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  4. Jindal v Michael Kenneth Eagles - [2023] QCAT 119

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Jindal v Michael Kenneth Eagles[2023] QCAT 119

Jindal v Michael Kenneth Eagles[2023] QCAT 119

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jindal & Anor v Michael Kenneth Eagles & Ors [2023] QCAT 119

PARTIES:

AMIT JINDAL

(first applicant)

and

JYOTI BHATIA

(second applicants)

v

michael kenneth eagles

(first respondent)

and

paul eagles

(second respondent)

and

pre investments pty ltd

(third respondent)

and

jenny eagles

(fourth respondents)

APPLICATION NO/S:

BDL242-21

MATTER TYPE:

Building matters

DELIVERED ON:

5 April 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

  1. The parties must file in the Tribunal two (2) copies and exchange one (1) copy of the orders proposed by the parties to give effect to these reasons by 4:00pm on 19 April 2023.
  2. The Tribunal will make further orders after 19 April 2023.

CATCHWORDS:

STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where first, second and fourth respondents sought to be removed as parties to the proceeding – whether claim by applicants against first, second and fourth respondents a ‘building dispute’ – whether QCAT has jurisdiction – whether the part of the proceeding against the first, second and fourth respondents should be dismissed

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(2), s 47(1), s 47(2)

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(2)

Paddy v Bennett [2022] QCAT 382

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The applicants entered into a contract with the first respondent to build a new dwelling.
  2. [2]
    The applicants say that the work undertaken by the first respondent is defective. They have commenced these proceedings claiming, among other things, damages for the cost of rectification work.
  3. [3]
    The second, third and fourth respondents (the respondents) have applied to be removed from the proceeding.
  4. [4]
    The applicants oppose the application.

Relevant statutory provisions – Queensland Civil and Administrative Tribunal Act 2009 (Qld)

  1. [5]
    The respondents apply to be removed from the proceeding relying upon the power conferred by s 42(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) which provides:
  1. (2)
    The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
  1. (a)
    the party’s interests are not, or are no longer, affected by the proceeding; or
  1. (b)
    the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.
  1. [6]
    The respondents also rely upon s 47(2) of the QCAT Act. Sections 47(1) and 47(2) provide:
  1. (1)
    This section applies if the tribunal considers a proceeding or a part of a proceeding is—
  1. (a)
    frivolous, vexatious or misconceived; or
  1. (b)
    lacking in substance; or
  1. (c)
    otherwise an abuse of process.
  1. (2)
    The tribunal may—
  1. (a)
    if the party who brought the proceeding or part before the tribunal is the applicant for the proceeding, order the proceeding or part be dismissed or struck out; or
  1. (b)
    for a part of a proceeding brought before the tribunal by a party other than the applicant for the proceeding—
  1. (i)
    make its final decision in the proceeding in the applicant’s favour; or
  1. (ii)
    order that the party who brought the part before the tribunal be removed from the proceeding; or
  1. (c)
    make a costs order against the party who brought the proceeding or part before the tribunal to compensate another party for any reasonable costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding or part.

Relevant statutory provisions – Queensland Building and Construction Commission Act 1991 (Qld)

  1. [7]
    The Tribunal is a creature of statute, having the powers conferred upon it by the QCAT Act and the various enabling Acts. In this proceeding, the relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  2. [8]
    The QBCC Act confers upon the Tribunal the jurisdiction to decide building disputes.[1] A building dispute means a domestic building dispute, or a minor commercial building dispute or a major commercial building dispute.[2]
  3. [9]
    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
  1. (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
  1. (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
  1. (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;
  1. (ii)
    an engineer;
  1. (iii)
    a surveyor;
  1. (iv)
    a quantity surveyor;
  1. (v)
    an electrician or an electrical contractor;
  1. (vi)
    a supplier or manufacturer of materials used in the tribunal work.[3]
  1. [10]
    The definition of ‘commercial building dispute’ is in similar terms save for the use of the phrase ‘reviewable commercial work’ in place of ‘reviewable domestic work’.
  2. [11]
    The terms ‘reviewable domestic work’ and ‘reviewable commercial work’ are defined. ‘Reviewable domestic work’ means ‘domestic building work’ as defined in s 4 of schedule 1B of the Act. ‘Reviewable commercial work’ means ‘tribunal work’, other than reviewable domestic work, as set out in s 75 and s 76 of the Act.
  3. [12]
    A ‘building contractor’ means:
  1. (a)
    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; but
  1. (b)
    for schedule 1B, see schedule 1B, section 1.[4]
  1. [13]
    Building work is defined and means:
  1. (a)
    the erection or construction of a building; or
  1. (b)
    the renovation, alteration, extension, improvement or repair of a building; or
  1. (c)
    the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or
  1. (e)
    any site work (including the construction of retaining structures) related to work of a kind referred to above; or
  1. (f)
    the preparation of plans or specifications for the performance of building work; or
  1. (fa)
    contract administration carried out by a person in relation to the construction of a building designed by the person; or
  1. (g)
    fire protection work; or
  1. (ga)
    mechanical services work; or
  1. (h)
    carrying out site testing and classification in preparation for the erection or construction of a building on the site; or
  1. (i)
    carrying out a completed building inspection; or
  1. (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;
  1. (ii)
    termite infestation in the building;

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

Consideration

  1. [14]
    It does not appear to be contentious that the applicants were desirous of purchasing a parcel of land with the intention of building a residence on the land which could also be used to operate a grocery store.
  2. [15]
    The applicants say that the family relationships between the respondents are relevant in this proceeding. Michael Eagles and Jennifer Eagles are the children of Paul Eagles.
  3. [16]
    On 21 October 2019 the applicants entered into a contract (the land sale contract) as purchasers with PRE Investments Pty Ltd as vendor for the purchase of a vacant parcel of land in the Brisbane suburb of Fitzgibbon.  Paul Eagles is a director of PRE Investments Pty Ltd which trades as Green Street Homes. Paul Eagles is also a licensed building contractor. Paul Eagles is identified on the Green Street Homes website as the managing director. Michael Eagles is identified on the website as construction manager and Jennifer Eagles is identified on the website as sales and marketing manager.
  4. [17]
    On 21 October 2019 the applicants entered into a building contract (the building contract) with Michael Eagles for the construction of a domestic dwelling on the land. Michael Eagles is a licensed building contractor.
  5. [18]
    The applicants say that PRE Investments Pty Ltd, trading as Green Street Homes, was an ‘integral party to the transaction’. They say that Green Street Homes advertised the property ‘which is our residence now though it failed to disclose to (the applicants) that the parties involved in facilitating the transaction are related to each other.’[5]
  6. [19]
    The applicants say that Paul Eagles ‘was holding all the decision making power and he was the one deciding what needs to be done and Michael (Eagles) was the building manager only.’[6]
  7. [20]
    A significant focus of the applicants’ submissions and evidence is on the inter-family personal and business relationships between Paul, Michael and Jennifer Eagles.
  8. [21]
    The applicants say that Jennifer Eagles made false representations inducing them to purchase the land and enter into the building contract. They also say that Jennifer Eagles failed to disclose her connection with Paul and Michael Eagles.
  9. [22]
    The applicants’ outline a number of instances in which they say Paul Eagles was involved in the construction of the dwelling. They say that although Paul Eagles was not named as the building contractor in the building contract, he was in fact the ‘registered builder’ and was ‘holding all the decision-making power and he was the one deciding what needs to be done and Michael (Eagles) was the building manager only’. The applicants say that delays in the build were as a result of the actions of Paul Eagles who was dealing with certifiers and the local authority to obtain necessary approvals for the build. The applicants say that as a result of Paul Eagles not obtaining the correct approvals they are unable to use a cooktop in a downstairs kitchenette. The applicants also say that Paul Eagles was responsible for ordering the incorrect framing for the dwelling which contributed to the delays in completing the works.
  10. [23]
    In relation to PRE Investments, the applicants say that it traded as Green Street Homes and failed to disclose the relationships between the company and Paul, Michael and Jennifer Eagles.
  11. [24]
    Paul Eagles has filed a statement of evidence. Paul Eagles sets out the background to the sale of the land to the applicants which was part of a larger property development in which PRE Investments was involved. Paul Eagles says that PRE Investments appointed Priority Residential as the agent to sell the property purchased by the applicants. He says that his daughter, Jennifer Eagles, was employed by Priority Residential as a sales and marketing consultant. There is no mention by Paul Eagles of Jennifer Eagles being identified on the Green Street Homes website as the sales and marketing manager. Having said this, there is no suggestion of a connection between Priority Residential and the respondents other than Jennifer Eagles’ employment as a sales and marketing consultant.
  12. [25]
    Paul Eagles says that he was required as ‘part of my role … to arrange the building and council approvals for plumbing and building over the existing sewer … however I was not arranging any approvals from council or other parties with respect to the … shop or ability to rent out the premises.’[7] Paul Eagles says that at all times during his interactions with the applicants he was acting in his capacity as a director of PRE Investments and not in his personal capacity. I infer that the ‘role’ to which Mr Eagles refers is as the director of PRE Investments which was the vendor of the land and the property developer.  
  13. [26]
    There is a statement of evidence by Michael Eagles. Michael Eagles says that he is a licensed builder and entered into the building contract with the applicants for the construction of the dwelling. While he addresses the various complaints by the applicants in relation to the building work, Michael Eagles does not refer to any involvement by PRE Investments or Paul Eagles in the build.
  14. [27]
    There is also a statement of evidence by Jennifer Eagles. Ms Eagles says that she was employed as a sales and marketing consultant by Priority Residential. She worked on the sale of the subject property to the applicants. Ms Eagles says that she made no representations to the applicants that approval to operate a shop from the dwelling, once constructed, could or would be obtained. Ms Eagles also says that she did not attempt to conceal her familial relationship with Paul Eagles or Michael Eagles.
  15. [28]
    Paul Eagles, Jennifer Eagles and PRE Investments say that they should be removed as parties on the basis that the applicants have no cause of action against them that is within the jurisdiction of the Tribunal. They say that any claim the applicants may have against them is not a ‘building dispute’ within the meaning of that term in the QBCC Act.
  16. [29]
    A building dispute must, as I have earlier set out, be a domestic building dispute or a major commercial building dispute or a minor commercial building dispute. The parties to any category of building dispute must be:
    1. (a)
      A building owner and a building contractor; or
    2. (b)
      Two or more building contractors; or
    3. (c)
      A building owner or a building contractor and an architect, an engineer, a surveyor, a quantity surveyor, an electrician or an electrical contractor or a supplier or manufacturer of materials used in the relevant tribunal work.
  17. [30]
    Subject to one further category of claim to which I will shortly refer, a building dispute must be one relating to the performance of reviewable domestic work or reviewable commercial work, or a contract for the performance of reviewable domestic work or reviewable commercial work.
  18. [31]
    A building dispute also includes a claim or dispute in negligence, nuisance or trespass related to the performance of either reviewable domestic work or reviewable commercial work, other than a claim for personal injuries. In Paddy v Bennett[8] I held that for a claim to fall within this part of the definition of a building dispute (either a domestic or commercial building dispute), one of the parties had to be either a building contractor or one of those persons referred to in sub-paragraph (c) in the preceding paragraph. I have no reason to depart from that view.
  19. [32]
    It seems to be common ground between the parties that Jennifer Eagles’ involvement in the dispute is limited to matters arising out of her role as a property agent. Ms Eagles is not a building contractor within the meaning of that term nor does she fall within one of the stated categories of persons who may be a party to a building dispute.  It follows that any claim the applicants may have against Ms Eagles is not a building dispute as that term is defined in the QBCC Act. The Tribunal does not have jurisdiction to determine a claim by the applicants against Ms Eagles.
  20. [33]
    PRE Investments was the vendor of the land purchased by the applicants and on which the subject dwelling was constructed. There is no evidence that PRE Investments was a building contractor as that term is defined in the QBCC Act. Nor is PRE Investments an architect, an engineer, a surveyor, a quantity surveyor, an electrician or an electrical contractor or a supplier or manufacturer of materials. Accordingly, the dispute between the applicants and the PRE Investments is not a building dispute. The Tribunal does not have jurisdiction to determine a claim by the applicants against PRE Investments.
  21. [34]
    That leaves Mr Paul Eagles. Mr Eagles is a building contractor holding a category 2, builder – low rise licence issued by the QBCC. Mr Paul Eagles was not the building contractor engaged by the applicants to undertake the construction of the dwelling.
  22. [35]
    The various claims made by the applicants relating to Mr Eagles might be summarised as follows. The applicants say that Paul Eagles and/or PRE Investments were responsible for delays in the completion of the works and the failure to obtain all relevant approvals. The applicants claim the cost associated with obtaining approvals for a downstairs kitchenette and the operation of the Asian grocery store, in addition to consequential loss in the form of rent paid while they were not able to take possession of the dwelling. These costs are said to amount to $87,200.
  23. [36]
    It is quite unclear as to the basis upon which the applicants say the claim against Paul Eagles is a building dispute. They make somewhat vague and generalised assertions that Paul Eagles was the guiding mind behind the sale of the land and the construction of the dwelling and therefore ultimate responsibility for the losses claimed by the applicants falls entirely or partially upon him. There is no cogent evidence before the Tribunal to support these assertions. Paul Eagles was not the building contractor responsible for the construction of the dwelling. Paul Eagles had no contractual relationship with the applicants. The evidence before the Tribunal suggests that Paul Eagles was involved in obtaining the building approval for the dwelling, and also played some role in securing stage payments under the building contract. Ultimately, Michael Eagles was responsible for the construction of the dwelling including ensuring that the build was brought to practical completion within the time specified in the contract.
  24. [37]
    I approach the determination of the application to remove Paul Eagles, Jennifer Eagles and PRE Investments as an application for summary determination of the claims against them pursuant to s 47 of the QCAT Act. A proceeding may be dismissed if the Tribunal considers it to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. A claim in relation to which the Tribunal does not have jurisdiction lacks substance and is misconceived. On this basis, and for the reasons I have set out, that part of the proceedings against Jennifer Eagles and PRE Investments should be dismissed.
  25. [38]
    In relation to the claim against Paul Eagles, notwithstanding that he is a building contractor, there is no evidence to suggest that the claim against him is one relating to the performance of reviewable domestic work or reviewable commercial work, or a contract for the performance of reviewable domestic work or reviewable commercial work. No doubt Paul Eagles was involved, perhaps closely, with the building work being undertaken by Michael Eagles for the applicants. It is uncontentious that he was the director of the property developer and vendor of the land sold to the applicants. He is the father of Michael Eagles. It is unsurprising that he may have had some involvement in the build. However the evidence does not support a finding that work undertaken by Paul Eagles falls within the meaning of ‘reviewable domestic work’ or ‘reviewable commercial work’. Indeed, the applicants’ claim is based largely upon conjecture and a generalised assertion, without any supportable foundation in the evidence, that the respondents are jointly and severally liable to the applicants on the basis of their family and business relationships and that the actions of the respondents have, separately and together, contributed to the losses asserted by the applicants.
  26. [39]
    An order for the summary dismissal of an applicant’s claim should only be made in the clearest of cases and where the applicant is not able to demonstrate any prospect of succeeding in the claim. I am satisfied that this is a case in which there should be summary dismissal of the proceeding against Mr Eagles. That part of the proceeding against Paul Eagles should be dismissed.
  27. [40]
    That of course leaves the applicants at liberty to pursue the claim against Michael Eagles.
  28. [41]
    It should be stressed that I am not determining the merits of the applicants’ claims against Paul Eagles, Jennifer Eagles and PRE Investments other than to the extent such claims fall (or do not fall) within the jurisdiction of the Tribunal. The applicants may wish to pursue their claims against the respondents in another court. If they do wish to do so, it seems to me that the appropriate course of action would be to entertain the transfer of the proceeding in its entirety to a court of competent jurisdiction. Whether that is the Magistrates Court or the District Court will depend upon the quantum of the applicants’ claim.
  29. [42]
    I will therefore make directions for the parties to file submissions as to the appropriate orders to give effect to these reasons.

Footnotes

[1]QBCC Act, s 77(1), s 77(3).

[2]Ibid, schedule 2.

[3]Ibid.

[4]Ibid.

[5]Applicants’ submissions.

[6]Applicants’ submissions

[7]Paul Eagles statements at [37].

[8][2022] QCAT 382.

Close

Editorial Notes

  • Published Case Name:

    Jindal & Anor v Michael Kenneth Eagles & Ors

  • Shortened Case Name:

    Jindal v Michael Kenneth Eagles

  • MNC:

    [2023] QCAT 119

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    05 Apr 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Paddy v Bennett [2022] QCAT 382
2 citations
Jump To
Cite 1 - [2022] QCAT 382
Cite 2 - [2022] QCAT 382

Cases Citing

Case NameFull CitationFrequency
Jindal & Anor v Michael Kenneth Eagles (no 2) [2023] QCAT 2291 citation
1

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