Want v Majer Tiles Pty Ltd

[2010] QCAT 103

Queensland Civil and Administrative Tribunal Act 2009

Citation:                   Want v Majer Tiles Pty Ltd [2010] QCAT 103

Parties:  Phillip and Ruth Want

v

Majer Tiles Pty Ltd

Application No:     BD417-09

Matter type:            Building matters

Delivered on:          13 January 2010

Delivered at:           Brisbane

Decision on
the papers of:         Dr Bridget Cullen Mandikos

Catchwords:           Jurisdiction to hear domestic building dispute against supplier of tiles; sections 75, 76(1)(n), 77 and Schedule 2 of the Queensland Building Services Authority Act 1991; section 8 of the Domestic Building Contracts Act 2000 (Qld); BM & HM Vulker v RJ Beaumont & Co Pty Ltd, [2009] CCT BD295-09; Chard Roberts Construction Pty Ltd v Johnson Tiles Pty Ltd and Queensland Building Services Authority, [1993] QBT C066-92 and R040-92.

Orders:

QCAT has jurisdiction to hear this application, pursuant to section 77 of the Queensland Building Services Authority Act 1991.

The parties are to attend a Directions Hearing in this matter, on 23 February 2010. 

Reasons for Decision

Introduction

1. This domestic building dispute application was filed on 10 September 2009 by the Applicants, Phillip and Ruth Want (“Mr and Mrs Want”) in the Commercial and Consumer Tribunal (“the CCT”), as it was then.  Mr and Mrs Want are the owners of a property located at 11 Rossi Street, Gordonvale, in Queensland.  They engaged Austart Homes to build a new house on the property during August of 2006.  Austart Homes is not a party to these proceedings.

1. In the statement appended to their application, Mr and Mrs Want alleged that “Austart homes were to supply & lay tiles to all wet areas & we the owners were responsible for the living areas”.  Mr and Mrs Want complained that the tiles discolour when exposed to moisture, and also alleged that Austart has been ordered by the Queensland Building Services Authority to begin rectification work to the wet areas.  The dispute leading to this application relates to the tiles supplied by the respondent, Majers Pty Ltd (“Majers”), which the Wants claimed were not suitable for the purpose and/or were defective.  The contract between Mr and Mrs Want and Majers was for the supply of the tiles only, and did not extend to installation, which was done by Austart Homes.

1. Majers has denied that any agreement was in place between it and Mr and Mrs Want with regards to the supply and laying of tiles at the Rossi Street property.  On 1 October 2009, the CCT directed the parties to file and serve submissions relating to the jurisdiction of the CCT to hear this matter, drawing the parties’ attention to the decision in BM & HM Vulker v RJ Beaumont & Co Pty Ltd, [2009] CCT BD295-09 (“Vulker”).  On 12 November 2009, Majers advised the CCT that it did not wish to be heard on the issue of jurisdiction.  Mr and Mrs Want’s submissions, prepared with the benefit of Counsel (Mr Joshua Trevino), were received by the CCT on 16 November 2009.  The decision on jurisdiction will now be made on the papers, as ordered by the CCT on 16 October 2009.

CCT amalgamated into QCAT

1. The Commercial and Consumer Tribunal has amalgamated into the Queensland Civil and Administrative Tribunal (“QCAT”). QCAT now hears and decides all matters previously dealt with by the Commercial and Consumer Tribunal: section 256 Queensland Civil and Administrative Tribunal Act 2009.  This includes matters arising under the Queensland Building Services Authority Act 1991 (“the QBSA Act”).

Legislative Framework

1. The applicants submitted that the CCT, and QCAT by extension, has jurisdiction to hear their dispute, on the basis that this matter, as a domestic building dispute, falls within the purview of the QBSA Act. In this regard, the submissions of the applicants’ Counsel are quite helpful.

1. Section 77 of the QBSA Act provides that:

(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.

1. Section 77(2) allows the Tribunal to award restitution and/or rectification, which are the remedies sought by Mr and Mrs Want in this matter.

1. The term “building dispute”, as it is used in section 77 of the QBSA Act is defined in Schedule 2 of the QBSA Act as including a “domestic building dispute”.  In turn, “domestic building dispute” is also defined in Schedule 2 of the QBSA Act to mean (relevantly):

(d)   a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work-

(i) an architect;

(ii) an engineer;

(iii) a surveyor;

(iv) a quantity surveyor;

(v) an electrician or an electrical contractor;

(vi) a supplier or manufacturer of materials used in the tribunal work.

1. Mr and Mrs Want’s Counsel argues that Majers falls within this definition, as this is a “claim or dispute arising between a building owner” (Mr and Mrs Want) and “a supplier or manufacturer of materials used in the tribunal work” (Majers). 

1. Following on from this, the term “tribunal work” is defined by section 75 of the QBSA Act as including, relevantly, the erection or construction of a building and reviewable domestic work. To determine the definition of “reviewable domestic work”, it is first necessary to turn to Schedule 2 of the QBSA Act, which says:

reviewable domestic work means domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.

1. Next turning to section 8 of the Domestic Building Contracts Act 2000 (Qld), “domestic building work” includes work, and work associated with, the erection, construction, removal or resiting of a detached dwelling. 

Meaning of “relating to the performance of reviewable domestic work”

1. In order to attract the jurisdiction of QCAT in the Want’s matter, I must then find that their application relates “to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work”. Jurisdictional issues of this nature were addressed by the predecessor to the CCT, the Queensland Building Tribunal, in Chard Roberts Construction Pty Ltd v Johnson Tiles Pty Ltd and Queensland Building Services Authority, [1993] QBT C066-92 and R040-92 (“Chard Roberts”).  In Chard Roberts, the applicant had engaged a contractor to lay tiles that had been purchased from a supplier at Nerang, but were to be manufactured by the respondent, Johnson Tiles.  After the tiles were laid, the applicant alleged that “tile growth” caused the tiles to “pop-up”.  The respondent, Johnson Tiles, alleged that the Tribunal did not have jurisdiction, raising the argument that the applicant did not have a claim or dispute that “related to the performance of domestic building work”.  The Member in Chard Roberts accepted the applicant’s arguments that the words “related to” should be given a wide meaning, and ultimately determined that “performance of domestic building work” included the supply of materials.  Having followed this extensive definitional train to its final terminus, it is clear that Mr and Mrs Want’s application against Majers attracts the jurisdiction of this Tribunal.

The CCT’s decision in Vulker

1. As the CCT directed the parties’ attention to its decision in Vulker, I think it important to address that decision.  I agree with the applicants’ Counsel that the decision in Vulker is distinguishable on the basis that it was based upon section 76(1)(n) of the QBSA Act, which excludes tribunal work carried on outside Queensland from the operation of the QBSA Act. In Vulker, the applicants resided in, and had engaged a tiling contractor to lay tiles in, a house located in New South Wales, but had ordered the tiles from a retail tile store located in Queensland. For this reason, and as a consequence of the operation of section 76(1)(n) of the QBSA Act, the Member in Vulker also found that the applicants were not “building owners” under the QBSA Act.

1. Having made this decision, the Member in Vulker did not need to address section (d)(vi) of the “domestic building dispute” definition contained in Schedule 2 of the QBSA Act. It is this definition, discussed above as including a claim by a building owner arising out of reviewable domestic work against a supplier or manufacturer of materials used in the tribunal work, which leads to my conclusion that the Tribunal does have jurisdiction in this matter. I note that there is no argument, as there was in Vulker, that Mr and Mrs Want are not “building owners” as defined in the QBSA Act.

Further matters

1. Having concluded that QCAT does have jurisdiction to hear this matter, I must then consider whether, having regard to the objectives of the QCAT Act, there are further steps that should be taken by the parties to resolve the dispute. In this regard, I order the parties to attend a Directions Hearing in this matter, on 23 February 2010.

Decision

1. I conclude that QCAT has jurisdiction to hear this application, for the reasons given above.

The parties will attend a Directions Hearing in this matter, on 23 February 2010.