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- Unreported Judgment
Goldberg v Jogis QCAT 49
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Goldberg t/as Goldberg Constructions v Jogis  QCAT 49
STEVEN GOLDBERG T/AS GOLDBERG CONSTRUCTIONS
Other minor civil dispute matters
7 March 2019
On the papers
Application MCDO50766-17 Southport is struck out.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – VARIATIONS – wherethe builder claimed variations under a building contract as a debt or liquidated demand in a minor civil dispute minor debt application in the tribunal – where the applicant builder had failed to comply with the statutory requirements applying to variations as at the date of contract –– where the owner brought an application to strike out or dismiss the claim – whether a building dispute can be litigated as a minor civil dispute in the tribunal
Domestic Building Contracts Act 2000 (Qld) (repealed), s 9, s 80, s 82, s 84(4)
Queensland Building and Construction Commission Act
1991 (Qld), s 77, Schedule 1B, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 47, Schedule 3
Allaro Homes Cairns Pty Ltd v O'Reilly & Anor  QCA 286
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
- On or about 24 February 2014 the parties entered into a master builders building contract. By the contract the applicant, a builder, agreed to construct a home at the respondent’s property at Reedy Creek for a price of $431,000.
- According to the respondent, practical completion occurred on 14 December 2014.
- On 24 April 2017 the applicant filed an application for Minor Civil Dispute – Minor Debt in the tribunal claiming $1,400 for some of the building work done at the respondent’s property at Reedy Creek. The particulars of the building work were installation of a kitchen range hood, construction of a fence and replacement of some bathroom fittings.
- The respondent filed a response to the claim disputing any money was owing the builder. The respondent maintained the claims amounted to variations to the building contract which had not been agreed.
- The applicant subsequently filed an amended application for Minor Civil Dispute – Minor Debt increasing his claim to $15,315.93 for work described as variations to the building contract and now including claims for laying wooden flooring, installation of a timber ceiling instead of plasterboard, additional landscaping and additional concreting for the driveway. A builder’s margin of 20% on these variations was also added.
- The applicant, Mr Goldberg, filed an affidavit sworn 6 July 2017 in which he describes all his claims as additional work performed under the contract as instructed by the respondent.
- The respondent filed an amended response to the amended claim. The respondent said the matter was a building dispute and Mr Goldberg’s claim to recover for variations to the building contract could not succeed because the variations did not comply with the legislative requirements applying at the time, namely the Domestic Building Contracts Act 2000 (Qld) (repealed) (“DBCA”).
- Further, the respondent said given the matter was a building dispute it could not be brought in the tribunal as a minor debt action in the minor civil dispute list. It must be brought as a building dispute.
- The respondent has accordingly applied to have the claim struck out or dismissed without the necessity of the matter progressing through to a hearing.
- It seems clear that all the claims brought by Mr Goldberg arise out of work done pursuant to the building contract completed on 14 December 2014. The DBCA applied at that relevant time to building contracts and through to 30 June 2015 when it was repealed and its provisions effectively transferred as Schedule 1B to the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”).
- The building contract was a regulated contract as defined under the DBCA and subject to its provisions. By s 79 of the DBCA a building contractor under a regulated contract was required to ensure any variation of the contract agreed to between the building contractor and building owner was put into written form. There were specific and extensive requirements in respect of the contents of any variation document and in particular it was necessary that any variation be signed by the building owner.
- The respondent says none of those requirements have been met in the case at hand. That assertion is not challenged by Mr Goldberg. I conclude none of the variations claimed complied with the mandatory statutory provisions.
- Where there is a failure to comply with the requirements about variations, then by s 84(4) it is possible for the builder to apply to the tribunal for recovery of an amount for the variations, but only if the builder is able to satisfy the tribunal that either there are exceptional circumstances to warrant the conferring of an entitlement on the contractor for recovery, or that the building contractor would suffer unreasonable hardship and it would not be unfair to the building owner for the building contractor to recover an amount.
- Mr Goldberg has not done that. He has simply claimed the value of the disputed variations as a debt.
- He can only recover for the variations in the context of the said application to the tribunal based on exceptional circumstances or unreasonable hardship. He must prove that exceptional circumstances exist and that he will suffer unreasonable hardship if he is not paid rather than prove the variations were agreed to by the respondent owner, performed by him or that their value is reasonable.5
- Mr Goldberg’s present claim for the variations as a debt or liquidated demand due and owing cannot succeed.
Building dispute as a minor debt application
- Additionally however, the respondent submits the matter involves a building dispute and it should be heard in the tribunal as a building dispute, not as a minor debt in the minor civil dispute list.
- By s 11 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) the tribunal has jurisdiction to hear and decide a minor civil dispute.
- Minor civil dispute is defined in Schedule 3 of the QCAT Act as follows:
- Minor civil dispute means –
- a)the Order of the Tribunal made 27 February 2013 continues in force;
- However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.
- By s 77(1) of the QBCC Act 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.
- By Schedule 2 to the QBCC Act, building dispute includes a domestic building dispute. Domestic building dispute includes a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work. Reviewable domestic work means domestic building work under Schedule 1B, s 4. Under s 4, domestic building work includes the erection or construction of a detached dwelling, which was the subject matter of the contract between the parties in the matter at hand.
- The matter at hand is therefore a building dispute.
- Section 77 of the QBCC Act does not expressly state that building disputes may be determined in the tribunal as minor civil disputes. Accordingly, given the limitation placed on the definition of minor civil dispute, minor debt applications in the QCAT Act, they cannot be so brought and determined.
- Mr Goldberg’s claim for the value of the variations as a debt or liquidated demand brought as a minor civil dispute minor debt action must fail on that basis as well.
- By s 47(1) of the QCAT Act, if the tribunal considers a proceeding or a part of a proceeding is frivolous, vexatious or misconceived, lacks substance or is otherwise an abuse of process, the tribunal may order the proceeding or part be dismissed or struck out.
- The present minor civil dispute proceeding lacks substance. It cannot succeed. The appropriate order is that it be struck out now.
- The respondent seeks costs.
- Though the respondent has engaged solicitors to prepare documentation and submissions for her, there has been no order for legal representation and accordingly, though s 47(2)(c) provides that a costs order against a party who brought the
proceedings may be available to compensate another party its reasonable costs resulting from the proceeding, the respondent has no costs to claim.
- But in any case, by s 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) the only award of costs that may be made against a party to a proceeding for a minor debt claim is to order that the party pay the filing fee, any cost of electronically filing a document, a service fee or a business name or company search fee. Those potential costs are only available to a successful applicant.
- The application should be struck out without any order as to costs.
Affidavit of Mr Goldberg,
DBCA, s 9.
Ibid, s 80.
Ibid, s 82.
Allaro Homes Cairns Pty Ltd v O'Reilly & Anor  QCA 286.
When the DBCA was extant, similar provision applied to make disputes about the terms of building contracts, including the validity of variations, building disputes which might be determined as such in the tribunal.
- Published Case Name:
Goldberg t/as Goldberg Constructions v Jogis
- Shortened Case Name:
Goldberg v Jogis
 QCAT 49
07 Mar 2019