Leyden v N J Tierney Constructions Pty Ltd
[2015] QCAT 483
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- Unreported Judgment
- Leyden v N J Tierney Constructions Pty Ltd[2015] QCAT 483
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Leyden v N J Tierney Constructions Pty Ltd[2015] QCAT 483
Leyden v N J Tierney Constructions Pty Ltd[2015] QCAT 483
CITATION: | Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483 |
PARTIES: | Ann-Maree Leyden (Applicant) |
v | |
N J Tierney Constructions Pty Ltd ACN 002 438 459 (Respondent) |
APPLICATION NUMBER: | BDL086-15 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
DELIVERED ON: | 8 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | BUILDING DISPUTE – s 77(2) Queensland Building and Construction Commission Act 1991 (Qld) – jurisdiction of Tribunal - requirement for applicant to comply with process established by QBCC to attempt to resolve dispute before filing application – QBCC pre-proceedings “process” to resolve building disputes Queensland Building and Construction Commission Act 1991 (Qld), pt 5, pt 6, s 68, s 70, s 71J, s 72, s 77, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32 |
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]N J Tierney Constructions Pty Ltd (‘Tierney’) undertook domestic building work for Ann-Maree Leyden. Ms Leyden has filed an application in the Tribunal seeking damages against Tierney for late and defective building work. Prior to filing an application for a building dispute in the Tribunal an applicant is required to comply with a process established by the Queensland Building and Construction Commission (‘QBCC’) to attempt to resolve the dispute.[1] Tierney says that Ms Leyden has not complied with her statutory obligations and her application should be struck out. Ms Tierney says that she has complied. It falls to the Tribunal to determine the issue.
- [2]The issues for determination are:
- Is there a process established by the QBCC to attempt to resolve Ms Leyden’s building dispute?
- Has Ms Leyden complied with the process?
- [3]A person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[2] A person may not apply to the Tribunal however unless the person has first complied with a process established by the QBCC to attempt to resolve the dispute.[3] Compliance with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘Act’ or ‘QBCC Act’) is therefore the gateway through which an applicant must pass before filing an application for a building dispute in the Tribunal.
- [4]Ms Leyden says that the ‘process established by the Commission’ is the Early Dispute Resolution process (‘EDR’). The EDR process commenced on 15 December 2014. The EDR only applies to disputes arising prior to the completion of a building contract.
- [5]Ms Leyden has received correspondence from the QBCC stating:
- ...the dispute under consideration by the Commission does not satisfy the criteria for an “Early Dispute Resolution” matter as the building work has been completed for a substantial period of time;[4]
- The dispute process utilised by the Commission prior to ‘completed works’ is referred to as Early Dispute Resolution (EDR). The works in the Leyden case have been completed for a substantial period of time therefore the dispute in question does not satisfy the EDR process;[5]
- there is no dispute resolution process within the QBCC that applies to this dispute.[6]
- [6]Ms Leyden says that the building contract has been completed, that the EDR process does not apply to the dispute and that there are no other processes established by the QBCC to attempt to resolve the building dispute.
- [7]Tierney says that s 77(2) refers to ‘a process’ and that this is not limited to the EDR process. Tierney submits that, before the EDR process was introduced, the QBCC had a dispute resolution process which could assist to resolve disputes by way of an informal documented agreement between a builder and a homeowner. Tierney refers to various QBCC website references to dispute resolution processes and says that there is at least one, if not more, such process with application to Ms Leyden’s dispute including:
- Part 6 of the Act – the power of the QBCC to direct rectification and remediation of defective building work;
- Part 5 of the Act – the statutory insurance scheme (the Queensland Home Warranty Scheme (‘QHWS’)).
- [8]Tierney contends that Ms Leyden must satisfy the Tribunal that she has complied with any dispute resolution process established by the QBCC to attempt to resolve the dispute. The corollary of this proposition is that Ms Leyden must comply with all dispute resolution processes before commencing proceedings in the Tribunal.
- [9]Tierney says that Part 6 of the Act establishes a process for dispute resolution. Part 6 deals with the powers of the QBCC in relation to the rectification of building work and remediation of consequential damage. A consumer may ask the QBCC to give a direction to rectify building work which the consumer considers is defective or incomplete.[7] The QBCC may direct a builder to rectify work or remedy damage.[8]
- [10]The QBCC may, before making a determination as to whether building work is defective or incomplete, require the consumer to comply with a process established by the commission to attempt to resolve the matter with the person who carried out the work.[9]
- [11]Tierney also relies upon Part 5 of the Act and says that the QHWS is a process established by the QBCC to attempt to resolve building disputes.
- [12]
- [13]The Act defines a building dispute.[12] It is clear that Ms Leyden’s claim against Tierney is a domestic building dispute within the meaning of the Act.
- [14]Section 77(2) requires a person intending applying to the Tribunal to resolve a building dispute to first comply with a process established by the Commission to attempt to resolve the dispute. The section does not require an applicant to comply with any process or all processes. A potential applicant must therefore comply with a single process in order to satisfy s 77(2). Once an applicant complies with a process established by the QBCC to resolve their building dispute, assuming such a process exists, the gateway to filing the application is opened.
- [15]Part 6 of the Act relates to the QBCC’s powers and processes to direct the rectification or remediation of building work. As part of these powers and processes, the commission may require a consumer to comply with a process ‘to attempt to resolve the matter with the person who carried out the work.’ The ‘matter’ referred to at s 72(6) is a request for the QBCC to direct rectification of defective or incomplete building work or remedy consequential damage under ss 71J(1) or (2)of the Act. The ‘process’ referred to in s 72(6) is one relating to the QBCC’s powers under Part 6. It is not a process relating to the resolution of a building dispute.
- [16]Part 5 of the Act relates to the creation of the QHWS which may be accessed by persons entitled to indemnity under the scheme and also deals with, among other things, the recovery of claims payments from builders, cancellation of policies and tenders for rectification work. Part 5 does not deal with building disputes or establish a process for the resolution of building disputes.
- [17]Tierney relies upon numerous references found on the QBCC website, both historical and current. Tierney says that these various references to dispute resolution processes on the QBCC web page extracts, particularly prior to the introduction of s 77(2), indicate that the QBCC had other processes with which Ms Leyden could and should have complied prior to filing her application.
- [18]Prior to the enactment of s 77(2), any QBCC dispute resolution process was purely voluntary. The voluntary dispute resolution process involved the QBCC:
- arranging a site meeting with the homeowner and builder;
- undertaking an inspection of the items the subject of complaint;
- assessing responsibility for any defective works;
- deciding what subsequent action may be required.[13]
- [19]
- [20]As I have observed, s 77(2) of the Act does not require every applicant to a building dispute to comply with any and every process established by the QBCC which may serve to attempt to resolve the dispute. What is required is that an applicant comply with a process to attempt to resolve the dispute.
- [21]The EDR is such a process. Section 77(2) of the Act was introduced with the specific intent of ensuring that the parties to a domestic building dispute were first required to attempt to resolve the matter through the QBCC before filing an application in the Tribunal.[16] The EDR applies to domestic building disputes between a homeowner and a principal contractor, where the contract value is more than $3,300 and in circumstances where the contract remains on foot. It does not apply where the contract has been terminated or completed.
- [22]In circumstances, such as pertain here, where the building contract has been completed the EDR process does not apply.
- [23]If a building dispute does not fall within the EDR process, then an applicant must establish that they have complied with another ‘process’ to attempt to resolve the dispute if such a process exists.
- [24]Part 5 (QHWS) and Part 6 (rectification and remediation) of the Act are not processes established by the QBCC to attempt to resolve a building dispute.
- [25]The only other QBCC process that may exist relevant to Ms Leyden’s building dispute is the informal, voluntary dispute resolution process. Ms Leyden asserts that she has, on several occasions, engaged with the QBCC and Tierney in activities which have the features of this process.
- [26]‘Process’ is not defined in the Act. It must therefore be given its ordinary meaning. A ‘process’ is ‘a series of actions or steps taken in order to achieve a particular end’.[17] A process must therefore by necessity be ordered and methodical and capable of being clearly identified and thus complied with.
- [27]The process with which an applicant must comply is one ‘established by the commission to attempt to resolve the dispute.’ Consistent with the definition of ‘process’, it must be a specific process which is ordered, methodical and capable of being clearly identified and complied with, established by the QBCC to achieve a particular end i.e. the resolution of a building dispute.
- [28]In the absence of these features it would be extremely difficult for a party to a dispute to identify what process they were required to comply with and how to go about achieving compliance. The legislature has imposed upon prospective applicants in building disputes a significant obligation in s 77(2) and one which cannot be complied with in the absence of certainty regarding the relevant QBCC process. It would be unreasonable to present to prospective applicants a locked gateway to the Tribunal in circumstances where the key to open the gateway is ill defined and lacking clarity.
- [29]The voluntary dispute resolution process, in my view, lacks the requirements of a ‘process’ to attempt to resolve a building dispute. It appears to be primarily directed to complaints by homeowners to the QBCC. The outcomes from the voluntary process specifically refer to enforcement action by the QBCC.[18] Accordingly, I find that the voluntary dispute resolution process is not a process established by the QBCC to attempt to resolve a building dispute.
- [30]There is, in my view, no process clearly established by the QBCC, other than the EDR, which is a ‘process established by the commission to attempt to resolve the dispute.’
- [31]Finally, I observe that support for my conclusion can be found in the advice by the QBCC’s Acting Executive Director of Compliance and Regulatory Services to Ms Leyden’s solicitor that ‘there is no dispute resolution process within the QBCC that applies to this dispute’ (underlining added).
- [32]If I am wrong in relation to whether the voluntary dispute resolution process is a process within s 77(2) of the Act, in my view Ms Leyden has complied with that process as is evidenced by her various interactions with the QBCC between 2009 and 2012 as outlined in her submissions.[19]
- [33]The EDR process has no application to Ms Leyden’s dispute as the building contract with Tierney has been completed. In the absence of any process established by the QBCC which may have been utilised to attempt to resolve the building dispute, Ms Leyden was at liberty to file her application.
- [34]Accordingly, the stay of the proceedings ordered on 6 August 2015 is lifted.
- [35]I make the following directions in relation to the further conduct of the proceedings:
- The application is listed for a Compulsory Conference on a date to be advised by the Registry.
Footnotes
[1] Queensland Building and Construction Commission Act 1991 (Qld) (‘Act’ or ‘QBCC Act’), s 77(2).
[2] Ibid s 77(1).
[3] Ibid s 77(2).
[4] Letter QBCC to QCAT – 10 August 2015.
[5] Letter QBCC to Mr N Tierney – 14 September 2015.
[6] Email QBCC to Ms Leyden’s solicitor – 6 October 2015.
[7] QBCC Act s 71J(1).
[8] Ibid s 72.
[9] Ibid s 72(6).
[10] Ibid s 68.
[11] Ibid s 70.
[12] Ibid Schedule 2.
[13] QBCC – Fact sheet: QBCC’s Dispute Resolution Process.
[14] Applicant submissions – paragraph 34.
[15] Op cit 13.
[16] Applicant’s submissions paragraph 2 d and Affidavit of Ruth Ellen Sainsbury exhibit RSA-5.
[17] Oxford Dictionary.
[18] Affidavit of Ruth Ellen Sainsbury – exhibit RSA-4.
[19] Applicant’s submissions – 6 November 2015 – paragraph 3.