Zeng v Queensland Building and Construction Commission - [2023] QCATA 10

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zeng v Queensland Building and Construction Commission [2023] QCATA 10

PARTIES:

liuou zeng

(appellant)

v

queensland building and construction commission

(respondent)

APPLICATION NO/S:

APL293-21

ORIGINATING APPLICATION NO/S:

MCDO52/21 (Holland Park)

MATTER TYPE:

Appeals

DELIVERED ON:

9 February 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.     Leave to appeal is granted and the appeal is allowed.

2.     The decision made by the tribunal on 27 September 2021 to dismiss MCDO52/21 (Holland Park) for lack of jurisdiction is set aside.

3.     MCDO52/21 (Holland Park) is returned to the tribunal for reconsideration.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – FROM INTERLOCUTORY DECISIONS – GENERALLY – where the application was dismissed for lack of jurisdiction on a summary basis – where, ignoring the poor merits of the claim, it was to recover a debt or liquidated demand of money and within the tribunal’s jurisdiction – whether the poor merits of the claim should be ignored when deciding such questions

Acts Interpretation Act 1954 (Qld), s 14A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 12, s 146, schedule 3

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Financial Advisers Australia v Mooney & Anor [2016] QCATA 181

APPEARANCES & REPRESENTATION:

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

This is an appeal brought by Liuou Zeng against a decision by a tribunal Adjudicator that her minor civil dispute claim should be dismissed for lack of jurisdiction. This decision was made by a tribunal Adjudicator on the papers on a summary basis, that is, without hearing the claim on the merits.
Ms Zeng’s minor civil dispute application to the tribunal was for the Queensland Building and Construction Commission to refund her insurance premium for cover under the statutory insurance scheme for the construction of a new residential dwelling.[1] Her grounds for seeking the refund were that the insurance cover was invalid.
[1]Queensland Home Warranty Scheme.
By a response filed in the tribunal on 26 August 2021, the QBCC stated that the application was misconceived because the commission had been wrongly named as the respondent (because it was not a trader) and the relief which was sought by Ms Zeng could not be granted by the tribunal in the proceeding. The QBCC asked that the application be dismissed.
This was referred to an Adjudicator who on 30 August 2021 made this order:
Both parties are to file and serve any further submissions as to the jurisdiction of the Tribunal to hear and determine the application as a minor civil dispute within 14 days.
Nothing further seems to have been filed in the tribunal in compliance with the above order.
On 13 September 2021 the Adjudicator made this order:
The application is dismissed for lack of jurisdiction.
Ms Zeng asked for reasons for the decision made and these…

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: [2023] QCATA 10
Decision Date: 9 February 2023

CaseChat Overview and Summary

In the matter of Zeng v Queensland Building and Construction Commission, the parties involved were Zeng, the appellant, and the Queensland Building and Construction Commission, the respondent. The dispute arose from an interlocutory decision by the tribunal dismissing Zeng's application for lack of jurisdiction. Zeng sought to recover a debt or a liquidated demand of money, which the tribunal found to be within its jurisdiction. However, the tribunal dismissed the application on the basis that the claim lacked merit.

The primary legal issue before the court was whether the merits of the claim should be considered when determining whether a decision to dismiss for lack of jurisdiction was appropriate. Specifically, the court needed to decide if the tribunal should have ignored the poor merits of Zeng's claim when assessing its jurisdiction.

The court found that the tribunal had erred in dismissing the application for lack of jurisdiction without considering the merits of Zeng's claim. The court held that the merits of a claim should not generally be considered when deciding jurisdictional questions, but in this case, the tribunal had incorrectly conflated the two issues. The court granted leave to appeal and allowed the appeal, setting aside the tribunal's decision. The matter was returned to the tribunal for reconsideration, with the direction that the merits of Zeng's claim should not be the basis for jurisdictional determinations.

The court's final orders were that leave to appeal was granted, and the appeal was allowed. The decision made by the tribunal on 27 September 2021 to dismiss MCDO52/21 (Holland Park) for lack of jurisdiction was set aside. MCDO52/21 (Holland Park) was returned to the tribunal for reconsideration.

Orders

Orders of the court

1. Leave to appeal is granted and the appeal is allowed.

2. The decision made by the tribunal on 27 September 2021 to dismiss MCDO52/21 (Holland Park) for lack of jurisdiction is set aside.

3. MCDO52/21 (Holland Park) is returned to the tribunal for reconsideration.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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