Ruhle v Lormist Pty Ltd[2022] QCAT 100

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   On 2 February 2022 I decided an application for miscellaneous matters by the applicants for leave to file an amended application for domestic building disputes. These are my reasons.
2. [2]
   The proceedings were commenced as a minor civil dispute in May 2020. In February 2021 the proceedings were transferred to the building list, it being apparent that the dispute between the parties is a domestic building dispute.
3. [3]
   At a directions hearing in August 2021, the parties were directed to file their statements of evidence. A direction was made for the matter to proceed to a compulsory conference. The conference is yet to be held such are the unfortunate delays in the Tribunal, the consequence of resourcing limitations.
4. [4]
   In the original application for minor civil dispute the applicants claimed the amount of $16,160.00 by way of a refund from the respondent and for the rectification of defective building work.
5. [5]
   It is appropriate at this point to set out briefly the background to the dispute.
6. [6]
   The applicants say that they entered into an agreement with the respondent for the construction of an extension to an existing shed on the applicants’ property. In addition to the extension of the shed, the agreed works included the laying of a concrete slab. The shed was used to house the applicants’ various vehicles including a truck, motor vehicles, motor bikes, a caravan and boats.  There is no evidence before the Tribunal of a written and dated contract, signed by the parties. It does appear that the requirements of s 13 of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) may not have been satisfied however it is not necessary for me to determine that issue in the circumstances of the present application.
7. [7]
   After the works had been completed, the applicants say that they identified cracking in the slab. After a period during which the parties had discussions as to the nature and extent of the identified issues, it became apparent that the dispute between the parties could not be resolved by negotiation. The applicants subsequently commenced proceedings in the Tribunal.
8. [8]
   In the original application for minor civil dispute, the applicants stated that the concrete slab laid by the respondent is defective. They claimed reimbursement of the amount they paid to the respondent to lay the slab or orders that the defective works be rectified.
9. [9]
   The respondent denies that the concrete slab is defective.
10. [10]
    The applicants applied to amend their claim in December 2021. They say that in addition to the defects in the slab, they have discovered defects in the building work undertaken by the respondent in extending the structure of the existing shed.
11. [11]
    The claim in relation to the additional defective work arises out of an engineering report obtained by the applicants during the course of the preparation of their statements of evidence. In evidence is a report from Northside Engineering. The report identifies eleven structural defects in the shed. These defects appear to relate to the works undertaken by the respondent in 2017.
12. [12]
    The respondent opposes the application to amend the claim on a number of grounds which I will address in turn:

The applicants are attempting to turn an application for a minor civil dispute into a proceeding for a building dispute.  

13. [13]
    This submission is rejected. The proceeding, commenced as a minor civil dispute, was transferred to the building list by order made 9 February 2021. If the respondent wished to challenge that order, it could have filed an application for leave to appeal the decision of the adjudicator. It did not do so. The respondent cannot now complain about the order made.

The dispute between the parties is not a domestic building dispute

14. [14]
    The respondent says that the shed is a farm building and not a home. The respondent says that the dispute between the parties is therefore not a domestic building dispute.
15. [15]
    It does not appear to be contentious that the shed is situated at the property on which the applicants’ dwelling is located. A ‘domestic building dispute’ includes a dispute between a building owner and a building contractor about domestic building work or a contract for the performance of domestic building work.^[1] ‘Domestic building work’ includes ‘associated work’.^[2] ‘Associated work’ is work associated with the erection, construction, removal or resiting of a detached dwelling or work associated with the renovation, alteration, extension, improvement or repair of a home. ‘Associated work’ has a broad meaning and includes the erection or construction of building or fixture associated with a detached dwelling or home.^[3] The QBCC Act sets out a number of examples of buildings and fixtures falling within the meaning of ‘associated work’ which includes garages and workshops.
16. [16]
    Certain work is excluded from the definition of ‘domestic building work’. One such exclusion is work relating to a farm building or proposed farm building that is not a home.^[4] A ‘farm building’ means a building constructed on land used entirely or mainly for agricultural or pastoral purposes or a building used or intended to be used for agricultural or pastoral purposes.^[5]
17. [17]
    In evidence are communications between the applicants and the QBCC in which the applicants advised the QBCC that they were not farmers, their property was not used for agricultural or pastoral purposes and that the shed was used for the storage of personal equipment and not farm equipment. There is no evidence from the respondent to the contrary.
18. [18]
    I am not satisfied that the shed falls within the definition of a ‘farm building’. I am therefore not satisfied that the building work the subject of the dispute is ‘excluded building work’ for the purposes of schedule 1B of the QBCC Act.
19. [19]
    It is not contentious that the building work was undertaken on land on which the applicants’ home was situated. It seems to me that the construction of a large shed costing in the order of $50,000.00 would constitute the ‘improvement’ of a home.^[6]  It would certainly, in my view, be the case that the construction of such a shed would be work associated with the improvement of a home.
20. [20]
    It follows from the foregoing that I am satisfied that the dispute is a domestic building dispute.
21. [21]
    However, even if the work the subject of the dispute does not relate to ‘domestic building work’, it seems reasonably clear that the work is ‘tribunal work’ for the purposes of s 75 of the QBCC Act.
22. [22]
    The Tribunal has jurisdiction to decide a ‘building dispute.’ A ‘building dispute’ may be a ‘domestic building dispute’ or a ‘commercial building dispute’. A ‘commercial building dispute’ includes a dispute between a building owner and a building contractor about ‘reviewable commercial work’ or a contract for the performance of ‘reviewable commercial work’. ‘Reviewable commercial work’ means ‘tribunal work’ other than ‘reviewable domestic work’.
23. [23]
    ‘Tribunal work’ includes the renovation, alteration, extension, improvement or repair of a building’.^[7] A ‘building’ means, generally, any fixed structure.^[8] What is not ‘tribunal work’ is set out in s 76 of the QBCC Act. The works the subject of the present dispute do not fall within s 76 of the Act.
24. [24]
    Accordingly, the works the subject of the dispute would appear to be ‘tribunal work’ and the dispute between the parties, if not a domestic building dispute, is a commercial building dispute. Of course, there are procedural requirements that must be satisfied if a commercial building dispute is a ‘major commercial building dispute’^[9] however that is not presently a matter requiring consideration and determination.
25. [25]
    I am therefore satisfied that the dispute between the parties, the subject of these proceedings, is a ‘building dispute’ and that the Tribunal has jurisdiction to decide the dispute.

The applicants have not complied with s 77(2) of the QBCC Act

26. [26]
    The respondent says that while the applicants may have complied with s 77(2) of the QBCC Act before commencing the proceedings for a minor civil dispute, that compliance related only to the dispute about the slab and not the expanded claim by the applicants relating to the shed structure.
27. [27]
    By s 77(2) of the QBCC Act, 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 QBCC to attempt to resolve the dispute.
28. [28]
    The construction of s 77(2) pressed by the respondent would, if accepted, impose constraints on the conduct of building disputes in the Tribunal not found in the clear words of the provision. If the respondent’s submission is accepted, any proposed amendment to the scope of a building dispute before the Tribunal by, for example, including additional defective items of building work, would first require an applicant to comply with a QBCC dispute resolution process. What s 77(2) requires is compliance with a dispute resolution process before a proceeding for a building dispute is commenced in the Tribunal. What s 77(2) does not require is compliance with such a process every time there is a material change in the particulars and scope of such a dispute once proceedings have been commenced.
29. [29]
    The dispute between the parties relates to the construction of the extension to the shed on the applicants’ land. The building works involved both the construction of a slab and the construction of a structural extension to the shed. The proposed claim by the applicants simply enlarges the scope of the existing dispute. The construction of s 77(2) argued for by the respondent is rejected.

Conclusion

30. [30]
    The application for miscellaneous matters is allowed. I will make orders for the filing of an amended application for domestic building disputes by the applicants. The amended application must particularise the quantum of the applicants’ claim. The respondent will be given the opportunity to file an amended response.