CK’S Milling & Earthworks v Whitaker [2026] QCAT 268

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: CK’S Milling & Earthworks v Whitaker [2026] QCAT 268 PARTIES: CK’S MILLING & EARTHWORKS (applicant) v BRETT WHITAKER (respondent) ORIGINATING APPLICATION NO/S: Q1726-26 (Gympie) MATTER TYPE: Minor Civil Dispute DELIVERED ON: 24 June 2026 HEARING DATE: On the papers HEARD AT: Gympie DECISION OF: Magistrate Hughes ORDERS: The Application is dismissed for lack of jurisdiction for non-compliance with the Queensland Building and Construction Commission Act 1991 (Qld), section 77(2). CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where building dispute – where Applicant did not comply with early dispute resolution process – where application filed as minor debt claim – where Tribunal does not have jurisdiction to decide claim as minor debt once characterised as building dispute - where early dispute resolution process provides quick and cheap way of resolving building disputes - where enabling Act prescribed early dispute resolution process – where early dispute resolution process is gateway to jurisdiction - where non-compliance with early dispute resolution process is fatal to application Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 12, s 47, Schedule 3 -- 1 of 5 -- 2 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 277 Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483 Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70 Walsh v Australian Building and Construction Group [2016] QCAT 187 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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 What is this Application about? [1] CK’S Milling and Earthworks has not filed evidence of compliance with the mandatory early dispute resolution process for building disputes.1 Because of this, the Tribunal does not have jurisdiction. Its application must be dismissed. [2] Strong public policy reasons support this: The clear intention of the legislature, by enacting s 77(2) of the QBCC Act, was to require a party seeking to pursue a claim in the tribunal in respect of a building dispute to first comply with a dispute resolution process established by the QBCC. To permit a dispute, which may be both a minor civil dispute and a building dispute, to proceed as a minor civil dispute without a party complying with s 77(2) would have the effect of frustrating the intent of the legislature.2 Why is the claim a ‘building dispute’? [3] CK submitted that its claim of $6,692.40 for earthwork services and excavation was not a ‘building dispute’: Under Queensland legislation, a QBCC contractor’s licence is only required where a party carries out, or undertakes to carry out “building work”. The works in question are expressly excluded from this definition. As outlined in Schedule 1, Section 32 of the Queensland Building and Construction Commission Regulation 2018, “Work that is not building work” includes: 1 Queensland Building and Construction Commission Act 2009 (Qld), s 77. 2 Walsh v Australian Building and Construction Group [2016] QCAT 187, [12]. -- 2 of 5 -- 3 “Earthmoving and excavating – Work consisting of earthmoving and excavating.”3 [4] That submission is not correct. [5] ‘Building work’ is not an element of the process by which the Act confers jurisdiction on the Tribunal. [6] Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) gives the Tribunal jurisdiction over a ‘building dispute’. The process by which the Act confers jurisdiction is: (a) ‘Building dispute’ relevantly includes a domestic building dispute;4 (b) ‘Domestic building dispute’ relevantly includes a claim or dispute between a building owner and building contractor relating to the performance of reviewable domestic work;5 (c) ‘Building owner’ generally means a person for whom tribunal work is to be carried out but for domestic building contracts means the person for whom domestic work is to be carried out;6 (d) ‘Reviewable domestic work’ means ‘domestic building work’ that relevantly includes: renovation, alteration, extension, improvement or repair of a home; work associated with the renovation, alteration, extension, improvement or repair of a home such as landscaping, paving and driveways; the erection or construction of a building or fixture associated with a detached dwelling or home such as retaining structures, driveway and fencing; the provision of services or facilities to the home or the property on which the home is situated such as water supply, sewerage and drainage; and related site work.7 (e) ‘Domestic building contract’ includes a contract to carry out domestic building work;8 and (f) ‘Domestic building work’ relevantly includes the erection or construction of a building or fixture associated with a detached dwelling or home such as retaining structures, garages, carports and workshops and related site work.9 [7] CK’s claim for earthwork and related services falls within the process and is therefore a ‘building dispute’. The term ‘building work’ is not a part of that process. But does the Tribunal have jurisdiction to decide the claim other than as a ‘building dispute’? [8] CK filed its application as a minor debt claim. However, allowing the claim to proceed as a minor debt would circumvent the strong public policy reasons for early dispute 3 Affidavit of Elesiha Kirk affirmed 8 May 2026. 4 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2. 5 Ibid. 6 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B (s 1), Schedule 2 (s 4) (underlining added). 7 Queensland Building and Construction Commission Act 1991 (Qld), Schedules 1B, 2 (s 4). 8 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B (s 3). 9 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B (s 4). -- 3 of 5 -- 4 resolution for building disputes. The early dispute resolution process is meant to provide a quick and cheap way of resolving building disputes. That is consistent with the objects of the QCAT Act to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.10 [9] Because of these strong public policy reasons, the Tribunal does not have jurisdiction to decide the claim as a minor debt or liquidated demand once it is characterised as a building dispute.11 The definition provisions conferring jurisdiction on the Tribunal for ‘minor civil disputes’ illuminate this. [10] CK’s claim is for an unpaid invoice - a liquidated demand.12 A ‘minor civil dispute’ does include a claim to recover a debt or liquidated demand.13 However, the definition of ‘minor civil dispute’ also provides:14 2 However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute. [11] The effect of sub-paragraph 2 is to remove a claim that can be characterised as both a ‘building dispute’ and a ‘minor civil dispute’ from the Tribunal’s minor civil disputes jurisdiction. This means that the claim will not be a ‘minor civil dispute’ if an enabling Act also confers jurisdiction on the Tribunal to deal with it. [12] Here, the enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld). Because the claim is a ‘building dispute’, the enabling Act prescribes the procedures to be followed and, to the extent of any inconsistency between that procedure and the provisions of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the enabling Act prevails.15 [13] Because the enabling Act prevails, CK’s claim cannot proceed as a minor debt.16 That would frustrate the intent of the legislature. Does the Tribunal have jurisdiction to decide the claim? [14] The enabling Act required CK to file evidence of participating in early dispute resolution under section 77(2) of the enabling Queensland Building and Construction Commission Act 1991 (Qld). [15] CK submitted: 10 QCAT Act, s 3(b). 11 Because CK is a ‘trader’ in the context of this dispute, it is not a ‘relevant person’ who would confer jurisdiction on the Tribunal to decide the claim as a ‘consumer and trader’ dispute - QCAT Act, s 12(4)(b), Schedule 3. 12 Invoice dated 20 May 2025. 13 QCAT Act, s 12(4)(a), Schedule 3. 14 QCAT Act, Schedule 3. 15 Big4 Brisbane Northside Caravan Village v Schliebs [2012] QCAT 163, [31] (Wilson J). 16 Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70. -- 4 of 5 -- 5 Prior to the filing of the application with QCAT the above matter was investigated by the applicant on January 28 th at 11.35am with a phone call and verbal discussion with Queensland Building and Construction Commission… Further conversations have taken place with QBCC again on 15 th April 2026 at 2.42pm where a lengthy 42 minute conversation around legislation and acts of the Building industry where (sic) discussed around the matter at hand to further reinstate that the matter would not be handled as a QBCC matter as it does not form enough building associated works.17 [16] Unfortunately for CK, none of this complies with section 77(2) of the Act. [17] Nor can compliance be retrospective. Because compliance with section 77(2) of the Act is the gateway through which an applicant must pass before filing an application for a building dispute,18 CK’s steps taken after filing its Application on 17 March 2026 cannot be evidence of compliance. [18] CK’s non-compliance with section 77(2) of the Act is fatal to its application: Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.19 [19] CK’s application is therefore misconceived and must therefore be dismissed as lacking in jurisdiction.20 [20] Whether CK should file a further application upon compliance with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) is a matter upon which it might wish to obtain independent legal advice. 17 Affidavit of Elesiha Kirk affirmed 8 May 2026. 18 Walsh v Australian Building and Construction Group [2016] QCAT 187, [8], citing with approval Leyden v NJ Tierney Constructions Pty Ltd [2015] QCAT 483. 19 Walsh v Australian Building and Construction Group [2016] QCAT 187, [12]. 20 QCAT Act, s 47; Walsh v Australian Building and Construction Group [2016] QCAT 187, [13]. -- 5 of 5 --