Paddy v Bennett[2022] QCAT 382

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Paddy and Mr Bennett are neighbours. Mr Paddy says that a retaining wall constructed on Mr Bennett’s property is causing excess water flow into Mr Paddy’s property. Mr Paddy has commenced these proceedings claiming damages for the cost of rectifying the retaining wall.
2. [2]
   The Tribunal has directed that the following preliminary issue be determined:

   1. (a)
      Is the dispute between the parties a ‘building dispute’ as that term is defined in the Queensland Building and Construction Commission Act 1991 (Qld)?
   2. (b)
      If the answer to the preceding question is ‘no’:

      1. Should the proceeding be dismissed; or
      2. Should the proceeding be transferred to a court of competent jurisdiction and, if so, which court?
3. [3]
   As the preliminary issue involves principally a question of statutory construction and the application of statutory provisions to facts which are not in dispute, it is appropriate that the issue be addressed. If the Tribunal does not have jurisdiction to decide the dispute, the proceeding will be brought to an early end, which will save the parties time and money and conserve Tribunal resources.

The relevant facts

4. [4]
   Mr Paddy’s property is set lower than Mr Bennett’s. Along the boundary between the properties is a retaining wall. Atop the wall is a dividing fence. Both the wall and the fence are constructed of wood.
5. [5]
   Mr Paddy says that surface water from Mr Bennett’s property is being directed onto Mr Paddy’s property. The precise mechanism of this alleged redirection of water is not clear. Mr Paddy points to what he says are changes to Mr Bennett’s property, specifically the ground, patio and footpath area adjacent to the boundary line between the properties, that is, at the top of the retaining wall next to the boundary fence. Mr Paddy says that no groundwater drainage system has been installed on Mr Bennett’s property. Mr Paddy says that during typical Queensland weather events, significant storm water is released from the retaining wall into his property.
6. [6]
   In relation to the area of Mr Bennett’s property adjacent to the retaining wall (which Mr Paddy says has contributed to the water drainage issues) Mr Bennett says that the footpath has not been altered since it was first constructed somewhere between 2001 and 2005. Mr Bennett says that Mr Paddy raised concerns with him about water flowing into Mr Paddy’s property in 2019. Mr Bennett says that the issue arose as a result of a broken stormwater pipe which was subsequently repaired. Mr Bennett says that in 2020 Mr Paddy contacted him to advise that the retaining wall was in danger of collapse and that urgent work was required to be undertaken to replace the wall and fence. Mr Bennett subsequently arranged for a licensed contractor to undertake the replacement of a number of sleepers in the retaining wall and to undertake minor works to the fence.
7. [7]
   Mr Paddy says that despite the works being undertaken to the retaining wall, the issue of water flowing from Mr Bennett’s property remains unresolved.
8. [8]
   Mr Paddy seeks orders that Mr Bennett replace the existing retaining wall and fence with any works to be certified by a qualified engineer. Mr Paddy also seeks orders that drainage works be undertaken on Mr Bennett’s property to ‘fix (the) water nuisance, due to concrete above (the) retaining wall …’.
9. [9]
   It does not appear to be contentious that Mr Bennett is not a licensed builder nor did Mr Bennett undertake the construction or repair of the retaining wall, either personally or as an owner builder. Whether Mr Bennett undertook the construction of the footpath and patio area adjacent to the top of the retaining wall or retained a contractor to do so is unclear. The answer to this question is not material to the determination of the preliminary question as these reasons explain.

Is the dispute between the parties a building dispute?

10. [10]
    The source of the Tribunal’s power to decide building disputes is found in Divisions 1 and 2 of Part 7 of the QBCC Act. ‘Tribunal work’ is defined in s 75(1). ‘Tribunal work’ includes ‘reviewable domestic work’. What is not Tribunal work is set out in s 76 of the Act.
11. [11]
    The Tribunal has jurisdiction to decide building disputes.^[1] A building dispute may be a domestic building dispute or a commercial building dispute.^[2]
12. [12]
    A ‘building dispute’ must relate to either ‘reviewable domestic work’ or ‘reviewable commercial work’.
13. [13]
    ‘Reviewable domestic work’ means ‘domestic building work’ as that term is defined in schedule 1B of the QBCC Act.^[3] ‘Domestic building work’ in schedule 1B is defined as:

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.^[4]

14. [14]
    ‘Domestic building work’ also includes ‘associated work’. ‘Associated work’ includes work associated with the erection or construction of a detached dwelling or the renovation, alteration, extension, improvement or repair of a home.^[5]
15. [15]
    ‘Reviewable commercial work’ means ‘tribunal work’ other than ‘reviewable domestic work’.^[6]
16. [16]
    A ‘domestic building dispute’ is a claim or dispute, relating to reviewable domestic work or a contract for the performance of reviewable domestic work, arising between a building owner and a building contractor; or between two or more building contractors; or between a building owner or building contractor and one of a stated number of persons.^[7]
17. [17]
    A ‘commercial building dispute’ is claim or dispute, relating to reviewable commercial work or a contract for the performance of reviewable commercial work, arising between a building owner and a building contractor; or between two or more building contractors; or between a building owner or building contractor and one of a stated number of persons.^[8]
18. [18]
    A domestic building dispute and a commercial building dispute also include a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work or reviewable commercial work (as may be applicable), other than a claim for personal injuries.^[9]

19. [19]
    A ‘building owner’, for the purposes of both domestic and commercial building disputes, is defined as:

generally, 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]

20. [20]
    A ‘building contractor’, again for the purposes of both domestic and commercial building disputes, is defined as:

generally, 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]

21. [21]
    As may be seen from the foregoing, building disputes (both domestic and commercial) fall into two broad definitional categories. The first are those disputes which are between clearly identified parties (sub-paragraphs (a), (b) and (d) of the definitions of domestic and commercial building disputes). The second are defined by reference to the cause of action the subject of the claim, but not the parties to the dispute (sub-paragraph (c) of the definitions of domestic and commercial building disputes).
22. [22]
    It may be accepted for present purposes that the original construction of the retaining wall and dividing fence, the construction of the concrete footpath and patio adjacent to the retaining wall on Mr Bennet’s property and the subsequent repair works undertaken in 2020, fall within the definition of ‘domestic building work’ or ‘associated work’. Even if they did not fall within the scope of those terms, the works would arguably be ‘tribunal work’, ‘tribunal work’ including the erection or construction of a building^[12] and a ‘building’ meaning, generally, any fixed structure.^[13]
23. [23]
    Mr Paddy is not a ‘building owner’ as that term is defined in schedule 2 of the Act. He is not a person for whom domestic building work has been, is being, or is to be, carried out. Nor is Mr Paddy a ‘building contractor’ or one of the stated class of persons referred to in sub-paragraph (d) of the definitions of ‘domestic building dispute’ or ‘commercial building dispute’ found in schedule 2 of the QBCC Act.
24. [24]
    Mr Bennett is not a ‘building contractor’ nor is he one of the stated class of persons referred to in sub-paragraph (d) of the definition of ‘domestic building dispute’ or ‘commercial building dispute’ found in schedule 2 of the QBCC Act. There is no evidence that Mr Bennett was an owner builder in respect of the footpath and patio works on his land immediately adjacent to the dividing fence nor in respect of the repair of the retaining wall. As I have observed, the retaining wall was already in place when Mr Bennett purchased the property. Even had he been an owner builder, Mr Bennett would not be a ‘building contractor’ for the purposes of the definition of that term in schedule 2 of the Act. A person who undertakes the performance or management of building work as an owner builder is not a person carrying on a business that consists of or includes carrying out building work.
25. [25]
    It follows from the foregoing that the present dispute cannot be one within the meaning of sub-paragraphs (a), (b) or (d) of the definitions of ‘domestic building dispute’ or ‘commercial building dispute’.^[14]
26. [26]
    That leaves sub-paragraph (c) of the definitions of ‘domestic building dispute’ and ‘commercial building dispute’.
27. [27]
    I have earlier observed that sub-paragraph (c) differs from the other sub-paragraphs in the definitions of a building dispute in not specifying who the parties to such a dispute may be.
28. [28]
    The starting point in construing  sub-paragraph (c) is a consideration of the words of the provision having regard to the context of the provision within the QBCC Act as a whole. In Project Blue Sky Inc & Ors v Australian Broadcasting Authority the plurality of the High Court held:

However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.^[15]

29. [29]
    The plurality went on to state:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.

30. [30]
    In R v A2^[16] Kiefel CJ and Keane J stated:

[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. ‘Mischief’ is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction….

[35] [Their Honours referred to cases, including Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47], emphasising the importance of the text of the provision]…

[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, [at 408], that in a particular case, ‘if the apparently plain words of a provision are read in light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance’. When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

31. [31]
    It should also be noted that s 14A of the Acts Interpretation Act 1954 (Qld) provides that the interpretation of a provision in an Act that will best achieve the purpose of the Act is to be preferred to any other interpretation.
32. [32]
    The central importance of the definitions of ‘domestic building dispute’ and ‘commercial building dispute’ in schedule 2 of the QBCC Act is the role such definitions play in defining the jurisdiction of the Tribunal to decide a building dispute.
33. [33]
    Sub-paragraph (c) requires the ‘claim or dispute’ in negligence, nuisance or trespass to be ‘related to’ the performance of domestic building work or reviewable commercial work. In Cleary, J. v Bowcock, M.^[17] the former Commercial and Consumer Tribunal, considered the meaning of sub-paragraph (c) of the definition of ‘domestic building dispute’ and 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.

34. [34]
    In Fraser Property Developments Pty Ltd v Sommerfeld (No 1)^[18] 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.^[19]

35. [35]
    Cleary involved a dispute between a building owner and a building certifier. The question of the jurisdiction of the Tribunal turned on whether certification work was building work.  Fraser Property Developments Pty Ltd involved a dispute between, inter alia, a building owner and a local government authority. The central issue was whether work performed by the local authority in approving design plans was building work. While addressing the meaning of ‘related to’, neither Cleary nor Fraser Property Developments Pty Ltd considered the scope of the operation of sub-paragraph (c) in the context of who parties to a building dispute may be.
36. [36]
    A claim under sub-paragraph (c) must relate to the actual physical performance of domestic building work. The word ‘performance’ should be given its ordinary meaning: the act or process of performing a task, an action. Accordingly, there must be a sufficiently close nexus between the alleged negligence, nuisance or trespass and the actual physical undertaking of the domestic building work.
37. [37]
    Domestic building work must, subject to one exception, involve actual physical building work.^[20] The exception may be found in the definitions of ‘reviewable domestic work’ in schedule 2 and ‘excluded building work’ in schedule 1B of the QBCC Act. By a process of convoluted linguistics, ‘domestic building work’ includes: 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. This limited expansion of the meaning of domestic building work beyond actual physical building work is reflected in sub-paragraph (d) of the definition of ‘domestic building dispute’ which identifies who may be a party to a domestic building dispute. In addition to a building contractor or a building owner, parties to a domestic building dispute may include architects, engineers, surveyors, and quantity surveyors, in addition to electricians and the suppliers and manufacturers of materials used in building work.  The work undertaken by architects, engineers, surveyors and quantity surveyors, as such work relates to domestic building work, will generally fall within sub-paragraphs (b), (c) and (d) of the definition of ‘excluded building work’ in schedule 1B of the Act which is work re-imported into the definition of ‘reviewable domestic work’ (and thus domestic building work) by operation of the definition of that term in schedule 2.  It should also be noted that a claim against a manufacturer or supplier must relate to materials used in the performance of domestic building work.
38. [38]
    Similarly, subject to certain exceptions, commercial building work must also involve actual physical building work.^[21] These exceptions relate to the preparation of plans, specifications or bills of quantity for the carrying out of tribunal work; and the inspection of a completed building.^[22] 
39. [39]
    As has been earlier observed, the objects in s 3 of the QBCC Act inform the proper interpretation of the provisions of the Act. These objects include the regulation of the building industry to ensure the maintenance of proper standards in the industry and to achieve a reasonable balance between the interests of building contractors and consumers.^[23] The objects also include to provide remedies for defective building work and to regulate domestic building contracts to achieve a reasonable balance between the interests of building contractors and building owners.^[24]
40. [40]
    The QBCC Act has both a regulatory function and a dispute resolution function. In respect of both of these functions, the main object of the Act is to protect building owners or 'consumers' from incompetent or dishonest builders.^[25] In its dispute resolution function the Act, inter alia, circumscribes the powers of the Tribunal to hear and decide building disputes. Although these functions are quite separate, it is appropriate to consider provisions relating to the Act’s regulatory function to assist in construing the meaning of ‘domestic building dispute’ and ‘commercial building dispute’.
41. [41]
    The QBCC may give to a person who carries out building work a direction to rectify if the commission is of the opinion that building work is defective or incomplete.^[26] The QBCC may also give to a person who carries out building work a direction to remedy consequential damage.^[27] ‘Consequential damage’ is defined as:

1. (a)
   caused by, or as a consequence of, carrying out building work at a building site (the relevant site), regardless of any intention, negligence or recklessness of the person carrying out the work; and

2. (b)
   to a residential property at the relevant site, containing the relevant site or adjacent to the relevant site.^[28] (emphasis added)

42. [42]
    For the purposes of s 71H consequential damage must be damage^[29] to a residential property at or adjacent to a building site caused by, or the consequence of, building work.
43. [43]
    The relevance of the provisions in relation to ‘consequential damage’ may be more readily understood when considered in the context of sub-paragraph (c) of the definitions of domestic building dispute and commercial building dispute and the specific causes of action referred to.
44. [44]
    Sub-paragraph (c) refers to a claim or dispute in negligence, nuisance or trespass.
45. [45]
    Nuisance is a substantial and unreasonable interference with the private right to the use and enjoyment of land.^[30] A respondent is strictly liable for any nuisance created by him or her or by anyone for whose conduct he or she is responsible including where the nuisance is created on land owned or occupied by another.^[31] In the context of building work, nuisance might include, for example, a building contractor undertaking excavation work causing adjoining land to subside or concrete cutting work creating dust settling on adjoining land.^[32]
46. [46]
    Trespass is the unjustified entry directly by a person on land in the possession of another, which is carried out either intentionally or negligently. In the context of building work, trespass may be committed where a building^[33] is erected on another’s land without permission (an encroachment)^[34] or objects attached to a building intrude into the airspace above neighbouring land.
47. [47]
    In the context of building disputes, claims in negligence may arise in a number of ways. Putting to one side the issue of concurrent duties in tort and contract, a building contractor will generally owe to a person for whom building work is performed a duty to undertake building work in an appropriate and skilful way, with reasonable care and skill and with reasonable diligence. A building contractor may owe a duty of care to a subsequent purchaser of a domestic dwelling to avoid economic loss as a result of defective building work.^[35] A building contractor may also owe a duty of care to another lot owner to avoid risk of reasonably foreseeable damage. In De Pasquale Bros Pty Ltd v Cavanagh Briggs & Partners Pty Ltd^[36] an engineer who undertook the design of a structure on land was liable in negligence to an adjoining lot owner for damage to a structure on the adjoining land caused by a loss of support to the foundations. As previously noted, a claim by a building owner or a building contractor against an engineer relating to the performance of, or a contract for the performance of, domestic building work or reviewable commercial work is a building dispute.
48. [48]
    Returning then to s 71H(2) of the QBCC Act, the types of damage falling within the definition of ‘consequential damage’ include that which might be anticipated as a result of negligence, trespass or nuisance.^[37] 
49. [49]
    When considered within the legislative framework to which I have referred, the meaning of sub-paragraph (c) of the definitions of domestic building dispute and commercial building dispute becomes clear.
50. [50]
    Sub-paragraphs (a), (b) and (d) of the definitions of domestic building dispute and commercial building dispute clearly circumscribe who may be the parties to such disputes. It is clear from those sub-paragraphs that the types of disputes contemplated arise out of either a direct relationship between the parties relating to the physical performance of building work or, in relation to sub-paragraph (d) a sufficiently proximate relationship between the parties and the performance of building work or a contract for the performance of building work. The parties to such disputes must be consumers^[38] or building contractors as referred to in s 3(a)(ii) of the QBCC Act, or one of a number of identified persons who undertake work within the building industry including the suppliers of building products as referred to in s 3(a) and s 3(e) of the Act.
51. [51]
    Sub-paragraph (c) must be construed to give effect to the provision in the context of the QBCC Act as a whole and particularly the objects of the Act. It was not the intention of the legislature, as observed by McPherson JA, to invest the Tribunal with jurisdiction over all claims in negligence for property damage or economic loss of any kind. Such claims must be related to the performance of building work. In my view, it could not have been the intention the legislature to confer upon the Tribunal jurisdiction for claims relating to building disputes where there was not a nexus between the parties, or a party, to the dispute and the building industry. Construing sub-paragraph (c) in this way is consistent with the language and purpose of all the provisions of the QBCC Act. Such a construction also recognises that a claim or dispute in negligence, nuisance or trespass relating to building work may involve a building contractor or one of the stated persons referred to in sub-paragraph (d) of the definitions of domestic building dispute and commercial building dispute, and a person who does not fall within the definition of a building owner. A neighbouring lot owner, or a subsequent purchaser of a property on which building work has been carried out, may be a party to a dispute within the meaning of sub-paragraph (c). What is required for the dispute to fall within sub-paragraph (c) is that a party to the dispute is one of the persons referred to in sub-paragraphs (a), (b) and (d), other than a building owner. To expand the application of sub-paragraph (c) beyond this would be inconsistent with the objects and provisions of the Act to which I have referred.
52. [52]
    It follows from the foregoing analysis that as neither Mr Paddy nor Mr Bennett are building contractors or one of the limited class of persons referred to in sub-paragraph (d) of the definitions of ‘domestic building dispute’ and ‘commercial building dispute’, the dispute between the parties is neither a domestic building dispute nor a commercial building dispute.
53. [53]
    As the dispute between the parties is not a building dispute, the Tribunal does not have jurisdiction to entertain the proceeding. Where the Tribunal does not have jurisdiction to decide a dispute, the proceeding lacks substance or is otherwise misconceived and must be dismissed pursuant to s 47 of the QCAT Act.
54. [54]
    I have considered whether the proceeding should be transferred to a court of competent jurisdiction. Neither the originating application filed by Mr Paddy nor the response filed by Mr Bennett is, quite understandably, in the form of a pleading. The Tribunal is not a pleadings jurisdiction. However, documents drafted in Tribunal proceedings are generally inconsistent with the requirements of pleadings in the courts. In my view, the preferable approach is that Mr Paddy commence fresh proceedings, rather than transferring the present proceeding to the Magistrates Court where it is likely that the parties would be required to undertake extensive re-drafting of the application and response in any event.
55. [55]
    The proceeding is dismissed.