Burton and Anor v Payne [2011] QCAT 680

CITATION: Burton and Anor v Payne [2011] QCAT 680 PARTIES: Mr Phillip Owen Burton Ms Cyndi Louise Main v Mr Christopher James Payne APPLICATION NUMBER: BDL212-11 MATTER TYPE: Building matters HEARD AT: Brisbane DECISION OF: Peta Stilgoe, Member DELIVERED ON: 29 September 2011 DELIVERED AT: Brisbane ORDERS MADE: The proceeding is dismissed for want of jurisdiction. CATCHWORDS: BUILDING – JURISDICTION – where parties entered domestic building contract for commercial building project – where major commercial building dispute – whether contract constituted consent to jurisdiction – whether consent contained acknowledgement that consent can not be withdrawn Queensland Building Service Authority Act 1991, ss 78, 79(2) Peter & Nicole Atcheson v Gregory Robert Scacheri and Geoff Skehan and Geoff Skehan Constructions Pty Ltd [2006] CCT B215-04 APPEARANCES and REPRESENTATION (if any): This matter was heard on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] Mr Burton and Ms Main entered into a written contract with Chris Payne Construction Pty Ltd for the construction of a commercial shed and -- 1 of 3 -- 2 caretaker’s residence. The contract was in the standard form HIA New Home Construction Contract which contained clause 37: If any dispute or difference between the owner and the builder arises in connection with the subject matter of this contract then either party may give to the other party written notice of such dispute or difference and such dispute or difference may be referred for determination to the Commercial and Consumer Tribunal. [2] The parties fell into dispute and Mr Burton and Ms Main filed an application in this tribunal, the successor to the Commercial and Consumer Tribunal. The named respondent is not Chris Payne Construction Pty Ltd but Chris Payne personally. [3] Mr Payne has brought an application to strike out the proceedings on the grounds that all parties have not consented to this major commercial building dispute being determined by the tribunal. [4] It is common ground that this is a major commercial building dispute. It is also common ground that the tribunal can only determine the dispute if all parties have consented to it doing so.1 Mr Payne says that there is no consent because: a) If it is written consent, clause 37 of the contract does not include an acknowledgement that the consent can not be withdrawn as required by s 79(2) of the Queensland Building Service Authority Act 1991. b) Even if it did constitute consent, it is consent by Chris Payne Construction Pty Ltd, the builder nominated in the contract and not Mr Payne personally. c) Mr Payne does not consent to the tribunal determining the matter. [5] Mr Burton and Ms Main say that: a) Section 79(2) does not require an express acknowledgement that the consent cannot be withdrawn. b) The tribunal should adopt a functional approach to the construction of s 79(2). c) When examined from a functional perspective, the act of entry into the contract is sufficient to create an acknowledgement that the consent cannot be withdrawn. [6] Clause 37 is contained within a standard form contract that is usually used for domestic building contracts. The usual recourse for parties to a domestic building contract who are in dispute is to the tribunal or the Authority. Clause 37, and the explanatory notes, serves to highlight and explain the parties’ rights and obligations in that case. Even so, the language of clause 37 is permissive, not mandatory. It is not framed in the language of automatic consent and it is certainly not framed as a consent that cannot be withdrawn. [7] The effect of the “consent” provisions of the QBSA Act was examined by the Commercial and Consumer Tribunal in Peter & Nicole Atcheson v 1 Section 78 Queensland Building Service Authority Act 1991. -- 2 of 3 -- 3 Gregory Robert Scacheri and Geoff Skehan and Geoff Skehan Constructions Pty Ltd2. As Mr Lorisch pointed out, “consent” must be determined by the tribunal in accordance with a set procedure. The tribunal must be satisfied that the written consent was obtained prior to the commencement of the proceedings and that the consent contained an acknowledgement that it could not be withdrawn. There is no room for the tribunal to find that consent can be implied by conduct. [8] The argument from Mr Burton and Ms Main that the tribunal should adopt a “functional” approach to the interpretation of s 79 is really another way of saying that the tribunal should imply additional words into clause 37. Section 79, as interpreted by the Commercial and Consumer Tribunal, does not permit me to do that. The section is plain. It requires express, written consent, together with an acknowledgement that consent cannot be withdrawn. [9] If the parties intended that the contract would bind them to a dispute resolution process in the tribunal, they should have amended clause 37 accordingly. If, as I suspect, the parties didn’t turn their minds to the issue, Mr Burton and Ms Main should have sought Mr Payne’s written consent to proceed in the tribunal before filing the application. [10] In the absence of consent, the tribunal has no jurisdiction. The proceeding should be dismissed. 2 [2006] CCT B215-04 at [38]. -- 3 of 3 --