Mohammadi v Faraji[2021] QCAT 311

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Mohammadi is a painter.
2. [2]
   Mr Faraji is a builder.
3. [3]
   Mr Faraji engaged Mr Mohammadi to undertake painting work at a property owned by Jennifer Williamson.
4. [4]
   Mr Mohammadi filed on application 26 August 2020 seeking payment of $5,400 from Mr Faraji.
5. [5]
   Mr Faraji filed a counter-application on 21 October 2020 seeking payment of $7,000 from Mr Mohammadi.
6. [6]
   Senior Member Brown made directions on 18 February 2021, relating to the filing of evidence.  Senior Member Brown then directed that the matter be determined on the papers.
7. [7]
   Accordingly, the matter has come before me for determination on the papers.  For the reasons set out below, it is unnecessary for me to consider the evidence filed by the parties in accordance with the directions.
8. [8]
   Attached to the counter-application filed on 21 October 2020 is a letter from the Queensland Building and Construction Commission (‘the QBCC’) dated 6 October 2020.  The letter is addressed to Ms Williamson, and stated:

Thank you for speaking to me on 2 October about the building issues at [address omitted].

I am sorry I was not able to help you reach an agreement with Sadiq Mohammadi to resolve your dispute.

You have now reached the end of our dispute process.

9. [9]
   Section 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) relevantly provides:

Tribunal may decide building dispute

1. (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. (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.

10. [10]
    In Harley v Di Russo [2018] QCATA 46, [9]-[10], Member Hughes (as he then was) made the following comments on the operation of s 77(2):

There is a fundamental flaw in Mr Hartley’s original application: he did not comply with section 77(2) of the QBCC Act until after he commenced the proceeding. Because compliance with section 77(2) is the gateway through which an applicant must pass before filing an application for a building dispute, his non-compliance is fatal to his application and his appeal:

Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.

The consequence of Mr Hartley not complying with section 77(2) of the QBCC Act is that the Tribunal does not have jurisdiction in his application. It does not matter that he filed his application as a minor civil dispute.

[footnotes omitted]

11. [11]
    There is no evidence that Mr Mohammadi complied with s 77(2) of the QBCC Act prior to filing application on 26 August 2020.  Mr Mohammadi indicated in Part B of the application form that he had not participated in the QBCC dispute resolution process.  While the application form states ‘[y]ou must file with this application the formal notification letter from the [QBCC] advising that the dispute resolution process has been complied with’, no such letter was attached.
12. [12]
    As noted above, there is a letter from the QBCC dated 6 October 2020 relating to a dispute between Mr Mohammadi and Ms Williamson, who is not a party to these proceedings.  Even if I were to accept that the QBCC’s letter somehow relates to the dispute between Mr Mohammadi and Mr Faraji (which I do not), the letter is dated 6 October 2020, which was after the application was filed.
13. [13]
    Similarly, there is no evidence that Mr Faraji complied with s 77(2) of the QBCC Act prior to filing the counter-application on 21 October 2020.  The letter from the QBCC dated 6 October 2020 does not mention Mr Faraji at all, which makes it impossible for me to conclude that Mr Faraji complied with a dispute resolution process established by the QBCC.
14. [14]
    I find that the parties had not complied with s 77(2) at the time the application and counter-application were lodged with the Tribunal, with the consequence that the Tribunal does not have jurisdiction in respect of either the application and the counter-application.