Subramaniam v Queensland Roofing Pty Ltd
[2019] QCAT 70
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- Unreported Judgment
- Subramaniam v Queensland Roofing Pty Ltd[2019] QCAT 70
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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: |
|
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]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]The parties subsequently fell into dispute.
- [3]The applicants commenced proceedings in the Tribunal for a minor civil dispute by Application filed 3 August 2018.
- [4]By order made 13 November 2018 the proceeding was transferred to the Tribunal’s building list.
- [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]On 26 February 2019 the QBCC wrote a letter to the applicants setting out, among other things, the following:
- (a)The QBCC referred to the applicants’ complaint about the building work performed by the respondent;
- (b)The QBCC referred to an inspection of the building work on 5 February 2019;
- (c)The QBCC advised the applicants that they had participated in the QBCC’s dispute resolution process as prescribed by legislation.
- (a)
- [7]I am satisfied as to the following:
- (a)The dispute, the subject of the proceedings, is a domestic building dispute;
- (b)The applicants complied with the requirements of s 77(2) of the QBCC Act in or about February 2019;
- (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.
- (a)
- [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]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]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]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]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]I conclude that the Tribunal does not have jurisdiction to hear and decide the dispute the subject of these proceedings.
- [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]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]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.