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  • Unreported Judgment

Skinner v FTP Contracting Pty Ltd (No 2)

 

[2020] QCATA 12

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Skinner v FTP Contracting Pty Ltd & Anor (No 2) [2020] QCATA 12

PARTIES:

matthew SKINNER

(appellant)

 

v

 

ftp contracting pty ltd

and

matthew coates

(respondents)

APPLICATION NO/S:

APL119-19

ORIGINATING

APPLICATION NO/S:

MCDO 50102/19 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

23 January 2020

HEARING DATE:

8 November 2019

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

  1. The decision made on 24 April 2019 in application MCDO 50102/19 (Southport) is corrected pursuant to section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) as follows:

‘1.  Matthew Coates to be added as a second applicant.

2.  Matthew Skinner to pay Matthew Coates $4877.23 within 21 days.’

  1. Leave to appeal is granted. 
  2. On a rehearing under section 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the decision made on 24 April 2019 in application MCDO 50102/19 (Southport) is set aside, and the application is dismissed for lack of jurisdiction.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where the panel found that a contract existed for work which did not require a licence – where an appeal was brought against those findings – where in an appeal hearing it appeared that the panel’s findings were probably incorrect – whether leave to appeal should be given resulting in a rehearing

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – restrictions on the minor civil disputes jurisdiction of the tribunal – whether the tribunal has jurisdiction to deal with a minor civil disputes on a quantum meruit – whether the claim is a building dispute and if so whether the pre-action QBCC conciliation has taken place – whether the tribunal has jurisdiction to deal with a building dispute as a minor civil dispute if it is a claim to recover a debt or a liquidated demand of money

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – MATTERS NOT GIVING RISE TO BINDING CONTRACT – vagueness and uncertainty – agreements not intended to create legal relations – where work done at house but no written contract, no agreed remuneration, and other uncertainties – where parties had reasons other than an ordinary commercial transaction for the work to be done – whether a contract was entered into

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 135, s 142, s 146, s 147

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77

Queensland Building and Construction Commission Regulation 2003 (Qld), s 5, s 2, Schedule 1AA

Ericson v Queensland Building Services Authority [2013] QCA 391

Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 24

Harrison & Anor v Meehan [2017] QCA 315

APPEARANCES &

REPRESENTATION:

 

Appellant:

G D Robson, principal of North Law Solicitors

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This application started life as one brought in the minor civil disputes jurisdiction of the tribunal by FTP Contracting Pty Ltd against Matthew Skinner claiming $4,620 plus interest and the limited costs which can be awarded in such claims.  The claim was for payment for air conditioning installation work done at Mr Skinner’s house between August and October 2017 while the house was in the process of being built.
  2. [2]
    What appeared to be a straightforward matter, capable of speedy and just resolution by the tribunal, is in fact a jurisdictional nightmare which was challenging to the tribunal panel comprised of two Justices of the Peace who originally heard it, but also to the Appeal Tribunal.  As a result of this appeal, Mr Coates, who was the correct applicant rather than FTP, has failed in the application but he may not be precluded from re-applying to the tribunal in its ‘building list’ or applying to another court. Mr Skinner applied for permission to be represented by lawyers in this appeal ‘due to the complexity of the matter’, which was granted by the tribunal.  This may have been costly for Mr Skinner with little prospect of recovery of the legal fees from Mr Coates because of the tribunal’s costs regime. 
  3. [3]
    The result is inconsistent with the objects of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,[1] achieved by conducting proceedings in an informal way that minimises costs to the parties, and is as quick as is consistent with achieving justice.[2] 

The progress of the application and the hearing before the Justices of the Peace

  1. [4]
    In response to the claim and prior to the tribunal’s hearing, Mr Skinner filed an affidavit which stated that no contract was made with FTP because that company was not registered as a company, and therefore did not exist, at the time was work was done.  It was registered as a company afterwards.  If correct, this submission would have been fatal to the claim because at that time FTP was the only applicant and there was no suggestion in the application that there had been any assignment of a cause of action to FTP.
  2. [5]
    As a result of the affidavit, Mr Coates applied to the tribunal to be joined as a second applicant.  No reason was given for this request other than what was said in Mr Skinner’s affidavit. 
  3. [6]
    The whole matter came for hearing before a panel of two Justices of the Peace on 24 April 2019.  The Appeal Tribunal has obtained a transcript of the hearing and this shows what happened at that hearing. 
  4. [7]
    Firstly the panel allowed Mr Coates’ request to be joined as an applicant.  The issue then to be decided was whether Mr Skinner had contracted with FTP and/or Mr Coates for air conditioning installation work and if so, whether Mr Skinner was obliged to pay for the work, and how much he was obliged to pay in the light of the possibility that the work was done by a person without the requisite licence.  There were also three jurisdictional issues as set out below which had to be kept in mind.  The panel heard evidence from both Mr Coates and Mr Skinner and read the documentation submitted.
  5. [8]
    The panel decided that Mr Skinner had engaged Mr Coates to install the air conditioning and there was a contract between them.[3]  They decided that Mr Coates had done the work stated in the invoice submitted by FTP, that he did not need a licence to do the work,[4] and that he ought to be paid for it.[5]
  6. [9]
    The order made by the panel was that Mr Skinner should pay the sum of $4,877.23 ‘to the Applicants’.  The Applicants were both FTP and Mr Coates. 
  7. [10]
    A number of points have been made on appeal either in the application for leave to appeal or appeal, in written submissions or in the appeal hearing. 

FTP as a recipient of the award?

  1. [11]
    One ground of appeal is that the order should not have been in FTP’s favour because it did not exist at the time the work was done.  Mr Coates says in his affidavit that the work was done between 5 August 2017 and 21 October 2017, but we know from the company searches that FTP Contracting Pty Ltd was only registered on 24 November 2017.
  2. [12]
    It is clear from the panel’s reasons for making the order that it intended that Mr Skinner should pay $4,877.23 only to Mr Coates.[6]  There was no intention to make an order in favour of FTP.  It was therefore an accidental slip of the tribunal to issue an order in favour of FTP, which is correctable by the tribunal under section 135 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[7]  In the circumstances I have corrected the order made below to remove FTP as a successful applicant.

Other grounds of appeal

  1. [13]
    In this appeal Mr Skinner has raised the following other grounds:
    1. (a)
      The tribunal could not reasonably find that there was any agreement between Mr Coates and Mr Skinner and this was contrary to Mr Coates’ own evidence;[8]
    2. (b)
      The tribunal allowed the claim for travel time but this was never agreed as payable, and its quantum was not supported by the evidence;[9]
    3. (c)
      The tribunal allowed the claim for other workers’ time but there was insufficient evidence to support this finding;[10] and
    4. (d)
      The tribunal incorrectly interpreted the provisions which require work to be licensed.  The work was within section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and required a licence from the QBCC.  Since he had no such licence, Mr Coates is restricted to what was recoverable under that section.[11]
  2. [14]
    At the appeal hearing, Mr Coates suggested that point (b) about the travel time was a new point and not raised by Mr Skinner as an issue before the panel below.  This is only partially correct but since I have decided that there should be a rehearing of the application by the Appeal Tribunal in this appeal, there is no need for me to decide whether to permit this new point to be taken.
  3. [15]
    At the appeal hearing, some significant points were raised on Mr Skinner’s behalf about the jurisdiction of the tribunal to make the order it did. 
  4. [16]
    There are in fact, three jurisdictional points which arise.  The first two were raised on Mr Skinner’s behalf on appeal, but the third is one raised by the Appeal Tribunal itself:
    1. (a)
      the panel seemed to make its award based on a quantum meruit[12] and the tribunal has no jurisdiction to do this when hearing a minor civil dispute;
    2. (b)
      the dispute appears to be a ‘building dispute’ as defined in the QBCC Act and if so, the tribunal is unable to make any award unless the applicant has gone through a conciliation process provided by the QBCC;[13] and
    3. (c)
      the dispute appears to be a ‘building dispute’ as defined in the QBCC Act and if so, it cannot be dealt with as a minor civil dispute if it is a claim to recover a debt or liquidated demand of money.
  5. [17]
    None of these matters were brought to the attention of the panel at the tribunal hearing.  This is not surprising bearing in mind that both parties were self-represented.  An appeal on a jurisdictional issue is an appeal on a question of law only.  Such appeals are governed by section 146 of the QCAT Act.  It has been emphasised by the Queensland Court of Appeal that the Appeal Tribunal dealing with an appeal under section 146 cannot conduct a rehearing of the matter either on the evidence heard in the tribunal below or on fresh evidence.[14]  This means that such jurisdictional issues must be considered on the factual basis expressly or impliedly found by the tribunal below or otherwise as agreed between the parties. 
  6. [18]
    Since I have decided that there should be a rehearing of the application by the Appeal Tribunal in this appeal, and that involves making a new determination of the rights and liabilities of the parties, which might include new factual findings,[15] the jurisdiction issues can be dealt with in the rehearing and so the difficulty arising from section 146 does not arise.

Leave to appeal

  1. [19]
    One of the grounds of appeal is that the work was ‘building work’ and therefore needed a licence.  If this is right then Mr Coates’ ability to recover remuneration for his work would be limited by the terms of section 42 of the QBCC Act. 
  2. [20]
    In the appeal hearing, Mr Coates made submissions about this.  During these submissions his analysis of the arrangement shifted considerably.  His first position was that as a supplier of labour only, there was no need for a licence to do the work even though he was doing the work himself.[16]  When this was shown to be incorrect, his second position was that since each item of work was for less than the threshold of $3,300, the work did not need a licence.  Effectively he was suggesting there were a series of low value contracts rather than one overarching contract.  The difficulty with this position was that the work that was done appeared to be indivisible.  So his third position was that there was no contract at all, and it was for that reason the work did not need a licence.  The difficulty with this argument is that work still needs a licence even if there is no contract.
  3. [21]
    In the appeal hearing it certainly seemed to me that the work was most likely ‘building work’ requiring a licence under section 42.  The decision of the panel does seem to be wrong on this important matter.  On that basis I granted leave to appeal.  Since the panel did not explain why it was their view that the work did not require a licence, it is difficult to decide whether on appeal this is a question of fact or one of mixed law and fact.  Leave was granted under section 142(3)(b) of the QCAT Act which covers both possibilities.
  4. [22]
    This meant that the appeal would be under section 147 of the QCAT Act which governs appeals on questions of fact or mixed law and fact.  By section 147(2), such an appeal is ‘a rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal.’
  5. [23]
    I decided to hear Mr Skinner and Mr Coates on oath and make new factual findings where necessary, with due respect of course for the findings of fact of the panel.  On that basis I would make a new determination of the rights and liabilities of the parties.[17] 
  6. [24]
    One reason for deciding to hear additional evidence was that Mr Coates’ submissions in the appeal hearing raised the possibility that there were a series of separate contracts, each for work of less than the threshold of $3,300.  This was important for the section 42 issue and required a finding of fact not considered by the panel.
  7. [25]
    Another reason was that I had concerns about whether there was a contract between Mr Skinner and Mr Coates at all.  This concern was fuelled by Mr Coates saying in his alternative submission about the licence at the appeal hearing that there was no contract.  This seemed to undermine the tribunal’s finding that there was a contract, and lent weight to the ground of appeal that the tribunal was wrong in making this finding. 
  8. [26]
    Finally, a rehearing with additional evidence offered an opportunity to make the necessary factual findings to deal with the jurisdictional points raised on Mr Skinner’s behalf [points (a) and (b)] and the point raised by the Appeal Tribunal [point (c)].
  9. [27]
    This being an appeal in a minor civil dispute, I needed also to give leave to appeal under section 142(3)(a).
  10. [28]
    It is helpful to restate the grounds of appeal.

Restatement of the grounds of appeal

  1. [29]
    Returning to the jurisdiction issues which need to be considered in this matter, they are given as (a), (b) and (c) earlier in this decision but because they are not immediately obvious I will need to consider them in detail.  For convenience they are repeated here:
    1. (a)
      the panel seemed to make its award based on a quantum meruit[18] and the tribunal has no jurisdiction to do this when hearing a minor civil dispute;
    2. (b)
      the dispute appears to be a ‘building dispute’ as defined in the QBCC Act and if so, the tribunal is unable to make any award unless the applicant has gone through a conciliation process provided by the QBCC;[19] and
    3. (c)
      the dispute appears to be a ‘building dispute’ as defined in the QBCC Act and if so, it cannot be dealt with as a minor civil dispute if it is a claim to recover a debt or liquidated demand of money.
  2. [30]
    The first jurisdictional point, that the tribunal has no jurisdiction to make an award based on a quantum meruit when hearing a minor civil dispute, arises from the definition of a minor civil dispute which is in Schedule 3 of the QCAT Act.  If we concentrate on money claims we can see that the definition is:

minor civil dispute

  1. (1)
    Minor civil dispute means—
  1. (a)
    a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; or
  1. (b)
    a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is—
  1. (i)
    for payment of money of a value not more than the prescribed amount; or
  1. (ii)
    for relief from payment of money of a value not more than the prescribed amount; or
  1. (iii)
    for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. (iv)
    for return of goods of a value not more than the prescribed amount; or
  1. (v)
    for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount;
  1. [31]
    By definition a claim on a quantum meruit will not be a claim to recover a debt or liquidated demand of money because some assessment of the value of the work has to be made by the tribunal, and a claim on a quantum meruit will not generally be a claim arising out of a contract, at least one which is enforceable.  Hence, usually a claim on a quantum meruit will not generally be a minor civil dispute as defined, and the tribunal hearing the matter as a minor civil dispute will be unable to hear and determine it.
  2. [32]
    The second jurisdictional point is that the dispute appears to be a ‘building dispute’ as defined in the QBCC Act and if so, the tribunal is unable to make any award unless the applicant has gone through a conciliation process provided by the QBCC.  This derives from the wording of section 77 of the QBCC Act which reads:

77 Tribunal may decide building dispute

  1. (1)
    A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
  1. (2)
    However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.
  1. [33]
    Here subsection (2) requires an applicant to comply with a conciliation process established by the QBCC.
  2. [34]
    On the basis that the bare facts of this matter are that Mr Coates claims to have been engaged by Mr Skinner on a contract under which he was to install air conditioning in a house which was being built then it would appear that it is a ‘building dispute’.[20]
  3. [35]
    A building dispute is still a building dispute even where the contract is for $3,300 or less.[21]
  4. [36]
    It follows that in all matters which might be a building dispute, the tribunal will need to decide whether the matter is a building dispute and if so, whether section 77(2) has been satisfied.  Only then will the tribunal have jurisdiction to deal with the matter.
  5. [37]
    The third jurisdictional point arises from another part of the definition of a minor civil dispute in Schedule 3 of the QCAT Act.  Leaving out irrelevant parts for this issue, it says:

minor civil dispute

  1. Minor civil dispute means—
  1. (a)
    a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; …
  1. However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
  1. [38]
    There is no doubt that the QBCC Act is an enabling Act,[22]  and there is no doubt that section 77 of the QBCC Act confers jurisdiction on the tribunal to deal with a building dispute.  The problem arises where the building dispute is also a claim to recover a debt or liquidated demand of money.  Such a claim would be within paragraph 2 of the definition of ‘minor civil dispute’ above.  Paragraph 2 provides however, that such a claim is not a minor civil dispute unless the enabling Act expressly states that it is a minor civil dispute.  The QBCC Act does not state that a building dispute under section 77 is a minor civil dispute.  Hence, a building dispute which is a claim to recover a debt or liquidated demand of money is not a minor civil dispute, and cannot be resolved by Justices of the Peace and Adjudicators because they only have jurisdiction to hear minor civil disputes.[23]
  2. [39]
    Strangely, a building dispute which is a claim for damages and not a claim for a debt or liquidated demand of money, is not caught by the above provisions and could be heard as a minor civil dispute provided of course section 77(2) is satisfied.

Need for licence ground of appeal

  1. [40]
    For this issue we turn to section 42 of the QBCC Act.  This imposes a penalty if a person carries out or undertakes to carry out building work without a licence.  There are various exemptions under Schedule 1A covering for example, employees, subcontractors, partners and owner builders.  Also, it is only ‘building work’ which requires a licence.  Schedule 1AA of the QBCC Regs contains various exclusions from the definition of building work for these purposes.  In particular, work of a value of $3,300 or less is excluded.  Of interest to the tribunal when hearing claims where the contractor may need a licence, section 44(3), with the exception in subsection (4), limits the amount that can be recovered as remuneration for the work by the contractor.  The provisions read as follows:

42 Unlawful carrying out of building work

  1. (1)
    Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.

  1. (3)
    Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
  1. (4)
    A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
  1. (a)
    is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
  1. (b)
    does not include allowance for any of the following—
  1. (i)
    the supply of the person’s own labour;
  1. (ii)
    the making of a profit by the person for carrying out the building work;
  1. (iii)
    costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
  1. (c)
    is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
  1. (d)
    does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit
  1. [41]
    It is notable and significant for this appeal that section 42 is engaged even if there is no contract requiring the contractor to do the work.

The findings required to resolve the jurisdictional and licence issues

  1. [42]
    It can now be seen from the three jurisdictional issues and the licence issue what findings are required in order to resolve these issues.
  2. [43]
    They are:
    1. (a)
      Was there a contract?  If the answer is ‘no’ then since the claim is not for a debt or liquidated demand of money, the tribunal would have no jurisdiction to deal with it as a minor civil dispute because the only available claim is then on a quantum meruit which could only be heard in the building list.[24]
    2. (b)
      Is the claim a ‘building dispute’ as defined in Schedule 2 of the QBCC Act?  If so:
      1. Did the applicant comply with section 77(2)?  If not, the tribunal has no jurisdiction.
      2. Is the claim for a debt or a liquidated demand of money?  If so, the tribunal would have no jurisdiction to deal with it as a minor civil dispute because the enabling Act does not say it is a minor civil dispute.
    3. (c)
      If the tribunal has jurisdiction to deal with the claim (because there was a contract, section 77(2) was complied with, and the claim is not one for a debt or a liquidated demand of money), then:
      1. Who was engaged to do the work?
      1. Was the work ‘building work’ as defined by Schedule 2 of the QBCC Act?
      2. Did the work have a value of $3,300 or less?
      3. Did the work therefore require a licence under section 42?
      4. If this was unlicensed work what can be recovered under section 42?
      5. If this was either licensed work, or work not requiring a licence, what is the appropriate award in favour of the applicant?
  3. [44]
    To enlarge on (c) a little, in the circumstances of this particular case, there were two possibilities: (a) an overarching contract obliging Mr Coates to attend the house when requested by Mr Skinner or as agreed; or (b) no overarching contract but a series of individual contracts arising on each request by Mr Skinner for Mr Coates to attend when Mr Coates agreed to attend.

The rehearing

  1. [45]
    I heard evidence on oath both from Mr Skinner and Mr Coates and read their affidavits, and the affidavit of Mr Skinner’s spouse.  I also took into account the evidence given at the tribunal hearing and all the documentation filed both below and in the appeal.
  2. [46]
    On my finding, with respect to the work involved in installing the air conditioning units (as opposed to the supply of copper pipe which is outside the scope of this claim) there was no contractual agreement between Mr Skinner and Mr Coates.  This is because there was no agreement between them as to the price or other method of remuneration, or the work involved or its timing, and there was uncertainty about whether Mr Coates could do the work at all.  There also a number of things showing that Mr Skinner and Mr Coates did not intend at any time to enter into a legally binding contract with respect to this work, quite apart from the fact that there was nothing in writing.
  3. [47]
    The tests which I have to apply to determine the contractual issue are purely objective so it does not matter what the parties thought, in their minds, about the arrangement they were making, but it is natural for the parties to tell me what they thought they were agreeing and this evidence has helped me to ascertain their objective intention.
  4. [48]
    Both parties effectively told me, in different ways, that the arrangement was not a formal one which would result in a legal obligation to pay for the work, as opposed to some moral obligation.  Mr Skinner told me that the work was being done on a friendly basis, and I accept that this was how he viewed it.  Mr Coates told me that he did the work because he felt pressured into doing it because of his trading relationship with Mr Skinner, and so he ‘really had no choice.’  I think this is the most plausible explanation from him for what happened.[25] 
  5. [49]
    There is a difference in the evidence about whether there was any discussion at all about remuneration.  Mr Coates’ evidence at the appeal hearing was that there was no discussion at all,[26] but Mr Skinner’s evidence was that near the end of the work he asked Mr Coates ‘do you want anything’, to which Mr Coates replied ‘when I’ve finished.’  This was a reference to some remuneration, and I accept that something like that was probably said at that time because Mr Skinner told me, and I accept, that he was not expecting the work to be done for nothing.
  6. [50]
    This indicates that both parties thought that there would be some payment made by Mr Skinner to Mr Coates.  They certainly did not agree the amount of this payment or how it could be calculated.  The words used suggest that payment would be optional and a matter of goodwill.
  7. [51]
    Sometimes where remuneration has not been agreed it is possible to say that there was a contract and it is implied that the remuneration would be a reasonable amount.  But if the tribunal went down that route it would need to decide what hourly rate was reasonable for the work, and then resolve the differences between the two sides about the correct number of hours of work and for travel that should be paid for.  But on my findings, that approach was not what was contemplated by the parties at the time.  Instead, Mr Coates was simply helping Mr Skinner by providing his skills and in the background there was the possibility that Mr Skinner would provide him with some recompense.  This means that any assessment of a reasonable amount would most likely be contrary to, rather than accord with, their objective intentions.  In my view therefore, the uncertainty arising from the lack of agreement concerning remuneration cannot be saved by implying a term that the payment should be a reasonable amount. 
  8. [52]
    Another point emerged in the evidence given by the parties in the appeal hearing and that was that Mr Coates was overseas in the early stage of the construction of Mr Skinner’s dwelling so there was an uncertainty as to when he would be doing the work.  Nothing was agreed as to when the work would be done or how it would tie in with other trades on site.
  9. [53]
    What happened near the end of the work also points the same way.  Mr Coates did not return to finish the job.  He told me that this was because it was inconvenient for him to return to finish the job and so he did not do so when asked by Mr Skinner.  After this, Mr Skinner did not contact him anymore.  This is not the action of parties to a binding contract. 
  10. [54]
    The lack of a firm arrangement also explains why Mr Coates did not submit an invoice for the work until a year later.  He contends that the delay was because he was waiting to be called back on site but it was really too long a wait for this to be the true explanation for this.
  11. [55]
    It follows from my finding that this is not a claim based on contract, and it was not a claim for a debt or a liquidated demand of money.  It is not a minor civil dispute.  The tribunal in its minor civil dispute jurisdiction has no power to deal with it.  The order made on 24 April 2019 must be set aside.
  12. [56]
    For the sake of completeness, turning to issue (b) it is clear to me that Mr Coates’ claim is a building dispute.  Even a claim for work done where there is no contract can be a building dispute.  I need therefore to turn to issues (b)(i) and (b)(ii).
  13. [57]
    On issue (b)(i), which is whether Mr Coates complied with the conciliation required by section 77(2), Mr Coates’ first position on this in submissions at the appeal hearing was that QBCC had sent a letter saying they could not provide conciliation and he filed this with the tribunal.  This letter was not on the file.  At the appeal hearing Mr Coates was given time to find this letter but couldn’t find it.  In fact, when giving evidence later in the appeal hearing, Mr Coates confirmed that he hadn’t been to the QBCC at all, because he knew they could not help.  So there was no letter after all. 
  14. [58]
    There is a difficult issue which arises where a party states that the QBCC does not offer conciliation of the type required by section 77(2).  The question arises whether the tribunal may simply accept an applicant’s word that conciliation is not available, and on that basis whether it is right to consider section 77(2) as either not applicable or complied with.  I might have been prepared to resolve this issue in Mr Coates’ favour had it been necessary to do so.
  15. [59]
    On issue (b)(ii), since there was no fixed sum agreed for the work, nor any way in which the payment for the work could be calculated using any parameters agreed between the parties, this is not a claim for a liquidated demand of money.  Therefore on this jurisdictional issue, the tribunal would have jurisdiction to hear the claim.  But the claim would still need to be a minor civil dispute on other grounds, and that requires the existence of a contract.  On my findings there is no contract and so ultimately the tribunal does not have jurisdiction to be hear the claim as a minor civil dispute after all.
  16. [60]
    On the above basis, issue (c) is not reached and there is no need to make any findings on issue (c).

Footnotes

[1]Section 3(b).

[2]Section 4(c).

[3]Transcript 1-35, line 14.

[4]Transcript 1-36, line 33.

[5]Transcript 1-35, line 42.

[6]Transcript 1-36, line 2.

[7]The Appeal Tribunal is part of the ‘tribunal’ under the QCAT Act and can therefore on its own initiative exercise the jurisdiction conferred by section 135 to correct such errors: see sections 9, 25 to 27, 145, 165 to 167 and the definition of ‘appeal tribunal' in Schedule 3.

[8]Submissions on appeal, page 3 paragraph 10, referring to paragraph 38 of the affidavit filed by Mr Coates in the minor civil dispute proceedings sworn on 18 April 2019, and page 4 paragraph 1.

[9]Submissions on appeal, page 2 paragraphs 7 to 10, page 4 paragraphs 3(b) and 3(c).

[10]Submissions on appeal, page 2 paragraphs 9 and 11, page 4 paragraphs 3(d) and 3(e).

[11]Application for leave to appeal or appeal, part c paragraph 1; Submissions on appeal, page 3 paragraph 12, page 4 paragraph 3(g).

[12]  Literally, the amount deserved.

[13]  As required by section 77(2) of that Act.

[14]Ericson v Queensland Building Services Authority [2013] QCA 391, [25].

[15]This is the effect of the rehearing as explained in Harrison & Anor v Meehan [2017] QCA 315, [49], [50].

[16]Mr Coates submitted in the appeal hearing that a business which provides labour only was only required to be licenced from May 2018, therefore the work that he did for Mr Skinner was not licensed work.  I believe this is a misunderstanding.  It is true that the Labour Hire Licensing Act 2017 (Qld) introduced a licensing requirement for labour hire businesses (in fact from 16 April 2018, with delayed effect to give such businesses a chance to apply for a licence), but this is nothing to do with the work done for Mr Skinner. 

[17]  Said to be the correct approach in Harrison & Anor v Meehan [2017] QCA 315, [49], [50].

[18]  Literally, the amount deserved.

[19]  As required by section 77(2) of the QBCC Act.

[20]  The trawl through the statutory provisions is as follows.  In Schedule 2 of the QBCC Act ‘building dispute’ is defined as a ‘domestic building dispute’ or two types of commercial building dispute.  Taking ‘domestic building dispute’, this is defined (of relevance to this matter) as ‘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’.  ‘Reviewable domestic work means domestic building work under schedule 1B, section 4(8), the definition excluded building work under the schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition’.  Section 4 of Schedule 1B defines ‘domestic building work’.  Of relevance to this matter, this includes the erection or construction of a detached dwelling or work associated with the erection or construction of a detached dwelling, including the provision of services or facilities (examples given include air conditioning).  Although regulations may provide for building work to be excluded from this definition, no such regulations applying to Schedule 1B have been made. 

[21]  The exclusion from building work of work of a value of $3,300 or less in section 2 of Schedule 1AA of the Queensland Building and Construction Commission Regulation 2003 (Qld) (‘QBBC Regs’), only applies to the definition of ‘building work’ in the QBCC Act Schedule 2, which is relevant to the need for a licence.  This can be seen from section 5 of the regulation.  The provision does not apply to the definition of ‘domestic building work’ in Schedule 1B which is part of the definition of a ‘building dispute’.

[22]Enabling Act is defined in section 6(2) of the QCAT Act.

[23]Section 206L of the QCAT Act in the case of Justices of the Peace, and section 195 in the case of Adjudicators (unless the President chooses an Adjudicator to hear the matter under that section).

[24]Frost Constructions Pty Ltd v Zoja Pty Ltd [2015] QCATA 24, [19].

[25]In paragraph 12 of his affidavit of 18 April 2019 Mr Coates provided a difference explanation.  He said that the work was at a reduced rate because of ‘a promise of future work’ from a contractor with which Mr Skinner was associated.

[26]It is notable that this differs completely from paragraph 12 of his affidavit of 18 April 2019 in which he said that it was agreed that the hourly rate would be $80 per hour.

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Editorial Notes

  • Published Case Name:

    Skinner v FTP Contracting Pty Ltd & Coates (No 2)

  • Shortened Case Name:

    Skinner v FTP Contracting Pty Ltd (No 2)

  • MNC:

    [2020] QCATA 12

  • Court:

    QCATA

  • Judge(s):

    Member Gordon

  • Date:

    23 Jan 2020

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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