Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections [2021] QCAT 114

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections [2021] QCAT 114 PARTIES: SWE BRININ (applicant) v KASABEL INVESTMENTS PTY LTD T/AS TWIN CITIES BUILDING & PEST INSPECTIONS (respondent) APPLICATION NO/S: BDL207-20 MATTER TYPE: Building matters DELIVERED ON: 24 March 2021 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. The proceeding is dismissed. 2. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of any submissions on the question of costs, by: 4:00pm on 13 April 2021. 3. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of any submissions in reply on the question of costs, by: 4:00pm on 27 April 2021. 4. The question of costs will be decided on the papers not before 4:00pm on 27 April 2021. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant purchased a property – where the respondent was contracted to perform a building and pest inspection for the applicant – where the applicant filed an Application for domestic building dispute – where the applicant claims $127,867.29 – whether the work performed by the applicant is “domestic building work” – whether the Queensland Civil and Administrative Tribunal has jurisdiction to hear the matter Queensland Building and Construction Commission Act -- 1 of 5 -- 2 1991 (Qld), s 75, s 78, s 79, Schedule 1B s 4, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 49 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] Ms Brinin purchased a property in north Queensland. The contract of sale was subject to Ms Brinin obtaining a satisfactory building and pest inspection. Kasabel undertook an inspection of the property and provided two reports: a building inspection report and a pest inspection report. [2] Ms Brinin says that the reports failed to identify a number of issues concerning the property. [3] Ms Brinin commenced proceedings in the tribunal for a domestic building dispute. Kasabel has filed an application seeking orders that the proceedings be dismissed on the basis that the tribunal lacks jurisdiction in respect of Ms Brinin’s claim. [4] The application to dismiss falls for determination. [5] The tribunal, being a creature of statute, has only those powers conferred upon it by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and any relevant enabling Act. In this matter, the enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld). [6] The QBCC Act confers upon the tribunal jurisdiction to hear and decide building disputes.1 Building disputes may be domestic building disputes, minor commercial building disputes or major commercial building disputes.2 The monetary jurisdiction of the tribunal in building disputes is unlimited, that is to say, there is no cap on the amount of money the tribunal may award. There are however certain restrictions imposed upon the tribunal in respect of major commercial disputes about which I will have a little more to say later in these reasons. [7] Whether a building dispute is a domestic building dispute or a commercial building dispute depends upon the nature of the dispute. [8] A domestic building dispute is a dispute about the performance of domestic building work or a contract for the performance of domestic building work. The dispute may be between a building owner and a building contractor or a dispute between two building contractors. There are disputes between building owners and building contractors and other parties however they do not concern us for present purposes. A 1 QBCC Act, s 77. 2 QBCC Act, Schedule 2. -- 2 of 5 -- 3 domestic building dispute may also be a claim or dispute in negligence, nuisance or trespass relating to the performance of domestic building work.3 [9] A commercial building dispute means essentially the same as a domestic building dispute, as I have outlined above, the difference being that the dispute is about commercial building work, and not domestic building work.4 [10] Thus, it can be seen it is important to identify in respect of a building dispute whether the relevant building work is domestic building work or commercial building work. [11] Domestic building work is: (a) the erection or construction of a detached dwelling; (b) the renovation, alteration, extension, improvement or repair of a home; (c) removal or resiting work for a detached dwelling; (d) the installation of a kit home at a building site.5 [12] As can be seen from the above, domestic building work does not include the inspection of a building. [13] Commercial building, referred to in the QBCC Act as ‘reviewable commercial work’, means ‘tribunal work’ other than domestic building work.6 ‘Tribunal work’ has a particular meaning.7 Importantly for present purposes, tribunal work includes ‘the inspection of a completed building’.8 A person who carries out the inspection of a completed building is a ‘building contractor’. This is because the inspection of a completed building is ‘building work’ and a person who carries on business that consists of carrying out building work is a ‘building contractor’.9 [14] The result of these definitions is that a dispute between a building owner and a building contractor about the inspection of a completed building is a commercial building dispute. [15] As I have mentioned earlier, a commercial building dispute may be a minor commercial building dispute or a major commercial building dispute. A minor commercial building dispute is one where neither the claim nor the counterclaim exceeds $50,000.00.10 A major commercial building dispute is one where the claim or the counterclaim exceeds $50,000.00.11 3 QBCC Act, Schedule 1B and Schedule 2. 4 QBCC Act, Schedule 2. 5 QBCC Act, Schedule 1B, s 4. 6 QBCC Act, Schedule 2. 7 QBCC Act, s 75. 8 QBCC Act, s 75(1)(g). 9 QBCC Act, Schedule 2. 10 Ibid. 11 Ibid. -- 3 of 5 -- 4 [16] If a dispute is a minor commercial building dispute then, subject to compliance with s 77(2) of the QBCC Act12, a person may apply to the tribunal in the usual way with no other requirements to satisfy. [17] The position in relation to a major commercial building dispute is different. If a party wishes to commence a proceeding in the tribunal for a major commercial building dispute a number of requirements must be satisfied. [18] Firstly, a major commercial building dispute may be decided by the tribunal only if the tribunal is satisfied all parties to the dispute consent to it doing so.13 Secondly, if the parties consent, then the application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute.14 [19] I now address the particular dispute between Ms Brinin and Kasabel in the context of the statutory framework to which I have referred. [20] I am satisfied as to the following and make findings accordingly: (a) Ms Brinin is a building owner; (b) Kasabel is a building contractor; (c) The parties agreed that Kasabel would undertake the inspection of a completed building and provide a report to Ms Brinin; (d) The work undertaken by Kasabel was tribunal work other than domestic building work and was thereby reviewable commercial work; (e) The dispute between the parties is one in relation to the performance of reviewable commercial work. [21] The amount claimed by Ms Brinin is $127,867.29. I am satisfied that, in the absence of any indication by Ms Brinin that the amount she claims will be reduced to an amount not exceeding $50,000.00, the amount claimed exceeds $50,000.00. In its submissions in support of the application to dismiss, Kasabel says that it does not consent to the tribunal having jurisdiction to hear and decide the claim by Ms Brinin. [22] I make further findings as follows: (a) The dispute between the parties, the subject of these proceedings, is a major commercial building dispute; (b) Kasabel does not consent to the Tribunal having jurisdiction to hear and decide the dispute; (c) The application filed by Ms Brinin was not accompanied by the written consent of the parties as required by s 79(1) of the QBCC Act; 12 A person applying to the tribunal to decide a building dispute must first comply with a process established by the QBCC to attempt to resolve the dispute. 13 QBCC Act, s 78. 14 QBCC Act, s 79(1). -- 4 of 5 -- 5 (d) The Tribunal does not have jurisdiction to hear and decide the dispute. [23] In circumstances where the tribunal lacks jurisdiction, the proceeding may be said to be vexatious or misconceived and is liable to be dismissed pursuant to s 47 of the QCAT Act. This is the order sought by Kasabel. [24] I am satisfied that the appropriate order, in the absence of the tribunal having jurisdiction to hear and decide the matter, is that the proceeding is dismissed. [25] I will make directions for the parties to file and exchange submissions on costs. [26] I would, for completeness, add the following observations. Ms Brinin is not left without a recourse despite the orders I have made. If Ms Brinin is of the view that her claim exceeds $50,000.00 then she may commence proceedings in a court of competent jurisdiction. If Ms Brinin is of the view that her claim does not exceed $50,000.00 then she may wish to give consideration to commencing further proceedings in the tribunal however the QCAT Act has something to say about such further proceedings.15 15 QCAT Act, s 49. -- 5 of 5 --