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  • Unreported Judgment

M Plus 2 Projects Pty Ltd v Silvester

 

[2020] QCAT 228

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

M Plus 2 Projects Pty Ltd v Silvester & Anor [2020] QCAT 228

PARTIES:

M PLUS 2 PROJECTS PTY LTD

 

(applicant)

 

v

 

TRAVIS SILVESTER

 

(first respondent)

COLLEEN SILVESTER

(second respondent)

APPLICATION NO/S:

BDL085-19

MATTER TYPE:

Building matters

DELIVERED ON:

19 June 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The application for miscellaneous matters filed 5 February 2020 is refused.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – CROSS-CLAIMS: SET-OFF AND COUNTERCLAIM – GENERALLY – COUNTERLCAIM INVOLVING THIRD PERSON

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – JOINDER OF CAUSES OF ACTION AND OF PARTIES – PARTIES – GENERALLY – whether claim against engineer is a domestic building dispute – where only an individual may be registered as an engineer - where the parties are corporations – whether designing and planning work falls within the meaning of domestic building work – where no compliance with s 77(2) of the QBCC Act – where the tribunal does not have jurisdiction to hear and decide the dispute

Acts Interpretation Act 1954 (Qld), s 14A(1), sch 1

Professional Engineers Act 2002 (Qld), s 8(1), s 42(1)

Queensland Building and Construction Commission Act 1991 (Qld), s 31(1), s 31(2), s 67AZN(1), s 67AZN(2), s 77(2), sch 1B, s 4(1), s 4(3), sch 2

Queensland Building and Construction Commission Regulation 2018 (Qld), sch 1, s 5

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3(b), s 42(1), s 61(1)(b), s 61(1)(c), s 62(1)

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 48(1), r 48(2), r 50(1)(b), r 51(2), r 51(3)

Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236

Cleary, J. v Bowcock, M. [2005] QCCTB 8

D G Madin Ltd v Gordon [1964] SASR 64

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

Smith v Buskell [1919] 2 KB 362

Watkins Ltd v Plancorp No 6 Pty Ltd [1983] 2 Qd R 501

REPRESENTATION:

 

Applicant:

No appearance

Respondent:

Romans & Romans Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    M Plus 2 Projects Pty Ltd (‘MP2’) entered into a contract with the Silvesters to build a house. The parties fell into dispute. MP2 commenced proceedings claiming monies owing under the contract or alternatively damages for breach of contract. The Silvesters counterclaim for damages for breach of contract and negligence. They also seek restitution on the basis of a total lack of consideration.
  2. [2]
    The Silvesters have applied to join two additional parties, Casswell Consulting Pty Ltd and Cyber Services Group Pty Ltd, as respondents to their counterclaim.[1] The joinder application falls for consideration.

Background to the dispute

  1. [3]
    In early 2016 the Silvesters engaged an architect to prepare plans for a proposed dwelling to be constructed on land in Fortitude Valley. At or about this time the Silvesters also engaged Casswell to prepare structural designs for the proposed dwelling. Casswell subsequently prepared revised structural drawings.
  2. [4]
    In May 2018 the Silvesters and MP2 entered into a contract for the construction of the  dwelling.[2] The contract included the revised structural drawings prepared by Casswell.[3] Casswell subsequently prepared further revised structural drawings. It appears that the Silvesters originally intended that Casswell would also periodically inspect the building works being carried out by MP2 and certify the works. Instead, the Silvesters engaged Cyber to undertake the inspection and certification works.
  3. [5]
    Cyber undertook inspections of the building works on various dates and issued four (4) Form 16 certificates certifying that, inter alia, MP2 had performed the building works in accordance with the revised structural drawings.
  4. [6]
    MP2 says that during the course of the building works the Silvesters took possession of the site with the result that the works were contractually deemed to have reached practical completion. The Silvesters deny having taken possession of the site. They say that MP2 repudiated the contract entitling them the Silvesters to terminate which they did.
  5. [7]
    The Silvesters lodged a non-completion claim with the Queensland Building and Construction Commission (‘QBCC’). A report by Matthew Cornell (‘the Cornell report’),[4] prepared after the claim was lodged with the QBCC, identified a number of defects in the building work undertaken by MP2. The Cornell report also identified a number of defects in the engineering design and drawings prepared by Casswell.

Counter-applications and the joinder of parties – the QCAT Act and rules

  1. [8]
    The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that:
    1. (a)
      The person should be bound by, or have the benefit of, a decision of the tribunal in the proceeding;
    2. (b)
      The person’s interests may be affected by the proceeding;
    3. (c)
      For another reason, it is desirable that the person be joined as a party to the proceeding.[5]
  2. [9]
    The Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT rules’) provide that a respondent to an application, in response to the application, may apply to the tribunal for stated orders against another person, who may or may not be a party to the proceeding (a counter-application).[6] The rules do not differentiate in respect of a proposed counter-application against a party or a non-party. In neither case is the leave of the tribunal required to pursue a counter-application.
  3. [10]
    A counter-application must be included in, or attached to, the respondent’s response to the application.[7] If a counter-application is made, it must be dealt with in the proceeding.[8] The proceeding so far as it relates to a counter-application must be conducted as if it were a proceeding for an application for the orders sought in the counter-application.[9]
  4. [11]
    At first blush rule 48(1) appears to give great latitude to a respondent seeking to make a counter-application against a person who is not a party to the proceedings.
  1. [12]
    The original jurisdiction of the tribunal is that conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in respect of minor civil disputes and that conferred on the tribunal under an enabling Act to decide a matter in the first instance. ‘Matter’ is not defined in the QCAT Act or rules.
  2. [13]
    Rule 48(2) of the QCAT rules provides that a counter-application may be made instead of making a separate application to the tribunal to deal with the matters in relation to which the orders are sought.
  1. [14]
    In Watkins Ltd v Plancorp No 6 Pty Ltd[10] McPherson J (as His Honour then was) considered the circumstances in which a counter-application could be made against a non-party. His Honour stated:

The clearest explanation of the function and extent of the power under rules of this kind of permitting joinder of persons who are not original parties to the action is to be found in Warner v. Twining (1876) 24 W.R. 536, where Sir George Jessel is reported as having said that the only purpose for which a person was brought before the court as a co-defendant was to bind him by the action, and preclude him from saying that it had not been properly defended.[11]

  1. [15]
    In D G Madin Ltd v Gordon[12] the defendant homeowner counterclaimed against the plaintiff builder for damages for defective building work. The homeowner also counterclaimed against an architect alleging faulty supervision or faulty specifications. In determining an interlocutory application Bright J considered there could be some overlap between the counterclaims within the meaning of Smith v Buskell[13] although this was ultimately a matter for the trial judge.
  2. [16]
    A counter-application is a separate proceeding, to be heard at the same time, and to a degree, integrated into the primary litigation, for convenience and in the interests of justice.[14]
  3. [17]
    Unlike s 4(3) of the Judicature Act 1876, the QCAT Act and rules do not set out nor constrain the relation or connection which must exist between the subject of the original action and the relief claimed by a respondent in a counter-application against the applicant and a non-party.
  4. [18]
    In relation to counter-applications by a respondent against an applicant, it is relevant to note the following passage from the decision of McPherson J in Watkins:[15]

As between the plaintiff and defendant alone, no limit is imposed upon the nature of the matters that may be made the subject of a counterclaim (cf Gray v Webb (1882) 21 Ch D 802), which is to have the same effect as a cross-action, so as to enable the court to pronounce a final judgment, both on the original claim and the cross-action, in the same action: but a discretion is reserved to the court to strike out the counterclaim if it cannot be conveniently disposed of in the pending action, or ought not to be allowed: or to order that it shall be disposed of separately: O22 r3.

  1. [19]
    Although neither the QCAT Act nor rules contain the equivalent of rule 182 of the Uniform Civil Procedure Rules 1999 (Qld), the tribunal has the power to give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of a proceeding.[16] This power extends to directions about the conduct of a counter-application and, in my view, excluding the counter-application from the proceeding and directing that the counter-application be conducted separately.
  2. [20]
    There are sound reasons to construe rule 48 and the scope of counter-applications that may be made against non-parties consistently with those principles identified in Watkins Ltd v Plancorp No 6 Pty Ltd and Smith v Buskell. Unless the relief sought in a counter-application against a non-party and the subject of the original claim are related or connected, it is conceivable that wholly unrelated counterclaims against non-parties could be pursued which would be inconvenient and likely to result in added complexity, delay and cost to the parties. These are outcomes inconsistent with the objects of the QCAT Act.
  3. [21]
    The counter-application by the Silvesters against MP2 is for, inter alia, damages for defective building work. The proposed counter-applications by the Silvesters against Casswell and Cyber overlap to some extent with the claim against MP2. It is at least arguable that there is a real connection between the relief sought in the counterclaim by the Silvesters against MP2 and the proposed counterclaims against Casswell and Cyber.[17] The Silvesters allege, inter alia, that MP2 failed to construct the dwelling in accordance with the engineering designs; that Casswell’s engineering designs (upon which MP2 presumably relied) were neither appropriate nor fit for purpose; and that Cyber failed to inspect the works undertaken by MP2 (in part relying upon the engineering designs prepared by Casswell).
  4. [22]
    Ultimately, and for the reasons I set out, it is not necessary for me to determine whether there is a sufficient connection between the issues in dispute in the current proceedings and the proposed counter-applications against Casswell and Cyber.

What do the parties say?

The Silvesters

  1. [23]
    The Silvesters attach to the joinder application a draft amended response and counter-application setting out the bases of their claims against Casswell and Cyber.
  2. [24]
    In the proposed amended response and counter-application, the Silvesters say the following in relation to the claim against Casswell:
    1. (a)
      They entered into an agreement with Casswell for the preparation of engineering designs and drawings;
    2. (b)
      The agreement consisted of implied terms that:
      1. Casswell would evaluate the site of the proposed construction and the architectural drawings and determine an appropriate design;
      2. Casswell would exercise reasonable care and skill;
      3. The work would be fit for purpose;
      4. The works would be in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
    3. (c)
      Casswell issued, inter alia, engineering drawings including revised engineering drawings;
    4. (d)
      Casswell breached the contract with the Silvesters by:
      1. Failing to prepare an appropriate design;
      2. Failing to exercise reasonable care and skill in designing the dwelling and preparing the engineering drawings;
      3. Failing to ensure that the designs were fit for purpose;
      4. Failing to ensure that the designs were in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
    5. (e)
      Caswell breached its duty of care to the Silvesters by failing to undertake the agreed works in a proper manner and exercising due care and skill.
  3. [25]
    In relation to the claim against Cyber, the Silvesters say:
    1. (a)
      They entered into an agreement with Cyber whereby Cyber would undertake engineering inspections and certify the works performed by MP2;
    2. (b)
      The agreement consisted of implied terms that:
      1. Cyber would exercise reasonable care and skill;
      2. Cyber would oversee and ensure that the work performed by MP2 was in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
      3. The Silvesters would rely upon the advice and certificates issued by Cyber in authorising payment to MP2;
      4. Cyber would visually evaluate the engineering designs and drawings prepared by Casswell;
    3. (c)
      Cyber undertook various inspections of the works at various times and issued a number of Form 16 certificates;
    4. (d)
      Cyber breached the contract with the Silvesters by:
      1. Failing to exercise reasonable care and skill in inspecting the works performed by MP2;
      2. Failing to identify the defective works undertaken by MP2;
      3. Issued Form 16 certificates knowing, or ought reasonably to have known, that the Silvesters would rely upon the certificates in fulfilling their payment obligations under the contract;
      4. Failing to ensure that the designs prepared by Casswell were fit for purpose and in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
    5. (e)
      Cyber owed a duty of care to the Silvesters to:
      1. Evaluate the site and the architectural drawings and the revised engineering drawings prepared by Casswell;
      2. Ensure that the designs prepared by Casswell were fit for purpose and in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
      3. Ensure the works undertaken by MP2 were in accordance with the architectural drawings and the revised engineering drawings prepared by Casswell;
      4. Ensure the works undertaken by MP2 were defect free, fit for purpose and  in accordance with accepted standards, codes, ordinances, regulations, legislative requirements, recommended practices and any authoritative published information;
    6. (f)
      Cyber breached its duty of care to the Silvesters by failing to undertake the agreed works in a proper manner and exercising due care and skill.
  4. [26]
    In support of the application to join Casswell, the Silvesters say:
    1. (a)
      The proceedings will involve a consideration of:
      1. whether MP2 failed to perform the building works in accordance with the engineering drawings prepared by Casswell, failed to identify the defective engineering designs, and used materials that were not fit for purpose;
      2. whether the structural drawings prepared by Casswell were defective;
      3. whether Casswell was negligent in issuing defective engineering drawings;
      4. contributory negligence of the parties;
    2. (b)
      the interests of Casswell will be affected by the proceedings;
    3. (c)
      Casswell should be bound by any decision made against them and ought to have the benefit of being heard in relation to any decision made.
  1. [27]
    In support of the application to join Cyber, the Silvesters say:
    1. (a)
      The proceedings will involve a consideration of:
      1. whether Cyber was negligent in failing to identify the engineering and structural defects during the inspections it carried out;
      2. whether Cyber was negligent in failing to identify specific issues in relation to the setting out of blockwork walls and the first floor slab;
      3. contributory negligence of the parties;
    2. (b)
      the interests of Cyber will be affected by the proceedings;
    3. (c)
      Cyber should be bound by any decision made against them and ought to have the benefit of being heard in relation to any decision made.
  2. [28]
    In relation to both Casswell and Cyber, the Silvesters say:
    1. (a)
      It is desirable to join both Casswell and Cyber because the Silvesters have a discernible claim against both parties;
    2. (b)
      If Casswell and Cyber are not joined the Silvesters could issue separate proceedings against both;
    3. (c)
      The crucial question is whether the joining of a party will assist the tribunal in coming to the correct and preferable decision and meet the objects of the QCAT Act;
    4. (d)
      The objects of the QCAT Act will be met by joining Casswell and Cyber because:
      1. To date, in the proceedings, the scope of the dispute has not been limited;
      2. The tribunal would be assisted in coming to its decision by having evidence adduced by all parties;
      3. Any final decision by the tribunal will affect the interests of Casswell and Cyber.

Casswell

  1. [29]
    Casswell opposes the application for joinder and says:
    1. (a)
      The Silvesters did not engage Casswell:
      1. Mr Nathan Stacey of Newport Consulting Engineers engaged Mr Troy Casswell to provide engineering checks and mark ups on designs drawn by Mr Stacey;
      2. Mr Troy Casswell checked designs prepared by Mr Stacey and issued a Form 15 certificate in relation to ‘Revision A’ drawing;
      3. Mr Troy Casswell checked designs prepared by Mr Stacey and issued a Form 15 certificate in relation to ‘Revision C’ drawing;
    2. (b)
      The dispute between Casswell and the Silvesters is not a domestic building dispute for the purposes of the QBCC Act;
    3. (c)
      The dispute is a major commercial building dispute;
    4. (d)
      Casswell does not consent to the tribunal having jurisdiction in respect of the dispute;
    5. (e)
      The involvement of Mr Stacey in the relevant events triggers s 80 of the QBCC Act;
    6. (f)
      The tribunal does not have jurisdiction to determine the dispute;
    7. (g)
      The Silvesters have failed to comply with s 77(2) of the QBCC Act in that they have not established compliance with a process established by the QBCC to attempt to resolve the dispute with Casswell;
    8. (h)
      There is no utility or purpose in the joinder of Casswell on the basis that the tribunal does not have jurisdiction in respect of the dispute;
    9. (i)
      If Casswell is joined the proceedings in respect of the counter-application should be transferred to a court.

Cyber

  1. [30]
    Cyber also opposes the application for joinder, and says:
    1. (a)
      The dispute between Cyber and the Silvesters is not a domestic building dispute for the purposes of the QBCC Act;
    2. (b)
      The tribunal does not have jurisdiction in respect of the dispute between Cyber and the Silvesters;
    3. (c)
      There is no utility or purpose in joining Cyber as a party;
    4. (d)
      The joinder of Cyber as a party would result in the issues to be determined being expanded and an expensive, slow and formal proceeding, contrary to the objects set out in the QCAT Act.

MP2

  1. [31]
    MP2 makes no submissions in respect of the joinder application.

The Silvesters’ submissions in response

  1. [32]
    In reply the Silvesters say:
    1. (a)
      On a proper construction of the QBCC Act, the disputes between the Silvesters and Casswell and Cyber are domestic building disputes;
    2. (b)
      They have complied with s 77(2) of the QBCC Act;
    3. (c)
      The QBCC does not have the statutory power to assist with the resolution of contractual matters between a homeowner and professional engineers;
    4. (d)
      Should the tribunal determine that it does not have jurisdiction in respect of the dispute between the Silvesters and Casswell or the Silversters and Cyber, the proceedings should be transferred to the Supreme Court.

Consideration

  1. [33]
    As I have observed, the QCAT rules provide that a counter-application against either an existing party or another person must be included in the response filed by the respondent.[18] The principal purpose of rule 48 is to enable a respondent to an application to make a counter-application without having to make a separate application to the tribunal.[19]
  2. [34]
    The tribunal may:
    1. (a)
      Extend or shorten a time limit fixed by the QCAT Act, an enabling Act or the rules;[20]
    2. (b)
      Waive compliance with another procedural requirement under the QCAT Act, an enabling Act or the rules;[21]
    3. (c)
      Give a direction at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.[22]
  3. [35]
    The Silvesters seek to amend their response and counter-application and thereby join Casswell and Cyber to the proceedings.
  4. [36]
    Accordingly, I approach the application by the Silvesters as seeking leave to amend the response and counter-application. The QCAT Act and rules are to be applied consistently with the objects of the Act including having the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[23] Subject to what I have said earlier in these reasons regarding the necessary relationship or connection between the relief sought in a counter-application and the subject of the original proceeding, where leave to amend a response and counter-application is sought and where the amendment is not likely to cause prejudice to the other parties or any persons proposed to be joined as respondents to the counter-application, it is consistent with the objects of the QCAT Act to permit such an amendment to enable all of the issues to be determined justly and expeditiously. This is of course subject to the application of the relevant principles in Aon Risk Services Australia Ltd v Australian National University.[24]
  5. [37]
    Here, the Silvesters have brought the application at a relatively early stage of the proceedings and the Aon considerations regarding late amendment do not fall for consideration.
  6. [38]
    It is trite to observe that leave to bring a counter-application against a non party will not be granted if the proposed claim is not within the jurisdiction of the tribunal. 

Building disputes

  1. [39]
    Whether a dispute is a ‘building dispute’ requires consideration of the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) and the complex interaction between the provisions of the Act and the various schedules of the Act. Of specific relevance for present purposes are Schedule 1B and Schedule 2.
  2. [40]
    Schedule 1B regulates domestic building contracts.[25] The provisions of Schedule 1B apply to domestic building contracts and the parties to those contracts.[26]
  3. [41]
    A building dispute may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.[27]
  4. [42]
    A domestic building dispute means:
  1. (a)
    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
  1. (b)
    a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or
  1. (c)
    a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or
  1. (d)
    a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work—
  1. (i)
    an architect;
  1. (ii)
    an engineer;
  1. (iii)
    a surveyor;
  1. (iv)
    a quantity surveyor;
  1. (v)
    an electrician or an electrical contractor;
  1. (vi)
    a supplier or manufacturer of materials used in the tribunal work.
  1. [43]
    ‘Reviewable domestic work’ means ‘domestic building work’ under Schedule 1B of the Act.
  2. [44]
    ‘Engineer’ is defined and means a person who is a registered professional engineer under the Professional Engineers Act 2002 (Qld).
  3. [45]
    The Professional Engineers Act provides that only an individual may apply to the board for registration as a registered professional engineer for an area of engineering.[28] An ‘individual’ means a natural person.[29]
  4. [46]
    I turn now to the requirements under the QBCC Act for an engineer to hold a licence to undertake building work. Unless exempt, a person must not, inter alia, undertake ‘building work’ unless they hold the required class of licence.[30] ‘Building work’ as defined in Schedule 2 of the QBCC Act does not include work excluded by regulation. Work performed by an engineer in the engineer’s professional practice is excluded under the Queensland Building and Construction Commission Regulation 2018 (Qld) and therefore not ‘building work’ for the purposes of the Schedule 2 of the QBCC Act.[31] It follows that an individual registered as a professional engineer is not required to be licensed to undertake work in his or her professional practice.
  5. [47]
    The definition of ‘engineer’ in Schedule 2 of the QBCC Act is to be contrasted with the definitions of ‘building contractor’ contained in Schedule 1B of the QBCC Act and Schedule 2 of the QBCC Act. Both definitions refer to a building contractor as ‘a person’ who carries out building work. A ‘person’ includes an individual and a corporation.[32] A corporation may hold a licence to undertake building work[33] and an individual may hold a licence to undertake building work.[34] However as I have observed only an individual may be registered as an engineer. An ‘engineer’ cannot be a corporation.
  6. [48]
    The exclusion of work undertaken by an engineer in their professional capacity from the definition of ‘building work’ does not mean that a dispute about work undertaken by an engineer is not a building dispute. This is as a result of the definitions of ‘commercial building dispute’ and ‘domestic building dispute’. Each are defined as being disputes about, inter alia, ‘reviewable commercial work’ and ‘reviewable domestic work’ respectively.
  7. [49]
    ‘Reviewable domestic work’ means, subject to a particular qualification I will come to shortly, ‘domestic building work’ as defined under Schedule 1B. 
  8. [50]
    As I have observed, a domestic building dispute includes a dispute between a building owner and an engineer relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.
  9. [51]
    Relevant in the present case is the exception contained in the definition of ‘reviewable domestic work’:

reviewable domestic work means domestic building work under schedule 1B, section 4, except that for applying 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.[35] (underlining added)

  1. [52]
    One then turns to the definition of ‘excluded building work’ contained in Schedule 1B:

excluded building work means any of the following work—

  1. (a)
    work relating to any of the following buildings—
  1. (i)
    a farm building, or proposed farm building, that is not a home;
  1. (ii)
    a building intended to be used only for business purposes;
  1. (iii)
    a building intended to be used only to accommodate animals;
  1. (b)
    design work carried out by an architect, engineer or draftsperson;
  1. (c)
    the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work;
  1. (d)
    work involved in obtaining foundations data about a building site;
  1. (e)
    transporting a building or kit home;
  1. (f)
    work declared under a regulation to be excluded building work if there are reasonable grounds for considering the work to be excluded building work.
  1. [53]
    Accordingly, by operation of the definition of ‘reviewable domestic work’ the following is not excluded building work:
    1. (a)
      design work carried out by an architect, engineer or draftsperson;
    2. (b)
      the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work;
    3. (c)
      work involved in obtaining foundations data about a building site.
  1. [54]
    ‘Design work’ is not defined in Schedule 1B. The term is however defined in Schedule 2 of the Act:
  1. (a)
    the preparation of plans or specifications for building work; or
  2. (b)
    professional advice in relation to building work.[36]
  1. [55]
    ‘Domestic building work’ is defined in Schedule 1B:
    1. (a)
      the erection or construction of a detached dwelling;
    2. (b)
      the renovation, alteration, extension, improvement or repair of a home;
    3. (c)
      removal or resiting work for a detached dwelling;
    4. (d)
      the installation of a kit home at a building site.[37]
  2. [56]
    ‘Domestic building work’ also includes ‘associated work’ which is work associated with the erection, construction, removal or resiting of a detached dwelling and work associated with the renovation, alteration, extension, improvement or repair of a home.[38]
  3. [57]
    It can be seen from the foregoing that:
    1. (a)
      ‘Domestic building work’ has the meaning given by s 4 of Schedule 1B and includes ‘associated work’;
    2. (b)
      ‘Domestic building work’ does not include ‘excluded building work’;
    3. (c)
      ‘Excluded building work’ does not include design work carried out by an architect, engineer or draftsperson; the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work; work involved in obtaining foundations data about a building site.
  4. [58]
    I will refer to category (c) collectively as ‘designing and planning work’.
  5. [59]
    While not adopting the definition of ‘design work’ in Schedule 2 of the Act to determine the meaning of ‘design work’ for the purposes of Schedule 1B, I find that ‘design work’ in Schedule 1B should be given a broader rather than a narrower meaning. The preparation of plans or specifications requires a process of consultation between the building owner and the particular professional. Advice about, for example, the suitability of plans or specifications for a particular site or about cost associated with building in accordance with a particular design, is captured within the meaning of ‘design work’.
  6. [60]
    The definition of ‘reviewable domestic work’ resulting in designing and planning work not being ‘excluded building work’ does not however sit entirely harmoniously with the definition of ‘domestic building work’. If the legislature’s intent was to exclude designing and planning work from the definition of ‘excluded building work’ then the legislature clearly intended that such work is domestic building work. However designing and planning work does not appear to fall within the definition of ‘domestic building work’ at s 4(1) of Schedule 1B. Is such work captured within the definition of ‘associated work’?
  7. [61]
    In ML Spicer Pty Ltd t/as Purebuild Homes v Doeuk[39] I considered the meaning of ‘associated work’ in the context of a claim by a building owner against a certifier:

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.

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”.

  1. [62]
    In ML Spicer Pty Ltd, I referred to the decision of the former Commercial and Consumer Tribunal in Cleary, J. v Bowcock, M.[40] where Member Lohrisch found that certification work was not domestic building work. Member Lohrisch referred to the specific exclusion of private certification work from ‘building work’, finding that this supported the conclusion that a narrow view should be taken of the meaning of ‘related to the performance of reviewable domestic work’.[41] The CCT in Cleary did not consider the meaning of ‘associated work’.
  2. [63]
    Designing and planning work is not physical building work as referred to in ML Spicer Pty Ltd. I also note that work undertaken by an engineer in their professional practice and work undertaken by an architect in their professional capacity is not ‘building work’.[42] Again, this is not work that might be considered ‘physical’ building work.
  3. [64]
    Nevertheless, and unlike certification work undertaken by building certifiers, the clear intention of the legislature is that designing and planning work undertaken by architects and engineers relating to reviewable domestic work is ‘domestic building work’. If not, the words in the definition of ‘reviewable domestic work’, ‘except that for applying 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’, have no work to do.
  4. [65]
    In my view, the intention of the legislature was to capture within the definition of ‘domestic building work’, designing and planning work carried out by, inter alia, an engineer. Such work does not fall within s 4(1) of Schedule 1B. It must therefore be ‘associated work’ for the purposes of s 4(3). Designing and planning work may be viewed as a specifically identified exception to the requirement that ‘associated work’ involve physical building work.
  5. [66]
    Such a construction is harmonious with the overall legislative scheme and is the interpretation that best achieves the purpose of the QBCC Act.[43]

The proposed counter-application against Casswell

  1. [67]
    There are no statements of evidence relied upon by either the Silvesters or Casswell although submissions have been filed by the parties.
  2. [68]
    Before the tribunal are a number of engineering drawings. On each it is noted that ‘T Casswell’ has certified the drawings. On each appears the following notation: ‘Designed TC’. I assume these to be references to Mr Troy Casswell. It does not appear to be contentious that Mr Casswell is a registered engineer.
  3. [69]
    I am satisfied that the Silvesters are ‘building owners’ for the purposes of Schedule 1B of the QBCC Act. That is, they are persons for whom domestic building work has been carried out. I am satisfied that Mr Troy Casswell was, at the relevant time, a registered engineer. I am satisfied that engineering drawings were prepared and that Mr Casswell is identified as having designed and certified the drawings.
  4. [70]
    The Silvesters apply to amend their response to pursue a counter-application against Casswell Consulting Pty Ltd, not Mr Casswell. For the reasons I have set out, Casswell Consulting Pty Ltd is not an ‘engineer’ for the purposes of a building dispute within the meaning of that term in the QBCC Act. Only an individual may be a registered engineer. Casswell Consulting Pty Ltd is not an individual. 
  5. [71]
    The tribunal has jurisdiction to decide a building dispute. The proposed claim by the Silvesters is not against an ‘engineer’ and is therefore not a ‘building dispute’. Had the draft amended response and counter-application named Mr Casswell in his personal capacity the outcome would be different. However it does not; the proposed claim by the Silvesters against Casswell Consulting Pty Ltd is not a dispute in relation to which the tribunal has jurisdiction.
  6. [72]
    This is sufficient to dispose of the application insofar as it relates to the proposed counter-application against Casswell. However, for the sake of completeness, I will address the application of s 77(2) of the QBCC Act.
  7. [73]
    As the tribunal has previously found, the requirement contained in s 77(2) of the QBCC Act for a person to comply with a process established by the QBCC to attempt to resolve a building dispute is mandatory. It is a substantive provision and cannot be waived. Compliance with the section is a necessary pre-condition to the jurisdiction of the tribunal to decide a building dispute.
  8. [74]
    However, compliance with s 77(2) requires a process to have been established by the QBCC to resolve building disputes. The nature of the process and the compliance by the parties with the process is, at least in the first instance, a matter for the QBCC to determine. It may be that in respect of certain building disputes the QBCC does not have a dispute resolution process.
  9. [75]
    The Silvesters say that they have complied with the requirements of s 77(2) of the QBCC Act. Alternatively, they say that s 77(2) is ‘not applicable’ as the QBCC does not have the statutory power to assist with the resolution of the particular dispute with Casswell.
  10. [76]
    The first contention is based on the written advice provided by the QBCC to the Silvesters that their dispute with MP2 was considered to be a contractual matter and outside the jurisdiction of the QBCC. It is appropriate to set out the relevant parts of the letter:

I refer to the dispute lodged with QBCC on 31 January 2019 about building work being performed by M Plus 2 Projects Pty Ltd at the above property.

It has been identified that the dispute relates to a contractual matter that is outside the jurisdiction of the QBCC.

QBCC does not have the statutory power to assist with the resolution of such disputes and is therefore unable to assist you further with this matter.

No further action will be taken by Resolution Services in relation to this dispute. The QBCC however reserves its right to continue investigation into any breaches that may have arisen during our investigations of this matter.

This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised.[44]

  1. [77]
    Of particular relevance is the reference to the Silvesters’ having participated in the QBCC’s dispute resolution process ‘as prescribed by legislation’. This appears to be a reference to s 77(2) of the QBCC Act. In the absence of any evidence to the contrary, it seems apparent that the QBCC was satisfied a dispute resolution process existed and applied in respect of the complaint by the Silvesters about MP2 otherwise the Silvesters could not have ‘participated’.  
  2. [78]
    The reference in s 77(2) of the QBCC Act to a person complying ‘with a process established by the commission to attempt to resolve the dispute’ requires a consideration of ‘the dispute’. ‘The dispute’ is that which the party intends applying to the tribunal to have decided. In this case, it is the dispute between the Silvesters and Casswell. It is a dispute of a very different nature to the dispute between the Silvesters and MP2.
  3. [79]
    The clear purpose of s 77(2) of the QBCC Act is to encourage the resolution of building disputes without the necessity of parties commencing proceedings in the tribunal.
  4. [80]
    Where, as here, a party to a dispute involved in proceedings in the tribunal seeks to pursue a claim against another person in respect of a different dispute, the requirements of s 77(2) must be satisfied in respect of the different dispute. Whether, as the Silvesters assert, there is no dispute resolution process engaged in relation to their dispute with another party is a matter which the Silvesters may address at the appropriate juncture. 

The proposed counter-application against Cyber

  1. [81]
    For the same reasons I have set out regarding the proposed joinder of Casswell relating to, firstly, its status as a corporation and, secondly, compliance with s 77(2) of the QBCC Act, the application to amend the response to pursue a counter-application against Cyber must also be refused.
  2. [82]
    The Silvesters allege that they entered into an agreement with Cyber whereby Cyber would undertake engineering inspections and certify the works performed by MP2.[45] Whether the work undertaken by Cyber falls within designing and planning work is not a matter upon which any concluded view can be formed, at least in the present application.

Conclusion

  1. [83]
    The application for miscellaneous matters is refused.

Footnotes

[1]Application for miscellaneous matters filed 5 February 2020.

[2]Draft amended response and counter-application, para 13.

[3]Contract dated 30 May 2018 - Drawing 16002.

[4]The Cornell Report dated 15 May 2019.

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

[6]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (‘QCAT rules’), r 48(1).

[7]Ibid, r 50(1)(b).

[8]Ibid, r 51(2).

[9]QCAT rules, r 51(3).

[10][1983] 2 Qd R 501.

[11]Ibid, 505.

[12][1964] SASR 64.

[13][1919] 2 KB 362.

[14]Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236.

[15]Watkins Ltd v Plancorp No 6 Pty Ltd [1983] 2 Qd R 501, 504.

[16]QCAT Act, s 62(1).

[17]Smith v Buskell [1919] 2 KB 362.

[18]QCAT rules, r 48(1).

[19]Ibid, r 48(2).

[20]QCAT Act, s 61(1)(b).

[21]Ibid, s 61(1)(c).

[22]Ibid, s 62(1).

[23]Ibid, s 3(b).

[24](2009) 258 ALR 14.

[25]Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 67AZN(1).

[26]Ibid, s 67AZN(2).

[27]QBCC Act, sch 2.

[28]Professional Engineers Act 2002 (Qld), s 8(1).

[29]Acts Interpretation Act 1954 (Qld), sch 1.

[30]Professional Engineers Act 2002 (Qld), s 42(1).

[31]Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Regulation’), sch 1, s 5.

[32]Acts Interpretation Act 1954 (Qld), sch 1.

[33]QBCC Act, s 31(2).

[34]Ibid, s 31(1).

[35]Ibid.

[36]QBCC Act, sch 2.

[37]Ibid, sch 1B, s 4(1).

[38]Ibid, sch 1B, s 4(3).

[39][2016] QCAT 214, [26]-[27].

[40][2005] QCCTB 8.

[41]QBCC Act, sch 2 – definition of ‘domestic building dispute’: (c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries ... (emphasis added)

[42]QBCC Regulation, sch 1.

[43]Acts Interpretation Act 1954 (Qld), s 14A(1).

[44]Letter from QBCC to Travis Silvester dated 8 February 2020.

[45]Draft amended response and counter-application, para 19(c).

Close

Editorial Notes

  • Published Case Name:

    M Plus 2 Projects Pty Ltd v Silvester & Anor

  • Shortened Case Name:

    M Plus 2 Projects Pty Ltd v Silvester

  • MNC:

    [2020] QCAT 228

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    19 Jun 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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