Wucon Pty Ltd v Michael Law[2018] QCAT 236

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

What is this dispute about?

1. [1]
   Wucon Pty Ltd (Wucon) entered into a contract with Mr and Mrs Law for the construction of a building in Brisbane (the building). The parties have fallen into dispute. Wucon has commenced proceedings in the tribunal. A preliminary issue has arisen for determination, namely, whether the dispute is a domestic building dispute, a major commercial building dispute or a minor commercial building dispute. The determination of this issue will have consequences for the further conduct of the proceeding in the Tribunal.

Background to the dispute

2. [2]
   The parties entered into a contract in July 2014 for the construction of the building at Runcorn, Brisbane.^[1] The works are described in the contract as ‘new dwelling’. The contract sum was $308,888.
3. [3]
   The building works were completed however there were delays in completion. Wucon says that a delay of 55 days was caused by Mr and Mrs Law.^[2] Despite Wucon filing extensive material in support of its application, the basis of its claim against Mr and Mrs Law remains somewhat opaque. It appears that Wucon is claiming monies due and owing from Mr and Mrs Law in respect of the building works it performed. Mr and Mrs Law deny that they caused any delay in the completion of the building work. Mr and Mrs Law, whose response is also somewhat opaque, appear to be asserting that Wucon failed to properly particularise claims for payment, claimed monies to which it was not entitled under the contract, performed work other than in conformity with the building specifications and claimed from them costs for which Wucon was responsible. In addition Mr and Mrs Law appear to raise a claim for liquidated damages as a result of Wucon’s delay in completing the building work. Mr and Mrs Law say that the delay was 168 days.
4. [4]
   Against this background, Wucon filed in the Tribunal an Application for commercial building disputes claiming an amount of $68,887.85.
5. [5]
   Building disputes - the statutory framework
6. [6]
   The relevant legislative framework in respect of the dispute is found in the Queensland Building and Construction Commission Act 1991 (Qld) and the now repealed Domestic Building Contracts Act 2000 (Qld).^[3] The Tribunal has jurisdiction to hear and decide a building dispute.^[4] A building dispute means a domestic building dispute; a minor commercial building dispute; or a major commercial building dispute.^[5]
7. [7]
   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

2. (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

3. (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

4. (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;

2. (ii)
   an engineer;

3. (iii)
   a surveyor;

4. (iv)
   a quantity surveyor;

5. (v)
   an electrician or an electrical contractor;

6. (vi)
   a supplier or manufacturer of materials used in the tribunal work.^[6]

8. [8]
   ‘Building owner’ and ‘building contractor’ are defined.^[7] Reviewable domestic work means domestic building work under s 8 of the DBC Act:^[8]

Meaning of domestic building work

1. (1)
   Each of the following is domestic building work—

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;

2. (2)
   However—

1. (a)
   removal work for a detached dwelling is domestic building work only if the dwelling is intended to be resited at another place and used, at the place, as a residence; and

2. (b)
   resiting work for a detached dwelling is domestic building work only if the dwelling is intended to be used at the place at which it is being resited as a residence.

3. (3)
   Domestic building work includes—

1. (a)
   work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and

2. (b)
   work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.

4. (4)
   Without limiting subsection (3), associated work includes—

1. (a)
   landscaping; and

2. (b)
   paving; and

3. (c)
   the erection or construction of a building or fixture associated with the detached dwelling or home.

Examples of buildings and fixtures for subsection (4)(c)—

retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas

5. (5)
   For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.

6. (6)
   For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated.

Examples of services and facilities for subsections (5) and (6)—

lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage

7. (7)
   Also, domestic building work includes—

1. (a)
   site work relating to work mentioned in subsection (1), (3), (5) or (6); and

2. (b)
   work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.

8. (8)
   However, domestic building work does not include excluded building work.

9. (9)
   In this section—

1. (a)
   a reference to a detached dwelling includes a reference to any part of a detached dwelling; and

2. (b)
   a reference to a home includes a reference to any part of a home; and

3. (c)
   a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site.

(10) In this section—

removal work, for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place.

resiting work, for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.

9. [9]
   A ‘detached dwelling’ is defined as:

1. (a)
   a single detached dwelling; or

2. (b)
   a duplex.^[9]

10. [10]
    Neither ‘single detached dwelling’ or ‘duplex’ are defined.
11. [11]
    ‘Commercial building dispute’ is defined:^[10]

1. (a)
   a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or

2. (b)
   a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or

3. (c)
   a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial work other than a claim for personal injuries; or

4. (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 commercial work or a contract for the performance of reviewable commercial work—

1. (i)
   an architect;

2. (ii)
   an engineer;

3. (iii)
   a surveyor;

4. (iv)
   a quantity surveyor;

5. (v)
   an electrician or an electrical contractor;

6. (vi)
   a supplier or manufacturer of materials used in the tribunal work.

12. [12]
    ‘Reviewable commercial work’ means:

… tribunal work other than reviewable domestic work.^[11]

13. [13]
    A commercial building dispute may be a minor commercial building dispute or a major commercial building dispute. A minor commercial building dispute is one where neither the claim nor the counterclaim exceeds $50,000.^[12] A major commercial building dispute is one where either the claim or the counterclaim exceeds $50,000.^[13]
14. [14]
    Tribunal work is defined^[14] and includes the erection or construction of a building.^[15] A ‘building’ is defined.^[16]
15. [15]
    The jurisdiction of the Tribunal to hear and decide a major commercial building dispute is enlivened only if the Tribunal is satisfied that all parties to the dispute consent to it so doing.^[17] The QBCC Act sets out the procedure to determine whether all parties consent to the Tribunal hearing and deciding a major commercial building dispute.^[18] An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute.^[19]

Is the dispute a domestic building dispute or a commercial building dispute?

16. [16]
    It cannot be contentious that, for the purposes of Schedule 2 of the DBC Act and Schedule 2 of the QBCC Act, Wucon is a building contractor and Mr and Mrs Law are a building owner.
17. [17]
    It is apparent from the building plan, and the landscape plans for the development generally, that the building was constructed toward the rear of the property. Toward the front of the property was a pre-existing building identified on the landscape plan as ‘existing office space’. The lower floor of the building is identified on the building plan as ‘office space’. It is clear from the building plan that the upper floor of the building is a domestic residence.  The landscape plans identify a number of residence car parking spaces, visitor car parking spaces and staff car parking spaces.
18. [18]
    The dispute between the parties is a domestic building dispute only if it is a claim or dispute relating to the performance of domestic building work or a contract for the performance of domestic building work.
19. [19]
    It is clear that the dispute is not one relating to the renovation, alteration, extension, improvement or repair of a home. The dispute relates to the erection or construction of a building. The question arises as to whether the building is a ‘detached dwelling’. The distinction between a ‘detached dwelling’ and a ‘home’ can be an important one in determining whether a dispute relates to domestic building work however that distinction does not arise in the present case.

Is the building a detached dwelling? 

20. [20]
    As has been observed, a detached dwelling is defined as either a single detached dwelling or a duplex. As has also been observed neither of these terms is defined in the QBCC Act or the DBC Act.
21. [21]
    The meaning of the term ‘detached dwelling’ under the DBC Act was considered by the former Queensland Commercial and Consumer Tribunal in Lorikeet Constructions Pty Ltd (In liquidation) v Donnelly.^[20] There, the dispute related to the construction of a building comprising an accommodation unit, retail showroom and professional offices. It appears there was no attempt to argue that the building was a single detached dwelling. In finding that the dispute was a major commercial building dispute, the Tribunal found that the building could not be characterised as a duplex and was therefore not a ‘detached dwelling’. The Tribunal had reference to the decision in Save Bloom Lagoon Beach Action Group Incorporated v Kelvest Pty Ltd and Wyong Shire Council^[21] where it was held that ‘duplex’ meant ‘duplex form, that is, two contiguous units in each structure’.
22. [22]
    In C & E P/L v CMC Brisbane P/L (Administrators Appointed)^[22] McPherson JA considered the meaning of ‘detached dwelling’ under the DBC Act finding that it included not only a single dwelling that is detached but also a duplex. His Honour held:

The word “duplex” is, I suspect, a comparatively recent importation from the United States, an impression which receives some support from the entry for the word in the Macquarie dictionary. According to Webster’s, it is used in America to denote a house with two apartments, which is the sense in which it is used in the definition in Schedule 2. In England, and in the South Africa of my youth, such houses were commonly referred to as “semi-detached” as combining two residences or dwellings under one roof which were divided in the middle by a vertical party wall. The Schedule 2 definition was evidently designed to label such buildings as “detached” for the purposes of ss 7 and 8 of the Act, even though they might sometimes be spoken of as semi-detached.

23. [23]
    Turning to the present case, the subject building is on two levels. The upper level is a domestic residence. The lower level is office space. The building is not a single dwelling that is detached. Nor is the building comprised of two residences or dwellings under one roof. The building comprises a residence and office space. The building is therefore neither a single detached dwelling nor is it a duplex as defined under the DBC Act.

Is the dispute a domestic building dispute, a minor commercial building dispute or a major commercial building dispute?

24. [24]
    I have found that the building is not a detached dwelling. Accordingly the construction work is not reviewable domestic work and is not domestic building work. A domestic building dispute is a claim or dispute relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work. The dispute is therefore not a domestic building dispute.
25. [25]
    Is the dispute a commercial building dispute? A commercial building dispute is a claim or dispute relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work. Reviewable commercial work is Tribunal work other than reviewable domestic work. Tribunal work includes the erection or construction of a building. The present dispute relates to the construction of a building. It therefore relates to Tribunal work and thus relates to reviewable commercial work. The dispute is a claim or dispute between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work. The dispute is a commercial building dispute.
26. [26]
    The claim by Wucon is in the amount of $68,887.85. A major commercial building dispute is one where the claim or counterclaim exceeds $50,000. The present dispute is a major commercial building dispute.

What are the consequences of the dispute being a major commercial building dispute?

27. [27]
    A major commercial building dispute may be decided by the Tribunal only if the Tribunal is satisfied all parties to the dispute consent to it so doing. Mr and Mrs Law have not consented to the Tribunal hearing and deciding the dispute. Accordingly the tribunal does not have jurisdiction to decide the dispute.
28. [28]
    In circumstances where the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding, it may order the transfer of the matter or matters for which it does not have jurisdiction to a court of competent jurisdiction.^[23] The claim by Wucon is within the monetary jurisdiction of the Magistrates Court.
29. [29]
    I will make directions for the parties to file submissions addressing the question of whether the proceeding should be transferred to the Magistrates Court or whether another order is appropriate.

Orders

30. [30]
    I order as follows:

    1. It is declared that the building dispute, the subject of the proceeding, is a major commercial building dispute.
    2. The Tribunal directs as follows:
       1. (a)
          Wucon Pty Ltd must file in the Tribunal two (2) copies and give to Michael Law and Barbara Law one (1) copy of submissions addressing whether the proceeding should be transferred to the Magistrates Court of Queensland or whether another order should be made (and if so, what order), by: 4:00pm on 3 August 2018.
       2. (b)
          Michael Law and Barbara Law must file in the Tribunal two (2) copies and give to Wucon Pty Ltd one (1) copy of submissions in response addressing whether the proceeding should be transferred to the Magistrates Court of Queensland or whether another order should be made (and if so, what order), by: 4:00pm on 17 August 2018.
       3. (c)
          Wucon must file in the Tribunal two (2) copies and give to Michael Law and Barbara Law one (1) copy of any submissions in reply, by: 4:00pm on 24 August 2018.
       4. (d)
          The Tribunal will make further directions in the proceeding after 24 August 2018.