Bebendorf v Uebergang [2018] QCAT 132

CITATION: Bebendorf v Uebergang [2018] QCAT 132 PARTIES: Darryn Bebendorf (Applicant) v Greg Uebergang (Respondent) APPLICATION NUMBER: BDL218-17 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown DELIVERED ON: 22 March 2018 DELIVERED AT: Brisbane ORDERS MADE: 1. The application filed 11 September 2017 is dismissed. 2. Greg Uebergang must file in the Tribunal two (2) copies and serve on Darren Bebendorf one (1) copy of any further submissions on costs within 7 days of the date of this decision. 3. Darren Bebendorf must file in the Tribunal two (2) copies and serve on Greg Uebergang one (1) copy of any submissions on costs in reply within 7 days of receipt by him of Greg Uebergang’s further costs submissions, or 14 days from the date of this decision, whichever is the later. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where respondent undertook pre- purchase inspection of dwelling – where applicant claimed inspection failed to identify defects – whether dispute is a domestic building dispute or major commercial building dispute pursuant to the Queensland Building and Construction Commission Act 1991 (Qld) -- 1 of 9 -- 2 PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY – where dispute is a major commercial building dispute – jurisdiction of tribunal to hear and decide major commercial building dispute – where parties have not consented to tribunal’s jurisdiction – whether proceeding should be transferred to Magistrates Court – where it is appropriate to dismiss proceeding Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(g), s 77(1), s 77(3)(h), Schedule 1B, s 4(1)(a), Schedule 1B, s 4(8), Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 28(3)(d), s 32, s 42, s 47(1), s 47(2), s 52(1), s 100, s 102(1) M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454, cited Rainbow Builders Pty Ltd v The State of Queensland [2016] QCAT 415, cited Walton v Gardiner (1993) 177 CLR 378, cited Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292, cited 2 Business Advisory Pty Ltd v Walltech Systems Australia Pty Ltd [2013] QCAT 198, cited This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] Mr Bebendorf purchased a property at Pine Creek on which was located a dwelling. Mr Bebendorf says that he engaged Mr Uebergang to undertake a building inspection of the dwelling. Mr Bebendorf has filed an application for domestic building disputes claiming damages in the amount of $100,000.1 Mr Uebergang has filed an application to dismiss the proceeding.2 The application to dismiss falls for determination. Mr Bebendorf’s application [2] The lack of clarity with which Mr Bebendorf has presented his claim has undoubtedly contributed to the strike out application. It is appropriate therefore to make some observations regarding the way in which 1 Application for domestic building disputes filed 11 September 2017. 2 Application for miscellaneous matters filed 15 November 2017. -- 2 of 9 -- 3 proceedings in the Tribunal are conducted before turning to the particular aspects of Mr Bebendorf’s claim that give rise to the present application. [3] The tribunal is not a pleadings jurisdiction. The tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick3 and must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit.4 The somewhat more informal and flexible practices in the tribunal (as opposed to those in the courts) can result in a degree of opacity in proceedings insofar as the clear articulation of the basis upon which a claim is made, or the basis of a response to a claim, is concerned. This proceeding presents such difficulties. [4] In his Application for domestic building disputes, Mr Bebendorf unfortunately makes not even the most rudimentary attempt to set out the basis of his claim against Mr Uebergang. Those parts of the application requiring Mr Bebendorf to set out the orders he seeks and the reasons the orders sought should be made are left blank.5 The application makes a claim for damages in the amount of $100,000.6 No attempt is made to explain how that amount is calculated. The application refers to the date the relevant building contract was signed, that the work was commenced and completed and that the contract amount was $420.7 Attached to the application is a report prepared by Mr Peter Hutson for the Queensland Building and Construction Commission.8 The report is identified as a ‘QBCC Pre Purchase Inspection Investigation Report’. It is clear that the report deals with an earlier building inspection report prepared by Mr Uebergang in relation to Mr Bebendorf’s property at Pine Creek. The QBCC report is critical of Mr Uebergang’s report in some respects. [5] After the application was filed by Mr Bebendorf, directions were made for Mr Bebendorf to file a copy of the contract in respect of the work the subject of the dispute.9 The ‘Contract of Engagement’ filed in accordance with the directions is signed by Mr Bebendorf. It is a contract for the performance of a pre purchase building and pest inspection. The first page of the contract contains the heading ‘Australian Professional Inspection Services’ and contains a reference to ‘Aussie Vision Enterprises Pty Ltd T/A Australian Professional Inspection Services’. The building inspector is identified as Greg Uebergang. The holder of the QBCC licence identified in the contract is Aussie Vision Enterprises Pty Ltd. The terms and conditions attached to the contract refer throughout to ‘the Company’ and ‘the Inspector’. It is readily apparent that the contract is between Mr Bebendorf and Aussie 3 QCAT Act, s 3(b). 4 Ibid, s 28(3)(d). 5 Application for domestic building disputes, Part C. 6 Ibid, Part B. 7 Ibid. 8 Report, Peter Hutson, dated 21 August 2017. 9 Directions made 22 September 2017. -- 3 of 9 -- 4 Vision Enterprises Pty Ltd and that Mr Uebergang is not a party to the contract. [6] Mr Bebendorf provides some further clarification of the nature of his claim in his response to the application to dismiss.10 Mr Bebendorf refers to his application as being: … in relation to a breach of the roles and responsibilities of a Building Certifier and or Pre-Purchase inspector of a private residence and is not a commercial building. … The respondent has been negligent in his role as a “Building Certifier” who undertook a pre-purchase inspection of the property we were intending to buy. The respondent failed to identify 2 Major Defects. [7] The basis upon which the claim is made against Mr Uebergang (as opposed to Aussie Vision Enterprises Pty Ltd) is not made entirely clear by Mr Bebendorf. In his response to the application to dismiss, Mr Bebendorf relies upon the QBCC report and the conclusion reached by the QBCC inspector that Mr Uebergang’s report was not satisfactory. Mr Bebendorf’s alternative basis for his claim against Mr Uebergang is that Mr Uebergang is the sole director and secretary of Aussie Vision Enterprises Pty Ltd. Mr Bebendorf says: Whether the respondent is Gregory Uebergang or Aussie Vision Enterprises Pty Ltd, our complaint remains the same in all respects other than the name of the respondent. … We would like to add Aussie Vision Enterprises Pty Ltd as an additional respondent in this matter if directed, to clarify this or be a party to in conjunction with Gregory Uebergang.11 [8] Mr Bebendorf has not made an application to join Aussie Vision Enterprises Pty Ltd as a respondent. Mr Bebendorf’s submissions indicate a somewhat passive approach to the joinder question. [9] In response to Mr Bebendorf’s application, Mr Uebergang says that he is not a proper respondent, that he was not a party to the contract of engagement and that Mr Bebendorf’s contract was with Aussie Vision Enterprises Pty Ltd. [10] The tribunal may make an order joining a person as a party to a proceeding upon application or on its own initiative.12 The issue of whether Aussie 10 Response to application for miscellaneous matters filed 1 December 2017. 11 Ibid. 12 QCAT, s 42. -- 4 of 9 -- 5 Vision Enterprises Pty Ltd should be joined as a respondent is, however, one that is unnecessary for me to decide for the reasons that follow. Is this a domestic building dispute or a commercial building dispute? [11] The relevant enabling Act for the purpose of this proceeding is the Queensland Building and Construction Commission Act 1991 (Qld)13 (QBCC Act). [12] The tribunal may decide a building dispute.14 A building dispute means a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.15 A domestic building dispute means 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 a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.16 [13] Reviewable domestic work means domestic building work.17 Domestic building work includes the erection or construction of a detached dwelling.18 Domestic building work does not include excluded building work.19 A building contractor includes a person who carries out building work or manages the carrying out of building work.20 Building work is defined.21 Building work does not include work of a kind excluded by regulation.22 [14] A commercial building dispute means 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 a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial work other than a claim for personal injuries.23 Reviewable commercial work means tribunal work other than reviewable domestic work.24 [15] Tribunal work has the meaning at sections 75 and 76 of the QBCC Act. Tribunal work includes the inspection of a completed building.25 [16] Building work includes carrying out a completed building inspection26 and the inspection or investigation of a building and the provision of advice or a 13 Reprint as at 1 January 2015. 14 QBCC Act, s 77(1). 15 Ibid, Schedule 2. 16 Ibid. 17 Ibid. 18 Ibid, Schedule 1B, s 4(1)(a). 19 Ibid, Schedule 1B, s 4(8). 20 Ibid, Schedule 2. 21 Ibid. 22 Ibid. 23 Ibid. 24 Ibid. 25 Ibid, s 75(1)(g). 26 Ibid, Schedule 2. -- 5 of 9 -- 6 report for termite management systems for the building and termite infestation in the building.27 [17] In addressing the question of the nature of the present dispute, I will consider the matter by reference to the dispute between the existing parties and any claim by Mr Bebendorf against Aussie Vision Enterprises Pty Ltd. [18] The pre purchase inspection carried out and the report subsequently prepared satisfies the definition of ‘building work’ in the QBCC Act. A building contractor is a person who carries on a business that consists of or includes carrying out building work. Aussie Vision Enterprises Pty Ltd would appear therefore to be a building contractor. Mr Uebergang may or may not be a building contractor depending on whether he is a person carrying on business that consists of or includes carrying out building work. [19] I turn now to the question of whether the dispute, the subject of Mr Bebendorf’s application, is a domestic building dispute. For the dispute between Mr Bebendorf and Aussie Vision Enterprises Pty Ltd and/or Mr Uebergang to be a domestic building dispute, the claim or dispute must relate to reviewable domestic work. As I have noted, reviewable domestic work means domestic building work. The building work performed by Aussie Vision Enterprises Pty Ltd and/or Mr Uebergang is not domestic building work nor is it associated work for the purposes of s 4(1) and s 4(3) of Schedule 1B of the QBCC Act. Accordingly, the dispute is not one relating to reviewable domestic work. The dispute is therefore not a domestic building dispute. [20] Is the dispute a commercial building dispute? As I have observed, a commercial building dispute is one relating to the performance of reviewable commercial work. Reviewable commercial work is tribunal work other than reviewable domestic work. Tribunal work includes the inspection of a completed building. I am satisfied that the building work performed by Aussie Vision Enterprises Pty Ltd and/or Mr Uebergang is tribunal work, other than reviewable domestic work, and is therefore reviewable commercial work. Even if Mr Uebergang is not a building contractor, the claim against him may well be one in negligence related to the performance of reviewable commercial work and therefore caught within the definition of a commercial building dispute. I express no concluded view about this as it is unnecessary for me to decide the issue. [21] Subject to my observations regarding the claim against Mr Uebergang, I am satisfied that the dispute is a commercial building dispute. Is the dispute a minor commercial building dispute or a major commercial building dispute? [22] A minor commercial building dispute is one where neither the claim nor the counterclaim exceeds $50,000. A major commercial building dispute is one 27 Ibid. -- 6 of 9 -- 7 where either the claim or the counterclaim exceeds $50,000.28 A claim for a major commercial building dispute may only be decided by the tribunal if all parties to the dispute consent to it so doing.29 The QBCC Act sets out the procedure to decide whether all parties consent. This procedure includes a requirement that 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. [23] Mr Bebendorf’s claim is for $100,000. Mr Bebendorf has not filed a written consent by the parties for the tribunal to decide the dispute. Mr Uebergang does not consent to the tribunal deciding the dispute.30 Mr Uebergang says that the tribunal does not have jurisdiction to hear and decide the dispute and that the appropriate order is that the proceeding be transferred to the Magistrates Court.31 [24] Mr Bebendorf says that he is unsure whether he is entitled to recover less than $50,000 or more than $50,000. He says that it is difficult to place an exact figure on the amount he is seeking. Mr Bebendorf does not seek to limit his claim to an amount not exceeding $50,000. He proposes a solution whereby he may pursue ‘one or two or three applications less than $50,001 under … a minor commercial building dispute.’32 [25] The amount claimed by Mr Bebendorf exceeds $50,000. The dispute is therefore a major commercial building dispute. The parties have not consented to the tribunal hearing and deciding the dispute. Mr Bebendorf’s proposed course of action, to in effect ‘split’ his claim to bring it within the jurisdiction of the tribunal as a minor commercial building dispute, would patently be an abuse of process.33 [26] Nor would the outcome be any different if Aussie Vision Enterprises Pty Ltd was to be joined as a respondent. The fundamental obstacle to the claim, that the proceeding is one in respect of a major commercial building dispute, remains. For this reason, any joinder of Aussie Vision Enterprises Pty Ltd as a respondent would be futile. [27] The tribunal has previously held that s 78 of the QBCC Act makes clear that the tribunal only has jurisdiction to decide a major commercial building dispute if all parties to the dispute consent to it so doing and that s 79 of the QBCC Act provides the mechanism by which such consent must be provided and the content of the consent.34 Here, it is clear there is not the required consent. 28 Ibid. 29 Ibid, s 78. 30 Respondent’s submissions filed 8 December 2017, [13]. 31 Ibid, [4]. 32 Applicant’s response to application for miscellaneous matters filed 1 December 2017. 33 Wealthsure Pty Ltd v Financial Ombudsman Service Ltd [2013] FCA 292. 2 Business Advisory Pty Ltd v Walltech Systems Australia Pty Ltd [2013] QCAT 198. 34 Rainbow Builders Pty Ltd v The State of Queensland [2016] QCAT 415. -- 7 of 9 -- 8 [28] The tribunal does not have jurisdiction to decide the dispute. What are the appropriate orders? [29] The Tribunal may, if it considers it does not have jurisdiction to hear all matters in a proceeding, transfer the matter or matters for which it does not have jurisdiction to a court of competent jurisdiction or another tribunal or entity having jurisdiction to deal with the matter or matters.35 [30] Despite a proceeding having been commenced in the absence of the Tribunal’s jurisdiction, it is nevertheless open to the Tribunal to order the transfer of the matter to a court, tribunal or other entity.36 [31] Mr Uebergang says that the proceeding should be transferred to the Magistrates Court. In my view it is not appropriate to make such an order. As I have observed, the tribunal is not a pleadings jurisdiction. This, of itself, creates a potential impediment to the transfer of a proceeding to a court which is bound by the rules of pleadings. An order for the transfer of a proceeding will not be appropriate where such a transfer cannot be readily or comfortably facilitated.37 Such is the case here. The application for domestic building disputes filed by Mr Bebendorf is devoid of particulars. It is deficient as an application in the Tribunal let alone as a pleading in a court. The appropriate course of action is for Mr Bebendorf, if he so chooses, to commence a new proceeding in a court, be that the Magistrates Court or elsewhere, where he can properly plead his cause of action against an appropriate defendant or defendants. Conclusion and orders [32] By s 47 of the QCAT Act, in circumstances where 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.38 As the tribunal and the appeal tribunal have held, s 47 is, in effect, a summary judgement power. The power 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. Such is the present application. [33] The claim, as made by Mr Bebendorf, is a major commercial building dispute. Mr Bebendorf has made no attempt to comply with ss 78 and 79 of the QBCC Act. The Tribunal does not have jurisdiction to decide the dispute. The proceeding by Mr Bebendorf is misconceived as it cannot succeed. For the reasons I have given, it is not appropriate to transfer the matter to the Magistrates Court. The appropriate order is that the proceeding by Mr Bebendorf is dismissed. 35 QCAT Act, s 52(1). 36 Ibid. 37 M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454. 38 QCAT Act 2009 (Qld), s 47(1), 47(2). -- 8 of 9 -- 9 [34] Mr Uebergang seeks his costs fixed in the amount of $9,000.39 [35] The starting point in any consideration of costs in the tribunal is that each party must bear their own costs unless the interests of justice require otherwise.40 The exception to this is if an enabling Act provides for an award of costs.41 The QBCC Act is an enabling Act. The Tribunal may award costs in a building dispute.42 The effect of s 77(3)(h) of the QBCC Act is to give the Tribunal a broad general power to award costs which must be exercised judicially.43 [36] Mr Uebergang says that Mr Bebendorf should be ordered to pay costs in circumstances where: a) Mr Bebendorf should not have brought the claim in circumstances where the tribunal did not have jurisdiction to decide the dispute; b) Mr Bebendorf should have been aware that the tribunal did not have the jurisdiction to hear and decide the dispute; and c) It was reasonable for Mr Uebergang to have obtained legal representation and incur legal costs.44 [37] Mr Bebendorf’s submissions in the present application do not address the issue of costs. I will make orders for Mr Uebergang to file and serve any further submissions addressing costs including the basis upon which costs should be assessed and any further submissions on fixing costs. If, as Mr Uebergang has already submitted, costs should be fixed in a specific amount, the tribunal must be satisfied that it is appropriate to do so. This requires submissions providing sufficient detail as to how any costs assessment has been arrived at, and how any fixed costs amount has been calculated to enable the tribunal to consider the appropriateness of the orders sought. Mr Bebendorf will have the opportunity to respond to those submissions at which time the issue of costs will be determined. 39 Respondent’s submissions filed 8 December 2017, [22]. 40 QCAT Act, s 100. 41 Ibid, s 102(1). 42 QBCC Act, s 77(3)(h). 43 Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 citing Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. 44 Respondent’s submissions filed 15 November 2017. -- 9 of 9 --