Murgia v Sablewell Pty. Ltd.[1995] QDC 213

IN THE MATTER OF THE QUEENSLAND BUILDING SERVICES AUTHORITY ACT 1991

BETWEEN:

AND:

REASONS FOR JUDGMENT - McLAUCHLAN D.C.J.

Delivered the 27th day of July, 1995

This is an application for leave to appeal against a determination of the Queensland Building Tribunal given on 10th May 1995 in a proceeding in which the respondent was the applicant and the applicant in this Court was the second respondent. The first respondent to the proceedings before the Tribunal was Kistborough Pty. Ltd. trading as Central Plaster and the third respondent was Concrete Constructions (Queensland) a division of Concrete Construction Group Pty. Ltd. The applicant below seeks damages against the first respondent for breach of a subcontract together with other claims, and against the third respondent seeks payment of a claim made against the first respondent, pursuant to an agreement between the applicant and the third respondent, together with damages in tort for inducing a breach of contract. Against the second respondent, the applicant in the present proceedings, the applicant below seeks damages for negligence for breaches of his duty of care to the applicant whilst acting in his capacity as Central Plaster's “main contractor's representative” (a term which I am told is defined in the subcontract) in failing to assess and certify certain payment claims and variation claims made by the applicant as the second respondent was required to do by the subcontract.

An application was brought before the Tribunal seeking an order that the Tribunal did not have jurisdiction to entertain the application against the second respondent and a further order that the proceedings in their entirety be transferred to the Supreme Court. The Tribunal came to the view that it had jurisdiction to entertain the claim against the second respondent and in those circumstances decided that there was no reason to transfer any part of the proceedings to the Supreme Court.

The jurisdiction of the Tribunal under s. 95(1) depends upon an application being made by a party to a “domestic building dispute”. That expression is defined in the Act to mean:—

Before me it was argued for the respondent that the respondent's claim in negligence against the applicant “related to” the performance of domestic building work for the purposes of this definition.

Clearly enough, the expression “related to the performance of domestic building work” qualifies the term “claim or dispute in negligence” for present purposes but it seems to me that the alleged negligence on the part of the applicant relates to the performance of his obligations under the subcontract, rather than to the performance of domestic building work. Subparagraphs (a) and (b) of the definition include claims or disputes arising either in relation to the performance of domestic building work or in relation to a contract for the performance of domestic building work. Subparagraph (c) makes a notable omission in that respect so that whilst the definition includes a claim for negligence related to the performance of domestic building work, it does not include a claim for negligence in relation to a contract for the performance of that work. If Subparagraph (c) had included a claim in negligence related to a contract for the performance of domestic building work, then I would have agreed with the view expressed by the Tribunal, but it does not. The emphasis in para, (c) of the definition is upon the performance of the work, and one may readily see that a claim in nuisance or trespass might arise in the course of performing domestic building work. I consider that a claim in negligence is intended by the legislation to bear the same sort of relation to the performance of domestic building work as a claim in nuisance or trespass. A failure to assess or certify claims for payment or variation in respect of work done, although it may be in breach of a duty of care owed to the respondent and thus amount to negligence, is not negligence which can fairly be described as related to the performance of domestic building work.

It follows that the claim or dispute in negligence against the applicant did not constitute a domestic building dispute. I grant leave to appeal and allow the appeal. The Tribunal's determination that it has jurisdiction to hear and determine the dispute between the respondent and the applicant is reversed and I direct that the name of the applicant, as second respondent in the proceedings below, be struck out.

In those circumstances I see no reason to doubt the correctness of the Tribunal's decision not to remove the proceeding to the Supreme Court.

I shall hear submissions on costs.