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Rise Constructions Qld Pty Ltd v Bryant[2024] QCAT 581

Rise Constructions Qld Pty Ltd v Bryant[2024] QCAT 581

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Rise Constructions Qld Pty Ltd v Bryant [2024] QCAT 581

PARTIES:

Rise Constructions Qld Pty Ltd

(applicant)

v

Peter John Bryant

Nicole Maree Bryant

(respondents)

APPLICATION NO/S:

BDL274-24

MATTER TYPE:

Building matters

DELIVERED ON:

17 December 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

The proceeding is transferred to the Supreme Court of Queensland at Brisbane.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether QCAT has jurisdiction to decide all matters in the proceeding

COURTS AND JUDGES – COURTS – JURISDICTION AND POWERS – TRANSFER OF PROCEEDINGS TO OR FROM HIGHER COURT AND BETWEEN COURTS – TO HIGHER COURT – where QCAT does not have jurisdiction in to decide all matters in the proceeding – whether proceeding should be transferred to the Supreme Court

Competition and Consumer Act 2010 (Cth) sch 2, s 18, s 20, s 21, s 236, s 237, s 267

Fair Trading Act 1989 (Qld) div 4, s 50, s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 52

M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454

Sanctuary Cove Golf and Country Club Pty Ltd v Machon [2019] QCATA 1

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)

Applicant:

All Building Law

Respondents:

Aitken Whyte Lawyers

REASONS FOR DECISION

What is this matter about?

  1. [1]
    This is a proceeding about a building dispute. The Bryants have applied to have the proceeding transferred to the Supreme Court of Queensland on the basis that the Tribunal does not have jurisdiction to determine all of the matters in dispute in the proceeding. The application to transfer the proceeding falls to be determined.

The dispute

  1. [2]
    Rise Constructions undertook domestic building work for the Bryants. The works involved a substantial renovation, the contract price being in excess of $2.7 million.
  2. [3]
    For present purposes it is sufficient to note the following:
    1. The parties entered into a contract on or about 28 March 2022 in respect of the building works;
    2. Rise Constructions commenced the building works on or about 7 April 2022;
    3. The Bryants gave to Rise Constructions a notice to remedy breach of contract on 5 December 2023;
    4. The Bryants gave to Rise Constructions notice terminating the contract on 4 January 2024;
    5. Rise Constructions gave to the Bryants notice terminating the contract on 23 January 2024 on the basis of what Rise asserts was the Bryants’ repudiatory conduct.
  3. [4]
    The Bryants say that they lawfully terminated the contract. Rise Constructions says that the Bryants’ purported termination was unlawful and amounted to a repudiation of the contract, entitling Rise Constructions to terminate the contract.
  4. [5]
    In the response and counter-application, which also names Rise Construction’s director, Mr Forbes, as a respondent to the counter-application, the Bryants say a number of things relevant to the present application:
    1. Rise Constructions and Mr Forbes made representations to the Bryants:
      1. That the works would be complete within 434 days of commencement or by 19 June 2023 or within a reasonable time;
      2. That the house framing stage was 50% complete and that the Bryants were liable to pay for 10% of the contract price;
      3. That the house framing stage was 100% complete and the roofing installed was complete and that the Bryants were liable to pay for 10% of the contract price;
      4. That the internal plastering stage was complete and that the Bryants were liable to pay for 10% of the contract price;
    2. The representations were made in the course of trade or commerce engaged in by Rise Constructions and Mr Forbes;
    3. The representations were misleading or deceptive or likely to mislead or deceive;
    4. The representations contravened s 18 of the Australian Consumer Law (Queensland) (‘ACL (Qld)’) or alternatively s 18 of the ACL, sch 2 to the Competition and Consumer Act 2010 (Cth) (‘ACL’);
    5. As a consequence of the representations, the Bryants have suffered loss and damage, being, the: additional costs they will incur in completing the works; additional interest payable on a loan facility used to fund the cost of the building works; general damages for distress and loss of amenity; and additional rent incurred by the Bryants.
  5. [6]
    It should be noted that the Bryants do not rely solely upon the ACL (Qld) and the ACL. They also bring claims for damages for breach of contract and negligence which are within the jurisdiction of the Tribunal to decide.

The application to transfer the proceeding to the Supreme Court

  1. [7]
    Of relevance to the present application, the Bryants say:
    1. They bring a counter-application against Rise Constructions and Mr Forbes for:
      1. misleading or deceptive conduct in breach of s 18 of the ACL (Qld) and ACL;
      2. unconscionable conduct in breach of s 20 and s 21 of the ACL (Qld) and ACL;
    2. They seek damages and compensation pursuant to s 236, s 237 and s 267 of the ACL (Qld) and ACL;
    3. The Tribunal does not have jurisdiction to hear and determine the Bryants’ claims for breach of the ACL (Qld) and ACL;
    4. The Tribunal does not have jurisdiction to hear and determine all matters in the proceeding;
    5. The applicant by Rise Constructions and the counter-application by the Bryants are inextricably linked and to hear the matters separately would result in two hearings contesting substantially the same factual matters;
    6. The efficient use of public resources demands that the entirety of the proceeding be heard in the Supreme Court.
  2. [8]
    In response, Rise Constructions says:
    1. From an early stage Rise Constructions has acknowledged that the Tribunal does not have jurisdiction to determine the claims by the Bryants under the ACL (Qld) and ACL and that the Bryants were entitled to apply to have the proceeding transferred to the Supreme Court;
    2. The Bryants’ claims under the ACL (Qld) and ACL as presently framed in the response and counter-application lack the necessary and material facts or causative links to amount to a properly formulated cause of action;
    3. Rise Constructions invited the Bryants to redraft and properly particularise the claims under the ACL (Qld) and ACL in order to, inter alia, allow the Tribunal to determine whether, on application by the Bryants, there was a proper basis to transfer the proceeding;
    4. As the ACL (Qld) and ACL claims by the Bryants is the only basis upon which the matter would be transferred to the Supreme Court, the ACL (Qld) and ACL claims should be properly pleaded.

Consideration

  1. [9]
    By s 52(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) if the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may order the transfer of the matters for which it does not have jurisdiction to a court of competent jurisdiction.
  2. [10]
    The jurisdiction of the Tribunal to determine claims under the provisions of the ACL (Qld) is strictly circumscribed. The ACL (Qld) is incorporated into the law in Queensland in the Fair Trading Act 1989 (Qld) (‘FTA’). Division 4 of the FTA confers upon the Tribunal original jurisdiction in respect of proceedings arising under specified provisions of the ACL (Qld). Section 50 of the FTA provides that a proceeding for the purposes of a provision of the ACL listed in the table to the section must be heard in the tribunal or in a court having jurisdiction for the proceeding. By s 50(a) of the FTA, the Tribunal has jurisdiction in respect of a proceeding for the purposes of a relevant provision of the ACL (Qld) if the subject of the proceeding is a minor civil dispute within the meaning of the QCAT Act or is a matter to which s 50A of the FTA applies.[1]
  3. [11]
    The FTA is an enabling Act for the purposes of s 9 of the QCAT Act. The extent of the Tribunal’s jurisdiction in respect of the ACL (Qld) is to be determined by construing the provisions of the FTA, remembering that the Tribunal does not have jurisdiction for a matter under an enabling Act unless the FTA provides for an application to be made under that Act in respect of the matter.[2]
  4. [12]
    In the counter-application the Bryants assert that Rise Constructions and Mr Forbes engaged in misleading or deceptive conduct and unconscionable conduct in breach of s 18, s 20 and s 21 of the ACL (Qld) and the ACL[3]. The Bryants seek damages pursuant to s 236, s 237 and s 267 of the ACL (Qld) and the ACL. The Tribunal has jurisdiction to decide a proceeding for damages pursuant to s 236(1) of the ACL (Qld).[4] The Tribunal also has jurisdiction to decide a proceeding for damages pursuant to s 267 of the ACL (Qld).[5] The Tribunal does not have jurisdiction to decide a proceeding for damages pursuant to s 237 of the ACL (Qld). Notwithstanding the jurisdiction of the Tribunal to decide proceedings brought pursuant to s 236 and s 267 of the ACL (Qld), the proceeding must be brought as a minor civil dispute. The damages sought by the Bryants exceed the minor civil disputes jurisdictional limit.[6] The Tribunal does not have jurisdiction in respect of the claims by the Bryants that rely upon the provisions of the ACL (Qld). It follows that the Tribunal does not have jurisdiction to decide all of the matters the subject of the counter-application by the Bryants.
  5. [13]
    The consequence of the above is that the counter-application by the Bryants should proceed in a court of competent jurisdiction. Two issues arise for consideration: firstly, should the proceeding be fragmented with the application by Rise Constructions to remain in the Tribunal and the counter-application to proceed in a court of competent jurisdiction; and should the proceeding be transferred to the Supreme Court or dismissed on the basis that the more appropriate manner to progress the matter is for the parties to bring fresh proceedings in the Supreme Court.
  6. [14]
    Addressing the first issue, it is clearly not appropriate for there to be on foot two separate proceedings involving the same parties and the same issues, one in the Tribunal and one in a court. The fragmentation of the proceeding will create a multiplicity of proceedings bringing uncertainty, delay and expense to the parties and is an outcome to be avoided.
  7. [15]
    As to the second issue, the Tribunal has on previous occasions declined to transfer proceedings to a court on the basis that the parties have not presented their respective cases in the form of pleadings. In M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors[7] then President of QCAT, Alan Wilson J stated:

[13] Section 52 of the QCAT Act provides that if the Tribunal considers it does not have jurisdiction to hear all matters in a proceeding it may transfer all or parts of it to a court of competent jurisdiction. An order may also be made if QCAT considers the subject matter of the proceeding may more appropriately be dealt with by a court or other entity. In their submissions, the lawyers for the lessors suggest the transfer of all of M & J’s proceedings to the Supreme Court. Although M & J’s lawyers filed submissions in response they did not address that submission.

[14] Under s 52 QCAT may, if inclined to order a transfer, also give directions to “...facilitate the transfer, including an order under an Act or other law for starting a proceeding before the relevant entity”. Procedural difficulties will arise here if M & J’s application to QCAT is transferred to the Supreme Court. Despite substantial verbiage and attachments, it is not in a form which would constitute an adequate pleading. Because it was filed before the lessors’ action was commenced in the Supreme Court, it is also unresponsive and on any view M & J, or both parties, would be required to re-plead if the QCAT application was simply transferred to the Court.

[15] It is not, then, a matter in which a transfer to the Court can be readily or comfortably facilitated. It is not impossible that, had M & J’s legal representatives turned their minds to the matter, appropriate directions may have been fashioned but, in the absence of any attempt to do that, the better course is to simply dismiss the QCAT proceeding and allow M & J to seek its relief in the present Supreme Court action (or elsewhere if it chooses).

  1. [16]
    The originating application by Rise Constructions has been drafted by the legal representatives. While not strictly speaking in the form of a pleading, the application has been drafted in such a way that it could, without too much difficulty, be redrafted as a pleading. The same may be said for the response and counter-application. The proceeding is at a relatively early stage. While directions have been made for the filing and statements of evidence by the parties, no statements have been filed presumably as a consequence of the jurisdictional issues raised by the Bryants’ response and counter-application. The documents filed by the parties, aside the material filed in respect of the present application to transfer, are limited to the originating application and the response and counter-application.
  2. [17]
    Taking all of these matters into consideration, I am of the view that it is appropriate the proceeding be transferred to the Supreme Court.

Conclusion

  1. [18]
    The proceeding is transferred to the Supreme Court of Queensland at Brisbane.

Footnotes

[1] Claims arising out of the purchase of a motor vehicle.

[2] Sanctuary Cove Golf and Country Club Pty Ltd v Machon [2019] QCATA 1 [31].

[3] The Bryants couch their claim as being pursuant to both the ACL (Qld) and the Competition and Consumer Act 2010 (Cth) sch 2.

[4] Fair Trading Act 1989 (Qld) s 50(2) – table.

[5] Ibid.

[6] $25,000.

[7] [2010] QCAT 454.

Close

Editorial Notes

  • Published Case Name:

    Rise Constructions Qld Pty Ltd v Bryant

  • Shortened Case Name:

    Rise Constructions Qld Pty Ltd v Bryant

  • MNC:

    [2024] QCAT 581

  • Court:

    QCAT

  • Judge(s):

    Senior Member Brown

  • Date:

    17 Dec 2024

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
M & J Gray Investments Pty Ltd v AMP Pacific Fair Pty Ltd & Ors [2010] QCAT 454
2 citations
Jump To
Cite 1 - [2010] QCAT 454
Cite 2 - [2010] QCAT 454
Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1
2 citations
Jump To
Cite 1 - [2019] QCATA 1
Cite 2 - [2019] QCATA 1

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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