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

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.

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.

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…

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.

Continue reading Want v Majer Tiles Pty Ltd

Details

AGLC: Want v Majer Tiles Pty Ltd [2010] QCAT 103
Case: [2010] QCAT 103
Decision Date: 13 January 2010

CaseChat Overview and Summary

Phillip and Ruth Want have filed an application against Majer Tiles Pty Ltd in the Queensland Civil and Administrative Tribunal, alleging that tiles supplied by Majers for their residential building project are defective. The dispute arose after the Wants discovered that the tiles discolour when exposed to moisture. Majers denies any agreement with the Wants regarding the supply and laying of tiles, and contests the jurisdiction of QCAT to hear the matter. The Wants argue that the Tribunal has jurisdiction under the Queensland Building Services Authority Act 1991, as the dispute is a domestic building dispute involving a supplier of materials. Majers did not contest the jurisdiction and the Wants' submissions, with the assistance of Counsel, were received by QCAT. The Tribunal must decide whether it has jurisdiction to hear the matter.
The central legal issue before the Tribunal is whether it has jurisdiction to hear this domestic building dispute against Majer Tiles Pty Ltd, a supplier of tiles, under sections 75, 76(1)(n), 77 and Schedule 2 of the Queensland Building Services Authority Act 1991, and section 8 of the Domestic Building Contracts Act 2000 (Qld). The Wants argue that the Tribunal has jurisdiction because the dispute is a domestic building dispute involving a supplier of materials, as defined in the legislation. Majers contests the jurisdiction, and the Tribunal must determine whether the dispute falls within its jurisdiction. The Tribunal must also consider whether further steps should be taken by the parties to resolve the dispute, having regard to the objectives of the QCAT Act.
The Tribunal found that it has jurisdiction to hear the application, as the dispute is a domestic building dispute involving a supplier of materials used in the tribunal work. The Tribunal noted that the definition of “building dispute” in Schedule 2 of the QBSA Act includes a “domestic building dispute,” which is defined as a claim or dispute arising between a building owner and a supplier or manufacturer of materials used in the tribunal work. This definition was satisfied in the Wants' matter, as they are building owners and Majers is a supplier of materials. The Tribunal distinguished the decision in Vulker, as it was based on section 76(1)(n) of the QBSA Act, which excludes tribunal work carried out outside Queensland from the operation of the QBSA Act. In the Wants' matter, there is no argument that they are not “building owners” as defined in the QBSA Act. The Tribunal concluded that it has jurisdiction to hear the matter and ordered the parties to attend a Directions Hearing on 23 February 2010.
In conclusion, the Tribunal found that it has jurisdiction to hear the application, as the dispute is a domestic building dispute involving a supplier of materials used in the tribunal work. The Tribunal ordered the parties to attend a Directions Hearing on 23 February 2010 to consider further steps to resolve the dispute. The Tribunal's decision is based on the statutory definitions of "building dispute" and "domestic building dispute" in the Queensland Building Services Authority Act 1991, and the Domestic Building Contracts Act 2000 (Qld). The decision in Vulker was distinguished as it was based on a different section of the QBSA Act, and there is no argument that the Wants are not "building owners" as defined in the QBSA Act.

Orders