 14^th of April, you must carry out all conditions of the approval that state “prior to survey plan endorsement”.
For more information or details about individual conditions you may wish to contact the Council’s customer liaison officer for the development assessment team West. Also I strongly recommend you talk to Council’s plan sealing section to clarify what evidence will suffice to meet the conditions; Council may accept work orders for infrastructure in lieu of completed, certified work”
Apart from a meeting with Mr van der Walt on 6 October 2011 to discuss a quote for Mr Thomas to prepare rendered images for marketing purposes, Mr Thomas had no further contact with members of the VDW Group about the project, and in particular about the building approval until May 2013. This was after the building approval application had been cancelled.
Notice of intention to cancel the building approval application
In mid-April 2013 Mr Thomas was phoned by Mr Harrison, the certifier from BCG. Mr Thomas’ evidence was that Mr Harrison told him that he had not heard from the VDW Group or received the documents under the information request and that BCG wanted to close its file. Mr Thomas told Mr Harrison he had not heard from the VDW Group for 18 months, he was owed money and that he was not working on the project.
There was dispute about this conversation. Mr van der Walt, reported a conversation he had with Mr Harrison about the conversation Mr Harrison had had with Mr Thomas. Mr Harrison did not give evidence. Mr van der Walt said that in Mr Harrison’s version of the conversation, Mr Thomas had agreed to BCG closing the file without contacting VDW.
This version is second hand and could not be tested with Mr Harrison. It also seems at odds with the undisputed facts that Mr Thomas had not had any involvement with the building approval process for about 18 months, had confirmed to members of VDW that they should keep in contact with the certifier, and had rendered his final account.
I accept the evidence of Mr Thomas about his conversation with Mr Harrison.
I note that Mr Thomas received a letter for VDW from BCG dated 18 April 2013 advising about the cancellation. The letter was forwarded by Mr Thomas to VDW by post, but according to the evidence, it was not received because of a change in the use of the PO Box by VDW.
The timing of the cancellation is very unfortunate. VDW had lodged the required subdivision planning documentation with the relevant Department on 16 April, 2013. It was awaiting this final step when the building application was cancelled. If there had been better communication this result could have been avoided.
However I do not accept that Mr Thomas should bear the responsibility. VDW had notice of the potential for cancellation if relevant information and documents were not provided to the certifier pursuant to its requests. VDW had received final drawings, had had no dealings with Mr Thomas in relation to the building approval for 18 months and had been put in direct contact with the certifier. The certifier had been told that Mr Thomas was no longer working on the project. It also was not unreasonable for Mr Thomas to assume that VDW would be notified as part of the statutory process.
I therefore dismiss the application.
Mr Thomas applied for his costs in his response to the claim. I do not have information concerning costs before me. I therefore have given directions for Mr Thomas to file and serve an itemised list of costs, and for each party to file and serve written submissions in relation to the application. I will then consider the application for a costs order on the papers.