Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd
[2023] QCATA 22
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- Unreported Judgment
- Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2023] QCATA 22
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Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2023] QCATA 22
Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd[2023] QCATA 22
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd [2023] QCATA 22 |
PARTIES: | LIFESTYLE RESORTS group PTY LTD (applicant/appellant) v geoff burr painting pty ltd (first respondent) HAYBUILD GROUP PTY LTD (second respondent) |
APPLICATION NO/S: | APL295-21 |
ORIGINATING APPLICATION NO/S: | MCDO108-21 (Beenleigh) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 10 March 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Lember |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where applicant applied for leave to appeal – where Tribunal originally made payment orders on a minor debt application – whether claim was minor civil dispute or building dispute – where enabling Act conferred jurisdiction as building dispute – where error of law had effect of conferring jurisdiction when there was none ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where enabling Act defines dispute as a building dispute – where a building dispute cannot be decided as minor debt claim Queensland Building and Construction Commission Act 1991 (Qld), s 75, s 77(1), Schedule 1B, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 12, s 32, s 100, s 101, s 146, Schedule Cachia v Grech [2009] NSWCA 232 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2022] QCATA 109 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Redding v Simmons (Unreported, QCATA, Dr J R Forbes, 23 February 2016 Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288 Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79 |
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
What is this application about?
- [1]On 6 October 2021 a decision was made in the Tribunal’s minor civil dispute (MCD) jurisdiction ordering Lifestyle Resorts Group Pty Ltd (Lifestyle Resorts) to pay to Geoff Burr Painting Pty Ltd (Burr) the sum of $10,866.00 within fourteen days (the Decision).
- [2]Haybuild Group Pty Ltd (Haybuild) as second respondent to the MCD application was relieved of liability to pay Burr based on a finding that Haybuild engaged Burr as a disclosed agent for Lifestyle Resorts.
- [3]Lifestyle Resorts wants to appeal the Decision but to do so, leave is first required.[1] In determining whether to grant leave, the Appeal Tribunal must be satisfied that:
The first instance decision
- [4]It is not disputed that the amount ordered to be paid to Burr related to painting works performed by it on a townhouse property development project situated at Morningside, Queensland.
- [5]The filed material before the Tribunal included:
- (a)Application for minor civil dispute – minor debt filed 18 June 2021;
- (b)Burr Invoice 5170 dated 5 March 2021 addressed to Lifestyle Resorts for $10,505.00 for “Additional works to front garage and exterior of building” expressed to be a “payment claim under the Building and Construction Industry Payments Act 2004 (Qld)”:
- (c)Quote by Burr to Haybuild dated 26 November 2020 for painting works to units 3, 4 and 5 of the Morningside project;
- (d)Response to minor civil dispute – minor debt by Lifestyle Resorts filed 8 July 2021;
- (e)A sixty-page Agreement purported to be between Lifestyle Resorts and Haybuild dated 1 July 2019;
- (f)Statements by various trades regarding works on the project and payment arrangements;
- (g)Various internet banking transaction receipts; and
- (h)Various correspondence, emails and text messages exchanged between the parties evidencing payment authorities for various claims.
- (a)
- [6]As the Tribunal observed, the claim, from Burr’s side was “reasonably simple. He was asked to do a job. He did the job. He sent an invoice. He hasn’t been paid”.[6]
- [7]The complexity arose in identifying the nature of the services provided, and the contractual relationship between Lifestyle Resorts and Haybuild.
- [8]As observed by the Appeal Tribunal in deciding a stay application by Lifestyle Resorts, the Tribunal was presented with “two starkly different versions of the contractual relationship between Lifestyle Resorts and Haybuild.”:[7]
In essence, Lifestyle Resorts contended that there was a comprehensive written fixed-price building contract pursuant to which Haybuild was engaged as builder. Haybuild contended that there was an oral agreement that Haybuild would act as project manager on the development and be paid a monthly salary of $6,000.00.
- [9]
In this matter, Hay is, in my findings – Hay is the agent of the respondent, Life Style and he enters into contracts on behalf of Life Style for them when he is advised and instructed to do so.
And indeed, in a course of dealing, that’s what happened in this matter. Geoff Burr issued an invoice and he was paid by Life Style. Another one was issued and paid by Hay Build. I accept that. But it was apparent to Burr that Life Style Resorts Group was the principal, Hay was the agent, and Hay entered into the contracts on behalf of the principal. The principal was disclosed to Geoff Burr because he knew about it. Indeed, Burr had to wait for some time until his last quote – this quote – was approved by Life Style before he then, having received that approval, proceeded with the work.
A contract between A and B where there is a disclosed principal can be enforced by B against the disclosed principal and that’s what will happen here. I find that the respondent, Life Style, is liable to pay the sum of $10,866 to Geoff Burr Painting and I make an order that it be paid within 14 days.
- [10]By its outline of argument filed in support of the Appeal Application, Lifestyle Resorts identifies seven grounds of appeal in respect of which it contended the Tribunal erred in finding that:
- (a)There was not a fixed priced contract between [Lifestyle Resorts] and [Haybuild];
- (b)[Haybuild] was nothing more than a project manager;
- (c)[Haybuild] was an agent for [Lifestyle Resorts];
- (d)[Haybuild] entered into contracts on behalf of, and at the direction of, [Lifestyle Resorts];
- (e)The final quote of [Burr Painting] was approved by [Lifestyle Resorts];
- (f)[Lifestyle Resorts] was a disclosed principal of [Haybuild]; and
- (g)[Lifestyle Resorts] was liable to [Burr Painting].
- (a)
Characterising the dispute: building dispute or minor civil dispute – minor debt?
- [11]Neither the parties, nor the Tribunal addressed the question of jurisdiction at first instance, nor has it been raised on appeal.
- [12]However, as the Appeal Tribunal has observed, “there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies that come before it”.[9]
- [13]Section 12 of the QCAT Act confers the Tribunal’s jurisdiction over MCDs. A ‘minor civil dispute’ is relevantly defined as:[10]
- 1(a).. a claim to recover a debt or liquidated demand...;
- 2However, 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.
- [14]The effect of this is to remove a debt claim that can be characterised as both a ‘building dispute’ and a ‘minor civil dispute’ from the MCD jurisdiction.
- [15]
- [16]The Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) vests the Tribunal with jurisdiction over a ‘building dispute’[13] as follows:[14]
- (a)‘Building dispute’ relevantly includes domestic building disputes and minor commercial building disputes;
- (b)“Domestic building dispute” means a claim or dispute arising between building owner and a building contractor, or between two building contractors relating to the performance of or a contract for the performance of reviewable domestic work;
- (c)‘Domestic building contract’ means a contract to carry out domestic building work or to manage the carrying out of domestic building work, but does not include contracts between a building contractor and a subcontractor, or contracts for the construction of two or more detached dwellings;
- (d)‘Commercial building dispute’ means a claim or dispute between a building owner and a building contractor or between two building contractors relating to the performance of or a contract for the performance of reviewable commercial work;
- (e)‘Minor commercial building dispute’ means a commercial building dispute where neither the claim nor any counterclaim exceed $50,000;
- (f)‘Reviewable commercial work’ means tribunal work other than reviewable domestic work;
- (g)‘Reviewable domestic work’ means domestic building work, which in turn means the renovation, alteration, extension, improvement or repair of a home;[15]
- (h)‘Home’ means a building designed, constructed or adapted for use as a residence, including a strata or community title home unit;[16]
- (i)
- (j)‘Management services’ for tribunal work includes coordinating the scheduling of the work by building contractors including as agent for another person and management work usually carried out by a project manager under a projection management agreement; and
- (k)‘Project management agreement’ means a contract under which a principal engages a project manager to provide building work services for building work carried out for the principle.
- (a)
- [17]The QBCC Act does not expressly state that a building dispute is a minor civil dispute, therefore, building disputes are excluded from the minor civil dispute jurisdiction where the claim is for a debt or liquidated demand.
- [18]According to its 2020 quote and its 2021 invoices, Burr is a ‘BSA’[19] licensed painter and decorator. It is a “contractor”. Its claim seeks payment for painting, which is building work, pursuant to a contract to perform that work between Burr and Haybuild (regardless of the capacity in which Haybuild entered that contract, or the form of that contract). In fact, Burr’s invoice the subject of the claim expresses that it is made “pursuant to the Building & Construction Industry Payments Act 2004 (Qld)” (which was repealed and replaced with the Building Industry Fairness (Security of Payment) Act 2017 (Qld)). In those circumstances, Burr’s debt claim is a building dispute, whether domestic or commercial.
- [19]The dispute between the respondents as to who, between them, is responsible to Burr, arises from Haybuild’s role as a builder (according to Lifestyle Resorts), or as a project manager (according to Haybuild) for the townhouse project, but, either way, by definition, it is also a building dispute.
- [20]As Burr’s debt claim falls within the Tribunal’s building dispute jurisdiction, it is excluded from the minor civil dispute jurisdiction.
Conclusion
- [21]The Tribunal cannot deal with a building dispute, claiming a liquidated sum, in the minor civil dispute jurisdiction.
- [22]The Tribunal therefore fell into an error of law in deciding Burr’s claim, leave to appeal should be granted, the appeal allowed and the Decision set aside.
- [23]In deciding the appeal on a question of law, as I have, the next step is to:[20]
- (a)return the matter to the MCD jurisdiction to determine whether to transfer the application to the building list; or
- (b)set aside the Decision and substitute its own decision to transfer the application to the building list.[21]
- (a)
- [24]In my view, the evidence before the Appeal Tribunal is more than sufficient to conclude that the claim is a building dispute. If I return the matter to the tribunal in its MCD jurisdiction, the only decision available to it is to transfer the proceeding to the building list because it does not have the power to hear a building dispute. Consistent with the objects of the QCAT Act which include to have the tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick,[22] in the interests of expediency, I elect to substitute the Decision with a decision to transfer the proceeding to the building list.
- [25]As an observation, Burr’s claim, once transferred, will be dismissed in the building list for want of jurisdiction if Burr cannot establish compliance with section 77(2) of the QBCC Act that pre-dates the filing date of the transferred application (18 June 2021).[23]
- [26]There is no evidence of compliance with section 77(2) currently before the Appeal Tribunal, but that is not to say that it cannot be established. Burr should certainly consider whether it can satisfy section 77(2) with its current claim or whether a withdrawal of the application and a fresh application for a building dispute, filed after the requirements of section 77(2) are met, might be the better course.
What are the appropriate Orders?
- [27]The orders are:
- (a)Leave to appeal granted.
- (b)Appeal allowed.
- (c)The decision of 6 October 2021 is set aside and substituted with a decision that the application is transferred to the building list.
- (a)
Costs
- [28]The application for leave to appeal or appeal seeks costs but neither party made submissions on point.
- [29]
- [30]Unless either party files and gives the other party an application and submissions to the contrary within twenty-one days, each party must pay their own costs of the application for leave to appeal or appeal.
Footnotes
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3).
[2]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3]Cachia v Grech [2009] NSWCA 232, 2.
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 577, 580.
[6] Transcript, Reasons for Decision, 1-23 at 45.
[7] Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2022] QCATA at [14].
[8] Transcript, Reasons for Decision, 1-26 at 30-45.
[9]Penfold v Firkin & Balvius [2023] QCATA 11.
[10] QCAT Act, Schedule 3.
[11]Rothenberger Australia Pty Ltd v Poulsen (2003) 58 NSWLR 288, 297.
[12]Siena Indiana Pty Ltd v Property Technologies Pty Ltd [2020] QCATA 79.
[13]Queensland Building and Construction Commission Act 1991 (Qld), (QBCC Act) s77.
[14] Unless referenced otherwise, all terms are defined in the QBCC Act, Schedule 2.
[15] QBCC Act, Schedule 1B, section 4.
[16] QBCC Act, Schedule 1B, section 9.
[17] QBCC Act, s 75(1)(b).
[18] QBCC Act, s 75(4)
[19] From 1 December 2013, the Queensland Building and Construction Commission (QBCC) replaced the Building Service Authority (BSA). Burr appears not to have updated its letterhead.
[20] QCAT Act, s 146(c).
[21] Provided that in doing so, the substituted decision can resolve the matter and does not entail any rehearing of the evidence: See Ericson v Queensland Building Services Authority [2013] QCA 391 at [25].
[22] QCAT Act, s 3.
[23]Redding v Simmons (Unreported, Queensland Civil and Administrative Appeals Tribunal, Dr J R Forbes, Member, 23 February 2016).
[24] QCAT Act, s 100.
[25] QCAT Act, s 101.