Brown v Thompson DK Properties Pty Ltd [2018] QCAT 379

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Brown v Thompson DK Properties Pty Ltd [2018] QCAT 379 PARTIES: AARON BROWN (applicant) v THOMPSON DK PROPERTIES PTY LTD (respondent) APPLICATION NO: BDL041-18 MATTER TYPE: Building matters DELIVERED ON: 12 November 2018 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: 1. Aaron Brown must file in the Tribunal two (2) copies and give to Thompson DK Properties Pty Ltd one (1) copy of a document setting out particulars of the amount claimed in the Application for domestic building disputes filed 16 February 2018 and whether and to what extent the amount claimed relates to: (a) The construction of lots 1, 2, 3, 4, 5 and 6; (b) The construction of lots 7, 8 and 9, by: 4:00pm on 26 November 2018. 2. Thompson DK Properties Pty Ltd must file in the Tribunal two (2) copies and give to Aaron Brown one (1) copy of a document setting out particulars of the amount claimed in the counter application and whether and to what extent the amount claimed relates to: (a) The construction of lots 1, 2, 3, 4, 5 and 6; (b) The construction of lots 7, 8 and 9, by: 4:00pm on 6 December 2018. 3. Upon compliance by the parties with directions 1 and 2 the Tribunal will make further orders. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where -- 1 of 9 -- 2 building is a triplex – whether building is a detached dwelling – whether building work is reviewable domestic work PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – whether dispute is domestic building dispute – whether dispute is major commercial building dispute – jurisdiction of Tribunal to hear and decide major commercial building dispute – where consent to Tribunal’s jurisdiction to hear and decide major commercial building dispute not filed with application – where consent to Tribunal’s jurisdiction to hear and decide major commercial building dispute did not include an acknowledgement that consent cannot be withdrawn Domestic Building Contracts Act 2000 (Qld), s 7(1)(a), s 7(2)(b), s 8, Schedule 2 Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 75(1)(a), s 77(1), s 78, s 79, s 79(1), s 79(2), Schedule 1, s 62(1), Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) Atcheson, P.&.N. v Scacheri, G.R. and Skehan, G. and Geoff Skehan Constructions Pty Ltd [2006] QCCTB 152 C & E Pty Ltd v CMC Brisbane Qld [2004] 2 Qd R 244 Gregory John Black t/as Greg Black Constructions v Toowoomba Resort Pty Ltd [2005] QSC 019 M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454 REPRESENTATION: Applicant: Self-represented Respondent: Cranston McEachern Lawyers 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] Thompson DK Properties Pty Ltd (Thompson) entered into a contract with Cathedral Projects Pty Ltd for the construction by Cathedral Projects of nine residential -- 2 of 9 -- 3 townhouses (the original contract).1 Units 1 and 2, units 3 and 4 and units 5 and 6 were each a duplex construction. Units 7, 8 and 9 were a triplex construction. [2] By a Deed of Assignment and Variation made 6 October 2016, the rights and obligations of Cathedral Projects under the original contract were assigned to the applicant, Mr Brown. [3] Mr Brown has filed an application for domestic building disputes in the tribunal in which he claims an amount of $310,047.41 from Thompson as monies owing under the assigned original contract. Thompson counterclaims in the amount of $859,457.00 for liquidated damages and the cost of rectifying defective building work. Thompson also counterclaims for the recovery of an amount paid to Mr Brown for alleged unlicensed building work. [4] There is a preliminary issue for determination: is the dispute a domestic building dispute or a commercial building dispute? Building disputes – the statutory framework [5] I proceed on the basis that, as the original contract was entered into in May 2015, the relevant enabling Acts to be considered are the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and the now repealed Domestic Building Contracts Act 2000 (Qld) (DBC Act).2 The Tribunal has jurisdiction to hear and decide a building dispute.3 A building dispute means a domestic building dispute; a minor commercial building dispute; or a major commercial building dispute.4 [6] 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; 1 Formal Instrument of Agreement for Contract dated 29 May 2015. 2 The DBC Act continues to apply to contracts entered into before the date of repeal – see QBCC Act, Schedule 1, s 62(1). 3 QBCC Act, s 77(1). 4 Ibid, Schedule 2. -- 3 of 9 -- 4 (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.5 [7] A ‘domestic building contract’ is defined and includes a contract to carry out domestic building work.6 [8] ‘Building owner’ and ‘building contractor’ are defined.7 Reviewable domestic work means domestic building work under s 8 of the DBC Act.8 8. Meaning of domestic building work (1) Each of the following is domestic building work— (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 5 Ibid. 6 DBC Act, s 7(1)(a). 7 QBCC Act, Schedule 2. Ibid, Schedule 2. 8 Ibid. DBC Act, s 8 and subject to the stated exceptions in the definition of ‘reviewable domestic work’ not relevant to the present dispute. -- 4 of 9 -- 5 (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— (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. [9] A ‘detached dwelling’ is defined as: (a) a single detached dwelling; or -- 5 of 9 -- 6 (b) a duplex.9 [10] Neither ‘single detached dwelling’ nor ‘duplex’ are defined. [11] A contract for the performance of reviewable domestic work is, by virtue of the definition of ‘reviewable domestic work’, a contract for the performance of domestic building work. [12] A ‘commercial building dispute’ is defined as:10 (a) a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial 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 commercial work or a contract for the performance of reviewable commercial 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 or materials used in the tribunal work. [13] ‘Reviewable commercial work’ means: … tribunal work other than reviewable domestic work.11 [14] The reference in the definition of a commercial building dispute to a claim or dispute relating to a contract for the performance of reviewable commercial work means a contract for the performance of tribunal work other than a contract for domestic building work. 9 DBC Act, Schedule 2. 10 QBCC Act, Schedule 2. 11 Ibid. -- 6 of 9 -- 7 [15] Tribunal work is defined12 and includes the erection or construction of a building.13 A ‘building’ is defined.14 [16] 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 counter claim exceeds $50,000.15 A major commercial building dispute means a commercial building dispute where either the claim or the counterclaim exceeds $50,000.16 [17] The jurisdiction of the Tribunal to hear and decide a major commercial building dispute is enlivened only if the Tribunal is satisfied that all parties to the dispute consent to it doing so.17 The QBCC Act sets out the procedure to determine whether all parties consent to the Tribunal hearing and deciding a major commercial building dispute.18 An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute.19 Is the dispute a domestic building dispute or a commercial building dispute? Does the triplex comprise domestic building work? [18] The question of whether the construction of a triplex is domestic building work was the subject of consideration in Gregory John Black t/as Greg Black Constructions v Toowoomba Resort Pty Ltd20. In Black, McMurdo J (as he then was) found that as a triplex is not a detached dwelling as defined, the construction of a triplex is not domestic building work, and to the extent that there was a claim or dispute relating to the performance of the construction of the triplex, it was a commercial building dispute.21 [19] In accordance with the decision in Black, I find that the construction of the triplex is not domestic building work. Is the dispute a domestic building dispute, a minor commercial building dispute or a major commercial building dispute? [20] I have found that the triplex is not a detached dwelling. Accordingly, insofar as the building work relates to the construction of the triplex, the work is not domestic building work and therefore the building work relating to the construction of the triplex is not the performance of reviewable domestic work. Accordingly, the dispute is not a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work. 12 Ibid, s 75. 13 Ibid, s 75(1)(a). 14 Ibid, Schedule 2. 15 Ibid. 16 Ibid. 17 Ibid, s 78. 18 Ibid, s 79. 19 Ibid, s 79(1). 20 Gregory John Black t/as Greg Black Constructions v Toowoomba Resort Pty Ltd [2005] QSC 019. 21 Ibid, [27]. -- 7 of 9 -- 8 [21] However a domestic building dispute also includes a claim or dispute relating to a contract for the performance of reviewable domestic work. The original contract is for the construction of nine residential townhouses, six in duplex configuration and one in triplex configuration. Insofar as the contract relates to the construction of the triplex it is not a contract for the performance of reviewable domestic work. Insofar as the original contract relates to the construction of the three duplex dwellings, it is a contract for the performance of reviewable domestic work.22 [22] A commercial building dispute is a claim or dispute relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work. Reviewable commercial work is Tribunal work other than reviewable domestic work. Tribunal work includes the erection or construction of a building. The present dispute relates to the construction of a building. It therefore relates to Tribunal work and thus relates to reviewable commercial work. Insofar as the claim relates to the construction of the triplex, the dispute is a claim or dispute relating to the performance of reviewable commercial work. Insofar as the original contract relates to the construction of the triplex it is a contract for the performance of reviewable commercial work. [23] Mr Brown’s claim is for an amount of $310,047.41 for ‘outstanding monies to be paid for works as executed at 11 Oleander Street, Daisy Hill’. Mr Brown’s claim does not identify whether the amount he claims relates to the duplexes or the triplex and there is insufficient material before me to form a view about the matter one way or the other. [24] The counter application by Thompson for $859,457.00 includes amounts for liquidated damages, defects rectification costs and the recovery of payments made to Mr Brown for unlicensed building work. Specifically, Thompson says that Mr Brown was not licensed to build the triplex. Accordingly, on the basis of the various amounts claimed in the counter application, it appears that an amount of $402,600.00 relates to the triplex. Accepting for the purposes of the determination of the preliminary issue that a claim for the recovery of amounts paid for unlicensed building work is a building dispute, the counter claim is one within the definition of a major commercial building dispute. [25] Insofar as the counterclaim relates to claims for liquidated damages and the cost of rectifying defective building work, the amounts claimed are insufficiently particularised to allow any view to be formed as to whether the counterclaim relates to the triplex or the duplexes or both. [26] 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 so doing.23 The procedure to decide whether all parties consent to the tribunal having jurisdiction to hear and decide a major commercial building dispute is set out at s 79 of the QBCC Act. An application to start a proceeding must be accompanied by the written consent of all parties to the dispute.24 The written consent must include an acknowledgement by the 22 C & E Pty Ltd v CMC Brisbane Qld [2004] 2 Qd R 244. 23 QBCC Act, s 78. 24 Ibid, s 79(1). -- 8 of 9 -- 9 consenting party that the consent cannot be withdrawn. Accordingly, the written consent must be filed with the application.25 [27] Thompson’s solicitors sent an email to Mr Brown on 9 March 2018 advising, inter alia: Our client is prepared to consent to QCAT being given jurisdiction to hear your claim and our client’s counterclaim relating to the work on lots 7, 8 and 9. Can you advise if you are prepared to also consent. If not, we expect we will need to commence action in the District Court and have the QCAT proceedings transferred there. [28] Mr Brown responded by email to Thompson’s solicitors in the following terms: My consent is given to remain in QCAT. [29] There are two difficulties with any attempt by either or both of the parties to seek to rely upon this email exchange as compliance with the requirements of s 79 of the QBCC Act. Firstly, there is no acknowledgement by Thompson, as the consenting party, that the consent cannot be withdrawn as required by s 79(2). Secondly, even had the consent properly addressed the requirements of s 79(2), the consent was not filed with the application on 16 February 2018. [30] As I have been unable to conclude, for the reasons outlined, whether the claim and/or the counter claim is a major commercial building dispute, I will make directions for the parties to provide further particulars of the amounts claimed in the application and the counter-application. Upon the filing of the particulars the tribunal will make further directions in the proceedings. [31] I indicate at this stage that if the tribunal finds that the claim or the counterclaim is a major commercial building dispute, as presently framed the claims by the parties are not in a form which would constitute an adequate pleading and the matter is not one in which a transfer to a court could be readily or comfortably facilitated.26 The parties should therefore turn their minds to whether, subject to the determination of the question of whether the claim and counter claim are a major commercial building dispute, the appropriate course of action is for the claim and the counterclaim to be withdrawn and for proceedings to be commenced in the appropriate court. 25 Atcheson, P.&.N. v Scacheri, G.R. and Skehan, G. and Geoff Skehan Constructions Pty Ltd [2006] QCCTB 152. 26 M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454. -- 9 of 9 --