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  4. M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing - [2021] QCAT 243

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M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing[2021] QCAT 243

M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing[2021] QCAT 243

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing [2021] QCAT 243

PARTIES:

M.G.J.T ROOFING pty ltd t/as aberhart roofing

(applicant)

v

build qld pty ltd t/as innovare builders

(respondent)

APPLICATION NO:

BDL197-20

MATTER TYPE:

Building matters

DELIVERED ON:

8 July 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDER:

The application to transfer the proceedings to the Magistrates Court is refused.

CATCHWORDS:

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – where the applicant was a roofing contractor – where the respondent was the head contractor – where the applicant agreed to perform roofing services for the respondent – where the services were for roofing on domestic dwellings – where the cost of the service was over $50,000 – where the respondent brought a counter-application seeking more than $50,000 – where the respondent claims that the dispute is a major commercial dispute – where the respondent brought an application to have the matter transferred to the Magistrates Court – whether the tribunal has jurisdiction to hear the dispute

Queensland Building and Construction Commission Act 1991 (Qld), s 4, s 77, Schedule 1B, s 1, s 3, s 4, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52(1), s 52(2)

C & E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244

 

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]
    This is an application by the respondent to transfer the proceedings to the Magistrates Court.
  2. [2]
    The tribunal may order the transfer of a proceeding to a court in two circumstances:
    1. (a)
      If the tribunal considers the subject matter of a proceeding would be more appropriately dealt with by a court; or
    2. (b)
      If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding.[1]
  3. [3]
    It appears to be common ground between the parties that:
    1. (a)
      Between January 2019 and September 2019 the applicant provided to the respondent a number of quotes to undertake roofing work at three residential properties;
    2. (b)
      No written contract was entered into between the parties;
    3. (c)
      The applicant subsequently undertook the roofing works;
    4. (d)
      The applicant rendered a series of invoices to the respondent in respect of the roofing works.
  4. [4]
    The applicant claims an amount of $68,546.20 which it says is owed by the respondent in respect of the building works.
  5. [5]
    In its response to the originating application the respondent says:
    1. (a)
      The applicant failed to complete the works within the stipulated period;
    2. (b)
      The respondent has incurred costs of $53,274.00 in rectifying defective work undertaken by the applicant;
    3. (c)
      The respondent was required to pay liquidated damages (presumably to the building owner) as a result of the applicant’s delays in undertaking the roofing works.
  6. [6]
    In support of its application to transfer the proceedings to the Magistrates Court the respondent says:
    1. (a)
      As the amount of each of the applicant’s claim and the respondent’s counter claim exceeds $50,000.00 the dispute between the parties is a major commercial building dispute;
    2. (b)
      A written consent signed by the parties was not filed with the originating application;
    3. (c)
      The respondent does not consent to the tribunal having jurisdiction in respect of the dispute;
    4. (d)
      The proceedings should be transferred to the Magistrates Court.
  7. [7]
    In response the applicant says:
    1. (a)
      The dispute between the parties is not a major commercial building dispute;
    2. (b)
      The dispute is a domestic building dispute;
    3. (c)
      The tribunal has jurisdiction to hear and decide the dispute;
    4. (d)
      The application to transfer the proceedings to the Magistrates Court should be dismissed.

Consideration

  1. [8]
    The tribunal has jurisdiction to hear and decide building disputes.[2] A building dispute may be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.[3]
  2. [9]
    A domestic building dispute means:
  1. (a)
    a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or
  1. (b)
    a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or
  1. (c)
    a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or
  1. (d)
    a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work—
  1. (i)
    an architect;
  1. (ii)
    an engineer;
  1. (iii)
    a surveyor;
  1. (iv)
    a quantity surveyor;
  1. (v)
    an electrician or an electrical contractor;
  1. (vi)
    a supplier or manufacturer of materials used in the tribunal work.[4]
  1. [10]
    ‘Reviewable domestic work’ means ‘domestic building work’.[5] Domestic building work is:
  1. (a)
    the erection or construction of a detached dwelling;
  1. (b)
    the renovation, alteration, extension, improvement or repair of a home;
  1. (c)
    removal or resiting work for a detached dwelling;
  1. (d)
    the installation of a kit home at a building site.[6]
  1. [11]
    A ‘detached dwelling’ means a single detached dwelling or a duplex.[7]
  2. [12]
    I do not understand it to be contentious between the parties that each of the buildings in respect of which the applicant undertook the roofing work was a detached dwelling. This much is clear from the various documents attached by the applicant to the response to the counter-application and the statements of evidence filed by the parties. It follows that I am satisfied each of the buildings was a detached dwelling.
  3. [13]
    It seems readily apparent that the roofing work undertaken by the applicant was part of the renovation, alteration, extension, improvement or repair of a home. I am therefore satisfied that the work undertaken by the applicant was domestic building work.
  4. [14]
    I also do not understand it be to be contentious that each of the applicant and the respondent were building contractors for the purposes of Schedule 1B of the QBCC Act.[8] It also does not appear to be contentious that the applicant was a subcontractor for the purposes of Schedule 1B.[9]
  5. [15]
    As the definition of the term in the QBCC Act sets out, a domestic building dispute includes a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work. The present proceeding involves a dispute between two building contractors relating to the performance of domestic building work or a contract for the performance of reviewable domestic work. In respect of the latter issue, and noting it is common ground between the parties that no written contract was entered into, it is relevant to observe that a domestic building contract does not include a contract between a building contractor and a subcontractor.[10] The requirements in relation to domestic building contracts set out in Schedule 1B of the QBCC Act therefore do not apply.[11]
  6. [16]
    Whether there was a single agreement between the parties for the performance of the roofing works at three separate dwellings, or three separate agreements, the fact remains that the work undertaken by the applicant was domestic building work.[12]
  7. [17]
    I am therefore satisfied that the dispute between the parties is a domestic building dispute.
  8. [18]
    There is nothing before me that would suggest the tribunal lacks jurisdiction in respect of the application or the counter application or that the proceedings would be more appropriately dealt with in the Magistrates Court.
  9. [19]
    Whether to transfer a proceeding from the tribunal to a court requires the exercise of a discretion. The sole basis relied upon by the respondent in support of the application to transfer the proceeding is that the tribunal lacks jurisdiction to hear and decide the dispute. Contrary to the respondent’s submissions, the tribunal does not lack jurisdiction.
  10. [20]
    I am not satisfied that the subject matter of these proceedings would be more appropriately dealt with by the Magistrates Court. The tribunal has jurisdiction to hear all of the matters in the proceedings.
  11. [21]
    The application to transfer the proceedings to the Magistrates Court is refused.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 52(1), s 52(2)(a).

[2]Queensland Building and Construction Commission Act 1991 (Qld), s 77 (“QBCC Act”).

[3]Ibid, Schedule 2 (Definition of “building dispute”).

[4]Ibid, Schedule 2 (Definition of “domestic building dispute”).

[5]Ibid, Schedule 2 (“Definition of “reviewable domestic work”).

[6]QBCC Act, s 4.

[7]Ibid, Schedule 1B, s 1.

[8]Ibid.

[9]Schedule 1B, s 1.

[10]Schedule 1B, s 3(2)(a).

[11]See Schedule 1B, s 14(2), s 14(10). A regulated contract is of no effect unless it is in writing, signed by the parties and dated.

[12]See C & E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244.

Close

Editorial Notes

  • Published Case Name:

    M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing

  • Shortened Case Name:

    M.G.J.T Roofing Pty Ltd t/as Aberhart Roofing

  • MNC:

    [2021] QCAT 243

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    08 Jul 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
C & E Pty Ltd v CMC Brisbane Pty Ltd (Administrators Appointed)[2004] 2 Qd R 244; [2004] QCA 60
2 citations
Jump To
Cite 1 - [2004] 2 Qd R 244
Cite 2 - [2004] 2 Qd R 244

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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