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Subramaniam v Queensland Roofing Pty Ltd[2019] QCAT 70

Subramaniam v Queensland Roofing Pty Ltd[2019] QCAT 70

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

PARTIES:

NEERMALA SUBRAMANIAM

(first applicant)

LEELA SUBRAMANIAM

(second applicant)

 

v

 

QUEENSLAND ROOFING PTY LTD

(first respondent)

DAVID MARSHMAN

(second respondent)

APPLICATION NO/S:

BDL319-18

MATTER TYPE:

Building matters

DELIVERED ON:

20 March 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The proceeding is dismissed.
  2. Neermala Subramaniam and Leela Subramaniam have leave to file an Application for domestic building dispute.
  3. All documents filed in BDL319-18 and in MCDO1123/18 will be taken to have been filed in any further proceeding commenced in accordance with Direction 2.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where applicants contracted with respondents for the performance of building work – where applicants commenced proceedings for minor civil dispute – where proceedings transferred to QCAT building list – where applicants failed to comply with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) prior to commencing proceedings – where compliance with s 77(2) before commencing proceedings mandatory – where applicants complied with s 77(2) after commencing proceedings – where proceedings dismissed

Hartley v Di Russo [2018] QCATA 46

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

Redding v Simmons [2016] QCATA 100, (Unreported, QCATA, Dr J R Forbes, 23 February 2016); 

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

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 7, s 47, s 61

REPRESENTATION:

 

Applicant:

Self represented

Respondent:

Self represented

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. [1]
    The parties entered into a contract in or about October 2017 for the performance by the respondent of building work at the applicants’ property.
  2. [2]
    The parties subsequently fell into dispute.
  3. [3]
    The applicants commenced proceedings in the Tribunal for a minor civil dispute by Application filed 3 August 2018.
  4. [4]
    By order made 13 November 2018 the proceeding was transferred to the Tribunal’s building list.
  5. [5]
    By s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld), a person involved in a building dispute may not apply to the tribunal to have the tribunal decide the dispute unless the person has complied with a process established by the Queensland Building and Construction Commission to attempt to resolve the dispute.
  6. [6]
    On 26 February 2019 the QBCC wrote a letter to the applicants setting out, among other things, the following:
    1. (a)
      The QBCC referred to the applicants’ complaint about the building work performed by the respondent;
    2. (b)
      The QBCC referred to an inspection of the building work on 5 February 2019;
    3. (c)
      The QBCC advised the applicants that they had participated in the QBCC’s dispute resolution process as prescribed by legislation.
  7. [7]
    I am satisfied as to the following:
    1. (a)
      The dispute, the subject of the proceedings, is a domestic building dispute;
    2. (b)
      The applicants complied with the requirements of s 77(2) of the QBCC Act in or about February 2019;
    3. (c)
      Compliance by the applicants with the requirements of s 77(2) of the QBCC Act was not achieved prior to the filing of the Application on 3 August 2018.
  8. [8]
    Despite the proceeding having been commenced as a minor civil dispute, I am satisfied that the dispute may be characterised as both a minor civil dispute and a building dispute. The relevant enabling Act is the QBCC Act.
  9. [9]
    The requirement for a person involved in a building dispute to engage in the QBCC’s dispute resolution process as referred to in s 77(2) of the QBCC Act before commencing proceedings in the tribunal is a pre-condition to the jurisdiction of the tribunal to hear and decide a building dispute. In the absence of a party satisfying that pre-condition, the Tribunal does not have jurisdiction to hear and decide a building dispute.[1] Compliance with a legislative provision that operates as a pre-condition to jurisdiction cannot be waived by the tribunal. 
  10. [10]
    Notwithstanding the conclusion reached as to the operation of s 77(2), and because the dispute may be characterised as both a building dispute and a minor civil dispute, it is necessary to consider whether the requirement in s 77(2) of the QBCC Act for parties to engage in the pre-proceedings mediation process is a modifying provision in which event s 77(2) will prevail to the extent of any inconsistency with the QCAT Act.
  11. [11]
    The QCAT Act does not contain a provision requiring parties to disputes to engage in alternative dispute resolution before commencing a proceeding for a minor civil dispute. To this extent there is an inconsistency between the QCAT Act (governing minor civil disputes) and the QBCC Act (governing building disputes). By operation of s 7(1) and s 7(2) of the QCAT Act, to the extent of the inconsistency the QBCC Act must prevail and the requirements of s 77(2) must be met before proceedings for a building dispute are commenced in the Tribunal notwithstanding that the dispute may also be characterised as a minor civil dispute. Section 77(2) is substantive, not procedural, in effect and s 61 (1) of the QCAT Act cannot be relied upon to waive compliance with s 77(2).
  12. [12]
    The clear intention of the legislature, by enacting s 77(2) of the QBCC Act, was to require a party seeking to pursue a claim in the tribunal in respect of a building dispute to first comply with a dispute resolution process established by the QBCC. To permit a dispute, which may be both a minor civil dispute and a building dispute, to proceed as a minor civil dispute without a party complying with s 77(2) would have the effect of frustrating the intent of the legislature.
  13. [13]
    I conclude that the Tribunal does not have jurisdiction to hear and decide the dispute the subject of these proceedings.
  14. [14]
    By s 47 of the QCAT Act, where the tribunal considers a proceeding or a part of a proceeding to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process the tribunal may dismiss or strike out the proceeding or part thereof.
  15. [15]
    In the absence of the tribunal having jurisdiction, in these proceedings, to hear and decide the dispute, the proceeding lacks substance and is otherwise misconceived. Accordingly, the application must be dismissed.
  16. [16]
    The applicants may still pursue a remedy. They will have leave to file a fresh application for domestic building disputes which will not be confronted with the same problem as these proceedings given that the applicants have now complied with s 77(2) of the QBCC Act.

Footnotes

[1]See Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483;  Redding v Simmons [2016] QCATA 100, (Unreported, QCATA, Dr J R Forbes, 23 February 2016);  Walsh v Australian Building and Construction Group [2016] QCAT 187; Hartley v Di Russo [2018] QCATA 46.

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Editorial Notes

  • Published Case Name:

    Subramaniam & Anor v Queensland Roofing Pty Ltd & Anor

  • Shortened Case Name:

    Subramaniam v Queensland Roofing Pty Ltd

  • MNC:

    [2019] QCAT 70

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    20 Mar 2019

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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