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Weston v Worthington[2022] QCAT 154

Weston v Worthington[2022] QCAT 154

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Weston & Anor v Worthington [2022] QCAT 154

PARTIES:

heidi weston

(first applicant)

ADAM WESTON

(second applicant)

v

leonard worthington

(respondent)

APPLICATION NO/S:

BDL113-19

MATTER TYPE:

Building matters

DELIVERED ON:

13 April 2022

HEARING DATE:

15 February 2022

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The application to amend the application for domestic building disputes dated 30 September 2020 and filed on 6 October 2020 to include a claim for alleged negligence is refused.
  2. The application to amend the application for domestic building disputes dated 15 December 2020 and filed on 17 December 2020 to increase the amount of damages claimed is refused.

THE TRIBUNAL DIRECTS THAT:

  1. The matter is listed for a Directions Hearing by telephone on a date and time to be advised by the Tribunal.

CATCHWORDS:

TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – GENERALLY – where applicants purchased house – where retaining wall on site before construction of the house – where issues with the house – where application for domestic building disputes filed claiming damages for breach of contract – where application filed to amend the application for domestic building disputes to remove the claim for breach of contract and include a claim for alleged negligence and damages – whether the Tribunal has jurisdiction to determine the claim or dispute for the purposes of s 771(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the discretion to allow the amendment to the application for domestic building disputes should be exercised under s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Acts Interpretation Act 1954 (Qld), s 14A(1)

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 75, s 76, s 77(1), Schedule 1B, s 4, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, s 64

Adam’s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27

Baker v Department of Natural Resources & Mines [2018] QCAT 375

Federal Commissioner of Taxation v Industrial Equity Ltd & Anor (2000) 171 ALR 1

Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134

Kelly v R (2004) 218 CLR 216

Minister for Immigration and Ethnic Affairs v Baker (1997) 153 ALR 463

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936

APPEARANCES &
REPRESENTATION:

Applicant:

Self-represented

Respondent:

M Robinson, solicitor of Robinson Locke Litigation Lawyers

REASONS FOR DECISION

  1. [1]
    The applicants apply for leave to amend their application for domestic building disputes to remove a cause of action for breach of contract and to include a claim for alleged negligence.[1] The applicants also apply to increase the amount of damages claimed to $1,165,780.45.[2]
  2. [2]
    The applicants’ claim against the respondent arises from concerns held by the applicants about movement in their house said to be caused by a failing retaining wall. The applicants purchased their house from the respondent in or about December 2011 and contend that the retaining wall that had been constructed before the house was built is now failing and causing issues with their home. Further, the applicants claim damages from the respondent for the failing retaining wall because the respondent designed it in circumstances where there was no actual approval and no owner builder permit given for the work.[3]
  3. [3]
    In responding to the applicants’ applications to amend, the respondent does not object to a removal of the claim for breach of contract but does object to an amendment to include a claim for alleged negligence on the basis that the Tribunal has no jurisdiction to determine the claim.
  4. [4]
    At the oral hearing before this Tribunal, Mr Robinson appearing for the respondent abandoned his objection to the applicants’ application to amend on the basis that there is no duty of care owed by the respondent to the applicants.[4] Mr Robinson submitted that the issue to be determined by the Tribunal is whether the construction of the retaining wall is ‘associated work’ or ‘site work’ as defined under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act) for the construction of the applicants’ home. Further to that, Mr Robinson submitted and I accept, that the applicants must convince me that the Tribunal has jurisdiction to determine their claim that they now apply to amend.
  5. [5]
    Both parties agreed at the oral hearing that if the Tribunal allows the amendments to the application for domestic building disputes, the Tribunal should direct that the respondent file an amended response and list the matter for a directions hearing. In the event that the applications to amend are refused, both parties agreed that in the interests of procedural fairness to the applicants, the matter should be listed for a directions hearing on a date to be advised by the Tribunal.
  6. [6]
    At the oral hearing, the Tribunal identified the following issues to be determined in relation to the applicants’ applications to amend, now set out below:
    1. (a)
      Whether the power to allow the amendment of the application for a domestic building dispute should be exercised under s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). Relevantly, the Tribunal has a discretionary power under s 64 of the QCAT Act to make an order requiring that a relevant document such as an application be amended. An ‘application’ means an application to the Tribunal under the QCAT Act or an enabling Act.[5] Here, the enabling Act is the QBCC Act; and
    2. (b)
      Whether the applicants’ claim is a ‘building dispute’ for the purposes of s 77(1) of the QBCC Act. Relevantly, s 77(1) provides that a person involved in a ‘building dispute’ may apply to the Tribunal to have the Tribunal decide the dispute.

Is the applicants’ claim a ‘building dispute’?

  1. [7]
    The Tribunal only has the power to determine a matter in the Tribunal’s original jurisdiction as conferred on it by an enabling Act, in this case the QBCC Act.[6] It is therefore appropriate to determine firstly whether the applicants’ proposed amended application for alleged negligence is a ‘building dispute’ for the purposes of s 77(1). This raises a question of statutory construction as to the meaning of ‘a building dispute’. 
  2. [8]
    It is settled law that an interpretation that will best achieve the purpose of the Act is to be preferred.[7] The starting point is the text itself and its context and purpose.[8] The meaning of the text may require consideration of the context including the general purpose and policy of a provision.[9]

The QBCC Act – jurisdiction of the Tribunal

  1. [9]
    The starting position is Part 7 of the Act that sets out the ‘Jurisdiction of tribunal’. Section 77(1) of the QBCC Act provides that a person involved in a ‘building dispute’ may apply, as provided under the QCAT Act, to have the Tribunal decide the dispute. Section 77(3) sets out the Tribunal’s powers to resolve the dispute.
  2. [10]
    Section 75 of the QBCC Act sets out work that is ‘tribunal work’ including, amongst other things, the erection or construction of a building and the renovation, alteration, extension, improvement or repair of a building. Further, s 75(2) provides that ‘reviewable domestic work’ is ‘tribunal work’. There are also various types of work identified under s 76 of the QBCC Act as work that is not ‘tribunal work’.
  3. [11]
    There are various definitions and provisions contained within the QBCC Act such as Schedule 2 and Schedule 1B that are to be considered when determining whether there is a ‘building dispute’ for the purposes of s 77(1).
  4. [12]
    Under Schedule 2 a ‘building dispute’ means (emphasis added):
    1. (a)
      A domestic building dispute; or
    2. (b)
      A minor commercial building dispute; or
    3. (c)
      A major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under s 79.[10]
  5. [13]
    Under Schedule 2 of the QBCC Act 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
    2. (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
    3. (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
    4. (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;
    2. (ii)
      an engineer;
    3. (iii)
      a surveyor;
    4. (iv)
      a quantity surveyor;
    5. (v)
      an electrician or an electrical contractor;
    6. (vi)
      a supplier or manufacturer of materials used in the tribunal work.
  1. [14]
    Schedule 2 defines ‘reviewable domestic work’ as ‘domestic building work under schedule 1B, section 4…’ Relevantly, s 4 of Schedule 1B provides as follows (emphasis added):

Meaning of domestic building work

(1) Each of the following is domestic building work—

  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.

  1. (3)
    Domestic building work includes—
  1. (a)
    work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and
  1. (b)
    work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.

(4) Without limiting subsection (3), associated work includes—

  1. (a)
    landscaping; and
  1. (b)
    paving; and
  1. (c)
    the erection or construction of a building or fixture associated with the detached dwelling or home.

Examples of buildings and fixtures

retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas

(7) Also,domestic building work includes—

  1. (a)
    site work relating to work mentioned in subsection (1), (3), (5) or (6); and
  1. (b)
    work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.

  1. [15]
    Schedule 2 refers to s 74AA for the meaning of ‘associated with’, in relation to a building or other structure. Under s 74AA, ‘associated with’ is defined to mean ‘in relation to a building, means incorporated into, or connected to, a building by the carrying out of relevant work’.

Consideration of  s 77(1) and the QBCC Act

  1. [16]
    On a fair reading of s 77(1) and Schedule 2 as a whole, a person involved in a ‘building dispute’ includes a ‘domestic building dispute’ that is one or more, as the case may be, of 4 classes of matters identified under subsections (a), (b), (c) and/or (d) of Schedule 2. For the purposes of subsections (a), (b), (c) and/or (d) of Schedule 2 there must be a temporal connection between the ‘claim or dispute’ and ‘the performance of reviewable domestic work’ that is ‘building work’ as defined under s 4 of Schedule 1B.
  2. [17]
    The issue that arises now is whether each of the types or classes of matters mentioned in subsections (a), (b), (c) and/or (d) in Schedule 2 for a ‘domestic building dispute’ are to be considered as discrete matters such that a claim or dispute need only fall within one of the definition provisions of Schedule 2 for it to be a ‘domestic building dispute’. On the other hand, should each of the subsections (a), (b), (c) and (d) be considered in determining whether a claim or dispute is a ‘domestic building dispute’.
  3. [18]
    This raises an issue about whether the use of the word ‘or’ after each of the subsections (a), (b), (c) and (d) of Schedule 2 for the meaning of a ‘domestic building dispute’ are to be read as strictly disjunctive for the purposes of determining whether a claim or dispute is a ‘building dispute’.
  4. [19]
    It is settled law that whether the use of the words ‘or’ used in a statute will be disjunctive will depend upon the context in which the word appears including for this purpose the legislative intention.[11]
  5. [20]
    In Baker v Department of Natural Resources & Mines,[12] the President summarised relevant cases in the context of the Tribunal’s review jurisdiction that considered when the word ‘or’ used in a statute will be disjunctive. Although the cases referred to in Baker were considered in the context of the exercise of power to make an administrative decision under the relevant Act, the cases are in my view helpful in considering when the word ‘or’ used in a statute is disjunctive in nature.
  6. [21]
    In Baker the President considered Minister for Immigration and Ethnic Affairs v Baker,[13] in which the Full Federal Court said that, amongst other things, an obligation in a statute to have regard to specified matters when making an administrative decision may have the effect of requiring the administrator to take certain matters into account and give weight to them.[14]
  7. [22]
    In Minister for Immigration and Ethnic Affairs v Baker the Court had regard to a number of cases and the types of conduct mentioned in a particular section as being of fundamental importance, but at the same time as not excluding other considerations. The Court said that the use of the word ‘or’ should be read as a kind of hybrid of disjunctive and conjunctive, equivalent to ‘or, or as well’, conveying the meaning that the decision may be reached having regard to either or both of the kinds of conduct referred to.[15]
  8. [23]
    In the present matter, the QBCC Act provides a statutory regime to regulate the building industry for building contractors and homeowners and the licensing of contractors working in the building industry. The objects of the Act are set out in s 3 and include, amongst other things, to ensure the maintenance of proper standards in the building industry and to achieve a reasonable balance between the interests of building contractors and consumers.[16]
  9. [24]
    In my view a person involved in a ‘building dispute’ that is a ‘domestic building dispute’ for the purposes of s 77(1) includes a claim or dispute identified in each of the subsections (a) and/or (b) and/or (c) and/or (d) of Schedule 2.
  10. [25]
    The use of the word ‘or’ in Schedule 2 that defines a ‘domestic building dispute’ is not disjunctive but ‘a kind of hybrid’ to be read as ‘or, as well as’ that is intended to identify the types of matters for which the Tribunal has jurisdiction for the purposes of s 77(1). There are necessary elements that must be met when considering whether the claim or dispute falls within one of the different types or classes of matters identified as a ‘domestic building dispute’ under Schedule 2. As provided under subsections (a), (b), (c) and (d) of Schedule 2 a ‘domestic building dispute’ is ‘a claim or dispute…’ as between a particular person or class of persons relating to ‘the performance of reviewable domestic work’.
  11. [26]
    The words ‘related to the performance of reviewable domestic work’ have been found to have a limiting or qualifying effect. In Fraser Property Developments P/L v Sommerfeld & Ors[17] McPherson JA in separate reasons (each Justice concurring as to the orders made) said at [11]:

The words “related to the performance of reviewable domestic work” plainly have a limiting or qualifying effect. Otherwise it would mean that the tribunal is invested with jurisdiction over all claims in negligence for property damage or economic loss of any kind, which cannot have been the legislative intention.

  1. [27]
    In Fraser, the Court of Appeal considered the issue of jurisdiction with respect to relevant sections of the former Queensland Building Services Authority Act 1991 (Qld) that was replaced by the QBCC Act including the definition of ‘domestic building dispute’ in circumstances where a claim was brought by a building proprietor under a contract for the construction of a house against the builder, the engineer and local council who designed the plans. In Fraser McPherson JA highlights the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences. McPherson JA said at [23]:

In interpreting a statute like this, with its labyrinthine and poorly integrated definitions and provisions, it is necessary to remain acutely aware of the risks of being mistaken about a matter as fundamental as jurisdiction and its consequences for the parties. That is no doubt the reason for the long-standing rule that:

“nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged.”

  1. [28]
    In the present matter, the Tribunal should not be too quick to find that the applicants’ claim falls outside the scope of s 77(1) of the QBCC Act. As discussed above there are a number of definitions and provisions that I must consider in determining whether there is a ‘building dispute’ for the purposes of s 77(1) that includes a ‘domestic building dispute’ as defined under Schedule 2.

Is there ‘a claim or dispute’ that falls within a type or class of matter mentioned in subsections (a), (b), (c) and/or (d) of Schedule 2 that means a ‘domestic building dispute’?

  1. [29]
    Here, the applicants are homeowners who have brought a claim or dispute against the respondent.  The respondent is the former homeowner of the applicants’ house and is alleged to have designed and constructed the retaining wall that the applicants contend is failing and causing issues with their house.
  2. [30]
    The respondent is not and has never been a building contractor nor did he hold an owner builder permit for the purposes of designing and/or constructing the retaining wall. Further to that, the respondent is not a building owner or building contractor as mentioned in subsections (a) and (b) of Schedule 2 nor any of the types of persons identified under subsection (d)(i) to (vi) inclusive, such as, amongst others, an architect, engineer, surveyor or quantity surveyor.
  3. [31]
    In my view, there is no ‘claim or dispute’ that is a ‘domestic building dispute’ for the purposes of subsections (a), (b), or (d) of Schedule 2 because there is no claim or dispute arising between a building owner and building contactor and/or a building contractor and/or one of the types of persons identified under subsection (d)(i) to (vi), inclusive.
  4. [32]
    In the present matter, the applicants’ claim is of alleged negligence that would appear to fall within the type or class of matter identified in subsection (c) of Schedule 2 being ‘a claim or dispute in negligence…related to the performance of reviewable domestic work’.
  5. [33]
    As discussed above, in my view each of the types of matters or classes of matters identified under subsections (a), (b), (c) and/or (d) under Schedule 2 must be considered together when determining whether there is a ‘domestic building dispute’.
  6. [34]
    The QBCC Act in particular s 77(1) and Schedule 2 contemplates that a person involved in a ‘building dispute’ that includes a ‘domestic building dispute’ is a claim or dispute arising between one or more of the class of persons identified under subsections (a), (b) and/or (d) of Schedule 2. For example, a dispute between a building owner and a building contractor, or 2 or more building contractors, or between a building owner or a building contractor and any 1 or more of the types of persons identified under subsections (d)(i) to (vi), inclusive.
  7. [35]
    Schedule 2 contemplates that the parties to the claim or dispute include a particular person or class of persons as described in subsections (a), (b) and/or (d). The types of matters or class of matters does not, in my view, include a claim or dispute arising between a homeowner and a former homeowner. A former homeowner is not a person or class of persons mentioned in subsections (a), (b) and/or (d) of Schedule 2.
  8. [36]
    This approach to determining whether there is a ‘building dispute’ that means a ‘domestic building dispute’ is consistent with the scope and purpose of the Act that is to, amongst other things, achieve a reasonable balance between the interests of building contractors and consumers. In my view the QBCC Act confers original jurisdiction on the Tribunal to determine a claim or dispute involving, for example, a building contractor and building owner or 2 or more building contractors and/or a building owner or a building contractor and/or a person identified under subsection (d)(i) to (vi), inclusive. It does not include a claim or dispute arising between a building owner and a former building owner.
  9. [37]
    That said, as discussed above, there are necessary elements that must be met in order for the claim or dispute to fall within one or more of the 4 classes or types of matters identified under subsections (a), (b), (c) and/or (d) of Schedule 2 such as, the requirement that the claim or dispute is related to the ‘performance of reviewable domestic work’.

Is the ‘claim or dispute’ related to the ‘performance of reviewable domestic work’ that is ‘domestic building work’?

  1. [38]
    Proceeding on the basis that there is a ‘claim or dispute in negligence…’ that falls within the class or type of matter identified in subsection (c) of Schedule 2 it is necessary to also consider whether the claim or dispute is related to the ‘performance of reviewable domestic work…’ that is more broadly defined as ‘domestic building work’.
  2. [39]
    Under Schedule 2, ‘domestic building work’ is defined under Schedule 1B, section 4 to include ‘site work…’ or ‘associated work’, which includes work ‘associated with the erection, construction, removal or resisting of a detached dwelling’.
  3. [40]
    In the present matter, the applicants contend that the respondent has carried out negligent acts at their house in relation to the design and construction of a retaining wall.[18] The applicants contend that at the relevant time, the respondent was the owner of the land on which the applicants’ house now sits. The house was built after the construction of the retaining wall and later sold to the applicants in late 2011, less than 6 years after the retaining wall was constructed. Further, the applicants contend that the respondent raised the level of the land by designing and constructing a retaining wall along the boundary without the necessary approvals.[19] At the relevant time the respondent was not a qualified or certified engineer, or a licensed building contractor nor did he hold an owner builder permit.
  4. [41]
    The issue that now arises is whether the applicants’ claim or dispute of alleged negligence is related to the ‘performance of reviewable domestic work’ that is more broadly defined as ‘site work…’ or ‘associated work’ to include work ‘associated with the erection or construction of a detached dwelling’.
  5. [42]
    In my view s 4 of Schedule 1B is clearly a definition provision intended to provide aid in construing the statute and the meaning of a ‘domestic building dispute’ for the purposes of determining whether there is a dispute for which the Tribunal has jurisdiction to determine under s 77(1).[20]
  6. [43]
    Under s 4(3) of Schedule 1B ‘domestic building work’ is defined to include ‘associated work’ or as provided under s 4(7) to include ‘site work relating to work mentioned in subsection (1), (3), (5) or (6)’ that is ‘associated work’. Under s 74AA of the QBCC Act the term or phrase ‘associated with’ means ‘incorporated into, or connected to, a building by the carrying out of relevant work’.
  7. [44]
    Further to that, ‘associated work’ or ‘site work’ is work ‘associated with the erection, construction, removal or resiting of a detached dwelling’. Section 75(1) identifies the type or nature of work that is ‘tribunal work’ and s 75(2) provides that ‘reviewable domestic building work’ is ‘tribunal work’, which includes, amongst other things, any site work such as the construction of retaining structures and landscaping that is related to the erection or construction of a building.[21]
  8. [45]
    In the present matter, I am satisfied that the retaining wall work would more generally fall within the class of work described as ‘site work’ for the purposes of  s 4(7) of Schedule 1B.[22] Although the meaning of ‘site work’ is not defined under the Act, in my view and adopting a broad meaning of the term, ‘site work’ may include any work necessary to prepare the site for building work such as soil tests, clearing soil and construction of a retaining wall. Further to that, I am satisfied that the retaining wall may also be ‘associated work’ that is ‘associated with the erection or construction of a detached dwelling’ as provided under s 4(3)(a) of Schedule 1B.
  9. [46]
    The matter does not end here, however, because in order for the retaining wall work to be ‘domestic building work’ it must be work ‘associated with’ the context in which the work is carried out such that it is ‘incorporated into, or connected to, a building by the carrying out of relevant work’.[23] This requires a consideration of the evidence to determine whether the retaining wall is associated with the construction of the house that was built after the retaining wall.

Is the retaining wall associated with the construction of the house?

  1. [47]
    At the oral hearing before this Tribunal Mrs Weston for the applicants submitted that the proposed claim for alleged negligence falls within s 77(1) of the QBCC Act. Further, Mrs Weston submitted that there is a correlation between the retaining wall that is now failing and the movement of the house.
  2. [48]
    In the present matter, I am not satisfied that the retaining wall is work associated with the erection or construction of a detached dwelling or home because the evidence does not support a finding that the works were incorporated into or connected with the carrying out of the construction of the house.[24]
  3. [49]
    It is non-contentious that the retaining wall was constructed before the house. The applicants assert that the respondent purchased the land and undertook to raise the level of the subject property by constructing a retaining wall along the boundary that would retain fill upon which a house, garage, carport, back lawn and water tank would be constructed. Further, the applicants contend that the respondent prepared the design of the retaining wall himself and, amongst other things, did not obtain any approvals for the work and did not hire any licensed contractor for the work. The applicants contend that the respondent contracted with Hallmark Homes to construct a house on the uncompacted fill and less than 6 years after the retaining wall was constructed the respondent and his wife offered the property for sale.[25]
  4. [50]
    There is evidence before me that I accept of an expert witness, James Thomas, civil engineer who states that the house does not depend upon the existence of the retaining wall and the presence of the retaining wall was known by the designers of the residence.[26] Further to that, the expert evidence of a geotechnical engineer, James Daley, that I also accept is that the retaining wall is ‘not considered to be within the zone of influence of the retaining wall’.[27]
  5. [51]
    Although I accept Mrs Weston’s submission made at the oral hearing that the site plan of the house depicts the retaining wall and the design and plan for the house refer to soil tests and drainage, the fact remains that the retaining wall existed before the construction of the house. It matters not that the site plan of the house depicts the retaining wall because the builder was responsible for the construction of the house that was built in accordance with the design and any soil tests that would presumably be considered by the builder prior to the construction of the house and as required by the plans and specifications.
  6. [52]
    Mr John Mayer, expert civil engineer engaged by the applicants, also considered the issue of the retaining wall and clearly defers to the opinion of a geotechnical engineer.[28] The applicants’ geotechnical engineer, Geoff Hurley, is in my view equivocal about the cause of the issues with the house referring to, amongst other things, the sequence of events or timing of the distress to the house followed shortly after the failure of the retaining wall.[29]
  7. [53]
    On the other hand, Mr Daly, geotechnical engineer says, amongst other things, that on balance the distress to the house is caused by changes in moisture content in the subsurface profile and the house is outside the zone of influence of the retaining wall.
  8. [54]
    I prefer and accept the opinion of Mr Daly in relation to the likely cause of the distress to the house. Indeed, the applicants contend here that a part of the retaining wall failed after heavy rain. It is therefore likely that based on the opinion of Mr Daly the distress to the house is caused by factors other than the retaining wall, such as changes in moisture content.
  9. [55]
    Mrs Weston has failed to convince me that the retaining wall was incorporated into or connected with the house design and construction. The house was constructed by Hallmark Homes as the builder after the retaining wall had already been constructed. I am satisfied, based on the expert evidence of Mr Thomas, that the presence of the retaining wall was known by the designers and should have been taken into account during the design phase.
  10. [56]
    The applicants have failed to convince me that the retaining wall works is ‘domestic building work’ that includes ‘site works’ or ‘associated work’ for the purpose of s 4 of Schedule 1B of the Act because the work is not associated with the construction of the house.

The application to amend

  1. [57]
    I decline to exercise my discretion under s 64 of the QCAT Act to allow the applications to amend the application for domestic building dispute to include a claim in negligence and to increase the claim for damages.
  2. [58]
    The Tribunal only has jurisdiction to decide a matter if the person, in this case the applicants, are involved in a ‘building dispute’ that includes a ‘domestic building dispute’. The applicants’ claim falls outside the scope of s 77(1) of the QBCC Act because there is no ‘domestic building dispute’ as defined under Schedule 2.
  3. [59]
    Further to that and as discussed above, the claim or dispute is not related to the ‘performance of reviewable domestic work’ that is ‘domestic building work’ because the retaining wall work is not associated with the construction of the house and is not ‘domestic building work’ as defined under s 4 of Schedule 1B of the Act.
  4. [60]
    The application to amend the application for domestic building dispute dated 30 September 2020 and filed on 6 October 2020 to include a claim for negligence is refused. Further to that, the application to amend the application for domestic building dispute dated 15 December 2020 and filed on 17 December 2020 to increase the amount of damages is also refused. I order accordingly.

Footnotes

[1]  Application for miscellaneous matters dated 30 September 2020 and filed 6 October 2020. See application for domestic building dispute filed 2 April 2019.

[2]  Application for miscellaneous matters dated 15 December 2020 and filed 17 December 2020.

[3]  See amended application for domestic building dispute dated 15 December 2020.

[4]  See respondent’s submissions filed 10 August 2021, [35].

[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 3.

[6]  Ibid, s 11.

[7] Acts Interpretation Act 1954 (Qld), s 14A(1).

[8] SZTAL v Minister for Immigration and Border Protection (2017) 91 ALR 936.

[9] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46-47.

[10]  QBCC Act, Schedule 2.

[11] Federal Commissioner of Taxation v Industrial Equity Ltd & Anor (2000) 171 ALR 1, [19] and see Baker v Department of Natural Resources & Mines [2018] QCAT 375 at [31].

[12]  [2018] QCAT 375.

[13]  (1997) 153 ALR 463.

[14] Minister for Immigration and Ethnic Affairs v Baker, ibid, [33].

[15]  Ibid, at 469-470, see Baker at [33].

[16]  QBCC Act, s 3.

[17]  [2005] QCA 134.

[18]  See application for domestic building dispute filed 2 April 2019.

[19]  Ibid.

[20] Kelly v R (2004) 218 CLR 216.

[21]  See s 75 and Schedule 1B of the QBCC Act.

[22]  See Adam’s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228 that considered more broadly items of work such as “fall trees for house pad”, “load truck”, “cut house pad”, “cart fill”, “ripping and loading trucks” and “level house pad and tidy up” as being work performed on site.

[23]  See s 74AA of the QBCC Act and s 4(3) of Schedule 1B.

[24]  See s 74AA of the QBCC Act.

[25]  See amended application for domestic building dispute.

[26]  Exhibit 4, joint expert report dated 21 May 2021.

[27]  Exhibit 6.

[28]  Exhibit 4.

[29]  Exhibit 5.

Close

Editorial Notes

  • Published Case Name:

    Weston & Anor v Worthington

  • Shortened Case Name:

    Weston v Worthington

  • MNC:

    [2022] QCAT 154

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    13 Apr 2022

Appeal Status

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