Widdows v Pacific Blue Painting Pty Ltd - [2022] QCAT 114

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Widdows v Pacific Blue Painting Pty Ltd & Anor [2022] QCAT 114

PARTIES:

PETER WIDDOWS

(applicant)

v

PACIFIC BLUE PAINTING PTY LTD

(first respondent)

LUKE WILLIAM HOWE

(second respondent)

APPLICATION NO/S:

BDL149-21

MATTER TYPE:

Building matters

DELIVERED ON:

25 February 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     The application for miscellaneous matters filed 27 September 2021 is refused.

2.     The matter is listed for a Compulsory Conference in Brisbane at a date and time to be advised.

3.     The parties must attend the Compulsory Conference by remote conferencing.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – where respondents contend that the proceedings should be dismissed for non-compliance with s 77(2) of the QBCC Act – finding by the tribunal that compliance achieved before commencement of proceedings.

Queensland Building and Construction Commission Act 1991 (Qld) s 77(1), s 77(2), sch 1B s 4(1)(b), sch 2.

Contrast Constructions Pty Ltd v Allen & Anor [2020] QCAT 194

Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43

APPEARANCE:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

On 25 February 2022 I refused an application by the respondents to dismiss the proceedings. These are my reasons.
These proceedings involve a dispute between the parties in relation to painting work undertaken at the applicant’s home. The applicant and the first respondent entered into a contract for the performance of the works. The second respondent is the director and nominee of the first respondent. In these reasons I will refer to the first and second respondents collectively as the respondents.
The applicant claims damages for the cost of rectifying defective work undertaken by the respondents. The respondent denies that the work was defective.
It does not appear to be contentious that:
(a)The applicant is a building owner;[1]
(b)The respondent is a building contractor;[2]
(c)The work undertaken by the respondents was domestic building work;[3]
(d)The dispute is a domestic building dispute.[4]
[1]Queensland Building and Construction Commission Act 1991 (Qld), schedule 1B, s 1.
[2]Ibid.
[3]Ibid, schedule 1B, s 4(1)(b).
[4]Ibid, schedule 2.
A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.[5] A person may not apply to the tribunal unless the person has complied with a process established by the Queensland Building and Construction Commission (the QBCC) to attempt to resolve the dispute.[6] Compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act) is mandatory. If there is a process established by the QBCC to attempt to resolve a building dispute, that process must be complied with before proceedings are commenced in the tribunal.
[5]Ibid, s 77(1).
[6]Ibid, s 77(2).
In Contrast Constructions Pty Ltd v Allen & Anor[7] the tribunal held:
[44] In circumstances where the…

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: [2022] QCAT 114
Decision Date

CaseChat Overview and Summary

In the case of Widdows v Pacific Blue Painting Pty Ltd, the applicant, Peter Widdows, sought damages for the cost of rectifying defective work undertaken by the respondents, Pacific Blue Painting Pty Ltd and Luke William Howe, who is the director and nominee of the first respondent. The respondents contended that the proceedings should be dismissed for non-compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act). The applicant denied that the work was defective. The tribunal was required to determine whether the applicant had complied with the process established by the Queensland Building and Construction Commission (the QBCC) to attempt to resolve the dispute before proceedings were commenced in the tribunal. The respondents argued that the applicant had failed to comply with a series of actions contemplated by the QBCC dispute resolution process, or some particular action in that series, and as a result, the proceeding should be dismissed. The applicant argued that he had complied with s 77(2) of the QBCC Act and that the QBCC had issued a letter stating that the applicant had complied with the dispute resolution process. The tribunal found that the letter from the QBCC to the applicant dated 8 June 2021 was clear evidence that the QBCC was satisfied that the applicant had complied with a process established by the QBCC to attempt to resolve the dispute. The tribunal held that what form the process identified in s 77(2) might take, and whether parties to a building dispute had complied with such a process, was a matter for the QBCC. The tribunal also held that the decision by the QBCC about s 77(2) compliance was not a reviewable decision and that if the respondents sought to have the decision judicially reviewed, they must do so elsewhere. The application to dismiss the proceedings was refused, and the matter was listed for a compulsory conference in Brisbane. The parties were required to attend the compulsory conference by remote conferencing.

Orders