24/7 Plumbing, Drainage & Gas Pty Ltd v PDM Constructions Pty Ltd [2024] QCATA 51

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: 24/7 Plumbing, Drainage & Gas Pty Ltd v PDM Constructions Pty Ltd [2024] QCATA 51 PARTIES: 24/7 PLUMBING, DRAINAGE & GAS PTY LTD (applicant/appellant) v PDM CONSTRUCTIONS PTY LTD (respondent) APPLICATION NO/S: APL158-23 ORIGINATING APPLICATION NO/S: MCDQ121/23 (Brisbane) MATTER TYPE: Appeals DELIVERED ON: 15 April 2024 HEARD AT: Brisbane DECISION OF: Member Lember ORDERS: Leave to appeal granted. Appeal allowed. The decision of 25 May 2023 is set aside and substituted with a decision that the application is transferred to the building list. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where default judgment on a minor debt application – whether claim was minor civil dispute or building dispute – where enabling Act conferred jurisdiction as building dispute - where error of law had effect of conferring jurisdiction when there was none ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act defines dispute as a building dispute – where a building dispute cannot be decided as minor debt claim, even if by default judgment Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77(1), Schedule 1B, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 12, s 32, s 50, s 146, Schedule Cachia v Grech [2009] NSWCA 232 -- 1 of 5 -- 2 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Redding v Simmons (Unreported, QCATA, Dr J R Forbes, 23 February 2016 Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288 Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79 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 application about? [1] 24/7 Plumbing, Drainage & Gas Pty Ltd (‘24/7’) was engaged by PDM Constructions Pty Ltd (‘PDM’) to undertake certain plumbing and gas works at an Algester Property. PDM say the works were defective and needed fixing, and, ultimately invoiced 24/7 for the cost of repairing the defective works on 31 December 2022 in the sum of $4,757.50, but the invoice was not paid. [2] PDM sought dispute resolution assistance from the Queensland Building and Construction Commission (‘QBCC’) but resolution was not achieved and the QBCC’s processes ended, confirmed in a letter from the QBCC dated 30 January 2023. [3] On 3 March 2023, PDM filed an application for a minor civil dispute – minor debt (‘MCD’) seeking an order for payment by 24/7 of the outstanding invoiced amount plus filing fees, interest and costs, for a total sum of $5,638.34. According to an affidavit of service, the claim was served upon 24/7 on 4 April 2023. [4] The failure by a respondent to file a response to an application for a minor civil dispute – minor debt, properly served, entitles the applicant to seek a judgment on the claim in default.1 A default decision is taken to be a final decision of the tribunal in a proceeding.2 [5] In the absence of a response being filed by 24/7 within twenty-eight days of service of the application, PDM filed an application requesting default judgment, and default judgement was given by a decision made 25 May 2023 (the Decision). [6] 24/7 established through Australia Post tracking records that it filed a response by post, that was received by the Tribunal on 20 April 2023, well within the required response time. However, for reasons unknown, the response was never processed by registry as a filed document, hence PDM was able to enter default judgment. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), section 50(1). 2 Ibid, section 50(4). -- 2 of 5 -- 3 [7] 24/7 wants to appeal the Decision but to do so, leave is first required.3 In determining whether to grant leave, the Appeal Tribunal must be satisfied that: (a) there is a reasonably arguable case of error in the primary decision;4 (b) there is a reasonable prospect that the appellant will obtain substantive relief;5 (c) leave is needed to correct a substantial injustice caused by some error;6 or (d) there is a question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage.7 Characterising the dispute: building dispute or minor civil dispute – minor debt? [8] The Appeal Tribunal has observed that “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.8 [9] Section 12 of the QCAT Act confers the Tribunal’s jurisdiction over MCDs. A ‘minor civil dispute’ is relevantly defined as:9 1 (a).. a claim to recover a debt or liquidated demand...; 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. [10] The effect of this is to remove a debt claim that can be characterised as both a ‘building dispute’ and a ‘minor civil dispute’ from the MCD jurisdiction. [11] Whilst PDM’s claim is for a specific amount pertaining to an unpaid invoice and is, therefore a liquidated demand,10 it will not be a ‘minor civil dispute’ if an enabling Act also confers jurisdiction on the Tribunal to deal with it.11 [12] The Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) vests the Tribunal with jurisdiction over a ‘building dispute’,12 relevantly, as follows:13 (a) ‘Building dispute’ relevantly includes domestic building disputes and minor commercial building disputes; (b) “Domestic building dispute” means a claim or dispute arising between building owner and a building contractor, or between two building contractors relating 3 QCAT Act, s 143(3). 4 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 5 Cachia v Grech [2009] NSWCA 232, 2. 6 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 7 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580. 8 Penfold v Firkin & Balvius [2023] QCATA 11. 9 QCAT Act, Schedule 3. 10 Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297. 11 Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79. 12 Queensland Building and Construction Commission Act 1991 (Qld), (QBCC Act) s77. 13 Unless referenced otherwise, all terms are defined in the QBCC Act, Schedule 2. -- 3 of 5 -- 4 to the performance of or a contract for the performance of reviewable domestic work; (c) ‘Domestic building contract’ means a contract to carry out domestic building work or to manage the carrying out of domestic building work, but does not include contracts between a building contractor and a subcontractor, or contracts for the construction of two or more detached dwellings; (d) ‘Reviewable domestic work’ means domestic building work, which in turn means the renovation, alteration, extension, improvement or repair of a home;14 (e) ‘Home’ means a building designed, constructed or adapted for use as a residence, including a strata or community title home unit;15 and (f) ‘Tribunal work’ relevantly includes the renovation, alteration, extension, improvement or repair of a building,16 as well as advisory, administration, management or supervisory services relating to the tribunal work (building work services).17 [13] The QBCC Act does not expressly state that a building dispute is a minor civil dispute, therefore, building disputes are excluded from the minor civil dispute jurisdiction where the claim is for a debt or liquidated demand. [14] As PDM’s debt claim falls within the Tribunal’s building dispute jurisdiction, it is excluded from the minor civil dispute – minor debt jurisdiction. Conclusion [15] The Tribunal cannot decide a building dispute as a minor debt in the minor civil dispute jurisdiction and the default judgment grounded upon the application for a minor civil dispute – minor debt is infected by error. [16] 24/7 attempted to file a response within time, the error amounts to a substantial injustice in those circumstances. I have also considered whether PDM ought to have, instead, applied to set aside the default judgment rather than apply for leave to appeal and to appeal. In the circumstances however, nothing turns on their choice. [17] Leave to appeal is granted, the appeal allowed and the Decision set aside. [18] In deciding the appeal on a question of law, as I have, the next step is to:18 (a) return the matter to the MCD jurisdiction to determine whether to transfer the application to the building list; or (b) set aside the Decision and substitute its own decision to transfer the application to the building list.19 14 QBCC Act, Schedule 1B, section 4. 15 QBCC Act, Schedule 1B, section 9. 16 QBCC Act, s75(1)(b). 17 QBCC Act, s75(4) 18 QCAT Act, s146(c). 19 Provided that in doing so, the substituted decision can resolve the matter and does not entail any rehearing of the evidence: See Ericson v Queensland Building Services Authority [2013] QCA 391 at [25]. -- 4 of 5 -- 5 [19] In my view, the evidence before the Appeal Tribunal is more than sufficient to conclude that the claim is a building dispute. Consistent with the objects of the QCAT Act which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,20 in the interests of expediency, I elect to substitute the Decision with a decision to transfer the proceeding to the building list, particularly as PDM has established compliance with section 77(2) of the QBCC Act that pre-dates the filing date of the transferred application.21 What are the appropriate Orders? [20] The orders are: (a) Leave to appeal granted. (b) Appeal allowed. (c) The decision of 25 May 2023 is set aside and substituted with a decision that the application is transferred to the building list. 20 QCAT Act, s3. 21 Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016). -- 5 of 5 --