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  • Unreported Judgment

ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk

 

[2016] QCAT 214

CITATION:

ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk [2016] QCAT 214

PARTIES:

ML Spicer Pty Ltd t/as Purebuild Homes

(Applicant)

 

v

 

Sa-ath Doeuk

Sona Doeuk

(Respondents)

APPLICATION NUMBER:

BDL091-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

12 July 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to join John Peter Torresan as a respondent is refused.
  2. The parties have leave to be legally represented in the proceeding.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PROCEDURE – JOINDER OF CAUSES OF ACTION AND OF PARTIES – whether claim against certifier a domestic building dispute – whether claim against a certifier a commercial building dispute – whether party should be joined as a respondent – leave to be represented – whether granting leave to be represented in the interests of justice

Acts Interpretation Act 1954 (Qld), s 14

Building Act 1975 (Qld), ss 8, 10, 125, 126, 129

Domestic Building Contracts Act 2000 (Qld), s 8

Queensland Building and Construction Commission Act 1991 (Qld), ss 3, 75 77, Schedule 2

Queensland Building and Construction Commission Regulation 2003 (Qld), s 5, Schedule 1AA s 34

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42

Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581

Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241

Eaves v Laghai [2004] QCCTB 20

Oceanic Life Limited & v Chief Commissioner of Stamp Duties [1999] NSWCA 416

Wayne Fox Building Contractors Pty Ltd v Everlyn Building Certification Pty Ltd [2010] QCAT 356

Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] 2 Qd R 394

APPEARANCES:

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. [1]
    Purebuild Homes undertook building renovation works at the home of Mr and Mrs Doeuk. Purebuild has filed an application for a domestic building dispute claiming an amount of $37,086.86 from the Doeuks being what Purebuild says is the amount owing under the contract for the renovation works. The Doeuks deny that they owe any monies to Purebuild and counterclaim for damages said to have been suffered as a result of contractual breaches by Purebuild.
  2. [2]
    There are two interlocutory applications before the Tribunal. The first is an application by the Doeuks to join a party to the proceeding. The second is an application by the Doeuks for leave to be legally represented. On 14 June 2016 I refused the application to join a respondent and granted the application for leave to be legally represented. My reasons follow.

The joinder application

  1. [3]
    Mr and Mrs Doeuk apply to have Mr John Peter Torresan, a building certifier, joined as a respondent. They say that they retained Mr Torresan to provide various services relating to the building works including receiving the building works application, assessing the application against relevant building legislation, issuing building works development approval and undertaking inspections in preparation for the issuing of the final building certificate.[1]
  2. [4]
    The Doeuks say that Mr Torresan, as a licensed building certifier, had an obligation to take reasonable steps to satisfy himself ‘of the storm water matters’ before issuing the Building Works Approval and that he should have taken further steps towards enforcing compliance ‘of the storm water matters’ before issuing the final certificate.[2]
  3. [5]
    The Doeuks say that Mr Torresan had an obligation to take reasonable steps to satisfy himself that the building works complied with the Building Code of Australia and specifically all matters relating to waterproofing and safe movement to and within the building before issuing the final certificate.[3]
  4. [6]
    The Doeuks say that Mr Torresan breached his contractual obligations to them and failed to discharge his obligations under s 10(c) of the Building Act 1975 (Qld) (“BA”) and his obligations under the ‘Code of Conduct’ pursuant to s 129 BA.[4]
  5. [7]
    As a result of the breaches by Mr Torresan of his contractual and other obligations, the Doeuks say that they have suffered loss and damage and that it is appropriate that Mr Torresan is joined as a respondent.
  6. [8]
    Purebuild has filed no submissions in response to the joinder application. In accordance with directions made by the Tribunal, the joinder application was served on Mr Torresan. Through submissions filed by his solicitors, Mr Torresan says that he was not a party to the contract between the Doeuks and Purebuild, that no claim has been made against Mr Torresan by the Doeuks and that it is appropriate that the joinder application be dismissed.
  7. [9]
    The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that the person should be bound by or have the benefit of a decision of the tribunal in the proceeding, the person’s interests may be affected by the proceeding or it is otherwise desirable that the person be joined as a party.[5]
  8. [10]
    The QCAT Appeal Tribunal has observed:[6]

To include parties in contentious litigation without their consent is a serious matter and will not be done lightly. That is why the section confers a discretionary power on the Tribunal. The applicant for an order to join another party must demonstrate not only that the party may be affected by the proceeding but also there is, within that proceeding … , some utility or purpose in the joinder.

  1. [11]
    In the present application, there is a threshold issue for determination. The tribunal, being a creature of statute, derives its jurisdiction and powers from the QCAT Act and various enabling Acts of the Queensland Parliament. The issue for determination is whether the tribunal has jurisdiction to hear and determine the Doeuks’ claim against Mr Torresan and if there is no jurisdiction then the question arises as to whether it is appropriate that Mr Torresan is joined.
  2. [12]
    The building dispute, the subject of the proceeding, is governed by the provisions of the Queensland Building and Construction Commission Act 1991 (Qld)[7] (QBCC Act) and the Domestic Building Contracts Act 2000 (Qld)[8] (DBCA).
  3. [13]
    The tribunal may decide a building dispute.[9] A building dispute means a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.[10] 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.[11]
  4. [14]
    Reviewable domestic work means domestic building work.[12] Domestic building work includes the erection or construction of a detached dwelling.[13] Domestic building work does not include excluded building work.[14]
  5. [15]
    A building contractor includes a person who carries out building work or manages the carrying out of building work.[15] Building work is defined.[16] Building work does not include work of a kind excluded by regulation.[17] Certification work performed by a building certifier under the Building Act 1975 in the certifier’s professional practice is not building work.[18] A building certifier is defined.[19] A person must not perform a building certifying function unless the person is a building certifier and is appropriately licensed to perform the function.[20] A building certifying function is defined.[21]
  6. [16]
    Is the dispute between the Doeuks and Mr Torresan a claim or dispute 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? The answer to this question turns on whether Mr Torresan is a building contractor. A building contractor must carry out building work or manage the carrying out of building work. Building work does not include certification work performed by a building certifier. Mr Torresan is a certifier. The claim which the Doeuks say they wish to pursue against Mr Torresan is in respect of work carried out by Mr Torresan in his capacity as a certifier. In this regard, the Doeuks specifically rely upon what they say is Mr Torresan’s failure to comply with his obligations as a certifier under the Building Act and the relevant Code of Conduct.[22]
  7. [17]
    The tribunal has previously held that work performed by a certifier is not ‘building work’ with the result that a dispute regarding work performed by a certifier is not a dispute with a ‘building contractor’.[23] I respectfully agree with and adopt the reasoning in those decisions and find that the claim by the Doeuks against Mr Torresan is not a claim or dispute 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.
  8. [18]
    The next issue to address is whether the claim by the Doeuks against Mr Torresan is a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries. Whilst not expressly articulated as such in the application filed by the Doeuks, the claim against Mr Torresan could be formulated as one in negligence.
  9. [19]
    The words “related to the performance of reviewable domestic work” have a limiting or qualifying effect.[24] If given an expansive meaning, the result would be that the tribunal is “invested with jurisdiction over all claims in negligence for property damage or economic loss of any kind, which cannot have been the legislative intention.”[25]
  10. [20]
    Reviewable domestic work means domestic building work under the DBCA.[26] Domestic building work includes work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.[27]
  11. [21]
    Domestic building work does not included excluded building work. Excluded building work is defined as including work declared under a regulation to be excluded building work if there are reasonable grounds for considering the work to be excluded building work.[28]
  12. [22]
    The regulation does not declare any building work to be excluded building work.[29] It therefore falls to be considered whether certification work is domestic building work under the definition of that term found in the DBCA.
  13. [23]
    In Eaves v Laghai[30] the former Commercial and Consumer Tribunal (CCT) was required to consider whether work carried out by a private certifier was reviewable domestic work under the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act). In finding that the work performed by the certifier was not reviewable domestic work, the tribunal considered the nature of the work performed by the certifier. The tribunal found that no physical work was performed by the certifier relating to the erection or construction of a building, the renovation, alteration, extension, improvement or repair of a home or the removal or resiting work for a detached dwelling. Nor, held the tribunal, had the certifier provided services or facilities to the home.
  14. [24]
    In Cleary v Bowcock[31] the CCT considered the scope of ‘a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries’. The tribunal found that ‘related to’ was synonymous with ‘involved in’ and that ‘performance’ was a reference to actual physical performance of the work.[32] The tribunal found that a narrower interpretation of the provision was to be preferred particularly in the context of the specific exclusion of certification work from the definition of building work.
  15. [25]
    The subsequent decision of the Court of Appeal in Fraser Property Developments Pty Ltd v Sommerfeld (No. 1)[33], clarifies the approach to be adopted when considering whether a claim for negligence relates to the performance of reviewable domestic work. The work complained of and thus the subject of the dispute, in this case certification work, must itself be reviewable domestic work. This is readily apparent from the reasoning of McPherson JA with whom Philippides J agreed.[34]
  16. [26]
    The only part of the definition of “domestic building work” which certification might come within is “associated work”. “Associated work” includes work associated with the renovation, alteration, extension, improvement or repair of a home. Without limiting the scope of ‘associated work’, the term includes landscaping, paving and the erection or construction of a building or fixture associated with the detached dwelling or home. Examples of associated work include retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas.
  17. [27]
    Examples contained in an Act may be an aid to interpretation.  The section in the DBCA and the examples provided in the Act reflect, in my view, an intention of the part of the legislature to limit ‘associated work’ to physical building work. A more expansive view would open up the application of the Act far beyond the scope that could have been intended by the legislature. Support for this conclusion can be found in the decision of Williams JA in Fraser Property Developments Pty Ltd where his Honour held that work performed by a local authority in approving or rejecting building or engineering plans was not reviewable building work, noting:

I have real difficulty in concluding that a local authority’s conduct in approving or rejecting building or engineering plans … would be performing work caught by any of the provisions resulting in a definition of a “building dispute.[35]

  1. [28]
    Work performed by a certifier is not reviewable domestic work. Therefore any claim against a certifier cannot relate to reviewable domestic work. The proposed claim by the Doeuks against Mr Torresan is not one relating to reviewable domestic work and is therefore not a domestic building dispute. 
  2. [29]
    Having concluded that the proposed claim by the Doeuks against Mr Torresan is not a domestic building dispute it falls to be determined whether the claim is a commercial building dispute.
  3. [30]
    A commercial building dispute includes 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.[36] 
  4. [31]
    I have concluded that Mr Torresan is not a building contractor for the purposes of the Act. That leaves the question as to whether the claim by the Doeuks against Mr Torresan is one related to the performance of reviewable commercial work.
  5. [32]
    Reviewable commercial work means tribunal work other than reviewable domestic work. Tribunal work includes “the inspection of a completed building”.[37] The question of whether certification work fell within the meaning of “the inspection of a completed building” was considered in Cleary. It was held that any inspection was subsidiary and subordinate to the real and actual purpose of the work which is certification of the building.[38] It was noted in Cleary that the outcome would be odd if tribunal work included work performed by a certifier in respect of a final inspection but not earlier inspections carried out by the certifier.
  6. [33]
    I agree with the approach adopted by the learned member in Cleary. An ‘inspection’ is quite different to ‘certification’. The first does not necessarily lead to the second nor is the latter necessarily preceded by the former. Noting that certification work has been expressly excluded from the definition of building work, if certification work was intended to be caught within ‘tribunal work’ the legislature did not take the opportunity do so. Certification work is not Tribunal work within s 77(1)(g) QBCC Act.
  7. [34]
    It follows that the proposed claim by the Doeuks against Mr Torresan is not a commercial building dispute.
  8. [35]
    The proposed claim by Mr and Mrs Doeuk against Mr Torresan is neither a domestic building dispute nor a commercial building dispute. As the proposed claim is not a building dispute the Tribunal has no jurisdiction in respect of the claim.
  9. [36]
    The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person's interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding.[39]
  10. [37]
    In the context of the (now superseded) Supreme Court Rules, the phrase concerning the joinder of a person “whose presence before the Court may be necessary in order to enable the Court effectually and completely to the adjudicate upon and settle all questions involved in the cause” it has been held that:

“… where a person is sought to be joined as a defendant over the opposition of the plaintiff, what is necessary for the purpose of this phrase should be viewed strictly so as to prevent a plaintiff from being compelled to sue someone whom he or she does not wish to sue.”[40]

  1. [38]
    Purebuild Homes has filed no submissions in response to the joinder application. The effect however of the joinder of Mr Torresan would be to compel Purebuild Homes to pursue a claim against him. The exercise of the discretion to join a party is not without significant potential difficulties both in substantive and procedural respects.
  2. [39]
    It is readily apparent that, in the exercise of its review jurisdiction, it may be appropriate for the tribunal to make an order joining a party to a proceeding. For example, in review proceedings relating to the rectification of defective building work, it may be appropriate to join a party who might be found liable for defective building work. It does not follow that all subcontractors who undertook building work on a particular site should be joined in a proceeding. There must be some utility or purpose in the joinder.[41]
  3. [40]
    It is the issue of utility or purpose in the joinder of Mr Torresan that is central to the determination of the application by the Doeuks. Mr Torresan cannot be bound by or have the benefit of the decision of the tribunal in the proceeding in light of the fact that the tribunal does not have jurisdiction in respect of any claim, either by the Doeuks or Purebuild Homes, against him. It may be that Mr Torresan’s interests may be affected by the proceeding. This is of itself insufficient to justify the exercise of the discretion to order a joinder.
  4. [41]
    The absence of the tribunal’s jurisdiction in respect of any claim against Mr Torresan is a complete answer to the submission that the discretion to order the joinder of Mr Torresan should be exercised as sought by Mr and Mrs Doeuk.
  5. [42]
    Even if I am wrong, and the proposed claim against Mr Torresan is a commercial building dispute, the attempt to join Mr Torresan faces one final, insurmountable, obstacle. The quantum of the claim against Mr Torresan is said by the Doeuks to exceed $50,000.[42] The proposed claim is a major commercial building dispute.[43] 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 doing so.[44] There is nothing before the Tribunal to suggest that Mr Torresan consents to the Tribunal deciding the dispute. Mr Torresan resists the joinder application. The tribunal may, before another step is taken in the proceeding, conduct a pre-hearing conference to decide whether there is another person who should be joined as a party to the dispute.[45] The proceeding to which the QBCC Act refers at s 79(3) is a proceeding for a major commercial building dispute. The proceeding before the Tribunal is a domestic building dispute. Section 79(3) has no application in this proceeding. Aside the obvious procedural difficulties that would arise, the application of s 79(1) QBCC Act would, even if the claim by the Doeuks against Mr Torresan was a commercial building dispute, prevent the joinder of Mr Torresan.

The application for leave to be legally represented

  1. [43]
    Mr and Mrs Doeuk seek leave to be legally represented in the proceeding. Purebuild Homes opposes leave being granted but says that if leave is granted such leave should be given to both parties.
  2. [44]
    Purebuild Homes says that the dispute is nothing more than a standard contractual dispute. It says that the Doeuks have demonstrated a capacity to know and understand the English language. Purebuild Homes says that the Doeuks attended numerous site meetings without the assistance or an interpreter or a representative and that if such assistance is required in the proceeding an interpreter can be used. Purebuild Homes says that the proceeding does not involve complex issues of fact or law and that the quantum of the amounts in dispute on the application and the counter application do not justify the parties being legally represented.
  3. [45]
    Parties should represent themselves in the Tribunal unless the interests of justice require otherwise.[46] The granting of leave to be represented is discretionary. The exercise of the discretion is assisted, but not dictated, by a range of circumstances including that the proceeding is likely to involve complex questions of fact and law.[47] The overarching consideration is the interests of justice.
  4. [46]
    There is clearly a dispute about whether the building work had reached the stage of practical completion. Mr and Mrs Doeuk issued a notice to remedy breach to Purebuild Homes in respect of what they say are defects. It will be necessary for the tribunal to make findings as to whether the building works had reached the stage of practical completion. It will also be necessary for the tribunal to consider whether the Doeuks were in substantial breach when the notice to remedy breach was issued, whether the purported termination was a repudiation of the contract and whether Purebuild validly rescinded the contract. The issues of who was in breach and when and whether the Doeuks had grounds to terminate the contract will need to be determined. 
  5. [47]
    In considering the interests of justice it is necessary to consider the objects of the QCAT Act including having the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[48]
  6. [48]
    In all the circumstances I am of the view that the proceeding is likely to involve complex issues of fact and law and that it is in the interests of justice for the parties to be legally represented. I am of the view that the involvement of legal representatives will assist the parties and the tribunal in the early identification of the relevant issues which will in turn encourage an early resolution of the matter.

Conclusion

  1. [49]
    The response filed by Mr and Mrs Doeuk includes a counter application against Mr Torresan. In light of my orders, an amended response will be required to filed.
  2. [50]
    I order as follows:
    1. The application to join John Peter Torresan as a respondent is refused.
    2. The parties have leave to be legally represented in the proceeding.

Footnotes

[1] Respondents’ submissions at [3].

[2] Ibid at [4].

[3] Ibid at [5].

[4] Ibid at [6].

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 42(1).

[6] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority [2012] QCATA 241.

[7] Reprint as at 1 January 2015.

[8] Reprint as at 1 December 2013.

[9] QBCC Act, s 77(1).

[10] QBCC Act, Schedule 2.

[11] QBCC Act, Schedule 2.

[12] Ibid, Schedule 2.

[13] DBCA, s 8(1).

[14] Ibid, s 8(8).

[15] QBCC Act, Schedule 2.

[16] Ibid, Schedule 2.

[17] Ibid, Schedule 2.

[18] Queensland Building and Construction Commission Regulation 2003 (Qld) (‘QBCC Regulation’), reprint as at 1 January 2015, s 5; Schedule 1 AA, s 34.

[19] Building Act 1975 (Qld), s 8.

[20] Ibid, ss 125 and 126.

[21] Ibid at s 10.

[22] Application for Miscellaneous Matters filed 19 May 2016 at [6].

[23] Wayne Fox Building Contractors Pty Ltd v Everlyn Building Certification Pty Ltd [2010] QCAT 356; Bach v Majestic Pools & Landscapes Pty Ltd [2010] QCAT 581; and see Cleary v Bowcock [2005] QCCTB.

[24] Fraser Property Developments Pty Ltd v Sommerfeld (No. 1) [2005] 2 Qd R 394.

[25] Ibid at 399.

[26] DBCA, s 8.

[27] DBCA, s 8(3)(b).

[28] DBCA, s 8(8) and Schedule 2.

[29] Domestic Building Contracts Regulation 2010 reprint as at 1 July 2014.

[30] [2004] QCCTB 20.

[31] [2005] QCCTB.

[32] Ibid at [16].

[33] [2005] 2 Qd R 394.

[34] Ibid at [11].

[35] Ibid at [31].

[36] QBCC Act, Schedule 2.

[37] QBCC Act, s 75(1)(g).

[38] Cleary at [10].

[39] QCAT Act, s 42(1).

[40] Interchase Corporation Ltd (in liquidation) v FAI General Insurance Co Ltd & Ors [2000] 2 Qd.R. 301.

[41] Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority (No 2) [2012] QCATA 242.

[42] Response and counter application Part D.2.

[43] QBCC Act, Schedule 2.

[44] QBCC Act, s 78.

[45] QBCC Act, s 79(3).

[46] QCAT Act, s 43(1).

[47] Ibid, s 43(3)(b).

[48] Ibid s 3(b).

Close

Editorial Notes

  • Published Case Name:

    ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk

  • Shortened Case Name:

    ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk

  • MNC:

    [2016] QCAT 214

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    12 Jul 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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