Hall & Agoston v G W Enterprises Pty Ltd t/as GW Homes
[2023] QCAT 149
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- Unreported Judgment
- Hall & Agoston v G W Enterprises Pty Ltd t/as GW Homes[2023] QCAT 149
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Hall & Agoston v G W Enterprises Pty Ltd t/as GW Homes[2023] QCAT 149
Hall & Agoston v G W Enterprises Pty Ltd t/as GW Homes[2023] QCAT 149
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hall & Agoston v G W Enterprises Pty Ltd t/as GW Homes & Anor [2023] QCAT 149 |
PARTIES: | StephEn HALL AND Szilvia Agoston (applicants) v G W ENTERPRISES PTY LTD trading as GW HOMES AND MARK CULLINAN CONSULTING PTY LTD (respondents) |
APPLICATION NO/S: | BDL050-21 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 2 May 2023 |
HEARING DATE: | 22 June 2022 |
HEARD AT: | Brisbane |
DECISION OF: | Member Holzberger |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether the applicants’ claim was frivolous, vexatious, and misconceived – whether applicants had complied with their obligations under section 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether the jurisdiction of the Tribunal was enlivened – whether the Tribunal can waive the applicants’ lack of participation in the dispute resolution process – whether costs should be awarded – whether the appropriate costs scale is the District Court or Supreme Court scale Queensland Building and Construction Commission Act 1991 (Qld), s 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47 A L Builders Pty Ltd vs Fatseas (No 2) [2014] QCATA 319, distinguished Walsh vs Australian Building and Construction Group [2016] QCAT 187, followed |
APPEARANCES & REPRESENTATION: | |
Applicants: | Self-represented |
First Respondent: | Mr C Sawford, solicitor of Construct Law Group |
Second Respondent: | Mr B Heath, solicitor of Carter Newell Lawyers |
REASONS FOR DECISION
- [1]On 28 May 2021, G W Enterprises Pty Ltd trading as GW Homes (‘GW’) made an application to the Tribunal to dismiss the application for domestic building dispute in these proceedings.
- [2]On 27 July 2021, Mark Cullinan Consulting Pty Ltd (‘MCC’) made a similar application.
- [3]Both applications were heard before me on 22 June 2022.
Background
- [4]In December 2012, Suleyman Soner entered into a contract for construction of a duplex at 11 St Andrews Avenue, Birkdale with Homes One Pty Ltd (‘Homes One’).
- [5]During the course of construction Homes One went into liquidation.
- [6]Mr Soner made a claim to Queensland Building Construction Commission (‘QBCC’) under the Home Warranty Scheme for assistance to complete construction of the duplex.
- [7]That claim was approved and a proposed scope of works for completion was issued.
- [8]The successful tenderer was GW and on 3 February 2015 it entered into a contract with Mr Soner to carry out the works detailed in the scope of works.
- [9]GW completed those works in or about July 2015. MCC certified them.
- [10]In August 2015, Mr Soner sold the property to the applicants in these proceedings, Stephen Hall and Szilvia Agoston.
- [11]In late 2017, Mr Hall and Ms Agoston made a complaint to QBCC in respect of alleged defective works. No copy of that complaint has been provided to the Tribunal in these proceedings or in the earlier proceedings GAR309-18.
- [12]QBCC issued a direction to rectify some of the complaint items to Homes One but did not issue a direction to rectify to GW on the basis that Homes One was responsible for the defects. Mr Hall and Ms Agoston did not apply for a review of that decision.
- [13]Homes One did not comply with the direction to rectify and as result rectification works were carried out under the Home Warranty Scheme.
- [14]On 13 August 2018, QBCC approved scope of works to rectify the defective works.
- [15]On 10 December 2018, Mr Hall and Ms Agoston applied to the Tribunal for a review of that scope of works decision (proceedings GAR309-18). Neither of the respondents in these proceedings were a party to those review proceedings.
- [16]The Tribunal handed down its decision in GAR309-18 on 19 October 2020 amending the scope of works in certain respects. The orders did not affect either GW or MCC nor were there any adverse findings in relation to them.
- [17]On 22 March 2021, Mr Hall and Ms Agoston commenced these proceedings in the Tribunal seeking damages and costs totalling $1 million.
Jurisdiction
- [18]The tribunal derives its original jurisdiction to determine domestic building disputes from the enabling act, the Queensland Building Construction and Commission Act 1991 (Qld) (‘QBCC Act’).
- [19]Section 77 of that Act provides:
- (1)A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
- (2)However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.
- [20]The clear meaning of section 77(2) is that no application to the Tribunal can be made unless and until the dispute resolution processes has taken place.
- [21]Part B, paragraph 10 of the Domestic Building Application completed by Mr Hall and Ms Agoston specifies that the application cannot be made until the parties have complied with the dispute resolution process, which must be accompanied by a “formal notification letter” from QBCC advising that the dispute resolution process has been completed.
- [22]Mr Hall and Ms Agoston answered yes to two questions asking if they had participated in such a process and had attached a letter to that effect to their application.
- [23]It is registry practice not to accept applications that are not accompanied by confirmation that the dispute resolution process has occurred.
- [24]Mr Hall and Ms Agoston attached to the application a copy of a document "my case history” which apparently sets out their interactions with QBCC. It does not however include any reference to a dispute resolution process.
- [25]It is submitted on behalf of both respondents in both written and oral submissions that no written notification has been provided and that there is no evidence the dispute resolution process has in fact taken place.
- [26]While it is not necessarily fatal in respect of the first of those it certainly is in respect of the second.
- [27]Referring to the Tribunal's decision in Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections,[1] both respondents’ solicitors say that the appropriate order where the Tribunal lacks jurisdiction is to dismiss the application pursuant to sections 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) as vexatious or misconceived.[2]
- [28]In written submissions in response to the respondents’ submissions Mr Hall says that he did apply and make a complaint to QBCC against GW.[3]
- [29]He lodged a copy of correspondence addressed to him dated 2 August 2021 from Dean McNulty, acting manager of legal services, QBCC, which confirmed that a complaint had been made against GW on 6 November 2017 identifying seven complaint items.
- [30]Mr McNulty continued:
"On this basis, and with reference to your above engagement with the commission, we make no representations about whether your engagement with the commission in respect of complaints and actions under part 5 and part 6 of the Act satisfies the requirement in section 77(2) of the Act. It is well-established that the tribunal has power as granted by the QCAT Act or other enabling act, and it is a matter for the tribunal to determine its own jurisdiction."
- [31]The Tribunal's ability to determine its own jurisdiction is restricted by any limitations or conditions on that jurisdiction imposed by the enabling Act. I have read every document filed in the Tribunal by Mr Hall and Ms Agoston and the file in proceeding GAR309-18. I am unable to identify any evidence that any dispute resolution process had been undertaken with the QBCC or any anyone else. I accept such a process should have been initiated by QBCC and it is hardly the fault of Mr Hall or Ms Agoston if that did not occur, however, that does not excuse it or provide an exception from the requirement that the dispute resolution process is to take place.
- [32]The Tribunal has consistently found that the requirement of participation in a dispute resolution process is a condition precedent to the activation of the Tribunal's jurisdiction.
- [33]
"Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is preconditioned to the jurisdiction of the tribunal being enlivened. The provision is not merely procedural, it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.” (citations omitted)
- [34]Mr Hall and Ms Agoston's failure to file the “formal notification letter from QBCC” is a procedural requirement which the Tribunal may waive but the obligation to actually participate in the dispute resolution process is not something that the Tribunal can waive.[5]
- [35]The only evidence which supports compliance with section 77(2) is Mr Hall's claim (which the Tribunal accepts) that a complaint against GW was made by him and Ms Agoston but there is no evidence of anything occurring consistent with the dispute resolution process. The claim itself is not in my view sufficient.[6]
- [36]In the absence of such evidence I cannot be satisfied that Mr Hall and Ms Agoston have complied with section 77(2) and accordingly the Tribunal's jurisdiction to determine the application has not been enlivened.
- [37]In those circumstances the application is dismissed as vexatious or misconceived pursuant to section 47(1)(a) of the QCAT Act.
Frivolous, Vexatious or Misconceived
- [38]It was submitted on behalf of both respondents that Mr Hall and Ms Agoston's application was in any event frivolous, vexatious or misconceived and should be dismissed or struck out.
- [39]While I agree with many of the submissions made in support of that proposition I would be reluctant to take such action were it necessary prior to the applicants having been directed to file the statements of evidence in the proceedings.
Costs
- [40]Both respondents have applied for costs. Section 47(2)(c) of QCAT Act permits the Tribunal to make a costs order as does section 77(3)(h) of the QBCC Act. It is clear that both respondents have incurred legal costs as a result of the application and in view of the amount of the claim, and the complexity of building disputes in general, was entitled to do so. The question of jurisdiction was raised by GW’s solicitors on 11 May 2021 and 14 May 2021 and they were invited to withdraw their application but did not.
- [41]In my view it is appropriate to make a costs order. I am also of the view that the appropriate scale is the District Court scale. While I accept that the claim itself or that the amount of the claim itself places it above the Supreme Court threshold it contains a number of obviously misconceived claims.
- [42]Unlike the matter of A L Builders Pty Ltd vs Fatseas (No 2)[7] to which I am referred by Mr Sawford which proceeded to a lengthy hearing and afterward an appeal, the claim has been dismissed relatively early in the proceedings.
Footnotes
[1][2021] QCAT 114.
[2]First respondent submissions para 27, second respondent submission para 19.
[3]First applicant submissions in response para 10.
[4][2016] QCAT 187, [8].
[5]Kime & Anor vs Klepper [2020] QCAT 207.
[6]Natalie Cooper vs Daniel Murray McGaveston [2019] QCAT 244, [57].
[7][2014] QCATA 319.