Berkeley Building & Maintenance Pty Ltd v Totally Flooring Gold Coast Pty Ltd as trustee for The Lee Family Trust trading as Totally Flooring Beaudesert [2025] QCAT 306

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Berkeley Building & Maintenance Pty Ltd v Totally Flooring Gold Coast Pty Ltd as trustee for The Lee Family Trust trading as Totally Flooring Beaudesert [2025] QCAT 306 PARTIES: BERKELEY BUILDING & MAINTENANCE PTY LTD (applicant) v TOTALLY FLOORING GOLD COAST PTY LTD AS TRUSTEE FOR THE LEE FAMILY TRUST TRADING AS TOTALLY FLOORING BEAUDESERT (respondent) APPLICATION NO/S: BDL090-25 MATTER TYPE: Building matters DELIVERED ON: 11 August 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The Tribunal is unable to determine the preliminary issue. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where respondent subcontractor undertook work at a school which included laying vinyl floor and wall coverings – where work undertaken allegedly defective – where laying of vinyl flooring excluded from definition of building work in Queensland Building and Construction Commission Regulation 2018 (Qld) – meaning of ‘laying of vinyl’ – whether respondent undertook building work in addition to laying vinyl – whether any part of the work undertaken by the respondent was ‘building work’ – whether the respondent’s business consists of or includes carrying out building work – where insufficient evidence before Tribunal to determine whether dispute is a building dispute Queensland Building and Construction Commission Act 1991 (Qld), schedule 2 -- 1 of 6 -- 2 Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1 s 30 Hill-Douglas, S. v Brkan, N. [2008] QCCTB 148 Ingeteam Australia Pty Ltd v Susan River Solar Pty Limited & Ors [2024] QSC 30 Mathew v Queensland Building and Construction Commission & ors [2021] QCAT 117 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 What is this proceeding about? [1] The applicant, a licensed building contractor, undertook building work at a school. The applicant entered into a sub-contract with the respondent for the latter to lay vinyl floor and wall coverings. [2] The applicant says that the respondent breached the sub-contract by, inter alia, performing defective building work. [3] A preliminary issue falls to be determined: is the dispute the subject of the proceeding a ‘building dispute’ the Tribunal has jurisdiction to decide and, if not, should the proceeding be dismissed or transferred to a court of competent jurisdiction. [4] The parties were directed to file submissions addressing the preliminary issue. The applicant has filed submissions while the respondent has not. The jurisdiction of the Tribunal [5] The Tribunal has jurisdiction to decide building disputes.1 A building dispute may be a domestic building dispute or a commercial building dispute. If the dispute the subject of this proceeding is in fact a building dispute, it is not controversial that it can only be a minor commercial building dispute. [6] A commercial building dispute means: (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial work other than a claim for personal injuries; or (d) a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance 1 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77. -- 2 of 6 -- 3 of reviewable commercial work or a contract for the performance of reviewable commercial work— (i) an architect; (ii) an engineer; (iii) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; (vi) a supplier or manufacturer of materials used in the tribunal work.2 [7] ‘Reviewable commercial work’ means ‘tribunal work’ other than reviewable domestic work.3 ‘Tribunal work’ is defined.4 [8] As has been noted, the applicant is a licensed building contractor. The determination of the preliminary issue therefore turns on whether the respondent is: (a) A building contractor; or (b) A supplier or manufacturer of materials used in tribunal work. [9] A ‘building contractor’ means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.5 ‘Building work’ is also defined and means (a) the erection or construction of a building; or (b) the renovation, alteration, extension, improvement or repair of a building; or (c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or (e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or (f) the preparation of plans or specifications for the performance of building work; or (fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or (g) fire protection work; or (ga) mechanical services work; or (h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or (i) carrying out a completed building inspection; or (j) the inspection or investigation of a building, and the provision of advice or a report, for the following— 2 QBCC Act, schedule 2. 3 QBCC Act, schedule 2. 4 QBCC Act, s 75 and s 76. 5 QBCC Act, schedule 2. -- 3 of 6 -- 4 (i) termite management systems for the building; (ii) termite infestation in the building; but does not include work of a kind excluded by regulation from the ambit of this definition. [10] At first blush, the work the respondent undertook appears to fall within sub-paragraph (b) of the definition of ‘building work’. However, the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘Regulation’) provides that the following is excluded from the ambit of the definition of ‘building work’: Laying carpets, floating floors or vinyl (1) Laying of carpets, floating floors or vinyl. (2) In this section— floating floor means a floor that covers a subfloor but is not fixed to the subfloor.6 [11] Two issues arise for consideration: (a) What is the meaning of ‘laying of vinyl’?; and (b) Did the business carried on by the respondent consist of or include building work? [12] Unhelpfully, the respondent has filed no submissions. [13] The applicant says of the reference in the Regulation to ‘laying of carpets, floating floors or vinyl’ that the exclusion should not be read as referring to the laying of vinyl fixed to the subfloor. This submission is premised upon the reference to ‘floating floors’ and, read in context, all of the work referred to in s 30 of schedule 1 of the Regulation is work involving the laying of flooring that is not fixed to the subfloor. [14] In Mathew v Queensland Building and Construction Commission & ors7 (‘Mathew’) the Tribunal was required to consider the meaning of s 30 of the Regulation in the context of vinyl laid on a particle board subfloor. The Tribunal stated: In my view, any work done after the installation of the particleboard is work relating to the preparation of the subfloor. On the proper construction of the statute that work, in my view, is properly categorised as work involved in “laying the vinyl flooring”. It is work integral to the laying of the vinyl flooring and is, in my view, part of that process. It is work of a relatively minor nature and is work which varies depending upon, for example, whether an underlay is going to be installed and on the nature of the flooring itself.8 [15] The applicant says that Mathew should not be followed and that the Tribunal failed to consider the meaning of ‘laying of vinyl’ in the context of the preceding words ‘Laying of carpets, floating floors or …’. The applicant refers to the decision of the Supreme Court of Queensland in Ingeteam Australia Pty Ltd v Susan River Solar Pty 6 Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1, s 30. 7 [2021] QCAT 117. 8 [41]. -- 4 of 6 -- 5 Limited & Ors9 (‘Ingeteam’). In Ingeteam Applegarth J considered the meaning of ‘floating floor’ stating: The term “floating floor” is not said to be a technical term. Section 30(2) defines it and permits s 30(1) to be concise. The term also derives its meaning from its context in relation to other floor coverings. It is apt to include a wooden floor or a piece of wood that partly covers a subfloor, but is not fixed to the subfloor. Therefore, it would not include wood or other material that is nailed, screwed or glued to the subfloor. It would include, however, material that can be installed and removed easily without affecting the subfloor. Just as carpet layers and installers of vinyl do not undertake “building work”, someone who lays a floating floor does not undertake “building work”. Having regard to the statutory context, the laying or removal of a floor that is not fixed to the subfloor is unlikely to require carpentry or other trade skills.10 [16] Applegarth J went on to say: Incidentally, carpet may be laid and held in place by Velcro, other adhesives or staples. It is difficult in the circumstances to see why the presence of the tape in this case should lead to the conclusion that the plywood was “fixed” to the existing floor, for the purpose of Item 30. The word “fixed” in Item 30 should be given a meaning that fits its context and the apparent purpose of the exemptions. A tradesperson’s skill might be required to “fix” a floor to a subfloor with nails, screws or glue. The skills of a licensed tradesperson are not required to tape the edges of a piece of plywood to a floor. The legislation should not be assumed to have used “fixed” to include a case like this. It would be an odd outcome if the exemption applied to taping a carpet square or piece of vinyl of the same size as the plywood with the same tape, but did apply to taping a piece of plywood in place. What purpose of the QBCC Act and the Regulation could be advanced by such a distinction? Can the legislature be supposed to have intended that one needed a licensed tradesperson to tape a piece of plywood or cardboard to a floor, but not to tape a piece of linoleum of the same size and for the same purpose? [17] The applicant’s submission is that the types of flooring referred to in s 30 of schedule 1 of the Regulation are not ‘fixed’ to the subfloor. The corollary of this is that if carpet or vinyl is fixed to the subfloor using, for example, an adhesive such as glue then it does not fall within the s 30 exemption. I do not accept this submission. Firstly, the words of the section are clear referring to the ‘laying of carpets … or vinyl.’ The section quite specifically clarifies the circumstances in which flooring will be a ‘floating floor’ by including s 30(2). I agree with the reasoning in Mathew that once the preparation of the subfloor has been completed, the laying of vinyl on the subfloor and the necessary work connected therewith, such as applying an adhesive, is excluded from the meaning of ‘building work’. This conclusion is consistent with the views expressed by Applegarth J who stated that carpet may be laid and held in place by ‘other adhesives’. The same may be said of vinyl. It may be accepted that vinyl floor coverings are routinely glued to a subfloor. It is, in my view, apparent from the judgment of Applegarth J that his Honour did not distinguish between carpet (or vinyl) glued to a subfloor or not glued to a subfloor in concluding that such work was not 9 [2024] QSC 30. 10 [56]. -- 5 of 6 -- 6 building work. The construction of s 30 pressed by the applicant requires the reading of words into the provision which cannot be justified considering the plain words used. The laying of vinyl which is fixed using an adhesive, including in this case vinyl on walls, is not building work. [18] That is not however the end of the matter. It does not appear to be contentious that the respondent, as part of laying the vinyl, undertook work to prepare the subfloor to create a smooth finish to which the vinyl could adhere as it appears the concrete slab was broken in areas with a greater than 5 mm variance.11 It seems to me that it is at least arguable that this was work to the subfloor not falling within s 30 of the Regulation. The determination of this issue will require the parties to adduce evidence. It is not appropriate to summarily determine the issue at this time. The preparation of the slab may in fact be ‘building work’. [19] Another issue in relation to which further evidence will be required is whether any part of the business undertaken by the respondent involved ‘building work’ within the meaning of that term in schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). As has been previously noted, a ‘building contractor’ is a person who carries on a business that consists of or includes carrying on building work. As I have found, there is a factual dispute about whether the work carried out by the respondent pursuant to the contract falls within s 30 of the Regulation. But there is a further question to be addressed. Even if the work undertaken by the respondent falls within s 30, it may be that the respondent carries on a business that includes carrying out building work quite separate to the work carried out for the applicant. There is no evidence before the Tribunal about this issue. If the Tribunal determines that the respondent’s business does not consist of or include carrying out building work, then the respondent cannot be a building contractor. Such a finding would not necessarily be determinative of whether the dispute is a building dispute if the applicant’s dispute with the respondent is a claim or dispute between a building contractor and a supplier or manufacturer of materials used in the tribunal work.12 While this issue has not been addressed by the parties it seems to me that for any claim by a building contractor or building owner against a supplier or manufacturer to be a building dispute, the claim must arise out of the quality or suitability of the material itself and not the physical aspect of the building work involved in applying or otherwise using the material. In the present case I do not understand the applicant to assert that the vinyl itself is defective, but rather the asserted defect is the result of the way in which the vinyl has been laid by the respondent. [20] Such are the many permutations of the labyrinthine provisions of the QBCC Act. [21] It would of course be an unsatisfactory result for the parties if the matter proceeds to a final hearing and a finding is made that the Tribunal lacks jurisdiction. Paradoxically it may be that only after a final hearing can a determination about jurisdiction be made. That is a matter for the parties. [22] The Tribunal is unable to determine the preliminary issue. Directions will be made to progress the matter in the usual way. 11 Response, paragraph 32(b). 12 See for example Hill-Douglas, S. v Brkan, N. [2008] QCCTB 148. -- 6 of 6 --