Wilson & Anor v Ashford[2022] QCAT 304

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Annette and Robert Wilson engaged the services of Proflek Coatings Pty Ltd to renovate some of the existing floor space in their home.
2. [2]
   The work to be performed by Proflek is detailed in an invoice dated 19 July 2019 for the total amount of $5,293.75 and may be conveniently described as grinding down the existing floor and applying a product described as ‘APC Flake System’.^[1]
3. [3]
   The applicants paid the final amount of $5,293.75 to Proflek for the work performed. After Proflek completed the work, the applicants complained about the quality of the work to Proflek and the Queensland Building and Construction Commission (‘QBCC’).
4. [4]
   The applicants now apply to the Tribunal for restitution in the amount of $10,000.00 for rectification of the alleged defective work to the floor in their home .^[2] Notably, the name of the respondent identified in the application BDL079-21 is Garry Ashford. Mr Ashford is a former director of Proflek that was deregistered on 9 March 2022.^[3]
5. [5]
   Mr Ashford applies to the Tribunal for an order dismissing the application BDL079-21 on the basis that the respondent is incorrectly named as Garry Ashford and Proflek has been liquidated.^[4]
6. [6]
   The issue before the Tribunal now is whether the application BDL079-21 should be dismissed before the final hearing or determination of the matter.^[5] Relevantly, the Tribunal may in certain circumstances order a proceeding be dismissed or struck out pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) if the Tribunal considers the proceeding or a part of a proceeding is frivolous, vexatious or misconceived; lacking in substance; or otherwise an abuse of process.
7. [7]
   The term ‘misconceived’ as it appears in s 47 of the QCAT Act is another way of describing a proceeding before the Tribunal which is lacking in substance because the Tribunal lacks jurisdiction to determine it.^[6]
8. [8]
   The power to dismiss a proceeding under s 47 of the QCAT Act involves the exercise of a broad discretion and should not be exercised lightly.  The Tribunal must allow a party to a proceeding a reasonable opportunity to, amongst other things, call or give evidence and to make submissions to the Tribunal.^[7]
9. [9]
   It is established law that great care must be exercised in determining whether to dismiss an application summarily and the power should only be exercised in the clearest of cases. In General Steel Industries Inc v Commissioner for Railways (NSW)^[8], Barwick CJ in citing Dixon J in Dey v Victorian Railway Commissioners^[9] said:

A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. …But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.^[10]

10. [10]
    In General Steel, Barwick CJ went on to say that great care must be exercised to ensure achieving expeditious finality in a proceeding does not improperly deprive a plaintiff from presenting his or her case and argument may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed. Barwick CJ said:

…great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.^[11]

11. [11]
    At the commencement of the oral hearing before this Tribunal, Ms Wilson appearing for the applicants and Mr Ashford appearing for the respondent both agreed that it is necessary for the applicants to establish that they have a valid claim or cause of action against the named respondent in application BDL079-21.^[12] Further to that, both representatives for each of the parties agreed at the oral hearing that it is necessary for the applicants to establish that they have good prospects of success with respect to the application that identifies Garry Ashford as the respondent.

Is there a valid claim or cause of action?

12. [12]
    The starting position for the Tribunal is s 77 of the Queensland Building and Construction Commission Act 2009 (‘the QBCC Act’) that confers original jurisdiction on the Tribunal to decide a ‘building dispute’. It is necessary to have regard to the various definition provisions contained within the Act to determine the meaning of a ‘building dispute’. Under Schedule 2,  a ‘building dispute’ that is 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. an architect;
       2. an engineer;
       3. a surveyor;
       4. a quantity surveyor;
       5. an electrician or an electrical contractor;
       6. a supplier or manufacturer of materials used in the tribunal work.
13. [13]
    In the present matter I am satisfied that there is a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic building work that is more broadly defined as domestic building work and includes ‘the renovation, alteration, extension, improvement or repair of a home’.^[13]
14. [14]
    At the oral hearing before this Tribunal both Ms Wilson and Mr Ashford agreed and I accept that Proflek was engaged to complete renovation work for the applicants at their home and the work to be performed is detailed in the written invoice dated 19 July 2019. I find that the work to be performed by Proflek as detailed in the invoice dated 19 July 2019 is renovation work that is ‘domestic building work’ for the purposes of the Act.
15. [15]
    I find that Proflek as the contractor engaged by the applicants, has a duty to ensure that any work performed is properly supervised. Further to that, Proflek has a duty to ensure that any work is completed to a standard expected of a competent holder of a contractor’s licence of the relevant class.^[14]

Is the work defective?

16. [16]
    It is clear from the QBCC inspection report that the work performed by Proflek was not satisfactory. In the inspection report dated 25 September 2020, the QBCC describe the work as not being completed as per the manufacturer’s specifications and therefore has resulted in a defect.^[15]
17. [17]
    It is open for me to find that Proflek is responsible for the work that was found to be defective by the QBCC. Indeed, the QBCC issued a direction to rectify to Proflek to complete the work that the QBCC found to be defective.^[16]
18. [18]
    It is clear from the evidence before me that Garry Ashford is not the building contractor identified in the invoice dated 19 July 2019, nor the contractor responsible for the direction to rectify issued by the QBCC. The relevant invoice dated 19 July 2019 and the direction to rectify issued by the QBCC clearly identifies Proflek Coatings Pty Ltd as the responsible contractor. There is no reference to ‘Garry Ashford’ in either the invoice dated 19 July 2019 nor in the QBCC’s direction to rectify.

Who is responsible for the defective work?

19. [19]
    Unfortunately, for the applicants, Proflek is deregistered, the effect of which is that the company ceases to exist and is therefore no longer a legal entity.^[17] The issue before the Tribunal now is whether the applicants have a claim or cause of action in negligence against Garry Ashford as the former director of Proflek.^[18] 
20. [20]
    As can been seen in the QBCC licence search for Proflek Pty Ltd, Garry Ashford was also the nominee for Proflek.^[19] As the nominee and former sole director of Proflek, I am satisfied and find accordingly that Mr Ashford had a duty to ensure that any building work completed by Proflek for the applicants was personally supervised by him or another relevantly licenced person under the QBCC Act.^[20]
21. [21]
    At the oral hearing before this Tribunal, Ms Wilson submitted that the product used by Proflek did not meet the relevant code or standard required and that Mr Ashford is responsible for the work and the product used. Ms Wilson submitted that Mr Ashford did not want to fix the work, the applicants have incurred considerable expense in having the defective work rectified, Mr Wilson has spent several hours of his time in relation to having the work rectified by another contractor and the applicants have spent approximately $11,213.00 to have the work completed.
22. [22]
    Although Proflek came back on site to perform further work, Ms Wilson submitted that the work performed was not satisfactory. Ms Wilson argued that the product used or the coating system for which Mr Ashford is personally responsible is ‘rough’. Ms Wilson referred the Tribunal to the findings made by the QBCC following the inspection of the work that she says supports her submission that the product applied is defective. Ms Wilson submitted, amongst other things, that there are a number of references in the QBCC’s decision notice to the new coating system used by Proflek as being ‘rough’ and retaining ‘debris’. This, Ms Wilson submitted, is evidence that the product is defective.^[21]
23. [23]
    I am not satisfied based on the evidence before me that the product applied by Proflek is, as submitted by Ms Wilson, defective and that Mr Ashford is therefore personally responsible for the product and any damages arising from the application of the product to the floor of the applicants’ home.
24. [24]
    On a fair reading of the QBCC’s inspection report as a whole, the QBCC determined that the coating system used by Proflek has not been completed as per the manufacturer’s specifications. Relevantly, the QBCC states under the heading ‘reasoning’ that the ‘installation of the Ultra Flake coating system has not been completed as per the manufacturer’s specifications and therefore has resulted in a defect’.^[22] Nowhere in the QBCC inspection report does the QBCC state that the product applied by Proflek is defective. The QBCC refers to the inspection report in its decision notice that sets out the reasons why the work performed by Proflek is defective. Again the QBCC refer to the application of the product that has resulted in the surface of the applicants’ floor in their home as being ‘rough’.
25. [25]
    Although I have found that Mr Ashford as the former director and nominee of Proflek had a statutory duty to supervise the building work to ensure it is adequately performed, I am not satisfied based on the evidence before me that Mr Ashford is negligent in this matter for the work performed for the applicants.
26. [26]
    It is common ground that Mr Ashford was not involved in the installation of the product and only inspected the work after the applicants complained about it to the QBCC. At the oral hearing before this Tribunal, Ms Wilson submitted that the onsite manager was ‘sacked’ by Proflek after the work was performed and Mr Ashford refused to rectify the work. There is no evidence before me that would suggest any vulnerability in this matter such that the applicants as home owners who engaged Proflek to perform the work were not in a position to protect themselves against economic loss.^[23] The applicants could have elected to use a different product or engage a different contractor to install the product of their choice to the floor of their home. Indeed, Ms Wilson submitted at the oral hearing before this Tribunal that she had previously engaged the services of Proflek and had no issues with the work performed by Proflek until the present matter.

Should the application BDL079-21 be dismissed?

27. [27]
    I am satisfied that the applicants have had an opportunity to present any material to be considered in this matter and to make submissions relevant to the issue of whether the application BDL079-21 should be summarily dismissed. I accept that the applicants are disappointed with the quality of the work performed by Proflek and that they have been put to unnecessary expense and several hours of their time have been wasted to have the work rectified by another contractor. Unfortunately, Proflek is deregistered and ceases to exist. There is no remedy available to the applicants in respect of this matter because I have found that Mr Ashford as the former director and nominee for Proflek is not liable for any loss arising from the defective work performed by Proflek. Further to that, the applicants have failed to convince me that Ms Ashford is liable for any loss arising from the application of the product that they say is defective.
28. [28]
    It is appropriate in this matter to exercise the discretion under s 47 of the QCAT Act to strike out or dismiss application BDL079-21 on the basis that the applicants’ claim is futile. In exercising the discretion under s 47 of the QCAT Act, I have also considered the objects of the Act that include, amongst other things, to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.^[24] I am satisfied that the discretion to dismiss the application BDL079-21 should be exercised and I order accordingly.