Zeng v Queensland Building and Construction Commission - [2023] QCAT 347

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Zeng v Queensland Building and Construction Commission [2023] QCAT 347

PARTIES:

LIUOU ZENG

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

MCDO52-21

MATTER TYPE:

Other minor civil dispute matters

DELIVERED ON:

8 September 2023

HEARING DATE:

10 July 2023

HEARD AT:

Holland Park

DECISION OF:

Member Younger

ORDERS:

1. The application for minor civil dispute – consumer dispute – filed on 27 April 2021, having been considered as a minor debt dispute, is dismissed on the merits;

2. No order is made as to costs, pursuant to s 100 of the QCAT Act.

CATCHWORDS:

MINOR DEBT CLAIM – DEBT OR LIQUIDATED DEMAND – refund of insurance premium – brought as a consumer dispute against a trader – where Appeal Tribunal determined respondent not a trader – whether QCAT has jurisdiction – whether it is a claim for a debt or liquidated demand of money – whether there is a basis in common law or statute for the refund

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 12, s 13, s 47, s 100, Schedule 3

Queensland Building and Construction Commission Act 1991 (Qld), s 67WA, s 67WC, s 67WD, s 67Y, s 67X, s 68A, s 68F, s 68G, s 68H, s 69

Queensland Building and Construction Commission Regulation 2006 (Qld), Schedule 1AA, Schedule 2C, Schedule 6

Legal Services Commissioner v Leneham [2017] QCAT 96

Rajagopal v Queensland Building and Construction Commission [2020] QCAT 154

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

L Davey, instructed by Queensland Building and Construction Commission

REASONS FOR DECISION

Background

The Applicant, Ms Zeng, and her husband, Mr Ivano Berlese are the owners of a property at Eight Mile Plains, Qld (‘property’).
On 2 January 2018, Ms Zeng paid the Queensland Building and Construction Commission (‘QBCC’) an amount of $1,017.95 towards an insurance premium under the Statutory Insurance Scheme (‘Scheme’), in relation to building work to be carried out at the property.[1]
[1]Insurance Payment Timeline, filed by the Applicant at the hearing on 10 July 2023.
QBCC issued a Notice of Cover – Queensland Home Warranty Scheme (‘Cover’) commencing on 2 January 2018, for residential construction work consisting of a new dwelling and swimming pool, to be carried out by licensed builder, Domenico Berlese (‘builder’).[2]
[2]Notice of Cover annexed to the Application filed 27 July 2021. Also, Note 1.
On 20 February 2018, Ms Zeng and the builder entered into a HIA QLD Residential Building Contract (‘Contract’) in relation to the work at the property.
On 18 January 2018, there was an amendment made to the Cover due to a variation increase to the Contract.[3] On the same date, Ms Zeng paid QBCC $2,305.50 towards the insurance premium.[4]
[3]Submissions of Respondent dated 7 July 2023 at [6].
[4]Note 1.
On 12 May 2018 the builder died.[5]
[5]Death Certificate of Domenico Berlese, attached to the Application filed 27 July 2021.
By that stage, Ms Zeng had…

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] QCAT 347
Decision Date

CaseChat Overview and Summary

In the matter of Zeng v Queensland Building and Construction Commission, the applicant sought a review of a decision made by the Queensland Civil and Administrative Tribunal (QCAT) to dismiss the proceedings for lack of jurisdiction. The central dispute was whether the claim for a refund of insurance premiums constituted a minor civil dispute, as defined by the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). The appeal was heard by Member Gordon, who found that the claim could be classified as a debt or liquidated demand of money, as the amount claimed was ascertainable and known. This finding led to the conclusion that the QCAT had jurisdiction over the matter, and thus, the appeal was allowed.

The legal issues before the court were whether the claim fell within the definition of a minor civil dispute under the QCAT Act, and if the Tribunal had the authority to hear the case. Specifically, the court needed to determine whether the claim was a debt or liquidated demand of money, and whether it arose from a contract between a consumer and a trader. Member Gordon held that the Queensland Building and Construction Commission (QBCC) was not a 'trader', and thus the claim did not fall under the consumer-trader dispute category. The court further reasoned that the amount claimed was ascertainable and known, satisfying the requirement for a debt or liquidated demand of money.

Member Gordon granted the applicant leave to appeal and allowed the appeal, setting aside the earlier decision that dismissed the proceedings for lack of jurisdiction. The court returned the case to the minor civil dispute jurisdiction for reconsideration. While Member Gordon noted that the merits of the claim appeared unlikely to succeed, he found it appropriate to remit the matter for a hearing to determine the merits of the claim. This decision ensures that the applicant has the opportunity to present her case before the Tribunal, which now has the jurisdiction to hear it.

The final orders of the court included granting the applicant leave to appeal, allowing the appeal, setting aside the earlier decision that dismissed the proceedings for lack of jurisdiction, and returning the case to the minor civil dispute jurisdiction for reconsideration. This decision ensures that the applicant's claim will be heard on its merits, providing her with an opportunity to seek a refund of the insurance premiums in accordance with the QCAT Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

On 9 February 2023, in Zeng v QBCC,[14] Member Gordon of the Tribunal:(a)granted the applicant leave to appeal and allowed the appeal;(b)set aside the decision made by the Tribunal on 27 September 2021 to dismiss the proceedings for lack of jurisdiction; and(c)returned the proceedings to the minor civil dispute jurisdiction for reconsideration.[14][2023] QCATA 10.Appeal judgment – jurisdictional issue Section 11 of the QCAT Act provides that the Tribunal has jurisdiction to hear and decide a minor civil dispute, and section 12 of the QCAT Act provides for when jurisdiction for a minor civil dispute may be exercised by the Tribunal. Schedule 3 sets out the definition of a ‘minor civil dispute’. I will not recite those provisions again, as they have already been considered by the Appeal Tribunal.[15][15]Ibid at [12] and [25]-[40]. In Zeng v QBCC,[16] Member Gordon referred to the Adjudicator’s finding that there was no jurisdiction to hear this matter as a minor civil dispute, as it was neither a debt to recover a debt or liquidated demand of money, nor arising out of a contract between a consumer and a trader.[17] Member Gordon found this was not a consumer-trader dispute, on the basis that QBCC is not a ‘trader’.[18][16]Ibid at [8].[17]The first two limbs of the definition of ‘minor civil dispute’ in Schedule 3, QCAT Act.[18]Note 14 at [9], referring to the relevant part of the definition of ‘trader’ in Schedule 3, QCAT Act. Member Gordon decided that this was a claim to recover a debt or liquidated demand of money, on the basis that the amount claimed is an ascertained and known amount, and if the claim succeeds, the whole of the money would be repayable.[19] Given this finding, the appeal was allowed.[19]Note 14 at [16]. Member Gordon’s noted the following as to the merits of the claim:[20](a)The Scheme itself provides for refund of premiums, none of which fit the circumstances pertaining here;(b)It seems very unlikely that there is any room for a refund to be due under the common law;(c)on paper, Ms Zeng’s claim is “obscure” and it is “quite unclear how she could be entitled to a refund”;(d)on the face of the notice of cover, it appears to have been properly issued to take effect on 2 January 2018, work on site commenced, and the events which caused difficulties were much later in the year;(e)if the insurance was cancelled, it must have been in place for a period of time and therefore, only a portion of the claim amount would be returnable. In that event, the amount would not be liquidated, as it would require assessment by the Tribunal. Therefore, it would not be within the jurisdiction of the Tribunal as a claim to recover a debt or liquidated demand of money.[20]Note 14 at [19]-[21]. Although Member Gordon concluded that the claim was unlikely to be untenable, he determined that it was appropriate that the matter should be remitted to the minor civil dispute jurisdiction for hearing as to its merits.[21][21]Note 14 at [38].

Ratio Decidendi

Legal Principle Established

The Respondent refers to the relevant principles for the Tribunal to consider in exercising its discretion under s 47 of the QCAT Act, including as stated in Legal Services Commissioner v Leneham:[47][14] It is well settled that the applicant should not be denied access to a hearing unless the lack of a cause of action is clearly demonstrated. As was described by Barwick CJ in General Steel Industries Inc v Commissioner for Railways NSW:“The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".[47][2017] QCAT 96.Consideration of the merits In relation to the Respondent’s submissions that the application should be struck out pursuant to s 47, I note that the proceeding was originally dismissed summarily, and then was appealed and a full re-hearing ordered. Given the history of this proceeding, and the Applicant’s self-represented position throughout (in which it was apparent that the legal issues were challenging for her), I do not consider it is appropriate to dismiss the application under this section. I therefore turn to consideration of the merits. The essence of the Applicant’s case appears to be a claim for breach of contract, that she should be refunded the premium because she did not receive the value of the goods/services, namely the insurance related to the carrying out of the building work, due to the builder’s death. The Applicant submits that the builder did not commence building work, and that the Cover became invalid after the Contract ended with the builder’s death. Although unclear from the Applicant’s submissions, it appears the Applicant seeks the full refund of the premium paid, or alternatively the amounts paid after the builder’s death. On the other hand, the Respondent’s position is that since 2 January 2018 the Applicant has had the benefit of the insurance Cover which remains in place until 2 July 2024, notwithstanding the builder’s death in May 2018. The Respondent submits that the Applicant is not entitled to the full refund of the premium as a debt or liquidated demand of money, and that should the Tribunal determine that only a portion of the premium is refundable, this would no longer be within the Tribunal’s jurisdiction. It is relevant context that prior to applying to the Tribunal, the Applicant had made a claim to QBCC under the Scheme, on the basis of non-completion of work by the builder. This claim was refused by QBCC for the reasons cited above and in summary, due to the time limits under the QBCC Act not having been met. Having considered all the evidence before me, I am satisfied that:(a)the Inspection Report provides cogent evidence that building work had been carried out at the property prior to the builder’s death, by 24 April 2018 and continued without a principal contractor from mid-May 2018 until mid-July 2018; (b)In relation to the latter period of work (after the builder’s death), Ms Zeng stated at the hearing (words to the effect) that her husband had undertaken unlicensed building work at the property and had been fined for that. Whilst this factor may affect the outcome of any future claim the Applicant may make under the Cover, this is irrelevant to consideration of the application before me;(c)whilst the builder’s death ended the Contract between the Applicant and the builder, the builder’s license and obviously any future work being undertaken by the builder, these factors:(i) did not invalidate the Cover, or (ii) prevent the Applicant from making a future claim under the Cover for alleged defective work performed by the builder; and(d)the Cover remains in place between QBCC in relation to the property until 2 July 2024.