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Walsh v Australian Building and Construction Group[2016] QCAT 187

Walsh v Australian Building and Construction Group[2016] QCAT 187

CITATION:

Walsh v Australian Building and Construction Group [2016] QCAT 187

PARTIES:

Michael Walsh

(Applicant)

 

v

 

Australian Building and Construction Group

(Respondent)

APPLICATION NUMBER:

BDL146-16

MATTER TYPE:

Building matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

DELIVERED ON:

20 June 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application is dismissed;
  2. The applicant is at liberty to file an application for domestic building dispute;
  3. Any application filed in accordance with order 2 must be accompanied by evidence of compliance by the applicant with s 77(2) of the Queensland Building and Construction Commission Act 1991;
  4. If an application is commenced in accordance with order 2, all documents filed in this proceeding will be taken to have been filed in the further proceeding.

CATCHWORDS:

JURISDICTION – where proceeding for building dispute commenced as minor civil dispute – where applicant did not comply with a process established by the Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – where provision in enabling Act has substantive effect – whether Tribunal has power to waive compliance with substantive provision of enabling Act – where application dismissed for lack of jurisdiction

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 61

Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61

Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483

Queensland Building and Construction Commission v Watkins [2014] QCA 172

Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016)

APPEARANCES:

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

REASONS FOR DECISION

  1. [1]
    Michael Walsh and The Tiny Tradies Group Pty Ltd (who I will collectively refer to as ‘Tiny Tradies’) say that Tiny Tradies contracted with Australian Building & Construction Group (‘ABC Group’) to undertake painting work at domestic premises. Tiny Tradies says that it was not paid for work it has performed.
  2. [2]
    Tiny Tradies filed application for a minor civil dispute claiming an amount of $12,121.45 from ABC Group. ABC Group filed a response in which it says that the applicant named in the application is ‘Michael Walsh (The Tiny Tradies Group Pty Ltd)’. ABC Group says that the contract it had for the performance of the painting work (‘the contract’) was with ‘Tiny Tradies Painting’. ABC Group says that Michael Walsh and The Tiny Tradies Group Pty Ltd do not have standing to bring the application as they were not parties to the contract.
  3. [3]
    In the alternative, ABC Group says that the painting work carried out by Tiny Tradies is defective and claims a set off for the costs of rectification.
  4. [4]
    On 10 June 2016 the application came before the Tribunal. An Adjudicator directed that Tiny Tradies file in the Tribunal evidence that the Queensland Building and Construction Commission (‘QBCC’) could not assist in the resolution of the claim, and, upon such evidence being filed, the application was to be transferred from the minor civil disputes list to the building list.
  5. [5]
    On 13 June 2016 Tiny Tradies filed in the Tribunal a letter of the same date from the QBCC addressed to Michael Walsh stating, among other things, ‘(t)his correspondence serves as formal notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your case has now been finalised.’
  6. [6]
    In accordance with the directions of the learned Adjudicator, the application was transferred to the building list and falls for further consideration.
  7. [7]
    A person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[1] 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.[2]
  8. [8]
    Compliance with s 77(2) of the Act is the gateway through which an applicant must pass before filing an application for a building dispute in the Tribunal.[3]
  9. [9]
    The letter from the QBCC to Mr Walsh refers to an attendance by Mr Walsh at the QBCC on 10 June 2016 and a telephone communication between Mr Walsh and the QBCC on 13 June 2016. I infer from the contents of the letter that Mr Walsh first made contact with the QBCC regarding the building dispute on 10 June 2016 following the directions made by the Tribunal to which I have referred. Compliance with s 77(2) QBCC Act was therefore achieved after Tiny Tradies commenced the proceeding.
  10. [10]
    The Tribunal may, by order, extend a time limit fixed for the start of a proceeding by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an enabling Act; or extend or shorten a time limit fixed by the QCAT Act, an enabling Act or the rules; or waive compliance with another procedural requirement under the QCAT Act, an enabling Act or the rules.[4]
  11. [11]
    The powers conferred upon the Tribunal by s 61 QCAT Act do not extend to a provision in an enabling Act that is a condition of jurisdiction rather than merely a procedural rule.[5] If a provision in an enabling Act is mandatory, having substantive rather than procedural effect, s 61 QCAT Act does not have application.[6]
  12. [12]
    Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened.[7] The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.
  13. [13]
    Tiny Tradies did not comply with s 77(2) QBCC Act before filing its application. The consequence of the non compliance is that the Tribunal does not have jurisdiction in respect of the application. It matters not that the application was commenced as a minor civil dispute.[8] Where the tribunal considers a proceeding is misconceived or lacking in substance, the tribunal may order that the proceeding be dismissed.[9] The application must be dismissed and I order accordingly.
  14. [14]
    In dismissing the application I make the observation that the applicant should consider carefully the matters raised by ABC Group in its response and ensure that if a further application for a domestic building dispute is filed in the Tribunal, attention is paid to identifying and naming the correct parties to the dispute.
  15. [15]
    I make the following orders:
    1. The application is dismissed;
    2. The applicant is at liberty to file an application for domestic building dispute;
    3. Any application filed in accordance with order 2 must be accompanied by evidence of compliance by the applicant with s 77(2) Queensland Building and Construction Commission Act 1991;
    4. If an application is commenced in accordance with order 2, all documents filed in this proceeding will be taken to have been filed in the further proceeding.

Footnotes

[1] Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), s 77(1).

[2] QBCC Act, s 77(2).

[3] Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483.

[4] QCAT Act, s 61.

[5] Queensland Building and Construction Commission v Watkins [2014] QCA 172.

[6] Ibid and Chief Executive, Department of Justice and Attorney-General v Campaigntrack Victoria Pty Ltd & Ors [2015] QCATA 61.

[7] Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016).

[8] Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016).

[9] QCAT Act, s 47.

Close

Editorial Notes

  • Published Case Name:

    Walsh v Australian Building and Construction Group

  • Shortened Case Name:

    Walsh v Australian Building and Construction Group

  • MNC:

    [2016] QCAT 187

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    20 Jun 2016

Appeal Status

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

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