Walsh v Australian Building and Construction Group - [2016] QCAT 187

CITATION:

Walsh v Australian Building and Construction Group [2016] QCAT 187

PARTIES:	Michael Walsh (Applicant)
v
Australian Building and Construction Group (Respondent)

APPLICATION NUMBER:

BDL146-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

20 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application is dismissed;

2. The applicant is at liberty to file an application for domestic building dispute;

3. Any application filed in accordance with order 2 must be accompanied by evidence of compliance by the applicant with s 77(2) of the Queensland Building and Construction Commission Act 1991;

4. If an application is commenced in accordance with order 2, all documents filed in this proceeding will be taken to have been filed in the further proceeding.

CATCHWORDS:

JURISDICTION – where proceeding for building dispute commenced as minor civil dispute – where applicant did not comply with a process established by the Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where provision in enabling Act has substantive effect – whether Tribunal has power to waive compliance with substantive provision of enabling Act – where application dismissed for lack of jurisdiction

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

Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61
Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483
Queensland Building and Construction Commission v Watkins [2014] QCA 172
Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016)

APPEARANCES:

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

Michael Walsh and The Tiny Tradies Group Pty Ltd (who I will collectively refer to as ‘Tiny Tradies’) say that Tiny Tradies contracted with Australian Building & Construction Group (‘ABC Group’) to undertake painting work at domestic premises. Tiny Tradies says that it was not paid for work it has performed.
Tiny Tradies filed application for a minor civil dispute claiming an amount of $12,121.45 from ABC Group. ABC Group filed a response in which it says that the applicant named in the application is ‘Michael Walsh (The Tiny Tradies Group Pty Ltd)’. ABC Group says that the contract it had for the performance of the painting work (‘the contract’) was with ‘Tiny Tradies Painting’. ABC Group says that Michael Walsh and The Tiny Tradies Group Pty Ltd do not have standing to bring the application as they were not parties to the contract.
In the alternative, ABC Group says that the painting work carried out by Tiny Tradies is defective and claims a set off for the costs of rectification.
On 10 June 2016 the application came before the Tribunal. An Adjudicator directed that Tiny Tradies file…

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: [2016] QCAT 187
Decision Date: 20 June 2016

CaseChat Overview and Summary

Walsh commenced proceedings in the Tribunal against Australian Building and Construction Group, seeking compensation for alleged defects in the construction of his home. The Tribunal held that it lacked jurisdiction to hear the matter because Walsh had not complied with a requirement to attempt to resolve the dispute through the Queensland Building and Construction Commission before commencing proceedings. Walsh appealed the Tribunal’s decision.

The central issue was whether the Tribunal had the power to waive compliance with a substantive provision of the enabling Act, which required Walsh to attempt to resolve his dispute with Australian Building and Construction Group through the Queensland Building and Construction Commission before commencing proceedings in the Tribunal. The appeal hinged on whether the Tribunal had the discretion to overlook the requirement for Walsh to first attempt to resolve the dispute through the Commission.

The Court held that the Tribunal did not have the power to waive compliance with the substantive provision of the enabling Act. The Court found that the requirement to attempt to resolve the dispute through the Commission before commencing proceedings in the Tribunal had substantive effect and could not be waived by the Tribunal. The Court held that the Tribunal’s power to determine its own jurisdiction was limited by the provisions of the enabling Act, and that the Act did not confer on the Tribunal the power to waive compliance with its substantive provisions. Consequently, the Court held that the Tribunal did not have the power to hear the matter and dismissed the appeal. The Court ordered that Walsh could recommence the proceeding, provided he complied with the requirement to attempt to resolve the dispute through the Commission before commencing proceedings in the Tribunal. If Walsh recommenced the proceeding, the Court ordered that any documents filed in the original proceeding would be taken to have been filed in the further proceeding.

Orders

Orders of the court

1. The application is dismissed;

2. The applicant is at liberty to file an application for domestic building dispute;

3. Any application filed in accordance with order 2 must be accompanied by evidence of compliance by the applicant with s 77(2) of the Queensland Building and Construction Commission Act 1991;

4. If an application is commenced in accordance with order 2, all documents filed in this proceeding will be taken to have been filed in the further proceeding.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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