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GC Pontoon & Jetty Repairs Pty Ltd v Wegener[2024] QCATA 69

GC Pontoon & Jetty Repairs Pty Ltd v Wegener[2024] QCATA 69

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GC Pontoon & Jetty Repairs Pty Ltd v Wegener [2024] QCATA 69

PARTIES:

GC Pontoon & Jetty Repairs Pty Ltd

(applicant/appellant)

v

Michelle Wegener

(respondent)

APPLICATION NO/S:

APL117-23

ORIGINATING APPLICATION/S

MCDQ544/22 Southport

MATTER TYPE:

Appeals

DELIVERED ON:

26 June 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member Lumb

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The Decision of the Tribunal made on 12 April 2023 is set aside.
  4. The matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the Respondent on 13 October 2022 and the matter the subject of the counter-application filed on 4 April 2023 are returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.
  5. Unless, within 14 days of the date of the Decision, a party files with the Tribunal, and gives to the other party, a copy of written submissions (limited to five (5) pages) seeking an order for costs of the appeal, there shall be no order as to costs.
  6. If a party files written submissions in accordance with Order 5:
  1. the other party must, within 14 days of receipt of the written submissions,  file with the Tribunal, and give to the first party, a copy of written submissions in response;
  2. the Appeal Tribunal will decide the issue of costs on the papers without an oral hearing.

CATCHWORDS:

APPEAL – GENERAL PRINCIPLES – leave to appeal – minor civil dispute – where appellant constructed boat ramp at respondent’s residential property – where respondent claimed refund of money paid to appellant and an unspecified amount for removal of ramp and restoration of property – where appellant made claim by way of Application for minor civil dispute raising a consumer/trader dispute –  where relief claimed under the Australian Consumer Law (Qld) – where Adjudicator ordered refund of money and granted miscellaneous relief – where appellant contends that dispute was a ‘building dispute’ within the meaning of  the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) – where appellant contends that the Tribunal had no jurisdiction because of respondent’s non-compliance with s 77(2) of the QBCC Act – whether Tribunal had jurisdiction to decide the dispute – whether Tribunal had jurisdiction and power to grant the relief ordered – where appellant filed counter-application in the proceeding – where appellant  claimed moneys owing under the contract between the parties – where Adjudicator did not deal with counter-application – whether Tribunal erred in law in failing to deal with counter-application –  whether the Tribunal had  jurisdiction to decide the counter-application

Fair Trading Act 2011 (Qld), s 50, s 50A

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10, s 11, s 11A, s 12, s 13, s 142, Schedule 3

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 51

Berry v Treasure & Anor [2021] QCATA 61

Lucas v Habul [2020] QCATA 53

Rickhuss v The Cosmetic Institute Pty Ltd (No.2) [2020] NSWSC 393

Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon [2019] QCATA 1

Saxer v Hume [2022] QCATA 25

Scenic Tours Pty Ltd v Moore [2023] NSWCA 74

Skinner v FTP Contracting Pty Ltd & Anor (No 2) [2020] QCATA 12

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. [1]
    By an Application for leave to appeal or appeal filed on 24 April 2023 (‘the Appeal Application’), the applicant to the Appeal Application (‘GC Repairs’) seeks leave to appeal, and to appeal, a decision of the Tribunal made (by an Adjudicator) on 12 April 2023 (‘the Decision’). The Decision was made in a proceeding commenced by the respondent to the Appeal Application (‘Ms Wegener’) against GC Repairs, by an Application for minor civil dispute - consumer/trader dispute filed on 13 October 2022 (‘the MCD Application’).
  1. [2]
    By the MCD Application, Ms Wegener claimed the following (the respective item descriptions are provided for in the standard Form 1 issued by the Tribunal):
    1. ‘refund of money to me’ of $23,000.00;
    2. ‘rectification of work’ (no monetary amount was included, rather the letters ‘T.B.A.’ were written on the Form); and
    3. ‘payment of the filing fee for this application’ of $367.00.
  2. [3]
    Ms Wegener’s claim related to the construction by GC Repairs of a boat ramp (‘the boat ramp’) at Ms Wegener’s property at the Gold Coast, Queensland. The boat ramp was a substantial reinforced concrete structure embedded into the ground (and butted into both a retaining wall constructed by the Applicant immediately parallel to that part of the boat ramp located on Ms Wegener’s property, and the existing revetment wall at the rear of Ms Wegener’s property). The lower section of the boat ramp was located in a tidal waterway.
  3. [4]
    On 4 April 2023, GC Repairs filed a Minor civil dispute – counter-application (‘the counter-application’) seeking payment from Ms Wegener of two amounts pursuant to the contract for the construction of the boat ramp: $7,570.00 being the amount of a ‘Progress Invoice’, and $6,609.09 being the amount of a ‘Variations invoice’. The total of the two amounts is $14,179.09.
  4. [5]
    On 12 April 2023, the matter was heard by the Adjudicator who made the following orders:
    1. [GC Repairs] will be given an opportunity to remove the boat ramp in a good and workman like manner and reinstate and [sic] to the satisfaction of the Council on or before 3 May 2023, making good as necessary.
    2. In the event that the boat ramp is not removed by 3 May 2023, the Applicant is under no further obligation to provide access to the Respondent for its removal and will obtain a quotation from a third party builder for the cost of removal of the boat ramp and necessary reinstatement and make good.
    3. This matter will be adjourned to the first available date before [the Adjudicator] after 3 May 2023 for the purpose of making a money order with respect to such removal at that time.
    4. The contract between the parties having failed for a total lack of consideration, [Ms Wegener] recieving [sic] no benefit for her contract what so ever and substantial detriment, [GC Repairs] will pay to [Ms Wegener] the sum of $23,367.00[1] within 14 days.
  5. [6]
    The Adjudicator gave oral reasons for the Decision.
  6. [7]
    In making the Decision, the Adjudicator did not deal with the counter-application.
  7. [8]
    On 6 June 2023, upon an application by GC Repairs, the Appeal Tribunal ordered that the Decision be stayed pending the outcome of the Appeal Application.

Grounds of appeal

  1. [9]
    By the Appeal Application, GC Repairs raises three Grounds of appeal which can be summarised as follows:
    1. the Tribunal lacked original jurisdiction to hear the matter;
    2. GC Repairs was not accorded procedural fairness;
    3. ‘The amount of weight given to 1 piece of evidence’. This appears to be a challenge to the factual conclusions reached by the Adjudicator.

Leave to appeal is required

  1. [10]
    An appeal against a decision by the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.[2]
  2. [11]
    As to the Tribunal’s approach to an application for such leave, I respectfully adopt the following observations of Judicial Member DJ McGill SC in Saxer v Hume:[3]

… As a general proposition, when leave to appeal to the Appeal Tribunal is required, it will be granted only where there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error, or where the appeal raises a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. In deciding whether grounds for leave to appeal have been shown, it is relevant to consider that the proceeding was a minor civil dispute, and the obligation on the Tribunal was to make orders it considered to be fair and equitable to the parties to the proceeding in order to resolve the dispute: the QCAT Act s 13(1). The Tribunal was also required to comply with the QCAT Act s 28 and s 29.

(citations omitted)

  1. [12]
    Further, as was said by Justice Daubney, President, in Berry v Treasure & Anor:[4]

There is no automatic right of appeal against minor civil dispute decisions. I respectfully adopt and endorse the following observations by the former President, Justice Alan Wilson, in Durrand v Karaolis:

The Queensland Parliament has made it clear, in the QCAT Act, that so far as possible minor civil disputes of this kind are to be resolved by a simple procedure which is speedy, inexpensive and final. That conclusion is reinforced by the fact that before a party can appeal a decision in this jurisdiction it must obtain leave from the Appeal Tribunal … In other words, there is not an automatic right to appeal these decisions; rather, an applicant must first establish that it has a right to a grant of leave.

(citation omitted)

  1. [13]
    For the reasons set out below, I consider that leave to appeal should be granted because:
    1. there is a reasonable argument that the decision was attended by error and an appeal is necessary to correct a substantial injustice caused by that error;
    2. the question of whether the Tribunal has jurisdiction to decide a minor civil dispute involving a consumer/trader dispute based on relief sought under relevant provisions of the Australian Consumer Law (Queensland) (‘the ACL (Qld)’) if the underlying  facts also give rise to a ‘building dispute’ within the meaning of the QBCC Act and s 77(2) has not been complied with, raises a question of general importance upon which a decision of the Appeal Tribunal would be to the public advantage.
  2. [14]
    I commence with the issue of whether or not the Tribunal had jurisdiction to determine the dispute the subject of MCD Application.

The issue of jurisdiction

  1. [15]
    In my view, the various submissions of the parties raise the following related issues:
    1. whether the Tribunal had jurisdiction to deal with the dispute as a consumer/trader dispute having regard to the relief claimed. I also consider that there is an ancillary issue as to whether all of the Orders or, alternatively, Orders 1, 2 and 3 were validly made;
    2. whether the dispute was a ‘building dispute’ within the meaning of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) and, if so:
      1. (i)
        whether Ms Wegener failed to comply with the requirements of s 77(2) of the QBCC Act;
      2. (ii)
        if not, whether the Tribunal was deprived of jurisdiction to decide the dispute.
  1. [16]
    I also consider that there is a jurisdictional issue concerning the counter-application of GC Repairs.

Jurisdiction to decide consumer/trader dispute?

  1. [17]
    GC Repairs submits, in summary, that:
    1. the dispute was a ‘building dispute’ within the meaning of s 77 of the QBCC Act and Ms Wegener did not satisfy the requirements of s 77(2);
    2. consequently, the Tribunal did not have jurisdiction to determine the matter.
  2. [18]
    Ms Wegener submits, in summary, that:
    1. the dispute was not a ‘building dispute’;
    2. in any event, the Tribunal had jurisdiction to deal with a claim under the ACL (Qld).
  3. [19]
    Section 77 of the QBCC Act provides:
  1. A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.
  1. 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.
  1. Without limiting the tribunal’s powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers—
  1. order the payment of an amount found to be owing by 1 party to another;
  1. order relief from payment of an amount claimed by 1 party from another;
  1. award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;
  1. order restitution;
  1. declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;
  1. avoid a policy of insurance under the statutory insurance scheme;
  1. order rectification or completion of defective or incomplete tribunal work;
  1. award costs.
  1. [20]
    The necessary premise of the submissions of GC Repairs is that if the Ms Wegener’s claim did involve a ‘building dispute’ and Ms Wegener did not comply with s 77(2) of the QBCC Act, the Tribunal had no jurisdiction to deal with the matter as a consumer/trader dispute relying upon provisions of the ACL (Qld). This question requires examination. It is convenient to clarify the basis of the relief sought by Ms Wegener in the MCD Application.

Basis of relief sought by Ms Wegener

  1. [21]
    Ms Wegener attached to the MCD Application:
    1. a 50 page document setting out the orders sought and the reasons for such orders (‘Ms Wegener’s MCD submissions’);
    2. various documents comprising the supporting evidence.
  2. [22]
    The orders sought were set out at page 1 of the Attachment to the MCD Application:
    1. first, that GC Repairs be ordered to refund the ‘full amount’ of $23,000.00 to Ms Wegener’s bank account within 21 days;
    2. second, ‘rectification of faulty works including removal of the existing boat ramp and restoration of the grounds’ at Ms Wegener’s property within 21 days (‘the rectification claim’).
  3. [23]
    In my view, Ms Wegener’s case[5] was based on an alleged failure on the part of GC Repairs to comply with various consumer guarantees contained in the ACL (Qld).[6]
  4. [24]
    With respect to the relief claimed:
    1. the sum of $23,000.00 was sought under s 259(4) of the ACL (Qld)[7] on the basis of an alleged ‘major failure’ to comply with the statutory guarantees;
    2. with respect to the rectification claim, the specific basis for such an order is unclear on the submissions but appears to involve ‘consequential loss’ based also on s 259(4) of the ACL.[8]   The value of such work was not quantified.

Did the facts raise a ‘building dispute’?

  1. [25]
    Ms Wegener’s primary contention is that the construction of the boat ramp is taken not to be ‘building work’ having regard to s 5 of, and Item 19 of Schedule 1B to, the Queensland Building and Construction Commission Regulation 2018 (Qld). Item 19 provides:

Construction, maintenance or repair of harbours, wharfs and other maritime structures, unless the structures are buildings for residential purposes, or are storage or service facilities.

  1. [26]
    It appears to be common ground between the parties that the boat ramp fell within the scope of ‘other maritime structure’. However, GC Repairs contends that it was a building for residential purposes, and the exception was not engaged. This is disputed by Ms Wegener.
  2. [27]
    The parties’ arguments appeared to revolve around matters concerning whether the dispute was a ‘domestic building dispute’. However, in my view, even if it were concluded that the dispute did not involve a domestic building dispute because the construction of the boat ramp was taken not to be ‘building work’ (in respect of which I express no conclusion), I consider that, for the purposes of s 77 of the QBCC Act, the underlying facts satisfied paragraph (b) of the definition of ‘building dispute’.
  3. [28]
    A ‘building dispute’ is defined in the QBCC Act to mean:
  1. a domestic building dispute; or
  1. a minor commercial building dispute; or
  1. a major commercial building dispute if the parties to the dispute consent to the dispute being heard by the tribunal under section 79.
  1. [29]
    The phrase ‘minor commercial building dispute’ means a commercial building dispute where neither the claim nor the counterclaim exceeds $50,000.00.
  2. [30]
    The phrase ‘commercial building dispute’ is defined to mean, relevantly:
  1. 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

…

  1. [31]
    The phrase ‘reviewable commercial work’ is defined to mean tribunal work other than reviewable domestic work.
  2. [32]
    The phrase ‘tribunal work’ is defined by reference to sections 75 and 76 of the QBCC Act.
  3. [33]
    ‘Tribunal work’ includes ‘the erection or construction of a building’ (s 75(1)(a)).
  4. [34]
    The term “building’ is defined as follows:

building—

  1. generally, includes any fixed structure; or

Examples of a fixed structure—

• a fence other than a temporary fence

• a water tank connected to the stormwater system for a building

• an in-ground swimming pool or an above-ground pool fixed to the ground

  1. for part 6AA, see section 74AA; or
  1. for schedule 1B, see schedule 1B, section 1.
  1. [35]
    In my view, in considering the meaning of ‘building’ in s 75, subparagraph (a) of the definition is the applicable provision.
  2. [36]
    I am of the view that the boat ramp constitutes a fixed structure and is a ‘building’ for the purposes of s 75(1)(a).
  3. [37]
    Section 76 sets out work that is not tribunal work. In my view, the construction of the boat ramp does not fall within any of the categories of work identified in s 76. I note that there is no analogue provision to Item 19 of Schedule 1B identified above. Rather, s 76(1)(f) refers to ‘the construction, maintenance or repair of ports or ports infrastructure, unless the structures are buildings for residential purposes, or are storage or service facilities’. Plainly, the boat ramp is not a port or ports infrastructure. That provision makes no reference to marine structures.
  4. [38]
    This raises the question of the impact of s 77(2) of the QBCC Act on the MCD Application.

Impact of s 77(2) of the QBCC on consumer/trader disputes in the Tribunal’s minor civil dispute jurisdiction?

  1. [39]
    In Skinner v FTP Contracting Pty Ltd & Anor (No 2)[9] (‘Skinner’), Member Gordon said the following:

[36]  It follows that in all matters which might be a building dispute, the tribunal will need to decide whether the matter is a building dispute and if so, whether section 77(2) has been satisfied. Only then will the tribunal have jurisdiction to deal with the matter.

[37]  The third jurisdictional point arises from another part of the definition of a minor civil dispute in Schedule 3 of the QCAT Act. Leaving out irrelevant parts for this issue, it says:

minor civil dispute—

1 Minor civil dispute means—

  1. a claim to recover a debt or liquidated demand of money, with or without interest, of up to the prescribed amount; …

2  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.

[38]  There is no doubt that the QBCC Act is an enabling Act, and there is no doubt that section 77 of the QBCC Act confers jurisdiction on the tribunal to deal with a building dispute. The problem arises where the building dispute is also a claim to recover a debt or liquidated demand of money. Such a claim would be within paragraph 2 of the definition of ‘minor civil dispute’ above. Paragraph 2 provides however, that such a claim is not a minor civil dispute unless the enabling Act expressly states that it is a minor civil dispute. The QBCC Act does not state that a building dispute under section 77 is a minor civil dispute. Hence, a building dispute which is a claim to recover a debt or liquidated demand of money is not a minor civil dispute, and cannot be resolved by Justices of the Peace and Adjudicators because they only have jurisdiction to hear minor civil disputes.

[39]  Strangely, a building dispute which is a claim for damages and not a claim for a debt or liquidated demand of money, is not caught by the above provisions and could be heard as a minor civil dispute provided of course section 77(2) is satisfied.

  1. [40]
    In a subsequent decision of Lucas v Habul,[10] Member Gordon affirmed his reasoning in Skinner.
  2. [41]
    The threshold question arising in this context is whether the Tribunal has jurisdiction to decide a minor civil dispute involving a consumer/trader dispute based on relief sought under relevant provisions of the ACL Qld if the underlying  facts also give rise to a ‘building dispute’ within the meaning of the QBCC Act, and s 77(2) has not been complied with.
  3. [42]
    In Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon,[11] the Appeal Tribunal concluded, relevantly for present purposes:[12]
    1. the Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010 (Cth)) is applied as a law of Queensland by the Fair Trading Act 1989 (Qld) (‘the FTA’) (see s 16 of the FTA);
    2. the FTA is an enabling Act as far as the ACL (Qld) is concerned: s 6(2) of the QCAT Act;
    3. the FTA confers jurisdiction to make an application in respect of certain provisions in the ACL (Qld): ss 50 and 51 of the FTA.
  4. [43]
    Subsection 50(1) of the FTA[13] provides, relevantly:

A proceeding for the purposes of a provision of the Australian Consumer Law (Queensland) listed in the table to this section must be heard in the tribunal or in a court having jurisdiction for the proceeding, having regard to—

  1. for the tribunal, whether the subject of the proceeding—
  1. would be a minor civil dispute within the meaning of the QCAT Act; or
  1. would be a matter to which section 50A applies; or
  1. for a court—any civil jurisdictional limit, including any monetary limit, applying to the court.

…

(emphasis added)

  1. [44]
    Various provisions of the ACL (Qld) are identified in s 50(1). In my view, on the proper construction of s 50 of the FTA,[14] an application to deal with a matter arising under one (or more) of the particular provisions of the ACL (Qld) identified in s 50(1) (‘the ACL provisions’) must be heard in the Tribunal if the subject of the proceeding ‘would be’ (is) a minor civil dispute within the meaning of the QCAT Act; that is, within the meaning of ‘minor civil dispute’ as defined in Schedule 3 to the QCAT Act. I note that s 259(4) of the ACL (Qld) is one of the provisions picked up by s 50 of the FTA.
  2. [45]
    In my view, an applicant who brings a claim based on one or more of the ACL provisions is, prima facie, entitled to bring that claim in the minor civil dispute jurisdiction of the Tribunal if the applicant satisfies the requirements of paragraph 1(b) of the definition of ‘minor civil dispute’.[15]
  3. [46]
    The question that arises is whether non-compliance with s 77(2) of the QBCC Act cuts down that right if the dispute the subject of the consumer/trader claim can also be characterised as a ‘building dispute’ within the meaning of the QBCC Act.
  4. [47]
    By way of background, Part 3 of the FTA (which includes ss 48 to 51 inclusive) was substituted by s 18 of the Fair Trading (Australian Consumer Law) Amendment Act 2010 (Qld). The Explanatory Notes to the Fair Trading (Australian Consumer Law) Amendment Bill 2010 (‘the Bill’) provided, relevantly, that:
    1. the principal purpose of the Bill 2010 is to apply the Australian Consumer Law, comprising schedule 2 of the Commonwealth Competition and Consumer Act 2010 (Cth), as law in Queensland;
    2. the Bill would give effect, in Queensland, to part of the Council of Australian Governments (COAG) agreed reforms to Australia’s consumer policy framework whereby all jurisdictions have agreed to adopt the ACL as a single instrument of generic consumer protection legislation and that these reforms, largely based on the Productivity Commission’s Review of Australia’s Consumer Policy Framework, would provide, to the extent possible, a nationally consistent, and enhanced, consumer law for all Australians;
    3. with respect to s 50, that for a Court, the proceeding is determined by any civil jurisdictional limit, including any monetary limit, applying to the court, and for the Tribunal it is determined by whether the subject matter of the proceeding would be a minor civil dispute as defined under the QCAT Act.
  5. [48]
    For the following reasons, I am of the view that compliance with s 77(2) of the QBCC Act is not a pre-requisite to the bringing of a claim based on one or more of the ACL (Qld) provisions identified in s 50(1) of the FTA, even if the underlying facts can also be characterised as a ‘building dispute’.
  6. [49]
    First, like the QBCC Act, the FTA is an enabling Act for the purpose of the QCAT Act.[16] In my view, clear language would be required for one enabling Act to fetter the operation of another enabling Act, particularly where (as here) the ACL (Qld) provisions have been adopted in Queensland as part of ‘a single instrument of generic consumer protection legislation’ nationally, and which provisions give rise to statutory claims.[17] No such clear language appears in s 77 of the QBCC Act.
  7. [50]
    Second, as noted in Skinner, the QBCC Act does not state that a building dispute under s 77 is a ‘minor civil dispute’. Moreover, the QBCC Act in general, and s 77(2) in particular, does not purport to affect the scope of what is or is not a ‘minor civil dispute’ for the purposes of the QCAT Act. In contrast, s 50 of the FTA makes express provision for the hearing of applicable claims in the minor civil dispute jurisdiction of the Tribunal, and paragraph 3 of the definition of ‘minor civil dispute’ expressly excludes from a claim arising out of a contract between a consumer and trader (or between two traders), a claim in a proceeding to which s 50A of the FTA applies.[18] In these respects, the legislature has expressly addressed the interplay between the FTA and the minor civil dispute provisions of the QCAT Act. In my view, the general language of s 77(2) of the QBCC Act does not abrogate or override the specific language of s 50 of the FTA.
  8. [51]
    In short, upon the proper construction of Division 4 of Part 3A of the FTA, s 77 of the QBCC Act, and the definition of ‘minor civil dispute’ in the QCAT Act, I consider that s 77(2) of the QBCC Act does not impose a fetter on the Tribunal deciding a consumer/trader dispute[19] based on one (or more) of the provisions of the ACL identified in s 50(1) of the FTA, even if the underlying facts also give rise to a ‘building dispute’ within the meaning of the QBCC Act.
  9. [52]
    For the sake of clarity:
    1. in the circumstances set out in paragraph [51] above, if s 77(2) of the QBCC Act has not been complied with, an applicant cannot seek alternative relief available in respect of a ‘building dispute’, and is confined to making good the ACL (Qld) claim as a minor civil dispute;
    2. I consider that the orders that may be made by way of an ACL claim (as a minor civil dispute) are governed not only by the operation of the relevant ACL (Qld) provisions, but also by the scope of orders that are available under s 13 of the QCAT Act.

The issue of the relief sought and orders made

  1. [53]
    As I read the Transcript of the hearing (including the oral reasons), the Adjudicator did not address the issue of jurisdiction.
  2. [54]
    As noted above, not only did Ms Wegener seek a ‘refund’ in the sum of $23,000.00, Ms Wegener also brought the rectification claim, which was unquantified.
  3. [55]
    Pursuant to s 11 of the QCAT Act, the Tribunal has jurisdiction to hear and decide a ‘minor civil dispute’. In the Dictionary to the QCAT Act, ‘minor civil dispute’ is defined to mean, relevantly for present purposes:
  1. a claim to recover a debt or liquidated demand of money of up to the prescribed amount; or
  1. a claim arising out of a contract between a consumer and trader, or a contract between 2 or more traders, that is —
  1. for payment of money of a value not more than the prescribed amount; or
  1. for relief from payment of money of a value not more than the prescribed amount; or
  1. for performance of work of a value not more than the prescribed amount to rectify a defect in goods supplied or services provided; or
  1. for return of goods of a value not more than the prescribed amount; or
  1. for a combination of any 2 or more claims mentioned in subparagraphs (i) to (iv) where the total value of the combined claim is not more than the prescribed amount;

…

(underling added)

  1. [56]
    The monetary limit for a minor civil dispute is $25,000.00 (see s 11A(3) of the QCAT Act and the definition of ‘monetary limit’ in Schedule 3 to that Act).
  2. [57]
    In my view, on its face, the Applicant’s claim involved a combination of two claims, being claims of the type mentioned in subparagraphs (b)(i) and (b)(iii) respectively of the definition of ‘minor civil dispute’. As noted above, the rectification claim was unquantified, and no evidence of the value of this claim was led below.
  3. [58]
    However, s 12 of the QCAT Act provides:
  1. The tribunal may exercise its jurisdiction for a minor civil dispute if a relevant person has, under this Act, applied to the tribunal to deal with the dispute.
  2. A relevant person may, as provided for in subsection (3), agree to limit the person’s claim to the prescribed amount in order to bring the claim within the tribunal’s jurisdiction for a minor civil dispute.
  3. A relevant person limits the person’s claim to the prescribed amount by applying to the tribunal to deal with the claim as a minor civil dispute.
  4. In this section—

relevant person means—

  1. for a claim to recover a debt or liquidated demand of money—a person to whom the debt is owed or money is payable; or
  1. subject to paragraphs (c) to (f), for a claim arising out of a contract between a consumer and a trader—the consumer; or
  1. for a claim arising out of a contract between 2 or more traders—any of the traders; or
  1. for a claim for payment of an amount for damage to property caused by, or arising out of the use of, a vehicle—a person incurring loss because of the damage; or
  1. for a tenancy matter—a person who, under the Residential Tenancies and Rooming Accommodation Act 2008, may apply to the tribunal for a decision in relation to the matter; or
  1. for a claim that is the subject of a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011—a party to the dispute; or
  1. for a matter under the Building Act 1975, chapter 8, part 2A—a person who, under the Building Act 1975, chapter 8, part 2A may apply to the tribunal for a decision in relation to the matter.

(underlining added)

  1. [59]
    Whilst I consider there is some tension between s 11(b) and ss 12(2) and 12(3) of the QCAT Act, I am of the view that the terms of the latter provisions are in sufficiently clear terms that, by operation of those provisions, the claim is taken to be limited to the prescribed amount by applying to the Tribunal to deal with the claim as a minor civil dispute.
  2. [60]
    In my view:
    1. Ms Wegener was a ‘consumer’ for the purposes of s 12(4) (as defined in Schedule 3) being an individual for whom services were supplied for fee or reward other than in a trade or business carried on by the individual, or as a member of a business partnership;
    2. given the MCD Application was one for a minor civil dispute, Ms Wegener’s claim was limited to the prescribed amount by operation of ss 12(2) and 12(3) of the QCAT Act;
    3. the Tribunal had jurisdiction to decide the MCD Application as a consumer/trader dispute based on the ACL (Qld).
  3. [61]
    However, despite this conclusion, for the following reasons, I consider that the Decision should be set aside. I will deal with each of the Orders in turn.

Order 1

  1. [62]
    As noted above, Order 1 provided that GC Repairs would be ‘given an opportunity to remove the boat ramp in a good and workman like manner and reinstate and [sic] to the satisfaction of the Council on or before 3 May 2023, making good as necessary’.
  2. [63]
    Leaving aside the question of whether such relief was available under the ACL (Qld), I consider that the order was beyond power.
  3. [64]
    Subsection 13(1) of the QCAT Act provides:

In a proceeding for a minor civil dispute, the tribunal must make orders that it considers fair and equitable to the parties to the proceeding in order to resolve the dispute but may, if the tribunal considers it appropriate, make an order dismissing the application.

  1. [65]
    However, s 13(2) of the QCAT Act provides that the Tribunal may make only the specified final decisions to resolve the dispute. Relevantly for a consumer/trader dispute, the Tribunal may make only the following decisions:
    1. an order requiring a party to the proceeding to pay a stated amount to a stated person ((a)(i)); or
    2. an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant ((a)(ii)); or
    3. an order requiring a party to the proceeding, other than the applicant, to perform work to rectify a defect in goods or services to which the claim relates ((a)(iii)); or
    4. an order requiring a party to the proceeding to return goods that relate to the claim and are in the party’s possession or control to a stated person ((a)(iv)); or
    5. an order combining 2 or more orders mentioned in subparagraphs (a)(i) to (iv) ((a)(v)).
  2. [66]
    Further, s 13(3) provides that the Tribunal cannot make an order or decision under s 13(2) that —
    1. purports to require payment of an amount, performance of work or return of goods of a value of more than the prescribed amount; or
    2. purports to grant relief of a value of more than the prescribed amount from the payment of an amount; or
    3. combines 2 or more orders mentioned in s 13(2)(a)(i) to (iv), and purports to award or declare entitlements or benefits (or both) of a total value of more than the prescribed amount.
  3. [67]
    Leaving aside the question of whether Order 1 involved the performance of ‘work to rectify a defect in goods or services’, I consider that it did not constitute an order ‘requiring’ GC Repairs to perform such work. Rather, it merely gave GC Repairs the ‘opportunity’ to do so. In my view, the Adjudicator did not have power to make Order 1.
  4. [68]
    Further, to the extent that Order 1 required reinstatement ‘to the satisfaction of the Council’ (in circumstances where the Council was not a party to the proceeding and there was no evidence that the Council was prepared to undertake that task), I consider that the Order lacked certainty and was not enforceable.

Orders 2 and 3

  1. [69]
    These orders were consequential upon non-compliance with Order 1. The Orders provided for the obtaining of a quotation from a third party builder for the cost of ‘removal of the boat ramp and necessary reinstatement and make good’ and for relisting of the matter before the Adjudicator for the purpose of making a ‘money order’ with respect to such removal.
  2. [70]
    Given that Orders 2 and 3 were contingent upon Order 1, I consider that they would fall away with Order 1. Further, Order 3, on its face, contemplated the making of a money order, without any monetary cap (and the Order did not make clear whether the amount claimed by Ms Wegener would be contestable by GC Repairs). In my view, Order 3 was not an order requiring a party to the proceeding to pay a stated amount and the Tribunal had no power to make such an order as part of a minor civil dispute.
  3. [71]
    Ms Wegener contends (in her submissions filed on 16 May 2024) that, under the ACL, Ms Wegener was entitled to an order because the ‘goods’ could not be returned without ‘significant cost’ to Ms Wegener, and GC Repairs was required to ‘collect’ the goods at its expense, so the claim was within jurisdiction. Although Ms Wegener did not identify the specific provisions of the ACL, provisions to that effect are found in s 263 of the ACL (Qld) which refers back to s 259 of the ACL (Qld) (which provision was relied upon by Ms Wegener in the MCD Application). Whether the boat ramp constituted ‘goods’ within the meaning of the ACL (see s 2) and whether GC Repairs was required to ‘collect’ the goods at its expense (amongst other issues) are matters that required determination below. However, even if GC Repairs had been obliged to collect the boat ramp, I consider that, by virtue of  s 13(3) of the QCAT Act, the value of the ‘rectification’ work was required to be determined and notionally added to the amount of the refund, regardless of whether the collection was at the expense of GC Repairs. In failing to limit the money order to a maximum of $2,000.00, the Tribunal lacked power (if not jurisdiction) to make Orders 2 and 3.

Order 4

  1. [72]
    As is evident from the terms of Order 4, the stated basis for the order for repayment of $23,000 to Ms Wegener was a ‘total failure of consideration’ of the contract. The Adjudicator’s reasoning on this issue was as follows:[20]

The contract has failed for a total failure of consideration, in that it has not been built in accordance with the plans. There have been no variations. No variations had been sought or applied to for Council. No variations had been sought from engineers or approved by engineers or certifiers. And the construction has simply been made. The builder has refused to return to site and an engineer’s report has been received, advising that it is non-compliant and cannot be fixed. It needs to be demolished.

  1. [73]
    Reference was also made to ‘exhibit D’ which appears to be a show cause notice issued by the Council to Ms Wegener concerning the boat ramp.
  2. [74]
    The Adjudicator’s reasons do not make reference to the ACL (Qld) (or the consumer guarantees raised by Ms Wegener) or to the remedies that would be available under that legislation. To the extent that an inference can be drawn, I consider that, having regard to the reasons at paragraph [72] above and the nature of the relief granted, it more likely than not that the Adjudicator proceeded on the basis that the matter was dealt with as a building dispute. There was no evidence that, prior to filing the MCD Application, Ms Wegener had complied with s 77(2) of the QBCC Act.[21] In the absence of such evidence, I consider that the Adjudicator did not have jurisdiction to deal with the matter as a building dispute. There is an additional jurisdictional issue if the amount of the refund is characterised as a debt or liquidated demand[22] (I refer to my observations at paragraph [82] below in relation to the counter-application). On any view, the Adjudicator did not deal with the MCD Application as a statutory claim under the ACL (Qld) as sought by Ms Wegener.
  3. [75]
    For the above reasons, pursuant to s 146 of the QCAT Act,[23] the Decision should be set aside and the matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the Respondent on 13 October 2022 returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.

Failure to deal with the counter-application

  1. [76]
    The Adjudicator did not deal with the counter-application.
  2. [77]
    By the counter-application, GC Repairs sought to recover two separate amounts alleged to be due and owing under the agreement between the parties. As noted above, the amounts claimed comprised $7,570.00 being the amount of a ‘Progress Invoice’ for ‘works completed to date’, and $6,609.09 being the amount of a ‘Variations invoice’ for ‘additional work requested which is 100% completed’.
  3. [78]
    Sub-rule 51(3) of the QCAT Rules provides:

The proceeding so far as it relates to the counter-application must be conducted as if it were a proceeding for an application for the orders the subject of the counter-application and, for that purpose—

  1. the respondent who made the counter-application is taken to be the applicant; and
  1. the person in relation to whom the counter-application is made is taken to be the respondent.
  1. [79]
    Having regard to the operation of sub-rule 51(3), the claim of GC Repairs is to be considered as if it were the applicant in the proceeding.
  2. [80]
    Sub-rule 51(2) of the QCAT Rules requires the Tribunal to deal with the counter-application in the proceeding.
  3. [81]
    In my view, the Adjudicator erred in law in failing to deal with the counter-application of GC Repairs in that the Adjudicator failed to comply with the mandatory requirements of  s 51(2) of the QCAT Act (I also consider that this constituted a denial of natural justice or procedural fairness).
  4. [82]
    However, GC Repairs’ own case raises a jurisdictional question in relation to the counter-application. Having regard to the observations in Skinner cited at paragraph [39] above, there is an issue of whether the Tribunal has jurisdiction to decide the respective claims for $7,570.00 and $6,609.09 (and if it were found that only the former claim is beyond jurisdiction,[24] whether GC Repairs would be prepared to abandon the claim for $7,570.00).
  5. [83]
    In the above circumstances, I consider it appropriate that the counter-application also be returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.

Costs of the appeal

  1. [84]
    Given that the parties were self-represented and in light of my reasons in relation to jurisdiction and the nature of the orders made below, my provisional view is that no order for costs is warranted, particularly having regard to ss 100 and 102 of the QCAT Act. However, if either party seeks to press for a different order as to costs, I will make provision for the filing of written submissions, limited to five (5) pages, within 14 days of the date of the Decision. Otherwise there shall be no order as to costs.

Orders

  1. [85]
    For the above reasons, it is ordered that:
    1. Leave to appeal is granted.
    2. The appeal is allowed.
    3. The Decision of the Tribunal made on 12 April 2023 is set aside.
    4. The matter the subject of the Application for minor civil dispute - consumer/trader dispute filed by the Respondent on 13 October 2022 and the matter the subject of the counter-application filed on 4 April 2023 are returned to a differently constituted Tribunal exercising the Tribunal’s minor civil dispute jurisdiction for reconsideration.
    5. Unless, within 14 days of the date of the Decision, a party files with the Tribunal, and gives to the other party, a copy of written submissions (limited to five (5) pages) seeking an order for costs of the appeal, there shall be no order as to costs.
    6. If a party files written submissions in accordance with Order 5:
  1. the other party must, within 14 days of receipt of the written submissions,  file with the Tribunal, and give to the first party, a copy of written submissions in response; and
  2. the Appeal Tribunal will decide the issue of costs on the papers without an oral hearing.

Footnotes

[1] This was the combined amount of the claimed refund of $23,000.00 and the filing fee.

[2] Subsection 142(3)(a)(i) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).

[3][2022] QCATA 25, [2].

[4] [2021] QCATA 61, [14].

[5] See, in particular, pages 47-49 of Ms Wegener’s MCD submissions.

[6]Ms Wegener also relied on s 18 of the ACL, which is not a consumer guarantee provision.

[7] Ms Wegner referred only to the ‘Australian Consumer Law’, but I do not think anything turns on this.

[8] See, in particular, pages 49-50 of Ms Wegener’s MCD submissions.

[9] [2020] QCATA 12.

[10] [2020] QCATA 53.

[11] [2019] QCATA 1.

[12] At [39].

[13] Which is found in Division 4 of Part 3A of the FTA.

[14] Also having regard to s 48(1) and s 49(1) of the FTA (found in Division 4 of Part 3A of the FTA).

[15] Subject to the exceptions in paragraphs 2, 3 and 4 of the definition.

[16] QCAT Act, s 6(1), s 6(2), s 9(1), s 10(1)(b).

[17] See e.g., Scenic Tours Pty Ltd v Moore [2023] NSWCA 74, [21]; Rickhuss v The Cosmetic Institute Pty Ltd (No.2) [2020] NSWSC 393, [13]-[14].

[18] This provision applies to a Tribunal proceeding under a provision of the ACL (Qld) listed in the section which relates to a motor vehicle, if the amount or value of other relief sought is not more than $100,000.

[19] Assuming paragraph (b) of the definition of ‘minor civil dispute’ is satisfied.

[20] Transcript T1-62 lines 34-40.

[21] Subsection 77(2) provides that 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

[22] One possible characterisation of the basis for the order made is one of money had and received by GC Repairs (the recipient) to the use of Ms Wegener (the payer): cf Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516, [27]-[31].

[23] Although the distinction between questions of law and questions of mixed fact and law can be elusive, I am satisfied that the above matters involve questions of law only.

[24] There is a question as to whether the claim for ‘variations’ is a claim for a debt or liquidated demand.

Close

Editorial Notes

  • Published Case Name:

    GC Pontoon & Jetty Repairs Pty Ltd v Wegener

  • Shortened Case Name:

    GC Pontoon & Jetty Repairs Pty Ltd v Wegener

  • MNC:

    [2024] QCATA 69

  • Court:

    QCATA

  • Judge(s):

    A/Member Lumb

  • Date:

    26 Jun 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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Rickhuss v Cosmetic Institute Pty Ltd (No 2) [2020] NSWSC 393
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Scenic Tours Pty Ltd v Moore [2023] NSWCA 74
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Castro v Maxwell & Perandis Pty Ltd [2024] QCAT 6132 citations
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