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- Unreported Judgment
Bein v Brooks QCAT 5
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Bein v Brooks & Anor  QCAT 5
John Joseph bein
15 January 2020
On the papers
Acting Senior Member Paratz
I direct that:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where an application to strike out was brought on the basis of non-compliance with section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) – where it was held that the applicant had complied with a process established by the commission to attempt to resolve the dispute in accordance with section 77(2) – whether the filing of a letter from the Queensland Building and Construction Commission as to participation in a dispute resolution process is a procedural or a jurisdictional step
Queensland Building and Construction Commission Act 1991 (Qld), s 77(2)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 61, s 100, s 102
Aitchison Reid Building and Construction Lawyers
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
- Kevin Brooks and Marion Sweet (‘the owners’) filed an application for miscellaneous matters on 26 August 2019 seeking that the application for domestic building dispute filed by John Joseph Bein (‘the builder’) on 18 June 2019 be struck out (‘the strike out application’).
- Directions were made at a compulsory conference on 25 September 2019 for the filing of submissions in relation to the strike out application, and for it to be decided on the papers.
- The basis of the strike out application was alleged non-compliance with section 77 (2) of the Queensland Building and Construction Commission Act 1991 (‘the QBCC Act’).
- Sections 77 (1) and 77 (2) of the QBCC Act are as follows:
77 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.
- Direction 1 was made by the Tribunal on 19 November 2019 as to John Joseph Bein providing evidence, by 4:00 pm on 10 December 2019, in relation to whether there was a process established by the QBCC pursuant to section 77(2) which he had complied with prior to 18 June 2019, or that there was no process established by the QBCC to resolve the dispute.
- The matter has been referred to me to decide, in accordance with direction 2 made on 19 November 2019, whether the application for domestic building disputes should be dismissed on the basis of failure by the builder to comply with direction 1 made on 19 November 2019.
- In order to determine whether to dismiss the application for domestic building disputes under the directions made on 19 November 2019, it is necessary for me to determine the strike out application as they relate to the same issue.
- The grounds of the strike out application were stated to be a reference to the attached submissions and affidavit of Ruth Elizabeth Hatten affirmed on 22 August 2019.
- The owners seek that the application for domestic building disputes be struck out or dismissed, and that the builder pay all of the respondents’ reasonable costs up to the determination of the strike out application.
- The submissions in support of the application to strike out or dismiss were filed on 26 August 2019.
- The owners submit that the builder did not attach a required notification as to section 77 of the QBCC Act with the application for domestic building dispute:
 The applicant did not attach to the proceeding notification from the QBCC confirming that the Applicant and the Respondents had engaged in the dispute resolution process, despite this being a requirement of section 77 of the Queensland Building and Construction Commission Act 1991 (‘QBCC act’) and stated on the Tribunal Form 26 application for domestic building disputes.
- The owners submit that failure to attach the required notification is fatal to the proceeding:
 The proceeding ought not to have been commenced prior to the QBCC dispute resolution process being completed.
 The applicant’s failure to comply with the QBCC dispute resolution process is fatal to the proceeding and cannot be cured after the commencement of the proceeding or by staying the proceeding.
- The submissions of the owner outline their view of the QBCC dispute resolution process:
21. The QBCC dispute resolution process ordinarily involves the following:
- an owner providing notification of the alleged defective building work to the builder and an invitation for the builder to rectify the alleged defective building work within a reasonable timeframe;
- failing a satisfactory response or rectification work performed by the builder, the owner making a complaint to the QBCC;
- the QBCC notifying both the owner and the builder of the complaint and inviting the builder to address the owners items of concern;
- an initial assessment by the QBCC as to whether the QBCC has jurisdiction to address the owners items of complaint;
- notification from the QBCC to the parties that a building inspection has been scheduled and of the parties rights regarding the inspection and resulting decisions made after the inspection;
- an inspection by a QBCC building inspector in the presence of the owner and the builder and/or any of their representatives;
- the QBCC determining whether it would be fair, in all the circumstances, to direct the builder to rectify any defective building work identified during its inspection and providing the parties with:
i. A detailed building inspection report; and
ii. notification of the review rights and the effect of that decision;
- a right of a party to review the decision made by the QBCC to direct or not direct rectification of building work;
- an insurance assessment if the builder fails to rectify work subject of a direction to rectify.
- The builder was directed by Direction 2 made on 25 September 2019 to file in the Tribunal, and give a copy to the owners, of submissions in response to the strike out application by 4.00 pm on 16 October 2019.
- An email was received by the tribunal on 16 October 2019 from John Vincent Bein (son) and Patricia Ann Bein (wife), who said that they had been given authority to attend the compulsory conference on the builder’s behalf, submitting a response on the builder’s behalf.
- The submission of 16 October 2019 on behalf of the builder referred to the history of the matter:
We believe that it cannot be struck out as we have done all in our power, for the past 17 months, to complete this project, to no avail. We did call in the QBCC for help and direction in the early stages of the problems. We tried to bring closure by asking the certifier to come and do an inspection. We have been to the Ombudsman who gave advice for the QBCC to review the situation. The QBCC review said they couldn’t make the decision and referred back to the inspectors original decisions. After numerous more attempts to sort this and after the respondents took the QBCC to channel 7 to expose QBCC negligence, we received a decision notice from the QBCC to say that they had decided to allow it to go through the insurance process. We had the chance to respond as to why we believe this should not happen, which we did respond, which in turn, once again and for the 2nd time, it went back to QBCC review. This time our reasons were relevant but still unable to make a decision and then, once again, back to the inspectors original decision.
- An email was sent to the builder from Cornelius Koen, Building Inspector, Resolution Services, QBCC on 29 March 2019 which referred to his role on behalf of the QBCC:
Dear John Bein,
Case Number: 484349
Inspection Address: 16 Pratincole Close, Mango Hill, Qld 4509
Inspection date and time: Wed. 10/04/2019 at 12:00 pm
I am a specialist QBCC building inspector who will be investigating the complaint received from Kevin Broocks [sic].
I am here to help both parties resolve the dispute fairly and impartially.
I have a copy of the written notice given to you by the owner listing the concerns. The QBCC has also emailed you a list of these items, as provided in the owner’s complaint, to make sure you are fully aware of exactly which items are in dispute.
What happens next?
- 1.You will be invited to attend my inspection of the complaint items on the above date. I will send you a letter confirming the date and time and explain what to expect.
- 2.You have a chance to self-assess the complaint items now and fix any defective work before the inspection date. If the dispute is resolved now, there were likely be no need for an inspection and this case will be closed.
- 3.If the inspection proceeds and I find defective work, the next step in our process will be to issue a formal notice (called a Direction to Rectify) giving you 28 days to fix the work.
Act now before it’s too late. You can avoid receiving a Direction to Rectify.
- The QBCC issued 3 separate Directions to Rectify between 17 January 2019 and 2 May 2019. Between 28 February 2019 and 13 June 2019 it decided that all the direction items for those directions had not been completed to a satisfactory standard.
- On 26 July 2019 the QBCC decided to allow the affected party’s claim for non-completion and defective work under the statutory insurance scheme.
- The QBCC issued an amended claim for debt to the builder for $85,250.25 dated 15 October 2019.
 But is there a mediation process to deal with building disputes that involve contractual issues other than defective workmanship? Logically, section 77 (2) leaves open the possibility that the QBCC may not have provided a ‘process’ to mediate every kind of building dispute. But neither the Act nor the available evidence offers a clear conclusive answer.
- The Appeal Tribunal went on to note that ‘resolving building disputes’ may relate to issue of a rectification order:
 The focus here is upon substandard work, but ‘Resolving Building Disputes’ may relate to the QBCC’s relatively long-standing power to issue rectification orders, rather than to the more recent mediation power now in question.
- The Appeal Tribunal referred to the wording of the QCAT website as to a letter about participation in a dispute resolution process from the QBCC before making a commercial domestic building dispute application to QCAT, that ‘applications cannot be accepted at QCAT without this letter from the QBCC’, but did not refer to a jurisdictional basis for doing so.
- The requirement for a letter from the QBCC to accompany an application for a domestic building dispute is a procedural step adopted by the Tribunal, and referred to on its website, and on the Application Form for domestic building disputes, rather than a jurisdictional step under the QBCC Act.
- The Tribunal has power under section 61 of the QCAT act to provide relief from procedural requirements.
- It is clear that Mr Koen, on behalf of the QBCC, outlined a process to attempt to resolve the dispute, and that, if the dispute was not resolved, he would issue a Direction to Rectify.
- The builder participated in the procedures leading to the issue of the Directions to Rectify on 2 May 2019 before he filed the Application for domestic building disputes on 18 June 2019.
- The procedures followed by the building inspector, and participated in by the builder, accord with the procedures which the submissions of the owner (set out earlier in these reasons) describe as ‘the QBCC dispute resolution process’.
- The submissions on behalf of the owners referred to the need for compliance with a ‘proceeding notification from the QBCC’ as to section 77(2) of the QBCC Act. That is not what the section requires.
- Section 77(2) of the QBCC act requires a person to comply with ‘a process established by the commission to attempt to resolve the dispute’.
- The builder has therefore ‘complied with a process established by the commission to attempt to resolve the dispute’ as referred to in section 77(2) of the QBCC Act, notwithstanding the absence of a letter to that effect from the QBCC.
- As the basis of the application to strike out is upon a failure to comply with section 77(2) of the QBCC Act, that application must fail, and is dismissed.
- It is the practice of the Tribunal to deem compliance with section 77(2) where issues as to compliance are determined, and I will make such a direction.
- Whilst it is not explained why a letter has not been provided by, or obtained from, the QBCC, as to participation in a dispute resolution process, I am satisfied that the builder has complied with the intent of s 77(2), and has participated in a dispute resolution process provided by the QBCC, prior to bringing his application for domestic building disputes, and that it would be unfair for his application to be struck out on that procedural basis only.
- I accordingly waive compliance under section 61 of the QCAT Act for the filing of a letter from the QBCC, which will resolve the Directions made on 19 November 2019.
- The basic rule in the Tribunal (section 100 of the QCAT Act) is that each party bears their own costs, unless the Tribunal considers the interests of justice require otherwise (section 102(1) of the QCAT Act). As the application to strike out has been found to be not supported on jurisdictional grounds, and as no other grounds were relied on for the application to strike out, I do not consider the interests of justice require the making of an order as to costs, and I make no order as to costs.
- I note that reference has been made to the builders personal situation in the material, and in light of the period of time that has elapsed since the last steps were taken in this matter, before the parties are required to take further steps, I will direct that the builder advise the Tribunal whether he wishes to proceed with the application for domestic building disputes.
- If the builder advises that he does not wish to proceed further, the matter will be dismissed without further proceedings.
- If the builder advises that he does wish to proceed further, or fails to so advise, the owners will be given time to file a response, and the matter is then to proceed to a Directions Hearing.
Orders and Directions
- The orders are:
- The application for miscellaneous matters filed by Kevin Brooks and Marion Sweet on 26 August 2019 (as to striking out the domestic building dispute application) is dismissed, with no order as to costs.
- I direct that:
- John Joseph Bein is deemed to have complied with the provisions of section 77 (2) of the Queensland Building and Construction Commission Act 1991 (Qld) as to participation in a dispute resolution process established by the QBCC.
- Compliance by John Joseph Bein is waived under section 61 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) for the filing of a letter from the QBCC as to participation in a dispute resolution process.
- John Joseph Bein is to advise the Tribunal, and Kevin Brooks and Marion Sweet, whether he wishes to proceed with the application for domestic building dispute, by 4:00 pm on 31 January 2020.
- If John Joseph Bein advises the Tribunal, and Kevin Brooks and Marion Sweet, that he does not wish to proceed with the application for domestic building dispute by 4:00pm on 31 January 2020, the application for domestic building dispute will be dismissed upon receipt of such notification.
- If John Joseph Bein:
- advises the Tribunal, and Kevin Brooks and Marion Sweet, that he wishes to proceed with the application for domestic building dispute by 4:00pm on 31 January 2020; or
- fails to notify the Tribunal, and Kevin Brooks and Marion Sweet, as to whether he wishes to proceed with the application for domestic building dispute by 4:00 pm on 31 January 2020,
- (1)the time for Kevin Brooks and Marion Sweet to file a response to the application as directed by Direction 3 of the directions made on 5 July 2019 is extended to 4:00 pm on 21 February 2020, and
- (2)the application for domestic building disputes is to be set for a Directions Hearing at a date and time to be advised by the tribunal (not before 21 February 2020).
Ibid , .
Submissions of the respondents in support of application to strike out or dismiss proceedings and costs, filed 26 August 2019, .
Submission on behalf of John Joseph Bein, filed 16 October 2019, P 1.
Email from QBCC dated 29 March 2019, included in the bundle of documents filed by John Joseph Bein on 9 December 2019.
QBCC Decision notice, 26 September 2019, p 1.
 QCATA 100.
- Published Case Name:
Bein v Brooks & Anor
- Shortened Case Name:
Bein v Brooks
 QCAT 5
A/Senior Member Paratz
15 Jan 2020