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Peter Broadbelt Electrical Pty Ltd v Harrison[2022] QCATA 91

Peter Broadbelt Electrical Pty Ltd v Harrison[2022] QCATA 91

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCATA 91

PARTIES:

Peter broadbelt electrical pty ltd

(applicant/appellant)

v

michael harrison

(respondent)

APPLICATION NO/S:

APL183-21

ORIGINATING

APPLICATION NO/S:

MCDQ101/21 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

20 June 2022

HEARING DATE:

26 May 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

Leave to appeal refused.

CATCHWORDS:

APPEAL – APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – Where adjudicator found dispute between the parties was a ‘building dispute’ within the meaning of that term as defined in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) – where adjudicator found the applicant had failed to comply with s 77(2) of the QBCC Act before commencing proceedings – where adjudicator dismissed application

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where applicant an electrical contractor regulated under the Electrical Safety Act 2002 (Qld) – whether dispute between an electrical contractor and a building owner is a ‘building dispute’

Electrical Safety Act 2002 (Qld), s 20, s 55(1)(a), s 56(1)

Queensland Building and Construction Commission Act 1991 (Qld), s 75(1)(c), s 75(2), s 77(1), sch 1B; s 1, s 4(1)(b), s 4(3), s 4(3)(b), s 4(6), s 9, s 9(1), sch 2

Queensland Building and Construction Commission Regulation 2018 (Qld), sch 1, s 20

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11 s 142(3)(a)(i), sch 3, s 1(a), s 2

Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43

Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29

Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394

Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49

Harrison and Anor v Meehan [2016] QCATA 197

Ogdens Ltd v Weinberg (1906) 95 LT 567

Redding v Simmons [2016] QCATA 100

Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138

Von Fahland v Virk [2019] QCATA 178

APPEARANCES &

REPRESENTATION:

Applicant:

Self represented

Respondent:

Self represented

REASONS FOR DECISION

  1. [1]
    This is an appeal from a decision of the Tribunal in the minor civil disputes jurisdiction dismissing an application by Peter Broadbelt Electrical Pty Ltd (PBE) claiming monies due and owing by Michael Harrison.
  2. [2]
    Being an appeal from a decision in a proceeding for a minor civil dispute, leave is required.[1] Leave to appeal will only be granted in accordance with well-established principles: Is there a reasonably arguable case of error in the primary decision; Is there a reasonable prospect that the applicant will obtain substantive relief; Is leave necessary to correct a substantial injustice to the applicant caused by some error; Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.[2]

The minor civil dispute

  1. [3]
    PBE is an electrical contractor. Mr Harrison is the owner of residential premises. PBE undertook electrical contracting work at Mr Harrison’s premises. It is not clear how the works came to be undertaken. It seems that Mr Harrison had engaged a building contractor, Mr Christofis, to undertake renovation works to an existing dwelling. It is unclear whether the contractor or Mr Harrison engaged PBE to undertake the electrical works.
  2. [4]
    PBE provided a quote to Mr Christofis in the amount of $6,680.00 plus GST. PBE subsequently undertook electrical works and rendered two invoices to Mr Harrison, the first for $5,720.00 (invoice 4126) and the second for $6,768.41 (invoice 4189). Invoice 4126 appears to be a progress claim against the original quote.
  3. [5]
    The dispute between the parties relates to an amount of $7,633.11 which PBE says remains unpaid.
  4. [6]
    PBE commenced the proceedings below by Application for minor civil dispute – minor debt filed on 10 February 2021. In the application, PBE set out the details of the claim in the following terms:

We commenced work at the Respondents (sic) residence having submitted a Quotation for works as detailed. The works were completed to a stage where as (sic) the balance of the remaining works were to (sic) finalised once we received instructions that the construction stage was ready for wiring and fit off. During the course of our initial installation, the Respondent verbally requested additional works, that involved the supply and installation of two air conditioners and other items as detailed on Invoice No 4189 dated 6/2/2020. We submitted the Invoice and waited to be advised by the Respondent that the second stage was ready to be completed. The Respondent elected to engage a new Electrician and refused to pay the account. There was an outstanding balance from the initial Quotation. 

  1. [7]
    The response filed by Mr Harrison is not a model of clarity. Mr Harrison sought an order dismissing the application on the basis that, inter alia, PBE had failed to complete items of work, undertook work in the absence of agreement between the parties, and failed to return to the premises to address ‘issues’.
  2. [8]
    The matter proceeded to a hearing before an adjudicator on 17 June 2021. The learned adjudicator, having found that the dispute was a domestic building dispute, dismissed PBE’s application on the basis of PBE’s failure to comply with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld).

The grounds of appeal

  1. [9]
    PBE relies upon a single ground of appeal. PBE says that the learned adjudicator erred in finding that the Tribunal did not have jurisdiction to hear and decide the dispute. PBE has filed very brief submissions and says that the decision by the learned adjudicator is inconsistent with a number of previous decisions made by the Tribunal in minor civil dispute proceedings in which PBE was the applicant. The submissions otherwise do not address the specific inconsistency asserted nor does PBE provide any detail in relation to the previous decisions other than the names of the parties and the date of the decision.
  2. [10]
    In his response submissions, Mr Harrison says that there was no error by the Tribunal below. It is implicit in the submissions that Mr Harrison says the dispute between the parties is a domestic building dispute.
  3. [11]
    At the hearing of the appeal neither party meaningfully added to their submissions.

The QBCC Act – what is a building dispute?

  1. [12]
    The Tribunal has jurisdiction to decide building disputes.[3] The jurisdiction of the Tribunal is set out in s 75 and s 76 of the QBCC Act. These sections circumscribe the jurisdiction of the Tribunal.[4]
  2. [13]
    A building dispute may be a domestic building dispute or a commercial building dispute.[5]
  3. [14]
    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.[6]
  1. [15]
    ‘Reviewable domestic work’ means ‘domestic building work’[7] which is defined in schedule 1B of the QBCC Act as including the renovation, alteration, extension, improvement, or repair of a ‘home’.[8] A ‘home’ is a building or portion of a building that is designed, constructed or adapted for use as a residence.[9]
  2. [16]
    ‘Domestic building work’ includes ‘associated work’. ‘Associated work’ includes work associated with the renovation, alteration, extension, or improvement of a home.[10] ‘Domestic building work’ also includes the provision of services or facilities to a home which is the subject of renovation, alteration, extension improvement or repair or the property on which the home is situated.[11]
  3. [17]
    A commercial building dispute means:
  1. (a)
     a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
  1. (b)
     a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable commercial work or a contract for the performance of reviewable commercial work; or
  1. (c)
     a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable commercial 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 commercial work or a contract for the performance of reviewable commercial 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.[12]
  1. [18]
    ‘Reviewable commercial work’ means tribunal work other than reviewable domestic work. ‘Tribunal work’ has the meaning given to that term in s 75 and s 76 of the QBCC Act. ‘Tribunal work’ includes ‘reviewable domestic work’.[13] ‘Tribunal work’ also includes the provision of electrical work, water supply, sewerage or drainage or other like services for a building.[14]
  2. [19]
    A ‘building owner’ 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.[15]
  3. [20]
    A ‘building contractor’ 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. For the purposes of schedule 1B of the QBCC Act (that is, domestic building work), ‘building contractor’ means, inter alia, a person who carries out domestic building work.
  4. [21]
    ‘Building work’ is defined in schedule 2 of the QBCC Act but does not include work of a kind excluded by regulation from the ambit of the definition. One must then turn to the Queensland Building and Construction Commission Regulation 2018 (Qld) in order to identify what work is excluded from the definition of ‘building work’. Excluded building work includes electrical work under the Electrical Safety Act 2002.[16]
  5. [22]
    From the foregoing analysis it can be seen that a ‘building dispute’ must be one involving a building contractor and a building owner, or a dispute involving two or more building contractors, or a dispute between a building owner or a building contractor and one of a stated type of person. It is the latter type of dispute that is relevant for present purposes.
  6. [23]
    As has been explained above, a building dispute, whether a domestic building dispute or a commercial building dispute, includes a dispute between a building owner and an electrician or an electrical contractor. The terms ‘electrician’ and ‘electrical contractor’ are not defined in the QBCC Act. The Electrical Safety Act 2002 (Qld) (ESA) is of some assistance in construing these terms. While caution should be exercised in referring to definitions in another statute, if by following a definition in another Act a coherent and consistent use may be given to an expression it may be desirable to consider the definition.[17] I consider such an approach to be appropriate in the present case. An ‘electrical work licence’ is defined in the ESA as a licence authorising an individual to perform electrical work. An ‘electrical contractor licence’ is a licence authorising a person to perform electrical work as part of a business or undertaking.[18] A person must not conduct a business or undertaking that includes the performance of electrical work unless the person is the holder of an electrical contractor licence that is in force.[19] A person is not permitted to perform or supervise electrical work unless the person is the holder of an electrical work licence that is in force.[20]
  7. [24]
    It is understandable that difficulties are encountered by building owners, building contractors and others in navigating the labyrinthine provisions to which I have referred. One of the issues often giving rise to confusion by parties in Tribunal proceedings is identifying those provisions of the QBCC Act which deal with the regulatory functions of the QBCC and the licensing of building contractors, and those provisions dealing with the jurisdiction of the Tribunal to decide building disputes.  These issues are manifest in the case of disputes involving electrical contractors as these reasons will explain.

The jurisdiction of the Tribunal – minor civil disputes

  1. [25]
    The tribunal has jurisdiction to hear and decide minor civil disputes.[21]
  2. [26]
    ‘Minor civil dispute’ means, inter alia, a claim to recover a debt or liquidated demand of money of up to the prescribed amount.[22] A ‘debt’ is an ascertained amount of money.[23] A ‘liquidated’ amount is one that can be ascertained by calculation or fixed by a scale of charges or other positive data.[24]
  3. [27]
    Section 2 of the definition of ‘minor civil dispute’ in the QCAT Act contains the following provision:

However, if an enabling Act confers jurisdiction on the tribunal to deal with a claim (however called) within the meaning of paragraph 1(a), the claim is not a minor civil dispute unless the enabling Act expressly states it is a minor civil dispute.[25]

  1. [28]
    The QBCC Act does not expressly state that a building dispute involving a claim to recover a debt or liquidated demand of money up to $25,000.00 is a ‘minor civil dispute’. Accordingly, the effect of the definition of ‘minor civil dispute’ in the QCAT Act is this: if a building dispute involves a claim to recover a debt or liquidated demand of money up to $25,000.00 it cannot be a minor civil dispute.[26]

Section 77(2) of the QBCC Act

  1. [29]
    Section 77(2) of the QBCC Act provides that a person may not apply to the tribunal to have the tribunal decide a building dispute, unless the person has complied with a process established by the QBCC to attempt to resolve the dispute.
  2. [30]
    It is well established authority in this Tribunal that compliance with s 77(2) is a pre-condition to the jurisdiction of the Tribunal to decide a building dispute.[27]

Consideration

  1. [31]
    For the following reasons the dispute between the parties is a domestic building dispute:
    1. (a)
      PBE is an electrical contractor;
    2. (b)
      Mr Harrison is a building owner;[28]
    3. (c)
      The dwelling at which the works were undertaken by PBE is a ‘home’ within the meaning of that term;[29]
    4. (d)
      The dispute is about work undertaken by PBE which was ‘domestic building work’ within the meaning of that term on the basis that the work involved the renovation, alteration, extension, improvement or repair of a home;[30]
    5. (e)
      Further, or in the alternative, the dispute is about work undertaken by PBE which was ‘associated work’ within the meaning of that term;[31]
    6. (f)
      Further, or in the alternative, the dispute is about work undertaken by PBE which involved the provision of services or facilities to the home.[32]
  2. [32]
    Even if the work undertaken by PBE was not domestic building work, it was otherwise ‘tribunal work’ on the basis that PBE undertook electrical work.[33]
  3. [33]
    It follows that even if the dispute between the parties was not a domestic building dispute it is a dispute about reviewable commercial work and therefore a minor commercial building dispute.[34]
  4. [34]
    Either way, the dispute between the parties is a ‘building dispute’.[35]
  5. [35]
    As can be seen from the foregoing analysis, despite the fact that electrical contractors and electricians are not subject to the regulatory provisions of the QBCC Act on the basis that the work performed by such persons is electrical work under the ESA,[36] a dispute involving an electrical contractor or electrician is nevertheless a building dispute.
  6. [36]
    The claim by PBE was one to recover a debt or liquidated demand of money. Accordingly, the claim fell within schedule 3, s 1(a) of the definition of ‘minor civil dispute’ in the QCAT Act. As the dispute between the parties is a building dispute, it is the QBCC Act, as the relevant enabling Act, that confers jurisdiction on the Tribunal to deal with the claim by PBE. As the QBCC Act does not expressly state that a building dispute involving a claim to recover a debt or liquidated demand of money up to $25,000.00 is a minor civil dispute, the claim by PBE is not a minor civil dispute, it is a building dispute.
  7. [37]
    It is clear from the transcript of the hearing before the Tribunal below that PBE made no attempt to comply with s 77(2) of the QBCC Act before commencing the proceeding for a minor civil dispute.[37] It is noted that compliance with s 77(2) will not be possible in circumstances where the QBCC has no process to attempt to resolve a particular dispute.[38] However, there was no evidence before the learned adjudicator that there was no QBCC process which could have been utilised to attempt to resolve the dispute.
  8. [38]
    It follows that there was no error by the learned adjudicator in dismissing the application by PBE on the basis that PBE had not complied with s 77(2) of the QBCC Act before commencing the proceeding below.
  9. [39]
    Leave to appeal is refused.
  10. [40]
    PBE is not left without a remedy. PBE may comply with the requirements of s 77(2) of the QBCC Act and, subject to the operation of s 49 of the QCAT Act, commence a further proceeding for a building dispute.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(a)(i).

[2]See Harrison and Anor v Meehan [2016] QCATA 197 and the various authorities referred to at [8].

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

[4]Fraser Property Developments Pty Ltd v Sommerfeld (No 1) [2005] 2 Qd R 394.

[5]QBCC Act, schedule 2 (definition of ‘building dispute’).

[6]Ibid, schedule 2 (definition of ‘domestic building dispute’).

[7]Ibid, (definition of ‘reviewable domestic work’).

[8]Ibid, schedule 1B, s 4(1)(b).

[9]Ibid, s 9(1).

[10]Ibid, s 4(3).

[11]Ibid, s 4(6).

[12]Ibid, schedule 2 (definition of ‘commercial building dispute’).

[13]Ibid, s 75(2).

[14]Ibid, s 75(1)(c).

[15]Ibid, schedule 2 (definition of ‘building owner’).

[16]Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1, s 20.

[17]Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29.

[18]Electrical Safety Act 2002 (Qld), s 20.

[19]Ibid, s56(1).

[20]Ibid, s 55(1)(a).

[21]QCAT Act, s 11.

[22]Ibid, schedule 3 s 1(a) (definition of ‘minor civil dispute’).

[23]Ogdens Ltd v Weinberg (1906) 95 LT 567.

[24]Spain v Union Steamship Co of New Zealand Ltd (1923) 32 CLR 138 at 142.

[25]QCAT Act, schedule 3, s 2.

[26]Von Fahland v Virk [2019] QCATA 178; Goldberg t/as Goldberg Constructions v Jogis [2019] QCAT 49.

[27]See Redding v Simmons [2016] QCATA 100. 

[28]QBCC Act, schedule 1B, s 1.

[29]Ibid, s 9.

[30]Ibid, s 4(1)(b).

[31]Ibid, s 4(3)(b).

[32]Ibid, s 4(6).

[33]Ibid, s 75(1)(c).

[34]Ibid, schedule 2 (definition of ‘minor commercial building dispute’).

[35]Ibid, (definition of ‘building dispute’).

[36]And thus work that is not building work, QBCC Regulation, schedule 1, s 20.

[37]Transcript T1-5, lines1 - 4.

[38]Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43.

Close

Editorial Notes

  • Published Case Name:

    Peter Broadbelt Electrical Pty Ltd v Harrison

  • Shortened Case Name:

    Peter Broadbelt Electrical Pty Ltd v Harrison

  • MNC:

    [2022] QCATA 91

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown

  • Date:

    20 Jun 2022

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
Allen v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43
2 citations
Jump To
Cite 1 - [2021] QCATA 43
Cite 2 - [2021] QCATA 43
Federal Commissioner of Taxation v Henderson (1943) 68 CLR 29
2 citations
Jump To
Cite 1 - (1943) 68 CLR 29
Cite 2 - (1943) 68 CLR 29
Fraser Property Developments Pty Ltd v Sommerfeld[2005] 2 Qd R 394; [2005] QCA 134
2 citations
Jump To
Cite 1 - [2005] 2 Qd R 394
Cite 2 - [2005] 2 Qd R 394
Goldberg v Jogis [2019] QCAT 49
2 citations
Jump To
Cite 1 - [2019] QCAT 49
Cite 2 - [2019] QCAT 49
Harrison and Anor v Meehan [2016] QCATA 197
2 citations
Jump To
Cite 1 - [2016] QCATA 197
Cite 2 - [2016] QCATA 197
Ogdens Ltd v Weinberg (1906) 95 LT 567
2 citations
Jump To
Cite 1 - (1906) 95 LT 567
Cite 2 - (1906) 95 LT 567
Redding v Simmons [2016] QCATA 100
2 citations
Jump To
Cite 1 - [2016] QCATA 100
Cite 2 - [2016] QCATA 100
Spain v Union Steamship Co. of New Zealand Ltd. (1923) 32 CLR 138
2 citations
Jump To
Cite 1 - (1923) 32 CLR 138
Cite 2 - (1923) 32 CLR 138
Von Fahland v Virk [2019] QCATA 178
2 citations
Jump To
Cite 1 - [2019] QCATA 178
Cite 2 - [2019] QCATA 178

Cases Citing

Case NameFull CitationFrequency
Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] QCATA 142 citations
Local Electrical Pty Ltd v Luppino [2023] QCAT 342 citations
1

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