Brain v Tay [2023] QCAT 197

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brain v Tay [2023] QCAT 197 PARTIES: EVAN BRAIN (applicant) v LAA TAY (respondent) APPLICATION NO/S: BDL042-23 MATTER TYPE: Building matters DELIVERED ON: 24 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: The proceeding is dismissed CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – preliminary issue – whether the dispute the subject of the proceeding is a building dispute – whether a building certifier is a building contractor for the purposes of the QBCC Act – a building certifier cannot be a ‘building contractor’ within the meaning of that term in schedule 2 of the QBCC Act COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – COURTS OF RECORD – PARTICULAR COURTS – jurisdiction of QCAT to decide particular dispute – where dispute not a building dispute Building and Construction Commission 1991 (Qld), s 75, s76, schedule 1 Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134 Monique Andrews v Trevor Bird & Anor [2023] QCAT Paddy v Bennett [2022] QCAT 382 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] The following preliminary issue falls for determination: -- 1 of 5 -- 2 Is the dispute, the subject of the application for domestic building disputes filed 16 February 2023, a ‘building dispute’ for the purposes of the Queensland Building and Construction Commission 1991 (Qld) (‘QBCC Act’)? [2] The applicant has filed submissions addressing the preliminary issue. The respondent has not. [3] The applicant says that he engaged the respondent to undertake building certification work in respect of residential building work. The applicant paid to the respondent $5,615.00. The applicant says that the respondent failed to carry out the agreed works and claims payment of the sum he paid to the respondent. [4] The Tribunal is invested with the jurisdiction to decide building disputes. That power is found in the QBCC Act. The Tribunal’s jurisdiction is however not one ‘at large’ and is strictly circumscribed by the QBCC Act. [5] In Monique Andrews v Trevor Bird & Anor1 I said the following in relation to the jurisdiction of the Tribunal in respect of building disputes: The tribunal has jurisdiction in respect of ‘tribunal work’. Sections 75 and 76 of the QBCC Act define, respectively, what is ‘tribunal work’ and what is not ‘tribunal work’. The tribunal has no general jurisdiction to decide building disputes in accordance with s 77(1) of the QBCC Act independent of the meanings ascribed in ss 75 and 76 of the Act.2 A ‘building dispute’ may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute. A domestic building dispute is defined as: (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic 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 of reviewable domestic work or a contract for the performance of reviewable domestic work— (i) an architect; (ii) an engineer; (iii) a surveyor; (iv) a quantity surveyor; (v) an electrician or an electrical contractor; 1 [2023] QCAT. 2 Fraser Property Developments P/L v Sommerfeld (No 1) [2005] QCA 134. -- 2 of 5 -- 3 (vi) a supplier or manufacturer of materials used in the tribunal work.3 A commercial building dispute is defined in similar terms to a domestic building dispute save for the use of the phrase ‘reviewable commercial work’ in place of ‘reviewable domestic work’. ‘Reviewable domestic work’ means ‘domestic building work’ as defined in s 4 of schedule 1B of the QBCC Act. ‘Reviewable commercial work’ means ‘tribunal work’, other than reviewable domestic work, as defined in ss 75 and 76 of the QBCC Act. A ‘building contractor’ means: (a) generally, 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; but (b) for schedule 1B, see schedule 1B, section 1.4 Building work is 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— (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. 3 QBCC Act, sch 2. 4 Ibid. -- 3 of 5 -- 4 [6] As may be seen from the foregoing, to come within the ambit of sub-sections (a) or (b) of the definition of domestic building dispute or commercial building dispute, one of the parties must be a ‘building contractor’ within the meaning of that term in schedule 2 of the QBCC Act. Is a building certifier a building contractor? The work undertaken by a private certifier is excluded by regulation from the ambit of the definition of building work.5 Accordingly, a building certifier cannot be a ‘building contractor’ for the purposes of sub-paragraphs (a) and (b) of the definition of a domestic building dispute or a commercial building dispute. [7] Nor does a claim against a building certifier fall within one of those categories of individuals referred to in sub-paragraph (d) of the definition of a domestic building dispute or a commercial building dispute. [8] As to paragraph (c) of the definition of domestic building dispute or commercial building dispute in Paddy v Bennett6 the Tribunal stated: Sub-paragraph (c) must be construed to give effect to the provision in the context of the QBCC Act as a whole and particularly the objects of the Act. It was not the intention of the legislature, as observed by McPherson JA, to invest the Tribunal with jurisdiction over all claims in negligence for property damage or economic loss of any kind. Such claims must be related to the performance of building work. In my view, it could not have been the intention of the legislature to confer upon the Tribunal jurisdiction for claims relating to building disputes where there was not a nexus between the parties, or a party, to the dispute and the building industry. Construing sub-paragraph (c) in this way is consistent with the language and purpose of all the provisions of the QBCC Act. Such a construction also recognises that a claim or dispute in negligence, nuisance or trespass relating to building work may involve a building contractor or one of the stated persons referred to in sub-paragraph (d) of the definitions of domestic building dispute and commercial building dispute, and a person who does not fall within the definition of a building owner. A neighbouring lot owner, or a subsequent purchaser of a property on which building work has been carried out, may be a party to a dispute within the meaning of sub-paragraph (c). What is required for the dispute to fall within sub-paragraph (c) is that a party to the dispute is one of the persons referred to in sub-paragraphs (a), (b) and (d), other than a building owner. To expand the application of sub-paragraph (c) beyond this would be inconsistent with the objects and provisions of the Act to which I have referred. [9] As the respondent is not a ‘building contractor’ within the meaning of that term in schedule 2 of the QBCC Act, the claim by the applicant against the respondent does not fall within sub-paragraph (c) of the definition of domestic building dispute or commercial building dispute. [10] As the dispute between the parties, the subject of the proceeding, is not a building dispute as that term is defined in the QBCC Act, the Tribunal does not have jurisdiction in respect of the applicant’s claim. This does not mean that the applicant does not have any entitlement to pursue a claim against the respondent. It simply means that he cannot do so in this Tribunal. 5 See QBCC Regulation, schedule 1, s 34. 6 [2022] QCAT 382. -- 4 of 5 -- 5 [11] Where the Tribunal lacks jurisdiction to decide a dispute, the proceeding lacks substance and must be dismissed. I order accordingly. -- 5 of 5 --