Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy
[2024] QCATA 14
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- Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy[2024] QCATA 14
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Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy[2024] QCATA 14
Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy[2024] QCATA 14
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Brown v AGY Global Wealth Pty Ltd t/as Skylight Energy [2024] QCATA 14 |
PARTIES: | cameron james brown (appellant) v AGY global wealth pty ltd t/as skylight energy (respondent) |
APPLICATION NO/S: | APL053-22 |
ORIGINATING APPLICATION NO/S: | MCDO60397/21 (Brisbane) |
MATTER TYPE: | Appeals |
DELIVERED ON: | 13 February 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon |
ORDERS: |
|
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a contractor sought an order for payment of the remainder of its invoice for a solar panel installation at a dwelling – whether the work was of improvement – whether the installation was a fixture or separate property – whether the dispute was between a home owner and building contractor and/or electrical contractor or other appropriate party – whether the claim was a building dispute APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where an Adjudicator allowed a claim to recover a debt or liquidated demand of money in the tribunal’s minor civil dispute jurisdiction – where the claim was a building dispute – whether the tribunal had jurisdiction to hear and determine the claim as a minor civil dispute – whether there should be an oral hearing of the appeal – whether leave to appeal should be given and the decision set aside – whether the Appeal Tribunal can itself transfer the application to the building list on payment of the additional filing fee – whether the Appeal Tribunal can stay the application indefinitely if the additional filing fee is not paid ATO’s Taxation Ruling TR 97/23 Electrical Safety Act 2002 (Qld), s 14, s 15, s 57A Human Rights Act 2019 (Qld), s 5(2)(a), s 8, s 13, s 31, s 58 Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 75, s 76, s 77 Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1 s 20, s 51 Queensland Civil and Administration Tribunal Act 2009 (Qld), s 50, s 51, s 146 Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43 Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2019] EWHC 2272 (Ch) Chandra v Queensland Building and Construction Commission [2014] QCA 335 Cohen v Green and Gold Solar Australia Pty Ltd [2014] QCAT 674 Dvorak v Jensen [2023] QCAT 437 Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134 L J Hooker Stafford v Roberts [2020] QCATA 94 National Australia Bank Ltd v Blacker [2000] FCA 1458 Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCATA 91 Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd [2023] QCATA 22 Versace v Cumner Contracting Pty Ltd [2004] QDC 228 Von Fahland v Virk [2019] QCATA 178 |
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]AGY Global Wealth Pty Ltd t/as Skylight Energy installed a solar panel system at the house of Cameron James Brown. Mr Brown refused to pay Skylight’s invoice because he was advised that the installation was defective. He engaged other contractors to remove it completely and replace it with another system.
- [2]Skylight sought an order from the tribunal that Mr Brown pay its invoice. The claim was brought in the tribunal’s minor civil dispute jurisdiction and was heard and decided by an Adjudicator on 23 February 2022. The Adjudicator decided that although there had been defects in the installation, these were not major ones entitling Mr Brown to remove the system and escape payment of Skylight’s invoice. The Adjudicator decided that the defects had been remediable at a cost of $450, and so Mr Brown was entitled to a set-off of that amount against Skylight’s invoice. The Adjudicator therefore ordered Mr Brown to pay the sum of $5,180 to Skylight in 28 days.
- [3]Mr Brown now appeals against the decision of the Adjudicator on various grounds, saying that the evidence was insufficient for the Adjudicator to make those findings. In his submissions, Mr Brown attempts to give the Appeal Tribunal better evidence of remedial cost which he obtained after the Adjudicator’s hearing. He also seems to be saying that he could have provided evidence to the Adjudicator to support his case had he been given a chance to do so, but instead the Adjudicator was overbearing.
- [4]Unfortunately it appears that the Adjudicator made an order without jurisdiction to do so. This is in the light of recent Appeal Tribunal authority, in particular Peter Broadbelt Electrical Pty Ltd v Harrison [2022] QCATA 91 delivered on 20 June 2022, confirming that a dispute about electrical work done at a domestic dwelling can be a ‘building dispute’ within the meaning of that expression in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act). As explained below, building disputes which are claims for recovery of a debt or a liquidated demand of money cannot be heard as minor civil disputes. The tribunal has no jurisdiction to hear them as such.
- [5]Despite neither party raising this issue either before the Adjudicator or in this appeal, no doubt because they were not aware of it, I am required to raise it in this appeal because otherwise I would be permitting the tribunal to decide a dispute as a minor civil dispute when it had no jurisdiction do so.[1]
- [6]This means that the Adjudicator’s decision of 23 February 2022 cannot stand and must be set aside. Skylight’s claim needs to be heard in the tribunal’s building list instead. The result is most unsatisfactory for the parties bearing in mind that it is now over 6 years since the solar panel system was installed.
Decision whether to have an oral hearing for this appeal
- [7]The tribunal’s standard directions in appeals in these types of cases include an invitation to the parties to apply for an oral hearing and they are given a timeframe to do so.
- [8]Within the timeframe, Mr Brown did ask for an oral hearing.[2] It can be seen from the tribunal file that at first, a decision was therefore made that the appeal would be listed for an oral hearing. However, it was listed for a hearing on the papers instead, and came to me in that form.
- [9]In making my decision about whether to list the appeal for an oral hearing, I have considered these matters:
- In Chandra v Queensland Building and Construction Commission [2014] QCA 335 it was held to be procedurally unfair to a party applying for an extension of time to appeal not to hold an oral hearing so that the party could respond to matters which the Appeal Tribunal regarded as important.
- The importance of a fair and public hearing is now emphasised by the Human Rights Act 2019 (Qld) (HRA) which came into force in 1 January 2020,[3] and a decision to hold a hearing on the papers rather than in public can only be made if it is reasonable and demonstrably justifiable in accordance with section 13 of the HRA.[4]
- Mr Brown’s reason for wanting an oral hearing was because ‘Skylight Energy has failed to attend the previous two scheduled hearings’. This reason is not therefore anything to do with being unable to present the appeal to the tribunal properly without an oral hearing.
- The tribunal informed both parties that the appeal would be heard on the papers.[5] This means that deciding the appeal on the papers will be in the expectations of the parties.
- The appeal needs to be resolved on a jurisdictional issue and because of the complexities involved (as considered below) it is unlikely that an oral hearing would be of any assistance in resolving the appeal fairly. Instead, I issued directions giving the parties an opportunity to provide submissions on the jurisdictional issue.
- Because of the jurisdictional issue, the party who has asked for an oral hearing (Mr Brown) has been successful in the appeal because the order appealed against will be set aside. Although he has asked for orders to be substituted in his favour, it is unlikely that the Appeal Tribunal could have done that.
- The tribunal aims to act as efficiently as possible in resolving disputes given limited resources and, bearing in mind that the result of a successful appeal[6] and the reasons for the decision must be given in writing anyway, it is more efficient to have a hearing on the papers.
- The appeal concerns matters affecting the private interests of the parties rather than matters of public interest.
- [10]In the circumstances I have decided not to hold an oral hearing of the appeal. I am satisfied that this is a fair decision and a reasonable and justifiable departure from the right to a public hearing.
Other tribunal proceedings between the same parties on the same subject matter
- [11]Since I am referring this claim to the building list,[7] it is helpful to point out that there are at least three tribunal proceedings dealing with the solar panel installation at Mr Brown’s house done by Skylight.
MCDO60397/21 (Brisbane)
- [12]This is the first one in time and the subject of this appeal. It was filed on 18 June 2021 using Form 3 (minor debt claim). It is a claim by Skylight for payment of its invoice in the sum of $5,630 plus the filing fee and interest as determined by the tribunal. In his response to that claim Mr Brown asked for the claim to be dismissed, but also asked for a refund of the deposit paid of $570, and an order that Skylight reimburse him for a payment of $500 paid to his lawyers, and a payment of $1,200 paid to other contractors to remove the Skylight installation. So Mr Brown was asking for the claim to be dismissed but that Skylight be ordered to pay him $2,270 in any event. The response also sought an order that Skylight collect the removed installation.
MCDO739/21 (Brisbane)
- [13]Possibly because Mr Brown understood that the things he sought in his response to MCDO60397/21 amounted to a counterclaim which was not permitted under the tribunal rules in a minor debt claim, he filed his own claim against Skylight. This was MCDO739/21 (Brisbane), filed on 8 July 2021 and commenced using Form 3 (minor debt claim). In this claim he claimed for the same three money items mentioned in his response to MCDO60397/21 totalling $2,270 plus his filing fee of $127.50 making a total of $2,397.50. Skylight did not respond to this claim and so Mr Brown sought a default decision from the tribunal. On 22 July 2022 the tribunal entered a default decision for $2,397.50 in Mr Brown’s favour.
- [14]The hearing occurred in MCDO60397/21 a day later. Although it would appear from the audio recording of the hearing in MCDO60397/21 that neither the Adjudicator nor Mr Brown were aware that the tribunal had entered a default decision for $2,397.50 in MCDO739/21 the day before, Mr Brown did mention MCDO739/21 to the Adjudicator and did explain that he had applied for a default decision. The Adjudicator’s view expressed at the hearing was that Mr Brown would not be entitled to a default decision because MCDO739/21 was not properly cast as a minor debt claim, but was really a consumer claim and default decisions were not available for consumer claims.[8] Hence any default decision would be irregular. For this reason the Adjudicator dealt with MCDO60397/21 as if it were not affected by MCDO739/21.
- [15]The question arises what to do with the default decision MCDO739/21 in this appeal. There is no doubt that the Adjudicator was right that the default decision in MCDO739/21 was irregular for the reasons given. But setting aside a default decision can only be done on an application by a party. There are many things which the tribunal can do of its own motion but this is not one of them.[9]
MCDO228/22 (Brisbane)
- [16]This was filed by Mr Brown on 4 March 2022 as a consumer claim, which was the same date as Mr Brown filed the application for leave to appeal and appeal in MCDO60397/21. In this third proceeding, Mr Brown again claims against Skylight the three money items mentioned in his response to MCDO60397/21 totalling the sum of $2,270 plus the filing fee, making a total of $2,397.50. MCDO228/22 stands adjourned pending the resolution of this appeal.
- [17]It would appear that Mr Brown has filed this claim as a result of the Adjudicator’s remarks about MCDO739/21 not being properly cast as a minor debt claim, in case the Appeal Tribunal sets aside the decision in MCDO60397/21.
- [18]Since I have set aside the decision in MCDO60397/21 but need to transfer that application to the building list, it is right that MCDO228/22 is also transferred to the building list.
Why it is relevant that the dispute about the solar panel installation may be a ‘building dispute’
- [19]I now come to the jurisdictional problem which is the crux of this appeal.
- [20]The problem arises from the definition of minor civil dispute in schedule 3 of the QCAT Act.
- [21]For this, the two relevant parts of the definition are in paragraphs 1(a) and 2, which read together are:
minor civil dispute—
- 1Minor civil dispute means—
- (a)a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
- (b).. (consumer claim not reproduced here)
- (c)to (f) (other types of claims not reproduced here)
- 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.
- [22]There is no doubt that Skylight’s claim in MCDO60397/21 which is before me in this appeal is a claim to recover a debt or liquidated demand of money. Skylight were claiming payment of the remainder of their invoice. Mr Brown had paid the deposit but was refusing to pay any more.
- [23]Paragraph 2 of the definition of minor civil dispute set out above refers to an ‘enabling Act’. An enabling Act is defined for these purposes in section 6(2) of the QCAT Act. An enabling Act is (of relevance here) an Act which confers original jurisdiction on the tribunal. By section 10(1)(b) such original jurisdiction may be conferred on the tribunal under an enabling Act to decide a matter at first instance.
- [24]As can be seen below, I have decided that MCDO60397/21 is a building dispute and the problem is that there is an enabling Act which confers jurisdiction on the tribunal to deal with building disputes, that is the QBCC Act. It confers that jurisdiction on the tribunal in section 77. But that enabling Act does not expressly state that such a claim is a minor civil dispute.
- [25]There is now a long line of authority in the tribunal confirming that the tribunal cannot hear a claim for recovery of a debt or liquidated demand of money which is a building dispute as a minor civil dispute, because under paragraph 2 of the definition set out above, such a claim is not a minor civil dispute.[10] This means that the Adjudicator had no jurisdiction in MCDO60397/21 to order Mr Brown to pay Skylight the sum of $5,180.
- [26]There is another limb to the tribunal’s jurisdiction to hear minor civil disputes, that is consumer claims described in paragraph 1(b) of the definition of minor civil dispute in schedule 3 of the QCAT Act. It might be thought that Skylight’s claim in MCDO60397/21 could be recast as a consumer claim. If so, then the tribunal would have jurisdiction to deal with the claim as a minor civil dispute after all. But this does not work, because a consumer claim can only be brought by a consumer against a trader and a trader against a trader.[11] The tribunal has no jurisdiction to hear a consumer claim brought by a trader against a consumer. Hence MCDO60397/21 cannot be recast as a consumer claim.
- [27]Ironically, the tribunal would have jurisdiction to decide Mr Brown’s second claim about the same subject matter as a minor civil dispute consumer claim (despite being brought on the wrong form), that is MCDO739/21, because he was a consumer and it was brought against a trader and such a claim is not caught by paragraph 2 of the definition of minor civil dispute set out above.
- [28]And for the same reason, despite paragraph 2, the tribunal would also have jurisdiction to hear Mr Brown’s third claim about the same subject matter as minor civil dispute, that is MCDO228/22, subject perhaps to the default decision in MCDO739/21 being set aside because they are really the same claim.
Is the dispute about this solar panel installation a building dispute?
- [29]As said above, section 77 of the QBCC Act confers jurisdiction on the tribunal to decide building disputes. So what is a building dispute? We can start with the definition of ‘building dispute’ in schedule 2 of the QBCC Act:
building dispute means—
- (a)a domestic building dispute; or
- (b)a minor commercial building dispute; or
- (c)a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.
- [30]The first of these terms, ‘domestic building dispute’, is defined in schedule 2 as:
domestic building dispute means—
- (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
- (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
- (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
- (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—
- (i)an architect;
- (ii)an engineer;
- (iii)a surveyor;
- (iv)a quantity surveyor;
- (v)an electrician or an electrical contractor;
- (vi)a supplier or manufacturer of materials used in the tribunal work.
- [31]The second term, minor commercial building dispute, is similar but unnecessary to recite because if (as I have found below) the dispute is a domestic building dispute.[12] Also there is no need to consider the third definition (major commercial dispute).
The work that was done here
- [32]It is helpful to consider the nature of the work that was done in order to decide whether Skylight’s claim for payment for doing the work is a building dispute under section 77 of the QBCC Act.
- [33]The Adjudicator found that Skylight agreed to supply and install a 5kw solar panel system at Mr Brown’s house, with a single phase inverter. There were two complications with the installation. One was that it was to be added to Mr Brown’s existing 1kw system, and another was that Mr Brown had a three phase power supply to the house but he was to be supplied with a single phase inverter.
- [34]Installing a solar panel system to a dwelling involves a mixture of different types of work. Some work will be in the nature of construction (as opposed to electrical work), such as fitting the panels on the roof. This may require an assessment of the strength of the roof, how and where the panels should be positioned, whether mounting brackets and supports are needed, and what access is required. Fitting the electrical equipment for the solar panel installation before it is connected up would also seem to be work in the nature of construction.
- [35]Then there will be electrical work such as wiring and connecting up the electrical equipment to the inverter and the grid. Electrical work is defined in section 18 of the Electrical Safety Act 2002 (Qld) (ESA) and (of relevance here) means connecting electricity supply wiring to electrical equipment, and installing and testing electrical equipment or an electrical installation. There is no doubt that a solar panel installation on a domestic dwelling involves the installation of electrical equipment[13] and it could also be an electrical installation.[14]
- [36]There may be some type of work in such an installation which is neither work in the nature of construction or electrical work, such as planning the appropriate specifications for the installation and discussing these with the customer, supplying the materials and equipment, and obtaining any necessary permits, approvals and certifications.
- [37]The QBCC’s licensing requirements do not assist in deciding whether Skylight’s claim is a building dispute. If the holder of an unrestricted electrical contractor licence[15] installs, repairs or maintains photovoltaic solar panels none of the work will be ‘building work’ for the purpose of the QBCC’s licensing requirements.[16] However, there are licensing requirements for this work in the ESA.
- [38]Whether or not the work comes within the QBCC’s direction to rectify regime is also not relevant in deciding whether Skylight’s claim is a building dispute. A solar panel installation could be ‘building work’ for the QBCC’s direction to rectify regime except for the electrical work involved in the installation. This is because electrical work under the ESA is excluded from the definition of building work.[17] No doubt this is because the Electrical Safety Office has powers to direct rectification of electrical work under some circumstances.[18]
The relevant elements within the definition of ‘building dispute’
- [39]It can be seen from the definition of ‘building dispute’ in schedule 2 of the QBCC Act set out above, deciding whether Skylight’s claim is a building dispute involves considering the meanings of reviewable domestic work and reviewable commercial work, whether Mr Brown was a building owner, and whether Skylight was a building contractor, electrical contractor and/or a supplier of materials used in the tribunal work.
- [40]Rather than consider these now, it is convenient to consider one central issue which is in dispute in this appeal. That is, whether the solar panel installation was an ‘improvement’ of a dwelling or building.
Whether the solar panel installation was an ‘improvement’ of a dwelling or building
- [41]This is relevant because there are four definitions which are necessary parts of the decision whether a dispute is a building dispute (which in this particular case) turn on whether the solar panel installation was an improvement of a dwelling or a building.
- [42]The four definitions (with an explanation why they are relevant) are:
- The definition of reviewable domestic work. This is relevant because as seen above, in order for a dispute about the work to be a domestic building dispute and therefore one type of building dispute the dispute must be about reviewable domestic work.[19]
- The definition of reviewable commercial work. This is relevant because as seen above, in order for a dispute about the work to be a minor commercial building dispute and therefore one type of building dispute the dispute must be about reviewable commercial work.[20]
- The definition of tribunal work. This is relevant for three reasons. The first is that the Court of Appeal in Fraser Property Developments P/L v Sommerfeld & Ors [2005] QCA 134 said that (despite not being expressly stated in the QBCC Act) the tribunal’s jurisdiction over building disputes should be taken as being limited to tribunal work as defined in sections 75 and 76 of the Act. The second reason is one of the parties to a building dispute may be a building owner and building owner is defined through the definition of tribunal work. The third reason is that one of the parties to a building dispute may be a supplier of materials used in the tribunal work.
- The definition of building work. This is relevant because one of the parties to a building dispute may be a building contractor. Building contractor is defined through the definition of building work.
- [43]The relevant wording we are considering in these four definitions is the same or very similar:
- For reviewable domestic work, whether the work is ‘the renovation, alteration, extension, improvement or repair of a home’;[21]
- For tribunal work, reviewable commercial work and building work, whether the work is ‘the renovation, alteration, extension, improvement or repair of a building’.[22]
- [44]In submissions, Skylight argue that the solar panel system it contracted to install did not amount to an ‘improvement’ within the meaning of the word as used in these definitions.[23] Instead it argues that the solar panel installation was just a separate product added to the home.
- [45]In Dvorak v Jensen [2023] QCAT 437 Senior Member Brown considered the definitions set out above:[24]
It is first necessary to look to the text of the relevant provisions of the QBCC Act. The words found in s 4(3)(b) - ‘renovation’, ‘alteration’, ‘extension’, ‘improvement’ and ‘repair’ – are not defined. They are not legal or technical terms. Each word must be given its plain meaning. In the context of building work involving an existing home, ‘renovation’ means repairing or improving; ‘alteration’ means a change in appearance, character or structure; ‘extension’ means enlarging or extending; ‘repair’ means to put back in good condition after damage, decay or deterioration; ‘improvement’ means the process of making something better. Renovation, alteration, extension and repair all involve an element of ‘improvement’ to a home. There is a degree of overlap between all of the terms. For example, renovation involves the alteration of a home, and the extension of a home involves both a renovation and an alteration. Nevertheless, each of the words must be given work to do. Despite the overlap in meaning ‘improvement’ must mean something different than, or additional to, ‘renovation’, ‘alteration’, ‘extension’ or ‘repair’.
Applying the ordinary meaning of ‘improvement’, a home is improved if the amenity or value of the home is enhanced or made better by building work.
- [46]For the purposes of allowable deductions for expenditure on income producing property, the ATO’s Taxation Ruling TR 97/23 considered the ordinary meaning of ‘repairs’ (deductible) and how repairs were to be distinguished from ‘improvements’ (not deductible) saying:[25]
An 'improvement', on the other hand, provides a greater efficiency of function in the property - usually in some existing function. It involves bringing a thing or structure into a more valuable or desirable form, state or condition than a mere repair would do. Some factors that point to work done to property being an improvement include whether the work will extend the property's income producing ability, significantly enhance its saleability or market value or extend the property's expected life.
- [47]In the context of the QBCC legislation it seems to me that for work to be work of improvement there is no requirement that there should be any actual enhancement of market value arising from the work, but that as said in Dvorak, work enhancing the amenity of a dwelling would probably be an ‘improvement’. I might add that I think that work which adds to the quality or durability of a dwelling would be work of improvement. So for example, waterproofing work to a basement or built in area under the house would improve the quality or durability of the house but would not necessarily make it more valuable upon sale.
- [48]It also seems to me that whether work improves a home must be tested objectively because it is easy to envisage work which is to the taste of the home owner but which would not normally be considered an improvement amongst the general reasonable public.
- [49]Turning to Skylight’s submissions that the solar panel installation was not an improvement but was merely a separate product attached to the home, the distinction sought to be made I think is closely similar to the distinction between ‘fixtures’ which are chattels which become part of the land or a dwelling, and chattels which remain personal property. I would agree that it is difficult to say that an addition to the dwelling which would be removed prior to sale would be improvement to the dwelling.
- [50]
There is a variety of general principles which should be considered in assessing whether an item of personal property has become attached to land in a manner designed to achieve a specific objective or a variety of objectives, such as to become a part of the realty and therefore, a fixture. Whether an item has become a fixture depends essentially upon the objective intention with which the item was put in place. The two considerations which are commonly regarded as relevant to determining the intention with which an item has been fixed to the land are first, the degree of annexation, and secondly, the object of annexation.
- [51]So the question would be whether the objective intention, as shown by the degree of annexation or attachment of the solar panel installation was for it to remain at the dwelling upon a sale and so pass to the purchaser as a part of the dwelling. Since this is an objective test it can be answered very simply in this appeal. It is obvious that the solar panel installation became an integral part of the dwelling and there would have been no intention, viewed objectively, that it would be removed before sale.
- [52]The solar panel installation was therefore a fixture.
- [53]The same tests were applied by Judge Hodge QC sitting as a High Court judge in the English case of Borwick Development Solutions Ltd v Clear Water Fisheries Ltd [2019] EWHC 2272 (Ch)[27] where he decided that stand alone solar panels fixed in a metal framework which was screwed into a wooden platform set in the ground were fixtures and passed with the land, mainly because of the degree of attachment to the land and because the installation was not for the enjoyment of the solar panels as such, but for the benefit of the land itself (as an integral part of the land).[28]
- [54]The solar panel installation was clearly an improvement to the dwelling because it made the dwelling more efficient, and was an expenditure of capital which enhanced the value of the dwelling.
Was the work reviewable domestic work, reviewable commercial work, tribunal work and building work?
- [55]These definitions can now be considered. Because the work was an improvement to the home it was reviewable domestic work.[29] This includes work associated with the work of improvement, the provision of services or facilities to the dwelling, and site work relating to the improvement work the associated work or the provision of services.[30] Because the work was reviewable domestic work it cannot be reviewable commercial work.[31]
- [56]As for tribunal work, because the work was an improvement to a building it was tribunal work.[32] This includes site work relating to the improvement work, the preparation of plans or specifications for the carrying out of tribunal work, and the provision of advisory services, administration services, management services or supervisory services relating to the tribunal work.[33] It was also tribunal work because it was reviewable domestic work.[34]
- [57]As for building work, because the work was an improvement to a building it was building work, and this includes any site work related to the improvement work, and the preparation of plans or specifications for the performance of the building work.[35] But the electrical work was not building work.[36]
Was Mr Brown a building owner?
- [58]A dispute will only be a building dispute if it is a dispute between certain types of parties. On one side (of relevance here) Mr Brown would need to be a building owner. Although Mr Brown was most likely a building owner speaking colloquially, it is necessary to see whether he was a building owner within the meaning of that term in these definitions. Building owner is defined in schedule 2 to the QBCC Act:
building owner—
- (a)generally, 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; but
- (b)for schedule 1B, see schedule 1B, section 1.
- [59]The reference to schedule 1B in paragraph (b) can be ignored as irrelevant for our purposes.
- [60]I have decided above that the installation of the solar panel system in Mr Brown’s house was tribunal work, and so Mr Brown would be a building owner on that basis.
Was Skylight a building contractor and/or an electrical contractor and/or a supplier of materials used in the tribunal work?
- [61]The dispute will only be a building dispute if Mr Brown has a dispute with Skylight as a building contractor and/or an electrical contractor and/or a supplier of materials used in the tribunal work.
- [62]Dealing with these one by one, the definition of building contractor is in schedule 2 of the QBCC Act 1991:
building contractor—
- (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
- (b)for schedule 1B, see schedule 1B, section 1.
- [63]The reference to schedule 1B in paragraph (b) can be ignored as irrelevant for our purposes.
- [64]Skylight did carry on a business of solar panel installations and as we have seen above, some part of such work is building work. Hence Skylight is a building contractor because it carries on a business that includes carrying out building work.
- [65]Was Skylight an electrical contractor within its meaning in the definition of domestic building dispute in schedule 2 of the QBCC Act? One question which arises is whether Skylight needed an electrical contractor licence issued in Queensland, or some dispensation from needing such a licence, in order to be an electrical contractor within this definition. If this was required, the Appeal Tribunal has no evidence about whether Skylight had such a licence or dispensation.
- [66]Electrical contractor is not defined in the QBCC legislation but as Senior Member Brown said in Peter Broadbelt,[37] the ESA is of some assistance in construing the expression.
- [67]The ESA refers to a ‘licensed electrical contractor’ or a ‘holder of an electrical contractor licence’, but there is nothing in the ESA to answer the question whether a licence or dispensation is required to be an electrical contractor within its meaning in the definition of domestic building dispute in schedule 2 of the QBCC Act. The only other provision which may help is section 50 of the QBCC regulation which defines a holder of an unrestricted electrical contractor licence installing a solar hot water system as an electrical contractor.
- [68]In the absence of any definition of electrical contractor, it is permissible to interpret the meaning of electrical contractor purposively. The intention of section 77 is to give the tribunal jurisdiction to hear building disputes including disputes about electrical work.[38] Allowing an unlicensed contractor doing electrical work to eschew the tribunal’s jurisdiction by saying that it did not have an electrical contractor licence would be contrary to achieving that intention. Therefore I would say that ‘electrical contractor’ in the definition of domestic building dispute in schedule 2 of the QBCC Act means a contractor doing electrical work even if not a holder of an electrical contractor licence or the holder of a dispensation from a requirement for such licence. It follows that Skylight was an electrical contractor within the definition.
- [69]There is one other relevant type of person who may be a party to a building dispute and that is a ‘supplier .. of materials used in the tribunal work’. As I have found above, the solar panel installation was tribunal work. Skylight supplied the panels and the electrical equipment for the installation and therefore is also this type of party to a building dispute.
Conclusion about jurisdiction
- [70]I conclude therefore that MCDO60397/21 is a claim or dispute arising between a building owner (Mr Brown) and a building contractor and/or an electrical contractor and/or a supplier of materials used in the tribunal work (Skylight), and the claim or dispute relates to the performance of reviewable domestic work or a contract for the performance of such work. Hence it is a domestic building dispute and is one of the types of building dispute.
- [71]For the reasons explained above, since MCDO60397/21 is a claim for recovery of a debt or liquidated demand of money, it could not be heard and determined as a minor civil dispute.
Decision in the appeal
- [72]Leave to appeal is given and the appeal is allowed. The order made in MCDO60397/21 (Brisbane) on 23 February 2022 is set aside.
What directions may be made
- [73]The appeal has been decided on a question of law and therefore under section 146(c) having set aside the decision I may return the matter to the tribunal for reconsideration with or without the hearing of additional evidence or with other directions as considered appropriate.
- [74]In a recent similar case where the Appeal Tribunal found that a building dispute had been dealt with as a minor civil dispute without jurisdiction,[39] Member Lember decided that it was the right approach for the Appeal Tribunal itself to transfer the matter to the building list.
- [75]It is clear to me that the additional powers conferred upon the Appeal Tribunal by section 146(d) of the QCAT Act enable me to follow Member Lember’s example not only in respect of the matter under appeal, but also for the other live MCD matter which stands adjourned pending this appeal, that is MCDO228/22.
- [76]I do not think it is appropriate also to transfer MCDO739/21 to the building list because it has been finalised. This is the MCD where an irregular default decision was entered. If on the application of a party that default decision is set aside, then that application can also be transferred to the building list to be heard with the other matters.
Filing fees
- [77]Prior to any transfer to the building list being formalised, it is necessary for Skylight to pay the correct filing fee to suit a building list application. This is because, by section 38 of the QCAT Act, the tribunal must not take any action on an application until the prescribed fee is paid.
- [78]A building dispute brought in the building list at the time that MCDO60397/21 was filed had a prescribed filing fee of $352. Skylight have paid a filing fee already of $125.40. For the claim to be properly constituted in the building list Skylight should pay to the tribunal the difference of $226.60.
- [79]It is probably not appropriate to order Skylight to pay the additional fee, but merely to give it an opportunity to do so within a certain timeframe if it wishes to pursue MCDO60397/21 which is the matter under appeal. If the fee is not paid within the time allowed then the opportunity to pay the additional fee will have been lost and MCDO60397/21 will be stayed and marked as finalised. Although the tribunal probably can order an indefinite stay anyway,[40] I consider that section 146(d) enables the Appeal Tribunal to make such an order. It seems to me that a stay is more appropriate than a dismissal or strike out of the application because it is more consistent with section 38.
- [80]If the fee is not paid then MCDO228/22 which is Mr Brown’s separate application will not be transferred to the building list as part of this appeal. That application stands adjourned pending the appeal.
Whether compliance with section 77(2) of the QBCC Act
- [81]If Skylight does pay the additional filing fee then MCDO60397/21 and MCDO228/22 will be transferred to the building list and I now consider what directions are appropriate to facilitate them being heard and determined.
- [82]Now that the dispute between the parties has been identified as a building dispute, one important matter on which the tribunal will need to be satisfied is whether section 77(2) of the QBCC Act is an impediment to these matters being heard at all in the tribunal.
- [83]The relevant provisions are:
77 Tribunal may decide building dispute
- (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.
- [84]The ‘commission’ referred to in section 77(2) is the Queensland Building and Construction Commission.
- [85]There is nothing to show that Skylight attempted to resolve the dispute through the commission as required by section 77(2) before bringing MCDO60397/21. The QBCC was involved in this matter at one time, on a complaint brought by Mr Brown. This was when, according to one of his timelines lodged with the tribunal, in January 2020 he made a complaint to the QBCC about the solar panel installation and the QBCC referred this complaint to the ‘electrical safety office’. He told the Adjudicator in the hearing that the complaint was then referred to the Clean Energy Council because QBCC do not deal with solar panel installations. It is unclear whether Skylight responded to the complaint.
- [86]As pointed out in Peter Broadbelt at [37], the question whether section 77(2) has been satisfied is a question of fact and law. It is not suitable to be resolved in an appeal. As explained in Allen v Contrast Constrictions Pty Ltd (No 2) [2021] QCATA 43,[41] section 77(2) is only engaged when the QBCC has a process established to attempt to resolve the dispute. If there is no such process, then section 77(2) is not engaged and there is no impediment to the claim continuing in the tribunal.
- [87]For Skylight’s claim it seems quite possible that prior to the date when MCD60397/21 was filed, that is 18 June 2021, the QBCC offered no dispute resolution for solar panel installations to a dwelling, but there is no evidence on the file about this one way or the other. The parties will be required in the directions to provide this evidence. If there is such a process offered by the QBCC, Skylight will need to show that it invoked that process prior to bringing MCD60397/21.
- [88]The same question arises in Mr Brown’s application in MCDO228/22 the filing date for that claim being 4 March 2022.
Fresh evidence
- [89]Mr Brown has sought in this appeal on an informal basis to present evidence different from that given to the Adjudicator. I have listened to the hearing before the Adjudicator. The main issue in the dispute is whether the defects in the installation prevented it from obtaining Energex approval, and other minor defects in the installation, were ‘major’ defects entitling Mr Brown to reject the installation.
- [90]Although at the hearing the Adjudicator was most careful to reach a reasonable conclusion about this on the available evidence at the time, now that the issues have been clarified, the parties may well wish to put some additional evidence before the tribunal about them.
- [91]One such matter is how the contract was made and how it was evidenced. In the hearing, the Adjudicator did query with the parties about this because they had included only the barest of information about this in their material. As the Adjudicator said in the hearing, it was necessary to have this information and any documents to identify exactly what Skylight had agreed to do. Although from what was said at the hearing it appears that there was no signed written contract, it does appear that the contract was probably formed from an exchange of emails. The ones in the tribunal file seem incomplete. The tribunal needs these documents to reach a correct and reasoned decision in this matter. Directions are given for this evidence to be submitted by the parties if the matter proceeds, together with further evidence that they may wish to adduce.
Footnotes
[1] As explained by Dr J R Forbes sitting as Member in L J Hooker Stafford v Roberts [2020] QCATA 94 this must be raised by the Appeal Tribunal if not raised by the parties.
[2] Email of 7 November 2022.
[3] Section 31 says that a party to a civil proceeding has a right to have it decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
[4] Section 8 and either section 5(2)(a) or section 58 of the HRA. Section 13 provides that a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom having regard to listed matters which may be relevant.
[5] Email of 17 January 2024.
[6] That is, one which does not fail simply because leave to appeal is not granted.
[7] Provided Skylight pays the additional filing fee which arises.
[8] This can be seen from the terms of section 50 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) (QCAT Act).
[9] This can be seen from the terms of section 51 of the QCAT Act.
[10] For example, Von Fahland v Virk [2019] QCATA 178, [20], Member Howe.
[11] This is because a trader applicant like Skylight would not be a ‘relevant person’ within section 12 of the QCAT Act which lists those who may apply to the tribunal to deal with a dispute.
[12] This is because a dispute about work cannot be a domestic building dispute and a minor commercial building dispute at the same time, because such work cannot be both reviewable domestic work and reviewable commercial work at the same time.
[13] Defined in section 14 of the ESA and (of relevance here) means any apparatus for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra low voltage (that is, 50 volts AC or 120 volts DC).
[14] Defined in section 15 of the ESA and (of relevance here) means a group of items of electrical equipment that are permanently electrically connected together and which can be supplied with electricity from the works of an electricity entity or from a generating source.
[15] By schedule 8 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (QBCC Regulation) this means an electrical contractor licence issued in Queensland under the ESA that does not include any conditions or restrictions.
[16] That is because section 51 of schedule 1 of the QBCC Regulation, which lists work that is not building work includes such work for the purpose of section 42 of the Act which deals with QBCC licensing requirements.
[17] Section 20 of schedule 1 of the QBCC Regulation.
[18] Section 57A of the ESA.
[19] All these terms are defined in schedule 2 of the QBBC Act.
[20] All these terms are defined in schedule 2 of the QBBC Act.
[21] This wording is reached through the definition of reviewable domestic work in schedule 2 of the QBCC Act which is said to mean domestic building work under schedule 1B of the Act with some changes.
[22] For tribunal work, this is in section 75(1)(b) of the QBCC Act; for reviewable commercial work this is in schedule 2 of the QBCC Act which defines reviewable commercial work as tribunal work other than reviewable domestic work and for building work this is in the definition of building work in schedule 2 of the QBCC Act.
[23] Submissions dated 30 January 2024.
[24] [12].
[25] [44], see also [120] to [124].
[26] [10], quoted with approval by the High Court in TEC Desert Pty Ltd v Commissioner of State Revenue (Western Australia) (2010) 241 CLR 576; [2010] HCA 49, [24].
[27] The case was reversed on appeal on a different issue (the issue of the solar panels was not appealed against).
[28] [87], [88].
[29] This wording is reached through the definition of reviewable domestic work in schedule 2 of the QBCC Act which is said to mean domestic building work under schedule 1B of the Act with some changes.
[30] Respectively in the definition of domestic building work under schedule 1B of the QBCC Act sections 4(3)(b), 4(6) and 4(7)(a).
[31] Definition of reviewable commercial work in schedule 2 of the QBCC Act.
[32] Included in the definition of tribunal work in section 75(1)(b) of the QBCC Act.
[33] Respectively in the definition of tribunal work in sections 75(1)(e), 75(1)(f) and 75(4) of the QBCC Act.
[34] Section 75(2) of the QBCC Act says that reviewable domestic work is tribunal work.
[35] Respectively in the definition of building work in schedule 2 of the QBCC Act paragraphs (b), (e) and (f).
[36] Section 20 schedule 1 of the QBCC Regulation.
[37] [23].
[38] Because a dispute about electrical work is a building dispute as defined: Peter Broadbelt, [35]; also in Cohen v Green and Gold Solar Australia Pty Ltd [2014] QCAT 674, [17] and [19] Member Fitzpatrick decided that a dispute about a solar panel installation was a building dispute. And as McGill DCJ pointed out in Versace v Cumner Contracting Pty Ltd [2004] QDC 228, [14], it was said in the explanatory notes when the Queensland Building Tribunal Act 2000 (Qld) was passed that the Queensland Building Tribunal (which previously had the jurisdiction over building disputes which is now with QCAT), that disputes arising from some work for which a licence is not required – such as electrical work – are none the less appropriately dealt with by the tribunal.
[39] Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd [2023] QCATA 22.
[40] The power of the tribunal to stay proceedings indefinitely outside of an appeal was considered by Member T Fantin in Board of Professional Engineers of Queensland v Lennox [2010] QCAT 702 under similar statutory provisions, and also considered in Legal Services Commissioner v Singh (No 2) [2011] QCAT 580, 4D Electrical Qld v Greyburn Pty Ltd [2020] QCAT 74 and CHK v State of Queensland [2023] QCAT 41.
[41] [26]-[27].