Action Machinery Hire Pty Ltd v Milford [2007] QDC 228

DISTRICT COURT OF QUEENSLAND CITATION: Action Machinery Hire Pty Ltd v Milford [2007] QDC 228 PARTIES: ACTION MACHINERY HIRE PTY LTD Applicant AND BRAD MILFORD Respondent FILE NO/S: Appeal 2006/07 DIVISION: PROCEEDING: Application for leave to appeal ORIGINATING COURT: Commercial Consumer Tribunal DELIVERED ON: 1 October 2007 DELIVERED AT: Brisbane HEARING DATE: 8 August 2007 JUDGE: McGill DCJ ORDER: Leave to appeal refused CATCHWORDS: INFERIOR TRIBUNALS – Commercial and Consumer Tribunal – jurisdiction – whether building dispute – whether error of law shown. Domestic Building Contracts Act 2000 s 8. COUNSEL: Mr L. Quarismine (Director) for the applicant The respondent appeared in person SOLICITORS: The applicant was not represented The respondent was not represented [1] This is an application for leave to appeal from a decision of the Commercial and Consumer Tribunal on 13 June 2007 that the respondent pay the appellant the sum of $174.20 by a particular time and date.1 The appellant claims that he is entitled to be paid much more than that amount, for various reasons, and on that basis seeks to challenge the decision of the tribunal. An appeal from the tribunal to this court is available only with the leave of the court, and only in respect of an issue as to the 1 Although this is an application, I will use the terms appellant and respondent in the interests of clarity, since the appellant was the respondent, and the respondent the applicant, before the tribunal. -- 1 of 6 -- 2 jurisdiction of the tribunal, or a question of law: Commercial and Consumer Tribunal Act 2003 s 100. There is no appeal against findings of fact. [2] One of the grounds sought to be raised by the appellant in the proposed appeal is that the tribunal did not have jurisdiction because the dispute between the parties was not a “building dispute” for the purposes of the Queensland Building Services Authority Act 1991. That certainly raises the question of jurisdiction, but neither party before me was legally represented, and neither party was able to provide any useful submissions as to the scope and operation of the labyrinthine statutory provisions by which the jurisdiction of the tribunal in respect of such matters is defined. Background [3] The factual background to the dispute appears to be fairly straightforward. The respondent is a homeowner who had a builder doing other building work on his site, as a result of which a quantity of excess soil had been generated. The respondent engaged the appellant to dispose of the excess soil, and for that purpose the appellant went to the respondent’s site with a semi-tipper and an excavator which was used for loading it, and ultimately loaded two loads and removed them. Apart from this, it does appear that in connection with this work the appellant’s machine was also involved in moving some rubbish on the site from one part to another, and levelling part of the site where some work was to be undertaken, in accordance with the directions of the builder. [4] There was a dispute between the parties because the respondent claimed that the charges sought to be imposed by the appellant were excessive, and because the respondent claimed that the appellant had left some soil or mud on the roadway adjacent to the building site, with the result that the council imposed a fine of $300 and required the roadway to be cleaned up at the cost of $107.80.2 It was submitted by the appellant that this did not amount to building work for the purposes of the legislation. Jurisdiction [5] Section 8(1) of the Commercial and Consumer Tribunal Act provides that the tribunal has jurisdiction to deal with the matters it is empowered to deal with under that Act or an empowering Act. The relevant empowering Act was the Queensland Building Services Authority Act 1991 (“the QBSA Act”). Section 77(1) of the QBSA Act provides: “A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.” The relevant “tribunal” is that established by the Commercial and Consumer Tribunal Act, and it seems to follow that if the dispute between the appellant and the respondent amounted to a “building dispute” for the purpose of that provision, the dispute could be heard by the tribunal under the Commercial and Consumer Tribunal Act. The crucial question therefore becomes whether this was a “building dispute” for the purpose of that section. [6] The term “building dispute” is defined in the QBSA Act in Schedule 2 as including relevantly, a “domestic building dispute”. That term is also defined in Schedule 2 of that Act, as relevantly “(a) A claim or dispute arising between a building owner 2 The fine was actually imposed on the respondent’s builder, but evidently the fine was paid on behalf of the builder by the respondent, who then claimed the amount back from the appellant. -- 2 of 6 -- 3 and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.” A “building contractor” means “a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.” The term “building work” is defined extensively in the schedule, but includes relevantly “(e) Any site work (including the construction of retaining structures) related to work of a kind referred to above.” There is no doubt that the work the builder was doing on the site here was building work, and on the face of it removing excess soil from the site, and indeed moving rubbish around on the site and levelling part of the site, amounted to “site work” within that paragraph.3 In any case, I expect that the appellant’s business included carrying out things that fell within the definition of “site work” and he did not specifically submit to the contrary. [7] Assuming therefore that the appellant was a building contractor, the question of whether this was a domestic building dispute depends on whether the dispute related to the performance of “reviewable domestic work”. That term is also defined in Schedule 2 as meaning: “Domestic building work under the Domestic Building Contracts Act 2000, except that for applying s 8(8) of that Act, the definition ‘excluded building work’ in that Act is taken not to mean anything mentioned in paragraphs (b), (c), or (d) of the definition.” [8] The term “domestic building work” is defined in s 8 of that Act, a section which extends over almost two pages of text. Subsection (1) contains a basic definition which on its face would not appear to cover the work which was done here. Subsection (2) includes some provisos to subsection (1)(c), and subsection (3) provides that the term includes work “associated with the erection, construction, removing or resiting of an attached dwelling, or the renovation, alteration, extension, improvement or repair of the home.” Subsection (4) then provides that associated work includes “landscaping”. Subsection (7) provides that domestic building work includes site work related to work mentioned in subsections (1), (3), (5), or (6), and work declared under a regulation to be domestic building work “if there are reasonable grounds for considering the work to be domestic building work.” Subsection (8) provides that domestic building does not include excluded building work. The term “excluded building work” is defined, but none of the specific provisions of the exclusion would apply in the present case. There is also provision for work to be excluded under a regulation “if there are reasonable grounds for considering the work to be excluded building work.” There does not appear to be anything in the Domestic Building Contracts Regulation 2000 which would modify the operation of these provisions. [9] On the face of it therefore the work being done by the appellant for the respondent, although perhaps not “building work” in the popular sense, was, it seems to me and without the benefit of legal argument on the point, within the definition of “domestic building work” for the purposes of the Domestic Building Contracts Act 2000, and therefore to be “reviewable domestic work” for the purposes of the definition of “domestic building dispute” in Schedule 2 of the QBSA Act. It was “site work” related to the work the builder was doing, and therefore fell within 3 The term “site work” does not itself appear to be defined in the Act. -- 3 of 6 -- 4 subsection (7) It follows therefore that the tribunal had jurisdiction in relation to this matter; at the least, the appellant has not established that there is good reason to think that he has a fairly arguable case to the contrary. [10] It follows that there is apparently no substance to grounds 1 and 2 of the proposed grounds of appeal set out in the notice of appeal subject to leave, which appears to have been drafted with the benefit of legal advice, although there was no legal representation for the appellant before the tribunal or before this court. Ground 3 alleged that the learned tribunal member erred in law in failing properly to construe the entitlement of the appellant under its contract with the respondent, and the effect of an agreement allegedly made between the appellant and the respondent in relation to the cleaning of the road adjacent to the respondent’s land. The agreement to do the work [11] The reasons of the learned tribunal member, which were attached to the notice of appeal subject to leave, included a finding that the legal effect of the engagement of the appellant by the respondent was that the respondent would pay the reasonable costs of the work done: para 42. There was no dispute about the appropriateness of the appellant’s hourly rate, but there was a dispute about the amount of time for which the appellant charged for work done, and most of the reasons consists of an analysis of the evidence and findings made by the tribunal member as to how much work was done on each day that work was done, and to what extent work was properly charged for. There was some issue about the latter because, for example, there was a finding that the appellant’s truck became bogged at one stage and considerable time and effort were spent in extricating it, and the tribunal did not consider that it was the responsibility of the respondent to pay for that. [12] If there is some issue as to the true effect in law of a contract between parties that I accept is a question of law, but the argument in the present case appeared rather to be directed to the question of whether the tribunal member had made a mistake or mistakes in finding that the amount of time for which the appellant was entitled to charge was as set out in paragraph 40 of the reasons. However, findings of that nature are essentially findings of fact. It is possible for an error of law to be made in connection with the making of a finding of fact, but no such error of law was identified in submission on behalf of the appellant in the present case. Insofar as the appellant seeks to dispute the findings made by the tribunal as to the period in respect of which it was entitled to charge, this has not been shown to involve questions of jurisdiction or law, and therefore there is nothing which could properly be the subject of an appeal to this court. Alleged agreement about cleaning the road [13] With regard to the effect of the agreement between the appellant and the respondent, this is related to the responsibility for the fine and costs for cleaning the road referred to earlier. After the appellant’s truck became bogged there was some work done extricating it, and the tribunal found that once removed from the bog the truck was driven some 180 metres along Nelson Street to an intersection and then returned: para 33. Presumably as a result of this mud and clay was distributed along Nelson Street for a considerable distance. -- 4 of 6 -- 5 [14] The tribunal member referred to evidence from the respondent that by this time it was dark and although he was aware that clay had been left on the road adjacent to the site he was unaware of the nature of the “damage to” (presumably dirtying of) the remainder of Nelson Street. Reference was made by the tribunal member to the appellant’s case that the respondent had agree to clean the road the next day himself, and he continued (para 34): “If it was suggested that the legal effect of such a comment was to accept responsibility for cleaning the roadway, I do not accept this submission, as the applicant clearly was not aware of the extent of the damage or its repercussions.” [15] There was then the finding in the following paragraph that the appellant’s activities were both negligent and unworkmanlike, and damages were properly recoverable for the appellant’s negligence or in the alternative (para 36) for breach of contract. The appellant’s argument before me was that there was such an agreement between the parties about cleaning the road, and in these circumstances the appellant should not be held liable for the consequences of any dirtying of the road. [16] I am not persuaded that any error has been shown in the reasons of the tribunal. If in connection with doing the work the appellant produced inappropriate (and indeed arguably unlawful) deposits of mud and clay on the roadway, then that was a breach of contract or negligence on his part which gave rise to an entitlement in the respondent to damages. The question then is whether there was something that happened between the parties by which that entitlement to damages was waived, or whether there was a further agreement between the parties of which the respondent was in breach, and in respect of which the appellant had an entitlement to damages which would offset the amount of any damages against it. [17] As to former, there could not have been a waiver without proper knowledge of just what was being waived, and the tribunal was obviously correct in concluding that in the absence of knowledge of the extent of the cleaning this could not amount to a waiver of any claim arising out of it.4 As to the question of whether there was any liability in contract, there is nothing to indicate that any consideration was given for any promise or agreement on the part of the respondent to clean up the roadway. A mere offer by A to do something for the benefit of B, which B purports to accept, does not in itself give rise to a contract enforceable by B against A. No consideration for any promise by the respondent was identified, and none is apparent. In these circumstances there is no reason to doubt the conclusion as to the effect of any such agreement, assuming it was made; the tribunal appears to have proceeded on the assumption that there was such an agreement, rather than expressly making a finding that there was one. In any case, no error of law on the part of the tribunal has been demonstrated in relation to this matter. Other grounds [18] The next ground of appeal was that the tribunal member erred in law in failing to give due weight to the submissions of the appellant. But that is necessarily not an issue of law; what weight is to be given to particular submissions is a matter for the 4 As to the requirement of knowledge, see The Commonwealth v Verwayen (1990) 170 CLR 394 at 406 per Mason CJ, 451 per Dawson J, 466 per Toohey J, 484 per Gaudron J, 491 per McHugh J. -- 5 of 6 -- 6 tribunal, and this appears to be another way of saying that there was an error in failing to find for the appellant. That in itself, however, does not identify some error in relation to law or jurisdiction. [19] The appellant in oral submissions complained about statements made by the tribunal about inadequacy of the appellant’s documentation, and said that the documentation that was maintained by the appellant was particularly good and unusually thorough. It is true that the tribunal was somewhat critical in its reasons of the appellant’s documentation, but the appellant has not shown that there was any error of law, as distinct from an error of fact, on the part of the tribunal in findings that were made as to the periods of time for which the appellant was entitled to charge, which was one of the matters particularly in dispute before the tribunal. Criticism of the adequacy of the appellant’s documentation in that context has not been shown to involve any particular error of law. [20] Finally, it was claimed that there as an error of law in failing to give adequate reasons for the decision. That can amount to an error of law, but I have seen the reasons and there is no inadequacy in them apparent to me, nor was any inadequacy revealed by the submissions made on behalf of the appellant. Conclusion [21] It follows therefore that nothing has been said on behalf of the appellant to give rise to any real reason to think that there may be some error of law or jurisdiction in relation to this matter. Furthermore, the dispute was quite a small one. Apart from the small amount of the final order made, it appears that the appellant’s claim before the tribunal, that is the full amount of the invoices which had been delivered, was $1,391.50. This was therefore a quite a small dispute. The appellant complained to me that everything was decided by the tribunal in favour of the respondent. It does appear certainly that generally speaking it was the respondent who was successful before the tribunal, although the respondent did not succeed in confining the appellant to the amount of an estimate given, before even looking at the site, of $550. [22] The amount prima facie allowed, $805, was a substantial proportion of the total amount claimed by the appellant, although it was reduced significantly by deducting the fine imposed by the council and the cost of cleaning Nelson Street, and by further deducting the filing fees associated with the application of $223. If the government is going to charge such heavy fees for people who resort to the tribunal, it is inevitable that, even in matters such as the present where neither party was legally represented before the tribunal, there will be some significant costs involved simply in having the matter determined there. There has been no basis shown for any challenge to the exercise of the tribunal’s discretion in relation to payment of the filing fee. [23] No question of general importance arises in relation to this matter, and no serious issue of law has been identified by the appellant. In the circumstances it is not appropriate to give leave to appeal, and leave is refused. It does not appear that the respondent has incurred any costs in relation to this application. -- 6 of 6 --