Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beck v Kerry M Ryan Pty Ltd [2019] QCAT 38 PARTIES: PIOTR BECK (applicant) v KERRY M RYAN PTY LTD (respondent) APPLICATION NO/S: BDL100-18 MATTER TYPE: Building matters DELIVERED ON: 11 January 2019 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. The application for miscellaneous matters filed by Kerry M Ryan Pty Ltd on 29 June 2018 is refused. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE OR TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – whether applicant’s claim without prospects of success CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS - where contract for supply and delivery of removal house – where contract for additional building work – whether contract for domestic building work – whether dispute a domestic building dispute Queensland Civil and Administrative Tribunal Act 1999 (Qld), s 47 Queensland Building and Construction Commission Act 1991 (Qld), s 77, sch 1B, sch 2 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232 Elderslie Property Investments No 2 Pty Ltd v Dunn [2007] QSC 192 (31 July 2007) Reardon v Deputy Commissioner for Taxation (2013) 275 FLR 9 -- 1 of 12 -- 2 REPRESENTATION: Applicant: Self-represented Respondent: Self-represented APPEARANCES: 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] Mr Beck entered into a contract with Kerry M Ryan Pty Ltd (‘KMR’) for the supply and delivery of a removal house to land owned by Mr Beck. The parties have fallen into dispute. Mr Beck has commenced proceedings in the tribunal in which he claims damages. KMR filed an application for miscellaneous matters seeking an order that the proceedings be dismissed. The application was refused. KMR has requested reasons for the decision. My reasons follow. The proceedings [2] Mr Beck filed an Application for a domestic building dispute. In the application, Mr Beck says that he entered into a contract with KMR for the delivery and resiting of a house and for the performance by KMR of building work on the house. Mr Beck says that KMR has failed to deliver the house and that building work performed by KMR is defective. Mr Beck claims damages for, inter alia, the cost of rectification of defective building work and consequential loss. [3] The response filed by KMR is brief. KMR says that the dispute is not a domestic building dispute, that the tribunal lacks jurisdiction to hear and decide the dispute and that Mr Beck has not complied with the requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld). [4] As the tribunal is not a pleadings jurisdiction, it is often the statements of evidence filed by the parties that serve to identify the issues in dispute and which the tribunal is required to decide. In this proceeding, the parties have not yet filed their statements of evidence. The submissions by the parties [5] KMR says that the dispute, the subject of the proceeding, is not a domestic building dispute or a commercial building dispute. KMR says that it is not a building contractor but rather the owner and seller of the removal house. KMR says that the contract between the parties is one for the supply and delivery of a house and that the house remains the property of KMR until it is fully paid for. In the result, says KMR, there is no claim or dispute arising between a building owner and a building contractor. [6] KMR says that a party to a building dispute may not apply to the tribunal to decide the dispute unless the person has complied with a process established by the Queensland Building and Construction Commission (‘QBCC’) to attempt to resolve -- 2 of 12 -- 3 the dispute.1 KMR says a number of things about this: that the dispute is not a building dispute; that the QBCC has written to Mr Beck advising him that the dispute between the parties is a contractual matter and one outside the jurisdiction of the QBCC; that as the dispute is a contractual matter the tribunal does not have jurisdiction in respect of the matter; that a ‘pro forma’ letter from the QBCC to Mr Beck would not amount to compliance with a dispute resolution process. [7] KMR relies upon an affidavit of Lorena Ryan2. Ms Ryan is a director of KMR. She deposes to the following matters: (a) On or about 7 December 2016 the parties entered into an agreement for the supply and delivery of a removal house to a property in Lowood; (b) The total contract price was $85,000; (c) Mr Beck paid a deposit of $25,000; (d) During the course of the renovation work to the house Mr Beck requested KMR install sound proof gyprock in the bedroom walls and special locks on the internal and external doors; (e) At the request of Mr Beck a support wall in the hallway was removed resulting in an engineering contractor advising KMR that the ceiling of the house would have to be supported in respect of which a verbal quote was provided to Mr Beck for the installation of steel beams; (f) In consideration of the additional work he requested, Mr Beck verbally agreed to pay for the additional materials and the labour for the work required to the doors; (g) After the contract was entered into between the parties, Mr Beck agreed to sell to KMR a Jaguar motor vehicle; (h) The consideration for the sale of the vehicle included $20,000 to be deducted from the sale price of the house and ‘also included a colorbond roof and gutters, steel beams and ten (10) sets of cross bracing to the value of $15,000 all of which were to be supplied and fitted by Mr Barten3 once the House had been moved’; [8] Ms Ryan deposes to the delivery of a smaller piece of the house and to the placement of that smaller piece in a position where it would not interfere when re-siting the larger piece. Ms Ryan says in her affidavit that when delivering a house, the larger piece is generally put on site first and the smaller piece then attached. [9] Attached to Ms Ryan’s affidavit are a number of documents including: (a) The contract between the parties, not signed or dated; 1 Queensland Building and Construction Commission Act 1991 (Qld), s 77(2). 2 Affidavit of Lorena Recto Ryan filed 19 July 2018. 3 Mr Beck subsequently entered into a contract with Mr Barten for the performance by Mr Barten of building work. -- 3 of 12 -- 4 (b) A building contract between Mr Beck and Mr Antonius Barten dated 1 September 2017; (c) An agreement for the sale by Mr Beck to Mr Kerry Ryan of a Jaguar motor vehicle ‘for the price of $20,000 to be deducted from the price of the house. Also including colourbond roof and gutters, (s)teel beams to be supplied and fitted to the exterior of the verandahs on house. 10 (s)ets of cross bracing as per Engineer’s plan to be supplied and fitted’; (d) Various letters and emails passing between KMR and Mr Beck’s solicitors; (e) Correspondence from a registered builder commenting on building works performed at the house; (f) Correspondence from an engineer commenting on building works performed at the house. [10] KMR says that the work it carried out to the house pursuant to the contract between the parties was not carried out to a ‘home’ because the work was carried out on premises not intended to be used by KMR for permanent habitation but to premises it intended to sell, and had sold, pursuant to the contract. [11] KMR refers to those parts of the contract relating to the transportation and delivery of the house. KMR refers to the definition of ‘domestic building work’ in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) as not including ‘excluded building work’ and points to the definition of ‘excluded building work’ as including transporting a building. KMR says that Mr Beck entered into two (2) contracts in respect of the house: one with KMR and one with Mr Barten and that it is illogical to suggest that Mr Beck entered into a contract with KMR for the performance of domestic building work and a contract with Mr Barten also for the performance of domestic building work. [12] KMR refers to only part of the house being transported and that any complaints by Mr Beck relating to removal or re-siting work do not relate to a ‘detached dwelling’ as only part of the house was transported. In any event, says KMR, the part of the dwelling was removed to KMR’s holding yard and re-siting work will not be carried out until the remainder of the house has been transported. [13] In response, Mr Beck says that KMR undertook building work on the house. He refers to Ms Ryan’s affidavit.4 Mr Beck says that the work performed by KMR involved the renovation, alteration, improvement or repair of the house and its removal or re-siting and that this constitutes domestic building work. [14] Mr Beck says it is irrelevant that KMR is the owner and the seller of the house. He says that nothing in the QBCC Act excludes KMR from being a building contractor by reason of being the owner and the seller of the house. Mr Beck says that nothing in the definition of ‘building owner’ in the QBCC Act requires actual ownership at law or in equity. [15] In relation to the submission by KMR regarding the application of s 77(2) of the QBCC Act, Mr Beck refers to the letter he received from the QBCC prior to filing the 4 Affidavit of Lorena Ryan at [46]. -- 4 of 12 -- 5 application for a domestic building dispute in which the QBCC states that Mr Beck had participated in the QBCC’s dispute resolution process. Building disputes – the statutory framework [16] The relevant enabling Act in respect of this dispute is the QBCC Act. The tribunal has jurisdiction to hear and decide a building dispute.5 A building dispute means a domestic building dispute; a minor commercial building dispute; or a major commercial building dispute.6 [17] A domestic building dispute means: (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; (vi) a supplier or manufacturer of materials used in the tribunal work.7 [18] ‘Building owner’ and ‘building contractor’ are defined.8 [19] ‘Reviewable domestic work’ means domestic building work under Schedule 1B, s 4 of the QBCC Act:9 Meaning of domestic building work (1) Each of the following is domestic building work— 5 Queensland Building and Construction Commission Act 1991 (Qld), s 77(1). 6 Ibid, sch 2 (definition of ‘building dispute’). 7 Ibid, sch 2 (definition of ‘domestic building dispute’). 8 Ibid, sch 1B, s 1 (definition of ‘building owner’; definition of ‘building contractor’), sch 2 (definition of ‘building owner’; definition of ‘building contractor’). 9 Ibid, sch 2 (definition of ‘reviewable domestic work’). -- 5 of 12 -- 6 (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; (2) However— (a) removal work for a detached dwelling is domestic building work only if the dwelling is intended to be resited at another place and used, at the place, as a residence; and (b) resiting work for a detached dwelling is domestic building work only if the dwelling is intended to be used at the place at which it is being resited as a residence. (3) Domestic building work includes— (a) work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and (b) work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home. (4) Without limiting subsection (3), associated work includes— (a) landscaping; and (b) paving; and (c) the erection or construction of a building or fixture associated with the detached dwelling or home. Examples of buildings and fixtures for subsection (4)(c)— retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas (5) For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated. (6) For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated. Examples of services and facilities for subsections (5) and (6)— lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage (7) Also, domestic building work includes— (a) site work relating to work mentioned in subsection (1), (3), (5) or (6); and (b) work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work. (8) However, domestic building work does not include excluded building work. (9) In this section— -- 6 of 12 -- 7 (a) a reference to a detached dwelling includes a reference to any part of a detached dwelling; and (b) a reference to a home includes a reference to any part of a home; and (c) a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site. (10) In this section— removal work, for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place. resiting work, for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.10 [20] A ‘detached dwelling’ is defined as: (a) a single detached dwelling; or (b) a duplex.11 Neither ‘single detached dwelling’ nor ‘duplex’ are defined. Section 47 of the QCAT Act [21] By s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), in circumstances where the tribunal considers a proceeding or part of a proceeding is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process, the tribunal may order that the proceeding or part be dismissed or struck out.12 Consideration [22] Section 47 of the QCAT Act is, in effect, a summary judgment power. In an application for summary judgment under the Uniform Civil Procedure Rules 1999 (Qld) current QCAT President Daubney J found in Elderslie Property Investments No 2 Pty Ltd v Dunn: … the court needs to be satisfied not only that the defendant has no real prospect of successfully defending all or a part of the claim, but also that ‘there is no need for a trial of the claim or the part of the claim’.13 [23] As to the onus of proof in an application for summary judgment, Daubney J held:14 As this is the plaintiff’s application, the burden of satisfying the court of the matters referred to in UCPR 292(2)(a) and (b) rests on the plaintiff: see Qld Park Pty Ltd v Lott; as his Honour observes there, this approach is consistent with that under the former rules. As under the former rules, where a plaintiff leads evidence to make out a prima facie entitlement to judgment, the evidentiary onus shifts to the defendant: see Qld Park Pty Ltd v Lott. [24] Summary judgment will be granted in only the clearest of cases.15 The power conferred by s 47 should only be exercised in those cases where it is clear that a party has no real prospects of success and there is no need for a hearing. For KMR to be 10 Ibid, sch 1B, s 4. 11 Ibid, sch 1B, s 1. 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47(1), s 47 (2). 13 [2007] QSC 192 (31 July 2007), [6]. 14 Ibid, [7] (citations omitted). 15 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3]. -- 7 of 12 -- 8 successful in the application for summary dismissal, I must be satisfied that has no real prospect of success in the proceeding and that there is no need for a hearing in respect of his claim against KMR. As McMeekin J observed in Reardon v Deputy Commissioner for Taxation16: The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way. [25] In adopting the approach identified by Daubney J in Elderslie, it is for KMR to make out a prima facie entitlement to a final decision in its favour. [26] It is not contentious that the parties entered into a contract for the supply by KMR of a house to Mr Beck. What is contentious is whether the dispute between the parties is a building dispute in respect of which the tribunal has jurisdiction to hear and decide. [27] A ‘home’ is a ‘building or portion of a building that is designed, constructed or adapted for use as a residence’.17 By s 46(a) of the Queensland Building and Construction Commission Regulation 2018 (Qld),18 for the purposes of the definition of ‘home’ under Schedule 1B of the QBCC Act, a ‘home’ does not include premises not intended to be used for permanent habitation. Mr Beck deposes to purchasing the house for permanent habitation. He says that he intends to live in the house once it is re-sited and the building works complete.19 I am satisfied that it is reasonably arguable that the house is a ‘home’ being a building or portion of a building that is designed, constructed or adapted for use as a residence.20 [28] I am satisfied that it is reasonably arguable that the house is intended for permanent habitation. I am also satisfied that it is reasonably arguable that the house is a ‘detached dwelling’ for the purposes of Schedule 1B of the QBCC Act, being a single detached dwelling.21 [29] Is KMR a ‘building contractor’ for the purposes of the QBCC Act? A ‘building contractor’ has two different meanings under the QBCC Act. For the purposes of Schedule 1B of the Act in relation to domestic building work, a building contractor means a person who carries out domestic building work; manages the carrying out of domestic building work; has carried out or has managed the carrying out of domestic building work; intends to carry out or to manage the carrying out of domestic building work.22 For the purposes of the Act, other than in respect of a domestic building work, a ‘building contractor’ is a person who carries on a business that consists of or includes carrying out building work.23 ‘Building work’ includes the renovation, alteration, 16 (2013) 275 FLR 9. 17 Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 9. 18 Formerly s 27AD. 19 Affidavit of Peter Beck dated 22.10.18. 20 Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, s 9. 21 Ibid, sch 1B, s 1 (definition of ‘detached dwelling’). 22 Ibid, sch 1B, s 1 (definition of ‘building contractor’). 23 Ibid, sch 2 (definition of ‘building contractor’). -- 8 of 12 -- 9 extension, improvement or repair of a building.24 ‘Building work’ does not include work excluded by regulation.25 [30] Whether KMR is a building contractor for the purposes of Schedule 1B of the QBCC Act requires a consideration of whether KMR carries out, carried out, or intends to carry out domestic building work. As I have observed ‘domestic building work’ includes the renovation, alteration, extension, improvement or repair of a home and removal or re-siting work for a detached dwelling.26 [31] I have found that it is reasonably arguable that the house, the subject of the contract between the parties, is a ‘home’ and a ‘detached dwelling’. The contract between the parties bears the title ‘Contract for the supply and delivery of removal house’. The following is a non-exhaustive list of ‘Items to be supplied by the Contractor’ contained in the contract: (a) Building as describe (sic) above (b) New zincalum roof (c) Gutters will be repaired/replace if necessary (d) External timber repair or replace where necessary [32] Under the ‘Items to be supplied by the Contractor’ the contract provides for the following: Others: Open Original Verandah and railed - Kitchen door move to center (sic) of room - Fire resist to be extended and adjust to roof height - New windows and doors supplied by the ownwr (sic) fitted by the contractor - Move bedroom doors, moved to side - Moved and support wall in the hallway and adjacent wall - Opening in dining area to be raised - Supply and fitted side and back stairs - Install insulation insulation (sic) on the inside walls - New cladding on the outside of the house - Re sheet inside of house - Bathroom to be re lined with water proof sheeting (this does not include waterproofing of the bathroom) - Kitchen bay window to be centered (sic) (if possible) 24 Ibid, sch 2 (definition of ‘building work’). 25 Ibid. 26 Ibid, sch 1B, s 4(1). -- 9 of 12 -- 10 [33] It is readily apparent on the material before the Tribunal that the contract between the parties is one for the removal and re-siting of a detached dwelling. It is readily apparent on the material before the Tribunal that the contract between the parties is also one for the renovation, alteration, extension, improvement or repair, by KMR, of a home. It is therefore reasonably arguable that the contract between the parties is one for the performance of domestic building work. [34] It would appear that some building work has been performed by KMR and some work is yet to be performed by KMR. It certainly appears that the removal and re-siting of the larger part of the house is yet to be carried out. A ‘building contractor’ includes a person who carries out, or intends to carry out, domestic building work.27 KMR would therefore appear to be a building contractor. [35] A ‘building owner’, for the purposes of domestic building work, is a person for whom domestic building work has been, is being, or is to be, carried out.28 On the material before the Tribunal, it is reasonably arguable that Mr Beck is a ‘building owner’. [36] A ‘domestic building dispute’ includes 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.29 For the reasons set out, it is reasonably arguable that Mr Beck is a building owner, KMR is a building contractor and that the parties are in dispute about both the performance of reviewable domestic work and a contract for the performance of reviewable domestic work. Mr Beck claims, inter alia, that building work performed by KMR is defective and that, in breach of the contract between the parties, KMR has failed to re-site the house on his land. It follows that it is reasonably arguable that the dispute the subject of the proceedings is a domestic building dispute. [37] KMR relies upon the following provision in the contract: The Purchaser acknowledges that the building remains the property of the Contractor until it is fully paid for. [38] Although not entirely clear from its submissions, the thrust of KMR’s argument appears to be that Mr Beck cannot, under the terms of the contract, be a building owner. KMR cites no authority in support of this contention. It is a basic principle of statutory interpretation that that in deriving meaning from the text, so as to fulfil the purpose of Parliament, statutory words should not be considered in isolation and that the meaning of words should be derived from the legislative context in which the words appear.30 [39] The stated objects of the QBCC Act include the regulation of the building industry to achieve a reasonable balance between the interests of building contractors and consumers31 and the regulation of domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners.32 The Act 27 Ibid, sch 1B, s 1 (definition of ‘building contractor’). 28 Ibid, sch 1B, s 1 (definition of ‘building owner’). 29 Ibid, sch 1B, s 4; sch 2 (definition of ‘domestic building dispute’). 30 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389. 31 QBCC Act, s 3(a)(ii). 32 Ibid, s 3(d). -- 10 of 12 -- 11 has a regulatory function of which the main object is to protect building owners or consumers from incompetent or dishonest builders.33 The definition of ‘building owner’ under Schedule 1B must therefore be considered in the overall context of the strong consumer protection objectives of the QBCC Act. [40] I do not accept that the meaning of ‘building owner’ should be given the meaning contended for by KMR. Firstly, there is the plain meaning of the text of the statute. Adopting KMR’s argument as to the meaning of ‘building owner’ would require reading words into the definition in order to qualify ‘the person for whom domestic building work has been, is being, or is to be, carried out’ as excluding from the definition persons in the circumstances of Mr Beck. KMR makes no submission as to how that exercise is to be achieved. Secondly, adopting the meaning of ‘building owner’ contended for by KMR would be contrary to the consumer protection objects of the QBCC Act. [41] Turning to KMR’s submission that Mr Beck has not complied with the requirements of s 77(2) of the QBCC Act, Mr Beck has filed with his application a letter from the QBCC stating: As discussed, the dispute relates to a contractual matter that is outside the jurisdiction of the QBCC. QBCC does not have the statutory power to assist with the resolution of such disputes and is therefore unable to assist you further with this matter. No further action will be taken by Resolution Services in relation to this dispute. The QBCC however reserves its right to continue investigation into any breaches that may have arisen during our investigations of this matter. This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised. [42] KMR says a number of things about this correspondence. KMR relies upon the reference to the dispute being a contractual matter and therefore outside the jurisdiction of the QBCC and says that the corollary of this is that the dispute is outside the jurisdiction of the tribunal. This submission is rejected. The characterisation of a dispute in a particular way by the QBCC is not determinative of whether a dispute, the subject of a proceeding before the tribunal, is a building dispute. It is for the tribunal to make the determination. In further developing its argument, KMR says that because the dispute is a contractual matter and therefore outside the jurisdiction of the tribunal, the dispute is not one in respect of which a resolution process can be, and has been, completed. For the reasons I have set out, this submission must be rejected. Finally, KMR says that it has not participated in a dispute resolution process nor has Mr Beck placed before the tribunal evidence that he has complied with a process established by the QBCC to attempt to resolve the dispute. The flaw in this submission is apparent from the terms of the correspondence from the QBCC. There is before the Tribunal evidence in the form of the letter from the QBCC stating that Mr Beck has complied with the QBCC’s dispute resolution process. KMR has placed no evidence 33 Marshall v Marshall [1999] 1 Qd R 173. -- 11 of 12 -- 12 before the Tribunal to the contrary. Mr Beck has satisfied the requirements of s 77(2) of the QBCC Act. Conclusion [43] I am satisfied that this is not a case in which it is appropriate to summarily dismiss Mr Beck’s claim.34 I am not satisfied that KMR has established that Mr Beck has no real prospect of success nor that there is no need for a hearing of Mr Beck’s claim. [44] The application for miscellaneous matters is refused. 34 Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, [3]. -- 12 of 12 --