Austcoast Builders Pty Ltd v Whitsunday Housing Company Ltd [2012] QCAT 7

CITATION: Austcoast Builders Pty Ltd v Whitsunday Housing Company Ltd [2012] QCAT 7 PARTIES: Austcoast Builders Pty Ltd v Whitsunday Housing Company Ltd APPLICATION NUMBER: BDL107-11 / BDL118-11 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Acting President Peta Stilgoe, Senior Member DELIVERED ON: 16 January 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. Transfer the proceedings in QCAT applications BDL107-11 and BDL118- 11 to the Magistrates Court at Brisbane. 2. Austcoast will pay Whitsunday Housing Company’s costs of an incidental to the following on the Magistrates Court Scale G: a. The preparation of the initial response and counterclaim filed 19 May 2011. b. The application for leave to be represented filed on the same date. c. Submissions in response to the application to stay a decision filed 5 July 2011. d. Attendance at the compulsory conference on 7 October 2011. e. Attendance at the directions hearings of 9 August and 2 November 2011. f. Submissions in response to the application to transfer the proceedings. 3. Whitsunday Housing Company’s -- 1 of 6 -- 2 costs will be assessed as follows: a. Whitsunday Housing Company will deliver to Austcoast an itemised claim for costs. b. If the parties have not agreed to an amount for costs within 14 days of the delivery of the itemised claim, the costs will be assessed by an assessor agreed between the parties or, failing agreement, by an assessor appointed by the Registrar. c. Austcoast will pay Whitsunday Housing Company’s costs as agreed or assessed within 14 days of such agreement or assessment. CATCHWORDS: BUILDING – where major commercial building dispute – whether consent to tribunal’s jurisdiction TRANSFER OR PROCEEDINGS – where tribunal has no jurisdiction COSTS – where proceedings an abuse of process Queensland Civil and Administrative Tribunal Act 2009, ss 48, 52 Queensland Building Services Authority Act 1991, ss 78, 79 Atcheson v Schacheri [2006] QCCTB 152 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 Acting President [1] I have read the draft reasons for decision of Senior Member, Ms Stilgoe. I agree with her reasons and the orders she proposes. -- 2 of 6 -- 3 Member Stilgoe [2] On 27 April 2011, Austcoast Builders Pty Ltd filed an application against Whitsunday Housing Company Ltd for a commercial building dispute for $29,251.92. As the amount claimed was less than $50,000, the proceeding was within the jurisdiction of the tribunal. [3] On 5 May 2011, Austcoast filed another application for a commercial building dispute against Whitsunday Housing Company. This claim was for $50,000. Again, the proceeding appeared to be within the jurisdiction of the tribunal. [4] Whitsunday Housing Company filed a response and counterclaim in each proceeding. The quantum of the counterclaim meant that the dispute was a “major commercial building dispute”. By order of 27 July 2011, the tribunal directed that the Austcoast’s claims be consolidated. The effect of that order was that the consolidated claim was now also a “major commercial building dispute”. [5] The tribunal may decide a “major commercial building dispute” only with the parties’ consent.1 Despite the parties having engaged in a number of processes within the tribunal, Austcoast now says that the parties have not consented to the jurisdiction of the tribunal and it asks that the proceeding be transferred to the Magistrates Court pursuant to s 52(2) of the Queensland Civil and Administrative Tribunal Act 2009. [6] The procedure for deciding whether all parties have consented to the tribunal’s jurisdiction is set out in s 79 of the Queensland Building Services Authority Act 1991. The section provides that the consent must accompany the application to start a proceeding and that it must include an acknowledgement by the consenting party that the consent cannot be withdrawn. [7] Whitsunday Housing Company argues that the parties have consented to the jurisdiction of the tribunal and that this is evidenced by correspondence between the parties’ lawyers. Unfortunately, the “consent” evidenced by the correspondence was not given at the start of the proceeding nor was it expressly acknowledged that the consent could not be withdrawn. Indeed, Austcoast argues that its consent was always limited to events up to and including the compulsory conference. [8] In Atcheson v Schacheri2 the former Commercial and Consumer Tribunal determined that3: The matter of the Tribunal’s enlarged jurisdiction is not solely dependent upon the consent simpliciter of the existing parties to an application. … The written “consent” must be filed with the application … there is no other alternative form of consent permitted … whether with the approval/leave/satisfaction of the Tribunal or otherwise. 1 Section 78 Queensland Building Services Authority Act 1991. 2 [2006] QCCTB 152. 3 At [38]. -- 3 of 6 -- 4 Even if, in this instance, consent can be implied from the conduct of these parties subsequent to the filing of the process such that may, in ordinary circumstances, give rise to an estoppel … that does not have the effect of providing a resultant enlarged jurisdiction to the Tribunal as the consent required for that enlarged jurisdiction was consent prior to the commencement of the proceedings. [9] I can see no reason to adopt a different interpretation of the relevant sections of the Act. I am therefore obliged to find that the tribunal does not have jurisdiction in these proceedings. [10] Whitsunday Housing Company argues that Austcoast’s actions in these proceedings have thwarted the objects of the Queensland Civil and Administrative Tribunal Act 2009 – to have the tribunal deal with matters in a way that is accessible, fair, just economical, informal and quick4 – and that granting Austcoast’s application to transfer the proceedings will, in effect, reward its poor behaviour. [11] I agree that Austcoast has apparently misused the tribunal proceedings for its own ends (whatever they may be). An examination of the file shows that: a) Austcoast deliberately instituted separate proceedings in respect of the same subject matter to bring its claim within the jurisdiction of the tribunal. In an email dated 19 April 2011, Mr Sharpe of Austcoast wrote: Attached is the first of several applications revolving around the non- payment of my account! … just to put you on notice that we do have a dispute an it will now be moved forward. I will then deal with the other items over the Easter break. Mr Sharpe then enumerates six other heads of claim. I do not accept the assertion in the affidavit of Mr Downes sworn 7 December 2011 that: “had Mr Sharpe known that the proceedings would substantially exceed $50,000 he would not have commenced proceedings in QCAT.” b) Austcoast participated in a compulsory conference on 7 October 2011. c) By letter of 1 November 2011, Austcoast’s lawyers proposed directions that would move the proceedings towards a hearing. Those draft directions were largely adopted by the tribunal at a directions hearing on 2 November 2012. d) The directions of 2 November 2011 required Austcoast to file and serve its witness statements by 30 November 2011. It did not comply. Instead, Austcoast brought the present application. [12] As I have already mentioned, s 79 of the QBSA Act requires a party to state expressly that its consent to the tribunal’s jurisdiction cannot be withdrawn. The assertion in Mr Downes’ affidavit sworn 7 December 2011 that Mr Sharpe’s consent to the tribunal’s jurisdiction was only up to and 4 Section 3(b) Queensland Civil and Administrative Tribunal Act 2009. -- 4 of 6 -- 5 including the compulsory conference is either disingenuous or wrong. It does not explain why Mr Downes participated in drafting directions post the compulsory conference. The only conclusion I can draw is that Austcoast deliberately conducted proceedings in the tribunal knowing that it could terminate them at any stage without any apparent penalty. If Austcoast had properly articulated its claim, which was always a major commercial building dispute, in the first instance, then it would have been obvious that the dispute should have been in another forum. [13] I do not agree with the submission that the all of the parties’ work in this tribunal will be wasted if the matter is transferred to the Magistrates Court. The amended application and the response and counterclaim are in the form of pleadings, although not strictly compliant with the Uniform Civil Procedure Rules 1999, and they can form the basis of the action going forward. [14] I propose to order that the proceedings be transferred to the Magistrates Court. [15] The tribunal has the power to order costs against a party who acts in a way that unnecessarily disadvantages another party.5 In determining whether to order costs, the tribunal must have regard to6: the extent to which the party causing the disadvantage is familiar with the tribunal’s practices; the capacity of the party to understand and act upon the tribunal’s orders and whether the party is acting deliberately. I am satisfied that, even if Mr Sharpe was not familiar with detail of the tribunal’s practices, his email of 19 April 2011 shows he was sufficiently familiar with the tribunal to know that it had a jurisdictional limit and that he was acting deliberately. [16] I consider that Austcoast should bear the cost of steps taken in this tribunal that were of no utility or would not be a part of an action in the Magistrates Court. Accordingly, Austcoast should pay Whitsunday Housing Company’s costs of and incidental to the following: a) The preparation of the initial response and counterclaim filed 19 May 2011. b) The application for leave to be represented filed on the same date. c) Submissions in response to the application to stay a decision filed 5 July 2011. d) Attendance at the compulsory conference on 7 October 2011. e) Attendance at the directions hearings of 9 August and 2 November 2011. f) Submissions in response to the application to transfer the proceedings. [17] Austcoast will pay Whitsunday Housing Company’s costs on the Magistrates Court Scale G. [18] Whitsunday Housing Company’s costs will be assessed as follows: 5 Section 48(2)(c). 6 Section 48(3). -- 5 of 6 -- 6 a) Whitsunday Housing Company will deliver to Austcoast an itemised claim for costs. b) If the parties have not agreed to an amount for costs within 14 days of the delivery of the itemised claim, the costs will be assessed by an assessor agreed between the parties or, failing agreement, by an assessor appointed by the Registrar. c) Austcoast will pay Whitsunday Housing Company’s costs as agreed or assessed within 14 days of such agreement or assessment. -- 6 of 6 --