Kenny v Morley[2022] QCAT 178

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This proceeding has been brought by the applicants as a building dispute. On 29 November 2021 the Tribunal made directions for the determination of a preliminary issue:

Does the Tribunal have jurisdiction to decide the building dispute the subject of the proceedings?

2. [2]
   The applicants are each lot owners in a three-lot scheme on the Gold Coast. Each lot comprises, inter alia, a detached two-story dwelling. The applicants claim that the respondent, a private certifier, is responsible for defects in the original construction of the dwellings. Specifically, the applicants say that the respondent certified the frame stage of the build in circumstances where the steel stumps supporting the flooring of the dwellings did not have the minimum level of corrosion protection as required under the Building Code of Australia, applicable at the time of the build. The original building works were carried out in 2008. The frame stage certificate was issued in January 2008 and the final stage certificate was issued in July 2008.
3. [3]
   Although not framed as such in the application, it is reasonably clear that the claim by the applicants is brought in negligence.
4. [4]
   The applicants say that the dispute between the parties is a domestic building dispute and that the Tribunal has jurisdiction to decide the dispute. The respondent says that the Tribunal does not have jurisdiction to decide a claim against a private certifier.

The jurisdiction of the Tribunal to decide building disputes

5. [5]
   The Tribunal is a creature of statute. The jurisdiction of the Tribunal is confined to that conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and any enabling Act. For present purposes, the relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
6. [6]
   The Tribunal has jurisdiction to decide building disputes.^[1] A building dispute may be a domestic building dispute or a commercial building dispute.^[2]

   1. Domestic building disputes
7. [7]
   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.^[3]

8. [8]
   ‘Reviewable domestic work’ means ‘domestic building work’.^[4] ‘Domestic building work’ is:

1. (a)
   the erection or construction of a detached dwelling;
2. (b)
   the renovation, alteration, extension, improvement or repair of a home;
3. (c)
   removal or resiting work for a detached dwelling;
4. (d)
   the installation of a kit home at a building site.^[5]

9. [9]
   ‘Domestic building work’ does not include ‘excluded building work’.^[6] ‘Excluded building work’ means, inter alia, design work carried out by an architect, engineer or draftsperson and the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work.
10. [10]
    ‘Domestic building work’ also includes ‘associated work’. ‘Associated work’ means work associated with the erection, construction, removal or resiting of a detached dwelling and work associated with the renovation, alteration, extension, improvement or repair of a home.
11. [11]
    A ‘building owner’ is person for whom domestic building work has been, is being, or is to be, carried out.^[7] A ‘building contractor’ means a person who:

1. (a)
   carries out domestic building work; or
2. (b)
   manages the carrying out of domestic building work; or
3. (c)
   has carried out, or managed the carrying out of, domestic building work; or
4. (d)
   intends to carry out, or to manage the carrying out of, domestic building work.^[8]

ii. Commercial building disputes

12. [12]
    A ‘commercial building dispute’ means:

1. (a)
   a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
2. (b)
   a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
3. (c)
   a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial 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 commercial work or a contract for the performance of reviewable commercial 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.^[9]

13. [13]
    For the purposes of commercial building disputes, a ‘building owner’ means a person for whom tribunal work is to be, is being or has been carried out, but does not include a building contractor for whom tribunal work is carried out by a subcontractor.^[10] For the purposes of commercial building disputes, a ‘building contractor’ means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.^[11]
14. [14]
    ‘Building work’ means:

1. (a)
   the erection or construction of a building; or
2. (b)
   the renovation, alteration, extension, improvement or repair of a building; or
3. (c)
   the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
4. (e)
   any site work (including the construction of retaining structures) related to work of a kind referred to above; or
5. (f)
   the preparation of plans or specifications for the performance of building work; or
6. (fa)
   contract administration carried out by a person in relation to the construction of a building designed by the person; or
7. (g)
   fire protection work; or
8. (ga)
   mechanical services work; or
9. (h)
   carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
10. (i)
    carrying out a completed building inspection; or
11. (j)
    the inspection or investigation of a building, and the provision of advice or a report, for the following—

1. (i)
   termite management systems for the building;
2. (ii)
   termite infestation in the building;

but does not include work of a kind excluded by regulation from the ambit of this definition.^[12]

Is the dispute a domestic building dispute?

15. [15]
    Whether the dispute is a domestic building dispute turns on whether private certification work is ‘domestic building work’.
16. [16]
    In Eaves, J. & A. v Laghai, S. & Wilkins, B.^[13] the former Commercial and Consumer Tribunal (CCT) held that private certification work was not domestic building work. After considering the relevant provisions of the Domestic Building Contracts Act 2000 (Qld), the analogue of the provisions of the QBCC Act falling for consideration in this case, the Tribunal stated:

It is not alleged that the second respondent performed any physical work of the kind described in section 8(1) of the DBC Act. Nor is it alleged that he performed any physical work associated with the kind of work described in section 8(1) of the DBC Act. It is not alleged that he provided any services or facilities of the kind contemplated by section 8(5) of the DBC Act. Absent any allegation that the second respondent performed domestic building work I cannot see that the tribunal has jurisdiction on the claim as pleaded.^[14]

17. [17]
    The CCT subsequently considered whether private certification work fell within the meaning of ‘domestic building work’ in Cleary, J. v Bowcock, M.^[15] The CCT, agreeing with the reasoning in Eaves, held that it was not.
18. [18]
    I agree with Eaves and Cleary. For the reasons that follow I find that private certification work is not ‘domestic building work’.
19. [19]
    In my view,  ‘domestic building work’ in s 4(1)(a) and (b) of schedule 1B of the QBCC Act means the performance of the physical activities associated with building work, that is, actual construction work. This interpretation is consistent with other provisions in the Act.
20. [20]
    Firstly, s 4(3) and s 4(4) of schedule 1B, the provisions dealing with ‘associated work’, clearly relate to the physical activities associated with building work. ‘Associated work’ is part or an extension of ‘domestic building work’.^[16] The examples of ‘associated work’ in s 4(4) are physical structures including driveways, garages, swimming pools and the like.
21. [21]
    The meaning of ‘associated work’ was considered in Fraser Property Developments Pty Ltd v Sommerfeld & Ors.^[17] Fraser Property Developments involved a claim by a building owner against, inter alia, the Burnett Shire Council. The building owner asserted that the council was negligent in assessing and certifying the design plans for the construction of a dwelling. At first instance,^[18] Dutney J held that the work undertaken by the council was ‘associated work’. His Honour held that the definition of ‘associated work’ was inclusive and not exhaustive and that the legislature must have contemplated a wide meaning rather than a narrow one. Dutney J  stated:

Plainly, engineer’s design work and preparation of plans was considered to be work associated with the erection or construction of a building because it was necessary to exclude it from the definition of “domestic building work” under s. 8 of the DBCA. Presumably such activities if done in connection with the construction of a building were regarded as “associated work”. Such a connection seems to me to fall naturally within the scope of the legislative provisions. It seems to me to follow that the approval of those plans by the council, being a necessary transitional step between the design and the preparation of plans phase and the construction phase must also be associated work.^[19]

22. [22]
    On appeal, Williams JA had this to say about whether the work undertaken by the council was ‘associated work’:

I have real difficulty in concluding that a local authority’s conduct in approving or rejecting building or engineering plans pursuant to its obligations under the Standard Building Regulation 1993 would be performing work caught by any of the provisions resulting in a definition of a "building dispute", or would be within the definition of "tribunal work" in s. 75 of the QBSA Act. Perhaps the closest one gets to such a conclusion is through the definition of "domestic building dispute" in the QBSA Act which includes "a claim or dispute in negligence … related to the performance of reviewable domestic work other than a claim for personal injuries". It could also be argued that the work of a local authority in approving plans was "associated work" within s. 8(3) of the DBC Act.^[20]

23. [23]
    While Williams JA did not ultimately decide the point, His Honour was clearly disinclined to find that the work undertaken by the council in approving or rejecting engineering plans was ‘associated work’.
24. [24]
    For work to be ‘associated work’ there must be a degree of contemporaneity between the two items said to be ‘associated’.^[21] As has been observed, the definition of ‘associated work’ is inclusive. As a matter of ordinary statutory construction, the use of ‘includes’ is generally intended to be expansionary in effect. However, the use of the word ‘includes’ as a drafting device may be more subtle.^[22]  As noted by the learned author of Statutory Interpretation in Australia:

Specific definitions may take colour from other words used in an Act. So even though ‘includes’ is used, the scope of the inclusion may be affected by reference in another provision to a wider range of matters. This indicates that the specific definition may not be intended to have the full range of meaning that the use of ‘includes’ would normally produce.^[23]

25. [25]
    Section 4(4) of schedule 1B refers to items of work that could also be considered physical building work, namely, landscaping, paving and the erection or construction of a ‘building’ or ‘fixture’. The former term is defined as including generally a structure or part of a structure. These provisions point to an intention by the legislature that ‘associated work’ was intended to be confined to actual physical building work.
26. [26]
    Secondly, there is the definition of ‘domestic building dispute’ in schedule 2 of the Act which provides in subsection (d) that such a dispute may be between a building owner or a building contractor and one of a number of stated persons. This part of the definition of ‘domestic building dispute’ represents a limited expansion of the scope of domestic building disputes beyond a dispute between a building owner and a building contractor or a dispute between two or more building contractors. It also represents a strictly limited expansion of the type of work falling within the meaning of domestic building work beyond physical construction work. Support for this construction is found in the definition of ‘reviewable domestic work’ which imports back into the scope of domestic building disputes certain items of ‘excluded building work’, including: design work carried out by an architect, engineer or draftsperson; the preparation of plans, specifications or bills of quantity for the carrying out of domestic building work; and work involved in obtaining foundations data about a building site.^[24]
27. [27]
    Thirdly, there is the definition of ‘tribunal work’ in s 75(1)(g) of the QBCC Act as including ‘the inspection of a completed building’. Work undertaken by a private certifier may be undertaken at various stages of a build and may include a final inspection. However, the work undertaken by a private certifier is not confined to the inspection of a completed building. It follows that the work referred to in s 75(1)(g) is not work undertaken by a private certifier.
28. [28]
    Fourthly, s 4(5) and s 4(6) of schedule 1B include as ‘domestic building work’ the provision of services or facilities to the home or dwelling. At s 4(6) examples of the provision of services or facilities are provided: lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage. Again, the provision is consistent with domestic building work being confined to actual physical building work.  
29. [29]
    Fifthly, it is relevant to note that the objects of the QBCC Act include the regulation of the building industry to achieve a reasonable balance between the interests of building contractors and consumers and the regulation of domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners. A building contractor is defined in schedule 2 of the Act as including a person who carries on a business that consists of or includes carrying out building work. ‘Building work’ is defined in schedule 2 as not including work of a kind excluded by regulation. Certification work performed by a building certifier is excluded from the meaning of ‘building work’.^[25] Accordingly, a private certifier is not a ‘building contractor’ for the purposes of schedule 2 of the Act. Although these provisions are relevant to whether an individual is required to be licensed, the construction I favour of ‘domestic building work’ and ‘associated work’  is consistent with these provisions.
30. [30]
    It follows from the foregoing that I conclude work undertaken by a private certifier is not physical construction work and is therefore not ‘domestic building work’ or ‘associated work’. Nor does such work fall within the strictly limited expansion of the scope of domestic building work as I have referred to above. Work undertaken by a private certifier is therefore not domestic building work. A private certifier engaged in certification work cannot therefore be a ‘building contractor’ for the purposes of s 1 of schedule 1B of the QBCC Act. Nor is a private certifier one of those persons referred to in sub-paragraph (d)(i) to (vi) of schedule 2 of the QBCC Act of the definition of ‘domestic building dispute.’ It follows that a dispute between a private certifier and a building owner or a building contractor is not a domestic building dispute.
31. [31]
    A domestic building dispute however also means a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries. The meaning of this part of the definition of ‘domestic building dispute’ was considered in Cleary.^[26]  The Tribunal stated:

[16]  The words "related to" in that sub-paragraph are capable of a wide meaning, generally meaning associated or connected. However I think, in the context of this sub-paragraph, the words "related to" are synonymous with "involved in". This is because the word "performance", when used in sub-paragraph (c), and indeed throughout this definition, is, in my view, a reference to the actual physical performance of the work. Accordingly the meaning or construction of the words "related to" is, in the context of sub-paragraph (c), somewhat narrower than might otherwise be the case. Indeed, if that were not the situation, then sub-paragraph (c) might include all manner of persons who would not normally be regarded as having any relationship to the performance of the work.

[17]  I agree with the Respondent’s submissions that such a narrower interpretation of sub-paragraph (c) is to be preferred, particularly in light of Section 14A of the Interpretation Act which requires that the proper interpretation be that which would best achieve the purpose of the QBSA Act. This submission drew support from (correctly in my view) regulation 5(1)(ze) of the regulations to the QBSA Act which specifically excludes from "building work", private certification functions.

[18]  Further, section 3(b) of the QBSA Act provides, as one of the objects of the Act, "to provide remedies for defective building work". That too is consistent with the sub-paragraph (c) being restricted to meaning physical performance of the works and what is required to complete that performance. Moreover, it is only when the performance of those works have been completed at various stages that a Certifier is called for the purposes of establishing whether the works, as performed, can be certified, that is, whether they have been performed in accordance with the Building Act.

32. [32]
    In Fraser Property Developments Pty Ltd v Sommerfeld (No 1)^[27] the Queensland Court of Appeal considered the meaning of sub-paragraph (c) of the definition of ‘domestic building dispute’. McPherson JA stated:

This leaves untouched as part of the subject-matter of the tribunal’s jurisdiction under pt 7 a “domestic building dispute” as defined in para. (c) to mean “a claim or dispute in negligence … related to the performance of reviewable domestic work other than a claim for personal injuries”. 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. Beyond, however, giving it the expanded meaning already set out, “reviewable domestic work” is not defined in sch. 2 of the QBSA Act.^[28]

33. [33]
    Consistent with the statement by McPherson JA, in my view the words ‘related to the performance of reviewable domestic work’ have the effect of confining such claims to those directly arising out of the physical performance of domestic building work and claims within the limited expansion of the type of work falling within the meaning of domestic building work beyond physical construction work to which I have referred earlier in these reasons. For the reasons previously expressed, such a construction of sub-paragraph (c) of the definition of ‘domestic building dispute’ is harmonious with the other provisions of schedule 1B and the QBCC Act more broadly.
34. [34]
    It follows that a claim against a building certifier does not fall within the meaning of sub-paragraph (c) of the definition of ‘domestic building dispute’ in schedule 1B of the Act.
35. [35]
    I therefore conclude that a claim against a building certifier is not a ‘domestic building dispute’. 
36. [36]
    As I have earlier stated, a ‘building dispute’ includes both a ‘domestic building dispute and a ‘commercial building dispute’. A ‘commercial building dispute’ is one involving ‘reviewable commercial work’. ‘Reviewable commercial work’ means ‘tribunal work’ other than ‘reviewable domestic work’. One must then return to s 75 and s 76 of the QBCC Act to determine whether private certification work falls within the meaning of ‘tribunal work’. None of the items referred to in s 76 are relevant for present purposes. The only item of ‘tribunal work’ in s 75 that might be applicable to a claim involving a building certifier is found in s 75(1)(g) – the inspection of a completed building. For the reasons I have set out earlier, I do not consider private certification work falls within the meaning of s 75(1)(g).
37. [37]
    It follows from the foregoing that private certification work is not ‘reviewable commercial work’. Accordingly, for the purposes of schedule 2 of the QBCC Act and the definition of ‘commercial building dispute’, a claim against a private certifier does not fall within sub-paragraphs (a), (b) or (c) of the definition, nor is a private certifier a person referred to in sub-paragraph (d) of the definition. It follows that a dispute about such work is not a commercial building dispute.
38. [38]
    As the dispute between the parties is neither a domestic building dispute nor a commercial building dispute, the Tribunal does not have jurisdiction to decide the dispute.
39. [39]
    Where the Tribunal does not have jurisdiction in a proceeding, the appropriate order is that the proceeding is dismissed pursuant to s 47 of the QCAT Act. I have considered whether it is appropriate to transfer the proceeding to a court of competent jurisdiction. In my view, the proceedings as framed are not readily adaptable to a pleadings jurisdiction. The applicants should, if they so choose, commence fresh proceedings in a court. The present proceeding should be dismissed.
40. [40]
    I order accordingly.