Weston v Worthington - [2022] QCAT 154

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Weston & Anor v Worthington [2022] QCAT 154

PARTIES:

HEIDI WESTON

(first applicant)

ADAM WESTON

(second applicant)

v

LEONARD WORTHINGTON

(respondent)

APPLICATION NO/S:

BDL113-19

MATTER TYPE:

Building matters

DELIVERED ON:

13 April 2022

HEARING DATE:

15 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

1.     The application to amend the application for domestic building disputes dated 30 September 2020 and filed on 6 October 2020 to include a claim for alleged negligence is refused.

2.     The application to amend the application for domestic building disputes dated 15 December 2020 and filed on 17 December 2020 to increase the amount of damages claimed is refused.

THE TRIBUNAL DIRECTS THAT:

3.     The matter is listed for a Directions Hearing by telephone on a date and time to be advised by the Tribunal.

4.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – GENERALLY – where applicants purchased house – where retaining wall on site before construction of the house – where issues with the house – where application for domestic building disputes filed claiming damages for breach of contract – where application filed to amend the application for domestic building disputes to remove the claim for breach of contract and include a claim for alleged negligence and damages – whether the Tribunal has jurisdiction to determine the claim or dispute for the purposes of s 771(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the discretion to allow the amendment to the application for domestic building disputes should be exercised under s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Acts Interpretation Act 1954 (Qld), s 14A(1)

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 75, s 76, s 77(1), Schedule 1B, s 4, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 64

Adam’s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Baker v Department of Natural Resources & Mines [2018] QCAT 375

Federal Commissioner of Taxation v Industrial Equity Ltd & Anor (2000) 171 ALR 1

Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134

Kelly v R (2004) 218 CLR 216

Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Robinson, solicitor of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

The applicants apply for leave to amend their application for domestic building disputes to remove a cause of action for breach of contract and to include a claim for alleged negligence.[1] The applicants also apply to increase the amount of damages claimed to $1,165,780.45.[2]
[1]Application for miscellaneous matters dated 30 September 2020 and filed 6 October 2020. See application for domestic building dispute filed 2 April 2019.
[2]Application for miscellaneous matters dated 15 December 2020 and…

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 Weston v Worthington

Details

AGLC: Weston v Worthington [2022] QCAT 154
Case: [2022] QCAT 154
Decision Date

CaseChat Overview and Summary

Heidi Weston and Adam Weston (applicants) bring an application under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) against Leonard Worthington (respondent) alleging defects in a house that the applicants purchased from the respondent. The applicants apply for leave to amend their application to remove a cause of action for breach of contract and to include a claim for alleged negligence. The applicants also apply to increase the amount of damages claimed. The respondent does not object to the removal of the claim for breach of contract but objects to an amendment to include a claim for alleged negligence on the basis that the Tribunal has no jurisdiction to determine the claim. The issues for the Tribunal to determine are whether the power to allow the amendment of the application for a domestic building dispute should be exercised under s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and whether the applicants’ claim is a ‘building dispute’ for the purposes of s 77(1) of the QBCC Act. The Tribunal declines to exercise its discretion to allow the amendment of the application for domestic building dispute to include a claim in negligence and to increase the claim for damages. The Tribunal only has jurisdiction to decide a matter if the person, in this case the applicants, are involved in a ‘building dispute’ that includes a ‘domestic building dispute’. The applicants’ claim falls outside the scope of s 77(1) of the QBCC Act because there is no ‘domestic building dispute’ as defined under Schedule 2. Further to that and as discussed above, the claim or dispute is not related to the ‘performance of reviewable domestic work’ that is ‘domestic building work’ because the retaining wall work is not associated with the construction of the house and is not ‘domestic building work’ as defined under s 4 of Schedule 1B of the Act. The application to amend the application for domestic building dispute dated 30 September 2020 and filed on 6 October 2020 to include a claim for negligence is refused. Further to that, the application to amend the application for domestic building dispute dated 15 December 2020 and filed on 17 December 2020 to increase the amount of damages is also refused. The Tribunal orders that the matter is listed for a Directions Hearing by telephone on a date and time to be advised by the Tribunal.

Orders