Allen v TKN Civil Works 2019 Pty Ltd [2023] QCATA 54

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Allen v TKN Civil Works 2019 Pty Ltd [2023] QCATA 54 PARTIES: SEAN ALLEN (applicant/appellant) v TKN CIVIL WORKS 2019 PTY LTD (respondent) APPLICATION NO/S: APL158-21 ORIGINATING APPLICATION NO/S: MCDO707/20 MATTER TYPE: Appeals DELIVERED ON: 13 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Dr J R Forbes ORDERS: 1. Leave to appeal is granted. 2. The appeal is allowed. 3. The orders made herein on 27 May 2021 are set aside. 4. The original application filed on 20 November 2020 is dismissed. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – MINOR CIVIL DISPUTE – whether matter a building dispute at law – whether building dispute properly instituted – where no application for conciliation by commission made – whether QCAT has jurisdiction to hear and decide dispute – where jurisdiction issue first raised on application for leave to appeal – whether Tribunal may entertain jurisdictional issue ex mero motu – where leave granted and appeal allowed Queensland Building and Construction Commission Act 1991 (Qld) s 77, second schedule Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 32, s 61, s 143 Baxter v NSW Clickers Association (1909) 10 CLR 114 Currie v Dempsey (1967) 67 SR (NSW) 116 DMW v CGW (1982) 151 CLR 491; [1982] HCA 73 Hartley v Di Russo [2018] QCATA 46 Hope v Brisbane City Council [2013] QCA 198 LKR Holdings Pty Ltd v Gacayn [2019] QCATA 13 -- 1 of 4 -- 2 McGarry v Coates [2013] QCATA 32 Nunn v Baker (1987) 518 So Jo 711 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Queensland Building and Construction Commission v Watkins [2014] QCA 142 Queensland Building Services Authority v Robuild Pty Ltd [2013] QCATA 238 R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 Watkins v Queensland Building Services Authority [2013] QCAT 535 Wickson v Hunter Builders Pty Ltd [2019] QCATA 154 Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 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 Introduction [1] This action was incorrectly instituted as a minor civil dispute when at law it is a building dispute within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) (`the Act’).1 [2] In or about early November 2020 the respondent (`Allen’) engaged TKN Civil Works 2019 Pty Ltd (`TKN’) to construct a retaining wall and related drainage on his property at Ashmore, Brisbane. The work was done, but not to Allen’s satisfaction. [3] On 20 November 2020 TKN2 filed an application for a minor civil dispute (minor debt) against Allen, claiming $8,981.61, later reduced to $8,165.27.3 [4] On 27 May 2021 the Tribunal ordered that Allen pay to TKN the amount of $8,290.50, filing fee included. [5] Allen now seeks leave4 to appeal.5 1 QBCCA Schedule 2 Dictionary - `building’ (Item (a)), building contract (Item (d)), `building dispute’. 2 Strictly speaking the original sole applicant was Northcott; TKN was joined as co-applicant at the hearing on 27 May 2021: Transcript of hearing 27 May 2021 (`T’) page 4 line 10. At the same time Northcott’s action again Allen was dismissed, and the matter proceeded with TKN as sole applicant: T page 4 line 27. 3 T page 9 lines 43-46. 4 As required by QCAT Act s 143(3). 5 Application for leave filed 10 June 2021. -- 2 of 4 -- 3 [6] The question whether TKN’s action is properly characterised as a building dispute, and not as a minor debt claim, was not considered at the trial, presumably because the case was presented, and debated, as an ordinary action for debt. [7] However, as the applicant in a building dispute, TKN has the onus of proving6 that it met the prerequisite to such an action set out in section 77 of the Act: (1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute. (2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute. [8] In fact TKN has adduced no evidence of compliance with that section. There is no relevant material in the Tribunal’s record of these proceedings. In particular, there is no letter from the Commission confirming that a section 77(2) application was made and that the Commission’s dispute resolution process did not result in a resolution.7 [9] Section 77 is not a mere procedural step which the Tribunal may waive, if asked and so disposed.8 On the contrary, it is a mandatory precondition that must be satisfied before a valid building dispute application may be filed and processed. Section 77(2) defines the limits of QCAT’s jurisdiction. Unless and until the precondition is met, the Tribunal has no authority to hear and determine the case. The section 77 process is an essential element of the right to sue under the subject building law.9 [10] In Queensland Building Services Authority v Robuild Pty Ltd10 and in Watkins v Queensland Building Services Authority11 I applied these principles to cognate legislation. The `no jurisdiction’ decision in Watkins was subsequently upheld by the Court of Appeal.12 Similar conclusions have been reached in several cases dealing specifically with section 77(2).13 [11] As noted above, the issue of jurisdiction was not raised at the trial. The point is first raised by Allen in support of his application for leave;14 nevertheless the issue is so fundamental that it must be entertained at this stage. Indeed, if no party had raised it, the Tribunal would have been bound to do so, on its own initiative.15 Courts are bound to take judicial notice of the limits of their powers. Besides, it would be undesirable, and a waste of time and resources, to go through the motions of reaching a void 6 This is an essential element of their case: Currie v Dempsey (1967) 67 SR (NSW) 116 at 125. 7 A letter from the Commission stating the outcome of this process must be provided to the QCAT registry when commencing a QCAT application. 8 That is, section 61 of the QCAT Act is inapplicable. 9 Hope v Brisbane City Council [2013] QCA 198 at [16]. 10 [2013] QCATA 238. 11 [2013] QCAT 535. 12 Queensland Building and Construction Commission v Watkins [2014] QCA 142. 13 LKR Holdings Pty Ltd v Gacayn [2019] QCATA 13; Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79; Hartley v Di Russo [2018] QCATA 46; Wickson v Hunter Builders Pty Ltd [2019] QCATA 154 at [20]. 14 Submissions of Allen filed 10 August 2021 `Submissions as per Direction 2’ paragraph (b). 15 Thorpe v Charles Sturt City Corporation (1999) 103 LGERA 395; [1999] SASC 10 at [6]; Nunn v Baker (1987) 518 So Jo 711 at 712; McGarry v Coates [2013] QCATA 32 at [6]. -- 3 of 4 -- 4 decision16, which an unsuccessful party is simply free to ignore.17 Whether a lack of jurisdiction appears immediately, or at a later stage the tribunal must `hold its hand’18. [12] Consequently it is unnecessary to consider other grounds of appeal pleaded by Mr Allen. [13] Leave to appeal is granted, the appeal is allowed, the orders made at first instance are set aside, and the original application by TDK must be dismissed. ORDERS 1 Leave to appeal is granted. 2 The appeal is allowed. 3 The orders made herein on 27 May 2021 are set aside. 4 The original application filed on 20 November 2020 is dismissed. 16 Baxter v NSW Clickers Association (1909) 10 CLR 114 at 126 per Griffith CJ; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375; R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd (1978) 142 CLR 113 at 126. 17 DMW v CGW ; (1982) 151 CLR 491; [1982] HCA 73 at [8]. 18 Wall v the Queen; Ex parte King Won (No 1) (1927) 39 CLR 245 at 257. -- 4 of 4 --