Allwood & Anor v Springfield Land Corporation & Anor [2022] QCAT 86

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Allwood & Anor v Springfield Land Corporation & Anor [2022] QCAT 86 PARTIES: JASON ALLWOOD (applicant) DIANE ALLWOOD (applicant) v SPRINGFIELD LAND CORPORATION (respondent) QUEENSLAND URBAN UTILITIES / CENTRAL SEQ DISTRIBUTOR RETAILER AUTHORITY ABN 86673835011 (respondent) APPLICATION NO/S: MCDO0073-21 MATTER TYPE: Other civil dispute matters DELIVERED ON: 14 March 2022 HEARING DATE: 16 November 2021 HEARD AT: Ipswich DECISION OF: Adjudicator Gaffney ORDERS: The Application is dismissed for a lack of jurisdiction. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – jurisdiction – where the Applicants purchased land from the First Respondent and another entity – where sewerage infrastructure on the land failed, causing damage to landscaping works – where the Applicants were unsure as to which Respondent was responsible for the failure – whether the claim falls within the definition of ‘minor civil dispute’ as defined in Schedule 3 to the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) – whether the claim was for a debt or liquidated demand or unliquidated damages – where the only contract for the purpose of paragraph 1(b) of the definition of ‘minor civil dispute’ was the contract under which the land was sold – whether the Applicants were each a ‘consumer’ under as defined in Schedule 3 of the QCAT Act – whether land could fall within the broad definition of ‘goods’ in Schedule 3 to the QCAT Act – whether the Applicants were individuals for -- 1 of 9 -- 2 whom ‘services’ were provided for fee or reward – whether the First Respondent was obliged to provide sewerage infrastructure under the contract – whether on the proper construction of the contract the provision of infrastructure was a ‘service’ or an incident of the land conveyed – where the Applicants lacked standing to bring the claim Acts Interpretation Act 1954 (Qld), s 14A(1), s 32C(b) Queensland Civil and Administrative Act 2009 (Qld), s 11, s 12, s 13, Schedule 3 Financial Advisers Australia v Mooney [2016] QCATA 181 Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207 at [30] Robinson v Local Board of Barton-Eccles (1883) App Cas 798 APPEARANCES & REPRESENTATION: Applicants: Self-represented by Diane and Jason Allwood First respondent: Terry McBride, McBride Legal Second respondent: Saul Squires REASONS FOR DECISION The claim [1] The Applicants seek, amongst other things, an order for ‘reimbursement of costs plus interest’ for restoration works required to be undertaken due to the failure of sewerage infrastructure at the access point at their property at Brookwater, five metres below the ground. The amount of costs claimed is $23,060.50. The Applicants do not know whether the failure lies with the First Respondent (‘Springfield’) or the Second Respondent (‘Urban Utilities’) and ask for a ‘judgement of where responsibility lies.’ [2] I adjourned the hearing to make a determination, following receipt of submissions, as to whether the Tribunal has jurisdiction to determine the dispute. The contract of sale [3] The Applicants purchased their land, proposed Lot 7251 on SP 246168 (‘the Lot’), pursuant to a contract of sale dated 24 February 2014 (‘the Contract’). Springfield is ‘the Developer’ under the Contract (by clause 28) and Springfield Land Corporation (No 2) Pty Limited is the ‘Seller’ (by the ‘Contract Details’). By clause 3.2 of the Contract, the Lot formed part of a subsidiary scheme known as ‘Retreat’ forming part of a ‘Development’, defined in clause 3.1 of the Contract to mean, relevantly, a layered arrangement of community titles schemes made up of ‘Brookwater’ (defined in clause 28 to mean Brookwater Home Owners Club CTS 29222, the principal community titles scheme in the Development) and other ‘Schemes’ (defined in clause 28 to mean a subsidiary community titles scheme). -- 2 of 9 -- 3 [4] The Applicants, as the Buyers, are obliged to construct and complete the construction of a residence under clause 12.2 of the Contract. Does the Tribunal have jurisdiction to determine the dispute? [5] The Tribunal has jurisdiction under section 11 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) to hear and decide a ‘minor civil dispute’. [6] Schedule 3 to the QCAT Act contains the definition of ‘minor civil dispute’, relevantly, as follows: minor civil dispute means – (a) a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or (b) a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is – (i) for payment of money of a value not more than the prescribed amount; or (ii) for relief from payment of money of a value not more than the prescribed amount; or (iii) for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or (iv) for return of goods of a value not more than the prescribed amount; or (v) for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount;… [7] Under section 12(1) of the QCAT Act, the Tribunal may exercise its jurisdiction if a ‘relevant person’ has, under the QCAT Act, applied to the Tribunal to deal with the dispute. [8] ‘Relevant person’ is defined in section 12(4) of the QCAT Act, relevantly, as follows: relevant person means – (a) for a claim to recover a debt or liquidated demand of money – a person to whom the debt is owed or money is payable; or (b) subject to paragraphs (c) to (f), for a claim arising out of a contract between a consumer and a trader – the consumer; … [9] ‘Consumer’ is defined in Schedule 3, relevantly, as follows: consumer means an individual – (a) who buys or hires goods other than – (i) for resale or letting on hire; or (ii) in a trade or business carried on by the individual; or -- 3 of 9 -- 4 (iii) as a member of a business partnership; or (b) for whom services are supplied for fee or reward other than – (i) in a trade or business carried on by the individual; or (ii) as a member of a business partnership; or … [10] ‘Goods’ are defined in Schedule 3 as follows: goods includes everything that is the subject of trade or manufacture or merchandise. [11] ‘Services’ is not defined in the QCAT Act. [12] Section 13(2) sets out the orders which the Tribunal may make in order to resolve the dispute. They include, relevantly, an order requiring a party to the proceeding to pay a stated amount to a stated person (section 13(1)(2)(a)(i)), an order requiring a party to the proceeding, other than the applicant to perform work to rectify a defect in goods or services to which the claim relates (section 13(2)(a)(iii)) and an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person (section 13(2)(a)(iv)). Is the claim for a debt or liquidated demand within paragraph (a) of the definition of ‘minor civil dispute’? [13] The first possible basis for the Tribunal to have jurisdiction is that the claim is a ‘minor civil dispute’ because it is a claim for a debt or liquidated demand. However, the legal basis for the claim is an action in negligence, or, possibly in the case of Springfield, breach of contract. The relevant remedy in each case is damages, and will involve a discretionary assessment of loss by the Tribunal - including the extent to which the many expense items listed by the Applicants in a schedule to the Application can be said to be caused by the negligence or breach of contract by one or both of the Respondents. The mere fact that a specific amount is claimed does not mean the claim is liquidated.1 I conclude that the claim is not for a debt, and it is not a liquidated demand. Is the claim a consumer dispute within paragraph 1(b) of the definition of ‘minor civil dispute’? [14] The second possible jurisdictional basis for the claim is that it is what is commonly referred to as a ‘consumer’ dispute: a claim arising out of a contract between a ‘consumer’ and ‘trader’ within paragraph 1(b) of the definition of ‘minor civil dispute’. Under section 12(1) of the QCAT Act, the application must be filed by a ‘consumer’ (as the ‘relevant person’ under section 12 of the QCAT Act). The relevant ‘contract’ [15] The Applicants have not been able to point to a contract between themselves and Urban Utilities. Urban Utilities is a council-owned water distributor-retailer established pursuant to the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009 (Qld) (‘SEQW Act’) and a service provider under the Water 1 Financial Advisers Australia v Mooney [2016] QCATA 181 at [12]. -- 4 of 9 -- 5 Supply (Safety and Reliability) Act 2008 (Qld). Although Urban Utilities has power to enter into contracts (section 12(1) of the SEQW Act), Urban Utilities says that the relevant legislative framework does not impose contractual right on consumers or contractual obligations on Urban Utilities. I agree with that submission. There is no contract between it and the Applicants. The only contract in existence in this dispute is the Contract. Are the Applicants ‘consumers’? [16] This invites the question whether the Applicants are each a ‘consumer’. For that to be the case the Applicants must have (relevantly) bought ‘goods’ as defined. Alternatively, they must each be an individual for whom ‘services’ are supplied for fee or reward. [17] The definition of ‘consumer’ does not specify that the ‘goods’ must be bought or ‘services’ must be supplied for fee or reward under the ‘contract’ referred to in paragraph 1(b) of the definition of ‘minor civil dispute’. Does this mean that anyone who buys goods or for whom services are supplied, unconnected with the para. 1(b) ‘contract’, can bring a claim under para 1(b)? In that case, everyone would meet the definition of ‘consumer’. There would be no point at all to the definition of ‘consumer’ or the use of the word ‘consumer’. For that reason, and reading the QCAT Act as a whole, I consider that the goods hired or bought, or the services supplied, must be those bought or supplied under the para. 1(b) ‘contract’. Have the Applicants bought ‘goods’? [18] I first consider, for completeness and as unlikely as it may seem, whether the Applicants have, in purchasing the Lot, bought ‘goods’. The definition of ‘goods’ in the QCAT Act, as set out above, is broadly and inclusively defined but is it so broad as to encompass land? [19] As a starting point, I take into account the ordinary meanings of the words ‘trade’, ‘manufacture’ and ‘merchandise’ as they appear in the definition of ‘goods’, taking the last two words first. As these words are not defined in the QCAT Act, resort may be had to authoritative dictionaries to ascertain their ordinary meaning.2 [20] ‘Manufacture’ is defined in the Australian Oxford Dictionary3 relevantly as ‘the making of articles especially in a factory etc.’ It is defined in the Macquarie Dictionary4 relevantly as: 1. the making of goods or wares by manual labour or by machinery, especially on a large scale. 2. the making of anything. [21] ‘Merchandise’ is defined in the Australian Oxford Dictionary5as ‘goods for sale’. It is defined in the Macquarie Dictionary6 as: 2 See D C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [3.33]. 3 Bruce Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2 nd ed) 777. 4 Macquarie Dictionary (Macquarie Dictionary Publishers, 8 th ed, 2020) 935. 5 Bruce Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2nd ed) 799. -- 5 of 9 -- 6 1. goods; commodities; especially manufactured goods. 2. the stock of a store. [22] It is clear from these definitions that ‘land’ is not something which may be the subject of ‘manufacture’ or ‘merchandise’. [23] Can ‘land’ be described as the subject of ‘trade’ so as to come within the definition? ‘Trade’ is not defined. ‘Trader’ is defined but is defined by reference to (amongst other things) ‘goods’ and thus is of no assistance. [24] ‘Trade’ therefore takes its ordinary meaning. The Australian Oxford Dictionary7 defines ‘trade’ firstly as ‘buying and selling’, secondly as ‘buying and selling conducted between nations’ and thirdly as ‘business conducted for profit’. ‘Trade’, as a noun, is defined in the Macquarie Dictionary8 in a number of ways, the first two being most relevant. First, ‘the buying and selling, or exchanging, of commodities, either by wholesale or by retail, within a country or between countries.’ Secondly, ‘a purchase, sale or exchange.’ [25] These definitions of ‘trade’, taken as a whole, indicate that land may be the subject of ‘trade’. [26] However, the word ‘trade’ should be construed in context, applying the noscitur a sociis principle. On this point, Spigelman CJ in Lend Lease Real Estate Investments Ltd v GPT RE Ltd9 stated: This general principle of the law of interpretation that the meaning of a word can be gathered from its associated words – noscitur a sociis – has a number of specific sub-principles with respect to the immediate textual context. …The relevant sub-principle for the present case is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word ‘stands with’ other words it ‘must mean something analogous to them’. (references omitted) [27] The application of the sub-principle referred to in this passage, which is to discern the meaning of ‘trade’ in the context of ‘manufacture’ and ‘merchandise’, results in the meaning of ‘trade’ which accords with the first and narrower meaning given in the Macquarie Dictionary: the buying, selling or exchanging of commodities. When given this meaning, it is clear that land is not the subject of ‘trade’. [28] The remaining possibility is that, because the definition of ‘goods’ is not defined exhaustively, it may encompass land within its meaning. [29] However, the ordinary meaning of ‘goods’ does not include ‘land’ – the Australian Oxford Dictionary10 defines ‘goods’ to mean ‘moveable property or merchandise’ 6 Macquarie Dictionary (Macquarie Dictionary Publishers, 8th ed, 2020) 957. 7 Bruce Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2nd ed) 1367. 8 Macquarie Dictionary (Macquarie Dictionary Publishers, 8th ed, 2020) 1616. 9 [2006] NSWCA 207 [30], cited in D C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [4.33]. 10 Bruce Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2nd ed) 538. -- 6 of 9 -- 7 and the Macquarie Dictionary11 defines ‘goods’ to mean ‘possessions especially moveable effects or personal belongings’. [30] In Robinson v Local Board of Barton-Eccles,12 Lord Selbourne LC stated: An interpretation clause of this kind is not meant to prevent the word from receiving its ordinary, popular, and natural sense whenever that would be properly applicable; but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the contrary, to be applied to some things to which it would not ordinarily be applicable. [31] In light of that authority, I consider that the definition of ‘goods’ should not be extended so far as to include land. [32] Under section 14A(1) of the Acts Interpretation Act 1954 (Qld), (‘the AIA’) in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation. The objects clause in section 3 of the QCAT Act deals with the ‘exercise’ of jurisdiction, not the ‘scope’ of jurisdiction. [33] However, when one looks at the context in which ‘goods’ is used, particularly the definition of ‘minor civil dispute’ and ‘trader’ in Schedule 3 and in section 13 of the Act, which sets out the orders which the Tribunal may make, an expanded definition of goods which would include land would not be harmonious. Land is not ordinarily something which is described as being ‘supplied’, certainly it is not readily returned, nor is land commonly described as having a ‘defect’ which may be rectified. To construe ‘goods’ to include ‘land’ would not achieve the purpose of the QCAT Act as may be gleaned from the context in which the word ‘goods’ is used, which in my view is to allow the Tribunal to decide claims in relation to moveable articles. [34] There is nothing in the Explanatory Memorandum for the Queensland Civil and Administrative Tribunal Bill, which sheds any light on the breadth of the definition. [35] I conclude for the reasons set out above that ‘goods’ as defined in Schedule 3 does not include ‘land’. Are the Applicants individuals for whom ‘services’ are supplied for fee or reward? [36] I turn next to consider whether the Applicants are individuals for whom ‘services’ are supplied for fee or reward under the Contract. [37] Section 32C(b) of the AIA provides that the singular includes the plural and the plural singular. I consider that the supply of a single ‘service’ will fit within paragraph (b) of the definition of ‘consumer’ (assuming it is supplied under the Contract). [38] But does the Contract provide for the ‘supply’ of a ‘service’? It imposes a number obligations on Springfield which would be expected for a contract for the sale of land. 11 Macquarie Dictionary (Macquarie Dictionary Publishers, 8th ed, 2020) 666. 12 (1883) App Cas 798, 801, cited in D C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) [6.7]. -- 7 of 9 -- 8 [39] Clause 11 of the Contract, in particular clause 11.8, contemplates that Springfield and the Seller will carry out ‘Bonded Works’, defined in clause 28 of the Contract to mean ‘the works related to the construction of the Lot’, which may occur after settlement (clause 11.7). That definition is not clear as to what the works are. It is necessary to look at the wider Contract. [40] By clause 10.5 of the Contract, the Disclosure Statement is incorporated into the Contract. The Disclosure Statement contains an unexecuted, proposed ‘New Community Management Statement’ for Brookwater Home Owners Club Community Titles Scheme 29222 and an unexecuted proposed ‘First Community Management Statement’ for the Brookwater Retreat Home Owners Club Community Titles Scheme (‘Retreat CMS’). [41] The Retreat CMS includes, at Schedule D, paragraph 4, a schedule of statutory easements, for lots including the Lot. The statutory easements are listed as including those for sewerage and water according to Service Location Diagram SB2926-05-A. The sketch plan included shows the location of sewerage service across the Lot. [42] In light of this and the other provisions of Schedule D, including paragraph 2.3 which provides that the owner of a lot may connect to the utility infrastructure in the Common Property, I am prepared to accept that ‘Bonded Works’ include sewerage infrastructure for the Lot. [43] Although there is no express obligation on the Seller or Developer to complete the Bonded Works, several consequences flow from the failure to complete the Bonded Works. For example, in the case where the ‘Local Government’ seals the ‘Subdivision Plan’ before the Bonded Works are completed, and, as per Item 11 of the Contract Details, the Bonded Works are not completed by the date of the Contract, the Applicants, by clause 11.5, undertake not to request the Local Government or any private certifier to give them a development permit for building work in respect of the Lot until after the Bonded Works are completed, the Local Government has received the Bonded Works ‘on maintenance’ and the Local Government has received from the Seller or Springfield the ‘as constructed’ engineering plans for the Lot. [44] There is a general obligation implied in every contract to co-operate. According to the authors of Cheshire & Fifoot Law of Contract:13 It is a general rule applicable to every contract that each party agrees, by implication, to do all such things as are necessary on his part to enable the other party to have the benefit of the contract. [45] A failure to complete the Bonded Works would, by cl 11.5, prevent the Applicants from complying with and benefitting from their obligation to construct a residence on the Lot. I conclude that the Contract imposed a positive obligation on Springfield and the Seller to carry out the Bonded Works, including by providing sewerage infrastructure to the Lot. 13 NC Seddon, RA Bigwood, Cheshire & Fifoot Law of Contract (LexisNexis Butterworths, 11th Australian ed, 2017), 481 [10.41]. -- 8 of 9 -- 9 Does that mean that the Contract is a contract for services? [46] ‘Service’ is broadly defined in both the Australian Oxford and the Macquarie dictionaries. In the former the first meaning given is ‘the act of helping or doing work for another or for a community’.14 The first meaning given in the latter is ‘an act of helpful activity’.15 [47] There are two alternative ways of construing the provision of sewerage infrastructure by Springfield and the Seller under the Contract, having regard to paragraph (b) of the definition of ‘consumer’. First, as the supply of a service, according to the broad dictionary meanings, and alternatively as an incident or feature of the Lot. [48] The question should be resolved by construing the Contract. When one considers the terms of the Contract, it is clear that the primary objective of the Contract was to convey to the Applicants an interest in land. This is provided for in the opening words of the Contract: We agree to sell and you agree to buy an estate in fee simple in the Lot for the Purchase Price on the terms in this Contract. Clause 1, headed, ‘What you are buying’ states that ‘You are buying the Lot specified in the Contract details. [49] The purchase price does not distinguish between the cost of the Lot and the Bonded Works, or the performance of other covenants by the Developer and Seller. Under clause 11.7, if the Bonded Works were not completed by Settlement, the Applicants were not entitled to require a retention or deduction from the balance of the purchase price. It is not possible to discern from the Contract the amount of the ‘fee or reward’ for provision of the sewerage infrastructure. No specifications for the work were included in the Contract. No time was expressly prescribed for the work. The sewerage works were not severable from the conveyance of the Lot. [50] The Contract is not, viewed as a whole, a contract for services. I consider the inclusion of sewerage infrastructure for the Lot is properly characterised as an incident or feature of the land conveyed. Conclusion [51] I conclude that the Applicants are not each a ‘consumer’ within the meaning of Schedule 3 of the QCAT Act. [52] Accordingly, as the nature of the claim is unliquidated, they have no standing to bring their claim and the Application must be dismissed for a lack of jurisdiction. Order [53] The Application is dismissed for a lack of jurisdiction. 14 Bruce Moore (ed), The Australian Oxford Dictionary (Oxford University Press, 2nd ed) 1182. 15 Macquarie Dictionary (Macquarie Dictionary Publishers, 8 th ed, 2020) 1389. -- 9 of 9 --