Watford v Office Shop Renovations Australia Pty Ltd
[2013] QCAT 122
| CITATION: | Watford v Office Shop Renovations Australia Pty Ltd [2013] QCAT 122 |
| PARTIES: | Keith Watford (Applicant) |
| v | |
| Office Shop Renovations Australia Pty Ltd (Respondent) |
| APPLICATION NUMBER: | BDL103-12 |
| MATTER TYPE: | Building Matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Michael Howe, Member |
| DELIVERED ON: | 4 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application BDL103-12 is dismissed. |
| CATCHWORDS: | Jurisdiction of the Tribunal - QBSA Act – building dispute – domestic and commercial building dispute – relating to the performance of reviewable domestic and commercial building work – must be aspects of construction work -QCAT jurisdiction limited as an inferior Court -taking accounts – no pleadings in QCAT Queensland Civil and Administrative Tribunal Act 2009, s 3(b), s 164 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Mr Watford filed an Application for Domestic Building Dispute in March 2012. He joined Mr Hartono, who trades as Office Shop Renovations, as respondent. He initially sought an order that Mr Hartono pay him $13,675 on his claim and $2195 for costs.
He asked that the following orders be made: "Release all documents regarding income and expenses. Bank statements from joint account. Final payout of money held (40% of profit). Freeze Office Shop Renovation bank accounts to prevent moneys being transferred into their trust."
He gave the reasons for the orders sought as: "Show transparency of all accounts as both have a % profit share works agreement. His accountant is not releasing info to show all payments. Correct value of $89,740 however their P&L only shows $77,089.27. A difference of $12,651 is unaccounted for?"
The building site nominated was Shop 1002 Garden City Shopping Centre, Upper Mt Gravatt.
Mr Watford attached a statement to the application in which he refers to a "Working Agreement" with “Office Shop Renovations Australia Pty Ltd (Yan Hartono)” to complete building projects. He states the terms of the "Working Agreement" are that the parties split profit on a 40% and 60% basis with Mr Watford receiving 40%.
Mr Hartono filed a response and counterclaim describing the applicant as Keith M Watford of Sterling Group Pty Ltd and the respondent as Office Shop Renovations Aust Pty Ltd. In an appended statement he refers to the "Working Agreement" too and says the parties were involved in three projects, two residential projects and the retail outlet at Westfield Shopping Centre, Garden City referred to by Mr Watford in his application.
It is clear from the material filed by both parties that what is really in dispute is the accounts between the parties, not a complaint about the construction work on the projects.
The parties attended a compulsory conference on 18 July, 2012. The member conducting the conference made a number of orders amongst which were the following: "… 3 It appears that the Tribunal has jurisdiction in Mr Watford's claim as a "building dispute" under section 77 of the Queensland Building Services Authority Act 1991, this being a dispute between two building contractors relating to a contract for the performance of building work, that contract being the "Working Agreement" exhibited to the claim. 4 It is agreed that (a) the Working Agreement is a partnership agreement and (b) the partnership ended on 13 December 2011."
At a directions hearing on 13 February 2013 before Senior Member Oliver, Mr Watford filed an amended claim seeking $70,000. There was scant change to anything else in the document, certainly no particulars to justify the increased claim. He does add an address Zara Street, Robertson as a second building site, but nothing else of significance.
The orders sought in the amended application now read "After numerous QCAT (unintelligible) and my accounts brief assessment we would like this issue settled by way of accountable and justified payments to us of which is owed."
The reasons for the orders now state: "Settles this matter finally and prevents the respondent to create any further delays/games."
Senior Member Oliver queried QCAT jurisdiction over the claim. He ordered the parties file submissions on jurisdiction before 28 February, 2013 and that issue be resolved before proceeding further. The matter of jurisdiction has come before me for determination.
Building Dispute
The Queensland Building Services Authority Act 1991 (QBSA Act) provides that a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[1]
[1] s 77(1).
The expression "building dispute" is defined in Schedule 2 to that Act as "(a) a domestic building dispute or (b) a minor commercial building dispute or (c) a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79."
The expression "domestic building dispute" is defined in the schedule to cover various scenarios including (but not limited to) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or a claim or dispute arising between a building owner and a building contractor and an architect or engineer or surveyor (to name a few parties) relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work. The italicization is mine.
“Commercial building dispute” has similar definition in the schedule save it relates to the performance of reviewable commercial work.
The expression reviewable domestic work is defined in the schedule to mean, effectively, domestic building work under the Domestic Building Contracts Act 2000 (DBC Act).
The expression reviewable commercial work is unhelpfully defined as tribunal work other than reviewable domestic work. It helps to understand the expression, tribunal work, to know that when this jurisdiction was exercised by the former Queensland Building Tribunal under the Queensland Building Tribunal Act 2000 (repealed), what is now described as "tribunal work" was then described as "building work". According to the explanatory notes to the Commercial and Consumer Tribunal Bill 2003 (which created the interim body having jurisdiction after the Building Tribunal and before QCAT) the term "building work" was changed to "tribunal work" to avoid confusion. Unfortunately that has not been my experience.
What is relevant however and determinative of the matter at hand are the words “relating to the performance of reviewable domestic work” or “relating to the performance of reviewable commercial work” (see my italics above).
Those words have a limiting or qualifying effect on jurisdiction.[2]
[2] Fraser Property Developments P/L v at Sommerfeld & Ors [2005] QCA 134 per McPherson JA at [11].
The word performance is defined in the Concise Oxford Dictionary as “execution (of command etc); carrying out, doing ….”
The qualification on jurisdiction is that the claim brought before the Tribunal must relate in some fashion to the performance of building construction, be it commercial or domestic. There must be an aspect of construction to be considered, or some factor associated with the efficacy of construction for a dispute to be a matter within the jurisdiction of the Tribunal.
The QBSA Act sets a legislative trail of statutory definitions one must follow to understand this rather complex jurisdiction. That trail supports that requirement of an element of construction work being necessary to found Tribunal jurisdiction.
For example with reviewable domestic work. As stated, that is defined as domestic building work under the DBC Act.
By s 8(1) of the DBC Act, domestic building work covers such typical things as the erection or construction of a detached dwelling, the renovation, alteration or repair of a home, the removal or resiting of a detached dwelling. By s 8(3) the expression also includes work associated with those things. Section 8(4) expands the work to include such things as landscaping and paving. By sections 8(6) and 8(7) provision of services to such premises like lighting, heating or air-conditioning and water supply and site works are similarly within scope.
By virtue of a combination of the definition of reviewable domestic work In the QBSA Act and the definition “excluded building work” in the DBC Act, domestic building work also includes design work by an architect, engineer or draughtsperson, the preparation of plans, specifications or bills of quantities and the work involved in obtaining foundations data about a building site.
All those things are facets of building construction.
With respect to commercial building disputes which relate to the performance of reviewable commercial work, reviewable commercial work means tribunal work other than reviewable domestic work. Tribunal work (recalling what I said above about the former use of the term in the repealed legislation) is defined in s 75 of the QBSA Act to include but not be limited to the erection or construction of a building, renovations of a building, site works and provision of services relating to a building. As with domestic building disputes, all are matters associated with the carrying out or execution of an aspect of building construction.
The Tribunal is a court of record[3] but it is not a superior court of general jurisdiction. Where a superior court is presumed to act within jurisdiction, there is no such presumption with an inferior court (or tribunal).
[3] s 164 QCAT Act.
The law on this is very old. “Nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged.” See Peacock v Bell [1845] EngR 175; 91667) 1 Wms Saund 69 at 74 … (85 ER 81 at pp87-88).[4]”
[4] DMW v CGW [1982] HCA 73; (1982) CLR 491; Fraser Property Developments Pty Ltd per McPherson JA at [23].
An Account
Mr Watford’s claim isn’t about any aspect of the performance of a domestic or commercial building dispute. What Mr Watford wants is an account as between him and Mr Hartono of Mr Watford’s share of profits associated with their partnership (or joint venture if Mr Watford takes issue with that description of his business relationship with Mr Hartono).
His dispute is not about the performance of any construction work. In Mr Watford’s first application he makes mention of a contract, presumably about the shop premises at Garden City. He gives a date of commencement and completion of the contract and a contract amount, but says nothing about any dispute arisen connected with the construction work done there.
His initial claim was for payment to him of $13,675 by his former joint-venturer or partner. With his amended application filed 13 February 2013, he increased his claim to $70,000, but nothing changed with respect to the contract details in his application other than adding the address Zara Street, Robertson.
The taking of an account between him and Mr Hartono is the principal relief he seeks. Mr Hartono’s counterclaim similarly refers to the taking of an account.
In a nutshell, building construction must be a central feature of the dispute between parties if the Tribunal is to exercise jurisdiction in respect of a building dispute, not a peripheral attribute used as a threshold point of entry to the Tribunals hearing rooms.
Major Commercial Dispute
The contract referred to by Mr Watford in his initial application, and again in his amended application, is a contract to do commercial work. It is shopfitting work. He initially sought recovery from Mr Hartono of an amount under $50,000 and it was therefore a minor commercial building dispute. A claim over $50,000 becomes a major commercial building dispute.
His amended application increased his claim to $70,000. There is a dearth of particularization in support of such increase.
It must be said Mr Watford’s claim, both as set out in the initial application and the amended application, is singularly lacking in coherence or detail. In part that is because this is no true building dispute as defined by the QBSA Act, but the course and conduct of proceedings are designed to focus on aspects of construction work.
The solicitors acting for Mr Hartono say Mr Watford’s claim is vague and embarrassing and they are unable to obtain instructions from their client to appropriately respond. I accept and understand that submission. I am unable to conclude that Mr Watford’s claim is not one seeking more than $50,000 in respect of the shop premises at Garden City, and that would now make his claim a major commercial dispute.
A major commercial dispute may only be decided by the Tribunal if the Tribunal is satisfied all parties to the dispute consent to the Tribunal deciding it. Mr Hartono does not so consent. Accordingly, even if this application were appropriately brought pursuant to s 77 of the QBSA Act as a building dispute, on the material before me I cannot conclude the Tribunal has the requisite agreed jurisdiction to hear the matter.
Magistrates Court
For the reasons set out above I find the Tribunal has no jurisdiction in this matter.
I may either refer the matter to the Magistrates Courts or dismiss the matter. I have decided I should dismiss the matter. The Tribunal does not use pleadings. The Tribunal uses the statements of evidence and other materials presented in lieu. In this way the Tribunal endeavours to deal with matters in a just, economical, informal and quick fashion.[5] That often presents great difficulty for members given most parties appear before the tribunal without legal representation and often without understanding what is and is not relevant to the issues in dispute.
[5] s 3(b) QCAT Act.
The Magistrates Courts do utilise pleadings. They require accurate identification of parties and issues before hearing. The material filed by Mr Watford in the Tribunal would not satisfy a Magistrate in any respect. Mr Watford would be required to plead a case in accordance with the requirements of the Uniform Civil Procedure Rules 1999. It is therefore not appropriate to simply transfer this file to the Magistrates Courts. The appropriate course is to dismiss the application and allow Mr Watford to pursue his claim against Mr Hartono, should he so wish, in the Magistrates Courts in the appropriate way.
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