Sovereign Homes Qld Pty Ltd v Edwards
[2016] QCAT 461
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Sovereign Homes Qld Pty Ltd v Edwards[2016] QCAT 461
- Add to List
Sovereign Homes Qld Pty Ltd v Edwards[2016] QCAT 461
Sovereign Homes Qld Pty Ltd v Edwards[2016] QCAT 461
CITATION: | Sovereign Homes Qld Pty Ltd v Edwards [2016] QCAT 461 |
PARTIES: | Sovereign Homes Qld Pty Ltd (Applicant) |
v | |
Donald Bruce Edwards (Respondent) |
APPLICATION NUMBER: | BDL253-15 |
MATTER TYPE: | Building matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Stilgoe OAM |
DELIVERED ON: | 6 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL - OTHER MATTERS - TRADE AND COMMERCE - COMPETITION, FAIR TRADING AND CONSUMER PROTECTION LEGISLATION - CONSUMER PROTECTION - MISLEADING OR DECEPTIVE CONDUCT OR FALSE REPRESENTATIONS - PARTICULAR CASES – BUSINESS ACTIVITIES – where building contact – where builder filed claim for payment of final instalment – where homeowner counterclaimed – where counterclaim included pleading of Australian Consumer Law – where builder applied to strike out references to Australian Consumer Law on the basis the tribunal lacked jurisdiction EVIDENCE – ADMISSIBILITY – EXCLUSIONS:PRIVILEGE – PUBLIC INTEREST PRIVILEGE – SETTLEMENT NEGOTIATIONS – where respondent referred to, and exhibited, ‘without prejudice’ correspondence – where applicant applied to strike out references and evidence – whether documents protected by public interest privilege Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), 28(3)(a), 28(3)(d), s 62, Schedule 3 Queensland Building and Construction Commission Act 1991 (Qld) Schedule 2 Domestic Building Contracts Act 1995 (Vic) s 124A Delab Construction Service Pty Ltd v Olivares t/as Matador Tapas Bar [2013] QCAT 723 (distinguished) Field v Commissioner for Railways for New South Wales (1957) 99 285 CLR (applied) Harrington v Lowe (1996) 190 CLR 311 (applied) Lauer & Ng v Corner [2015] NSWCATCD 114 (distinguished) Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276 (applied) |
APPEARANCES and REPRESENTATION (if any):
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]In June 2014, Sovereign Homes Qld Pty Ltd and Donald Edwards signed a contract for additions and renovations to Mr Edwards’ home. Sovereign carried out the work and issued a notice of practical completion on 11 December 2014. Mr Edwards accepted practical completion but there were matters requiring rectification. The notorious Brisbane storm of November 2014 complicated matters, as some ‘rectification’ was, in fact, repair of storm damage.
- [2]Sovereign formed a view that it had completed its work and called for final payment. Mr Edwards formed the view that some work was outstanding. Sovereign brought the dispute to the tribunal.
- [3]In his response and counterclaim, Mr Edwards has repeatedly referred to principles contained within Schedule 2 of the Competition and Consumer Act 2010 (Cth) [the Australian Consumer Law (Queensland)]. Sovereign has applied to strike out those references or, if the references remain, to transfer the dispute to a court of competent jurisdiction.
Some comments about the nature of the response and counterclaim
- [4]Mr Edwards’ response, counterclaim and submissions are a mixture of allegations of fact, submissions about the law, evidence and editorial comment.
- [5]Because it is obliged to deal with matters in a way that is accessible and informal[1], because it is not bound by the rules of evidence[2] and because it must act with as little formality and technicality as the requirements of the Act and a proper consideration of the matters before the tribunal permit[3], the tribunal does not insist on the formal separation of pleadings, submissions, and evidence. While a lawyer may take issue with the format of Mr Edwards’ documents, the documents do comply with the spirit of the Queensland Civil and Administrative Tribunal Act.
The tribunal’s jurisdiction
- [6]Sovereign says that the tribunal’s jurisdiction comes from the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and that, pursuant to s 77 of that Act, the tribunal has jurisdiction for a ‘domestic building dispute.’ Sovereign says that ‘domestic building dispute’ limits the tribunal’s jurisdiction, and does not involve jurisdiction for actions for unconscionable conduct or misleading and deceptive conduct under the Australian Consumer Law (Queensland). It says actions under the Australian Consumer Law (Queensland) are separate causes of action from the building dispute for which the tribunal has no jurisdiction.
- [7]
- [8]The tribunal has previously decided[6] that breaches of the Australian Consumer Law (Queensland) are not claims that relate to the performance of reviewable building work. The tribunal took the view that it was necessary to prove a nexus between a sustainable claim of wrongdoing and any claimed loss.
- [9]I do not necessarily agree with this approach. The QBCC Act defines a domestic building dispute in two ways.[7] It may be a claim relating to the performance of reviewable domestic work. It may also be a claim relating to a contract for the performance of reviewable domestic work.
- [10]While each case will depend on its facts. Mr Edwards’ complaint about Sovereign’s claim for interest and costs clearly relates to contract for the performance of reviewable domestic building work in that he claims Sovereign deliberately delayed completion of the contract and unnecessarily incurred legal costs. Mr Edwards’ claim of misleading and deceptive conduct over the pricing of variations also related to the performance of work the subject of the contract. I am persuaded that these claims are within the meaning of domestic building dispute under s 77 of the Queensland Building and Construction Commission Act.
- [11]In any event, the tribunal’s jurisdiction does include proceedings under the Australian Consumer Law (Queensland). Section 50(1)(a) of the Fair Trading Act 1989 (Qld) states that a proceeding for the purposes of the Australian Consumer Law (Queensland) must be heard in the tribunal if the subject of the proceeding would be a minor civil dispute within the meaning of the QCAT Act.
- [12]Section 12(4)(a) of the QCAT Act gives the tribunal jurisdiction for a claim by a consumer arising out of a contract between a consumer and a trader. The Act defines ‘consumer’ as an individual who for whom services are supplied for fee or reward.[8] A ‘trader’ means a person who, in trade or commerce carries on a business of providing services. Clearly, Mr Edwards is a consumer and Sovereign is a trader.
- [13]Section 13(2)(a)(ii) of the QCAT Act states that, in a proceeding for a minor civil dispute, a tribunal may make an order that a stated amount is not due and owing. Although Mr Edwards has not claimed any loss from the alleged breaches of the Australian Consumer Law (Queensland), he has argued that Sovereign’s claims are unfair. It is implicit in Mr Edwards’ documents that he wants to claim relief from payment. The claims are less than $25,000. Therefore, Mr Edwards’ claims would be a minor civil dispute within the meaning of the Act.
- [14]The tribunal does have jurisdiction to consider Mr Edwards claims under the Australian Consumer Law (Queensland). Even though the jurisdiction exists in the tribunal’s minor civil dispute division, the tribunal’s mandate to be economical, informal and quick[9] and its flexibility of process[10] allow Mr Edwards’ claims to be considered within the building jurisdiction.
- [15]The application to strike out the response, counterclaim ad statement of evidence should be dismissed. The application to transfer the dispute to another court of competent jurisdiction should also be dismissed.
The privileged information
- [16]Sovereign says that Mr Edwards has relied on, and exhibited copies of privileged information. It says that the privilege rests in Sovereign and has not been waived.
- [17]Documents in the course of negotiations to settle disputes are generally protected from disclosure and it is not necessary to label any correspondence within that category as ‘without prejudice’ to obtain that protection.[11] Therefore, even though Mr Edwards’ emails are not labelled ‘without prejudice’, they are also privileged to the extent that they are negotiations to settle the dispute. A close examination of Mr Edwards’ emails shows that they are, in fact, attempts to settle the dispute.
- [18]The purpose of the privilege is to:
‘…encourage compromises by sparing the parties the embarrassment which might be caused to them if the negotiations fail and later their communications are liable to be put in evidence.[12]
- [19]The privilege is directed against the admission in evidence of express or implied admissions made during the course of negotiations. [13] Protection will not be given, for example, where the statements are relevant simply because they were made, whether or not the statements were true.[14] The privilege is not concerned with objective facts that may be ascertained during the course of the negotiation.[15]
- [20]Mr Edwards does not refer to the privileged documents for the purpose of proving admissions. He places them before the tribunal for the purpose of showing a course of conduct adopted by Sovereign which is misleading, deceptive and/or unconscionable within the meaning of the Australian Consumer Law (Queensland). To that extent, I am not persuaded that privilege attaches to the documents. The weight that the tribunal might give to those documents, however, is a matter for the tribunal member ultimately hearing this dispute.
- [21]The application to exclude the ‘without prejudice’ documents should also be dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b).
[2] Queensland Civil and Administrative Tribunal Act s 28(3)(a).
[3] Queensland Civil and Administrative Tribunal Act s 28(3)(d).
[4] See Domestic Building Contracts Act 1995 (Vic) s 124A.
[5] See, for example, Lauer & Ng v Corner [2015] NSWCATCD 114.
[6] Delab Construction Service Pty Ltd v Olivares t/as Matador Tapas Bar [2013] QCAT 723 at [35] – [36].
[7] Queensland Building and Construction Commission Act 1991 (Qld) Schedule 2.
[8] Queensland Civil and Administrative Tribunal Act Schedule 3.
[9] Queensland Civil and Administrative Tribunal Act s 3(b).
[10] Queensland Civil and Administrative Tribunal Act s 62.
[11] Harrington v Lowe (1996) 190 CLR 311 at 323.
[12] Harrington at 323.
[13] Field v Commissioner for Railways for New South Wales (1957) 99 285 CLR at 291.
[14] Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276 per Pincus JA at [13].
[15] Field at 291.