O'Toole v Qld Building Company Pty Ltd
[2018] QCAT 257
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
- O'Toole v Qld Building Company Pty Ltd[2018] QCAT 257
- Add to List
O'Toole v Qld Building Company Pty Ltd[2018] QCAT 257
O'Toole v Qld Building Company Pty Ltd[2018] QCAT 257
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION: | O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257 |
PARTIES: | JOHN O'TOOLE and KYM O'TOOLE (applicants) |
| v |
| QLD BUILDING COMPANY PTY LTD (respondent) |
APPLICATION NO/S: | BDL147-18 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 08 August 2018 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants did not comply with process established by Queensland Building and Construction Commission to attempt to resolve a building dispute before commencing proceeding – 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 100 Harley v Di Russo [2018] QCATA 46 Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 |
REPRESENTATION: | |
Applicant: | Aitchison Reid Pty Ltd |
Respondent: | Construct Law Group Pty Ltd |
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]Mr and Mrs O'Toole (‘the applicants’) lodged an application for domestic building disputes on 1 June 2018. They sought payment of $110,109.18 from Qld Building Company Pty Ltd (‘the respondent’).
- [2]The application for domestic building disputes contains the following statement:
Please note – the Applicant has not submitted a formal notification letter from the QBCC as required. The Applicant lodged their QBCC complaint form on 31 May 2018. The delay in lodging the QBCC complaint form is due to misinformation that was provided to the Applicant as to their options for resolving the issues experienced with the Respondent. As such, the QBCC is yet to assess the complaint. The purpose of filing this application at this point in time is to attempt to preserve the time limits within which the Applicant has to make a claim, including under section 51 of the Domestic Building Contracts Act 2000 for proceedings for breach of warranties (which legislation was in effect at the time the Applicant entered into the contract with the Respondent). The QBCC complaint form has been submitted within the time limit that the QBCC has to issue a direction to rectify or remedy under section 72A(4) of the Queensland Building and Construction Commission Act 1991.
- [3]On 6 July 2018, the respondent lodged an application for miscellaneous matters, seeking to have the application for building disputes dismissed. The respondent claimed that the applicants have not complied with s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’).
- [4]Section 77 of the QBCC Act relevantly provides:
Tribunal may decide building dispute
- (1)A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
- (2)However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.
- [5]
There is a fundamental flaw in Mr Hartley’s original application: he did not comply with section 77(2) of the QBCC Act until after he commenced the proceeding. Because compliance with section 77(2) is the gateway through which an applicant must pass before filing an application for a building dispute, his non-compliance is fatal to his application and his appeal:
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. 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.
The consequence of Mr Hartley not complying with section 77(2) of the QBCC Act is that the Tribunal does not have jurisdiction in his application. It does not matter that he filed his application as a minor civil dispute.
- [6]The applicants’ submissions describe the QBCC dispute resolution process in the following terms:
The QBCC’s website publishes a fact sheet titled “Your Guide to QBCC’s Dispute Resolution Process” (the ‘guide’). The guide explains the process for QBCC’s dispute resolution service and advises that the process is to be commenced by lodging of the QBCC complaint form.
The guide states that the process is:
- (a)A complaint is lodged with the QBCC;
- (b)The assigned building inspector will attempt negotiation between the parties;
- (c)The assigned building inspector will inspect the site; and
- (d)The assigned building inspector will determine if the builder needs to rectify any defects.
- [7]The applicants’ submissions go on to describe relevant events relating to the dispute resolution process as follows:
- (a)On 2 May 2018 the Applicants met with QBCC to find out the process for complaints;
- (b)On 20 May 2018 the Applicants wrote to the Respondent stating listing (sic) all of the defects and requesting that the works were rectified;
- (c)On 31 May 2018 the Applicants lodged their complaint with QBCC;
[(ca) On 1 June 2018 the Applicants lodged the application for domestic building disputes with the Tribunal;]
- (d)On 10 July 2018 QBCC requested further information;
- (e)On 13 July 2018 the applicants provided the information requested by QBCC.
- [8]I note that I have taken the liberty of inserting the date on which the application for building disputes was lodged with the Tribunal into the above chronology.
- [9]While the QBCC dispute resolution process had been commenced on the day prior to the application for building disputes being lodged with the Tribunal, it is clear that process had not been completed.
- [10]Section 77(2) requires the applicants to have ‘complied with a process established by the commission to attempt to resolve the dispute’. ‘Process’ is defined in The Macquarie Dictionary to be ‘a systematic series of actions directed to some end’.[2] In my view, the applicants cannot be regarded as having complied with a dispute resolution process by merely lodging a complaint. For the applicants to have complied with the disputes resolution process, they would have to have complied with the series of actions required by the QBCC directed to the end of resolving the dispute. It is clear from the above chronology that this series of actions was continuing as at the time the application for building disputes was lodged with the Tribunal.
- [11]I find that the applicants had not complied with s 77(2) at the time the application for building disputes was lodged with the Tribunal, with the consequence that the Tribunal does not have jurisdiction in this application.
Application for interim order
- [12]I note in passing that the applicants lodged an application for interim order on 17 July 2018. The first order sought was ‘[t]hat the strikeout application filed by the Respondent on 6 July 2018 be dismissed’. A number of consequential orders followed.
- [13]I dismissed the application for interim on 20 July 2018. Reasons have been sought for my dismissal of this application.
- [14]I note that I had previously made directions for the resolution of the strikeout application on 9 July 2018. The appropriate manner for the applicants of dealing with the strikeout application was to lodge submissions as directed, and for the Tribunal to determine the strikeout application. This is what has since happened.
- [15]It makes no sense to respond to a strikeout application by applying to have the strikeout application itself dismissed. Were this approach adopted, there might be no end to such interlocutory applications, one in response to the other.
Costs
- [16]The respondent has sought its costs of the proceeding.
- [17]Section 77(3)(h) of the QBCC Act provides that the Tribunal may award costs. This displaces the usual position as to costs set out in s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- [18]
The High Court has said that there is no automatic rule that costs ‘follow the event’ (i.e., the outcome of the proceeding) or that the unsuccessful party must compensate the successful one. The discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them. Otherwise, the factors affecting the discretion will vary in each case.
- [19]The respondent invited the applicants to withdraw the application for building disputes in correspondence dated 27 June 2018, 4 July 2018, 5 July 2018 and 6 July 2018. The reasons upon which the applicants were invited to withdraw the application for building disputes are materially the same as the reasons I have relied upon in dismissing the application for building disputes.
- [20]In these circumstances, I consider it appropriate to order that the applicants pay the respondent’s costs as agreed or, failing agreement within 28 days, as assessed on the Magistrates Court scale of costs.