Castro v Maxwell & Perandis Pty Ltd & Anor [2024] QCAT 613

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Castro v Maxwell & Perandis Pty Ltd & Anor [2024] QCAT 613 PARTIES: ADAM CASTRO (applicant) v MAXWELL & PERANDIS PTY LTD (first respondent) QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION (second respondent) APPLICATION NO/S: GAR128-24 MATTER TYPE: General administrative review matters DELIVERED ON: 17 December 2024 HEARD AT: Brisbane DECISION OF: Member Goodman ORDERS: The matter is not struck out or dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. The matter is listed for a Directions Hearing at the next available time. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where consideration given to dismissing or striking out proceedings – where the respondent contends works relating to a private pontoon are not “building work” pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) –- where dispute as to whether the pontoon is a maritime structure and whether it is for residential purposes - where hearing required Queensland Building and Construction Commission Act 1991 (Qld) Sch 2, s 75 Queensland Building and Construction Commission Regulation 2018 (Qld) Sch 1 s 19 Queensland Building and Services Authority Act 1991 (Qld) -- 1 of 7 -- 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47 Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3 GC Pontoon & Jetty Repairs Pty Ltd v Wegener [2024] QCATA 69 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 Legal Services Commission v Leneham [2017] QCAT 96 Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 Ooralea Developments Pty Ltd v Civil Contrators (Aust) Pty Ltd & Anor [2013] QSC 254 Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22 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 [1] On 26 September 2019, the Council of the City of the Gold Coast approved a development permit for construction of two pontoon landings for neighbouring villas. The work was carried out by Coastal Pontoon and Jetty Repairs. Maxwell and Perandis Pty Ltd is a party to these proceedings pursuant to tribunal directions dated 27 March 2024. [2] On 9 December 2019, the applicant entered into a contract to purchase one of the villas. [3] On 20 June 2022, the applicant lodged a complaint with the QBCC alleging defective building work in relation to the pontoon on his property. The applicant complained that the pontoon was not installed in accordance with approved plans. [4] The pontoon is affixed by way of the metal base of the walkway with struts directly affixed to the revetment wall. The applicant argues that the plans provide for the metal base of the walkway and struts to be affixed to a concrete footing directly into the land behind the revetment wall, and that the plans have not been followed. [5] On 13 July 2022, the QBCC made a decision not to give a direction to rectify building work. This was on the basis that it considered that the construction of the pontoon was not “building work”. [6] The applicant has sought review of that decision in this Tribunal. [7] On 8 August 2024, the Tribunal made directions, including: (a) that the Tribunal would determine the preliminary issue “Are the works in relation to the pontoon, which are the subject of this proceeding, ‘building work’ under the Queensland Building and Construction Commission Act 1991?” -- 2 of 7 -- 3 (b) if they were not, the proceedings were to be struck out pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009. [8] The Tribunal has, under s 47 of the QCAT Act, power to strike out a proceeding if the tribunal considers the proceeding is— (a) frivolous, vexatious or misconceived; or (b) lacking in substance; or (c) otherwise an abuse of process. [9] Section 47 was considered in some detail by a Senior Member of this Tribunal in Chief Executive, Department of Justice and Attorney General v Venetia Louise Storry and Storry Real Estate Pty Ltd, delivered on 22 April 2021. The decision has been subject to appeal, and both the Appeal Tribunal and the Queensland Court of Appeal1 approved of the approach taken by the Senior Member. [10] In summary, the Senior Member, in considering an application to strike out proceedings, referred to long-established principles: (a) the applicant should not be denied access to a hearing unless the lack of a cause of action is clearly demonstrated, and the exercise of powers to summarily terminate proceedings must always be attended with caution 2 (b) the absence of a cause of action had to be clearly demonstrated, such that it met descriptions such as: “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; or “discloses a case which the court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”.3 [11] The Senior Member concluded “It is not proposed to address here the prospects for success of the disciplinary referral. All allegations relevant to the referral, made by both parties, need to be tested at a full hearing of the matter, rather than being summarily determined in proceedings brought pursuant to s 47 of the QCAT Act. For present purposes, it is sufficient to state that it cannot be said that on the material presently before the tribunal the application or referral of the disciplinary proceedings is ‘so obviously untenable that it cannot possibly succeed’ or that ‘under no possibility can there be a good cause of action’.” [12] A strike out would bring an end to these proceedings and deny the applicant the opportunity to pursue his case. For that reason, the tribunal does not strike out matters unless the tests referred to above are met. LEGISLATIVE BACKGROUND [13] In short, the Queensland Building and Construction Commission Act 1991 (Qld) provides that the QBCC may issue directions to rectify “building work”. The QBBC submits that the Act does not apply in this instance, as there is no “building work”. [14] Schedule 2 of the Act provides the definitions: 1 Storry & Anor v Chief Executive, Department of Justice and Attorney General [2024] QCA 22 2 Legal Services Commission v Leneham [2017] QCAT 96, [14]-[15]. 3 General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125, 129. -- 3 of 7 -- 4 “Building” (a) generally, includes any fixed structure; or Examples of a fixed structure— • a fence other than a temporary fence • a water tank connected to the stormwater system for a building • an in-ground swimming pool or an above-ground pool fixed to the ground (b) for part 6AA, see section 74AA; or (c) for schedule 1B, see schedule 1B, section 1. “Building work” 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— (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. [15] Schedule 1 of The Queensland Building and Construction Commission Regulation 2018 (Qld) provides a list of work that is not building work, including, at s 19: Construction, maintenance or repair of harbours, wharfs and other maritime structures, unless the structures are buildings for residential purposes, or are storage or service facilities. -- 4 of 7 -- 5 QBCC SUMBISSIONS [16] The QBCC limited their submissions to considering whether paragraph (a) of the Schedule 2 definition is met. They have provided submissions only in relation to whether the work on the pontoon was “the erection or construction of a building”. They have not provided submissions as to whether, for example, the work might fall under paragraphs (b) or (e). [17] The submissions of the QBCC are: (a) In determining whether the definitions of “building work” and “building” are met, regard should be had to Ooralea Developments Pty Ltd v Civil Contrators (Aust) Pty Ltd & Anor [2013] QSC 254 (Ooralea). (b) Ooralea is authority for the view that: (i) the definition of building goes beyond the traditionally understood meaning of a structure with walls and a roof. (ii) a “structure” means something which is constructed, such as anything composed or parts arranged together in some way; and (iii) a fixed structure is a structure that is “fixed” if it is attached such as to become part of the land. (c) While the works in relation to the pontoon are the construction of a structure, the pontoon is not a fixed structure as it was not attached as to become part of the land despite being affixed to the revetment wall by struts. As the pontoon is not a structure attached to the ground (and so regarded as fixed), it is not a “fixed structure”. (d) The construction of the pontoon or components of the pontoon is not the construction of a fixed structure and therefore not building work as defined in the Act. (e) The building work is expressly excluded by s 19 of Schedule 1 of the Regulations, which provides that maritime structures are not building work unless the structures are buildings for residential purposes. “Maritime structures” and “residential purposes” are not defined. (f) When considering whether s 19 applies, consideration should be given to Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330 (Monadelphous), where the Court of Appeal, in determining whether installation of a shiploader meant that all work completed in construction of a jetty and wharf was excluded, determined that the exceptions should be given a broad interpretation. (g) Constructions of pontoons fall under the Coastal Protection Act as defined “tidal works”. -- 5 of 7 -- 6 APPLICANT’S SUBMISSIONS [18] The applicant submits that: (a) The work the subject of the application is “building work” as defined in the Act. (b) The approved structural drawings provided for the pontoon to be connected to the applicant’s property by way of concrete footings constructed on his land. This was not done. (c) It appears that there is agreement that the pontoon is a structure, and is therefore a “building” as defined. It is a “fixed” structure because it is affixed to the revetment wall which is in turn permanently fixed to the land. (d) The pontoon is attached such as to become part of the land and is affixed to the land. As per the Macquarie dictionary definition – the pontoon is firmly, definitely and permanently placed on the land. (e) The examples of structures given in the Act which are not fixed (and so are not buildings) are temporary fences and above ground swimming pools which are not fixed to the ground but are resting on the land only by their own weight. This is not the case for the pontoon. (f) His complaint does not relate to the construction of a maritime structure – he has no complaint about the pontoon itself. His complaint is about the manner in which it is fixed to his property. (g) Even if it was determined that there was a “maritime structure”, the exception for residential purposes applies. It is part of the residential property and is not used for any commercial operation and relates to the house in the same way that other structures affixed to land but not generally resided in (eg garages, retaining structures, swimming pools) are within the ambit of the Act. (h) No remedial work is required outside the boundaries of the applicant’s property – he is seeking only to have the connection between the pontoon and his property altered so that it is in accordance with the approved plans. [19] No submissions have been received from the first respondent in relation to this issue. CONSIDERATION BY THE TRIBUNAL [20] I note that Ooralea was decided under the previous legislation - the Queensland Building and Services Authority Act 1991. While the QBCC submits that the definitions of “building” and “building work” remain “substantively the same” under the current legislation, that is an issue which may require further consideration. Clearly, there have been legislative changes since Ooralea was determined, and whether the decision applies to the current case, and the extent to which it should be relied upon in the current context will require careful consideration. [21] Further careful consideration is required regarding the proper construction of s 19 of Schedule 1 of the Regulations. Read as a whole, it might be argued that the exclusion is designed to apply to commercial facilities rather than private structures. Monadelphous, referred to by the QBCC, concerned the construction of a multibillion -- 6 of 7 -- 7 dollar coal export terminal, and was an appeal against the primary judge’s decision to refuse an interlocutory injunction. The decision of the primary judge was upheld on appeal, and the Court of Appeal noted that the primary judge had found that it was “tolerably clear” that the legislature had intended to exclude major infrastructure projects from the operation of the Act. The applicant’s pontoon is not a major infrastructure project. [22] I note further that in GC Pontoon & Jetty Repairs Pty Ltd v Wegener [2024] QCATA 69, the appeal tribunal, in considering whether a boat ramp constructed on the applicant’s property was building work for the purposes of s 75(1)(a) of the QBCC Act, was satisfied that it constituted a fixed structure and was a “building”, and that the QBCC Act applied. The Appeal Tribunal noted that s19 of Schedule 1 was not applicable in those particular circumstances, but considered s 76 of the Act. [23] The issue was touched upon briefly in the matter of Edwards v Cummins Constructions Pty Ltd [2023] QCAT 3 where the member considered that a pontoon was a maritime structure, but did not address whether the exception relating to “residential purposes” applied. The matter was ultimately decided on other grounds. [24] The applicant claims that the approved plans provided for the pontoon to be fixed to the land by way of concrete footings, and the respondent’s failure to comply with this requirement is the basis for his complaint. It is unclear whether the QBCC concedes that the plans provided for the pontoon to be fixed in that way. It is unclear whether the QBCC concedes that a pontoon fixed by way of concrete footings is a “fixed structure”. It is unclear whether, if so, the QBCC takes the view that the first respondent is able to escape the operation of the Act by failing to comply with approved plans. In this regard, I note reference by the QBCC to the Rectification of Work Policy which provides (relevantly) that … “a building contractor who carries out defective building work should be required to rectify that work…despite the building contractor failing to comply with the contracted plans and specifications for the work”. [25] These issues must be determined in a hearing with the parties present and able to make and respond to submissions as they arise. I make no finding as to the likely outcome of these proceedings. I am not satisfied, however, that the applicant’s case on the material presently before the tribunal is ‘so obviously untenable that it cannot possibly succeed’ or that ‘under no possibility can there be a good cause of action’.” [26] Determination of the issue of whether this is “building work” will be made at the hearing if the matter is not finalised before then. The proceedings will not be struck out. The application will be listed for a directions hearing. -- 7 of 7 --