GSD Developments Pty Ltd v Tam
[2006] QDC 428
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- Unreported Judgment
- GSD Developments Pty Ltd v Tam[2006] QDC 428
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GSD Developments Pty Ltd v Tam[2006] QDC 428
GSD Developments Pty Ltd v Tam[2006] QDC 428
DISTRICT COURT OF QUEENSLAND
CITATION: | GSD Developments Pty Ltd v Tam [2006] QDC 428 |
PARTIES: | GSD DEVELOPMENTS PTY LTD Plaintiff V STEPHEN TSZ-CHAU TAM First Defendant AND STAT UNITED PTY LTD Second Defendant |
FILE NO/S: | D2168/06 |
DIVISION: |
|
PROCEEDING: | Application |
ORIGINATING COURT: | District Court, Brisbane |
DELIVERED ON: | 4 September 2006 |
DELIVERED AT: | District Court, Brisbane |
HEARING DATE: | 4 September 2006 |
JUDGE: | McGill DCJ |
ORDER: | Application dismissed with costs. |
CATCHWORDS: | INFERIOR TRIBUNALS - Commercial and Consumer Tribunal - whether dispute within jurisdiction of tribunal - contract provided for domestic and general work - undifferentiated claim - court has jurisdiction Commercial and Consumer Tribunal Act 2004 s 40(1) Black v Toowoomba Resort Pty Ltd [2005] QSC 19 - followed C & E Pty Ltd v CMC Brisbane Pty Ltd [2004] 2 Qd R 244 - cited |
COUNSEL: | L. Hu (solicitor) for the plaintiff L. Venville (solicitor) for the defendants |
SOLICITORS: |
|
DISTRICT COURT | No 2168 of 2006 |
CIVIL JURISDICTION | |
JUDGE McGILL SC | |
GSD DEVELOPMENTS PTY LTD ACN 105 287 787 | Plaintiff |
and | |
STEPHEN TSZ-CHAU TAM | First Defendant |
and | |
STAT UNITED PTY LTD ACN 101 227 025 | Second Defendant |
BRISBANE | |
DATE 04/09/2006 |
ORDER
HIS HONOUR: An application was filed on the 18th of August seeking an order under section 40(1) of the Commercial and Consumer Tribunal Act 2004 that the proceedings in this matter be dismissed.
Section 40(1) provides that,
“If a proceeding is started in the Court and the proceeding could be heard by the Tribunal under this Act the Court must order the entity that started the proceeding to start the proceeding again before the Tribunal under section 31.”
Whether such an order can be made depends on whether the proceeding could be heard by the Tribunal under the Act.
There is an exposition of the jurisdiction of the Tribunal in the judgment in a very similar case, a matter of Gregory John Black v. Toowoomba Resort Pty Ltd [2005] QSC 19 and I am content to adopt that exposition.
As in that case, the situation here is that the work required to be done involved work on a group of townhouses. In this case there were seven townhouses divided into three groups: two blocks of two and one block of three. It seems to be common ground that each of the blocks of two is a duplex for the purposes of the definition of detached dwelling in the Domestic Building Contracts Act, whereas the triplex is not.
It follows that the construction of a duplex is domestic building work for the purposes of the Domestic Building Contracts Act and therefore a dispute about that work is a domestic building dispute and therefore one which would be ordinarily within the jurisdiction of the Tribunal.
On the other hand, construction of a triplex is not domestic building work and a dispute about it is therefore commercial work and is not within the jurisdiction of the Tribunal unless it is a minor commercial building dispute, that is to say, where the claim is less than $50,000, or one where the claim is more than $50,000 and the parties to the dispute consent to the dispute being heard by the Tribunal.
The difficulty in this case, and indeed the difficulty in that case, is that the work involved not just duplexes, and not just triplexes, but a mixture of both. In this case, two duplexes and one triplex.
In the Gregory Black case there was a larger number but again a mixture of duplexes and triplexes. In that case, his Honour followed an earlier decision C & E Pty Ltd v. CMC Brisbane Qld [2004] 2 QDR 244 to the effect that a reference to a detached dwelling or a duplex should be read as referring also to multiple detached dwellings or duplexes, so that a contract for the construction of 10 separate houses still involved domestic building work. The same would apply I suppose to any number of duplexes.
Accordingly, if one wants to build a block of townhouses and they are all in one building, it will be commercial building work not domestic building work. If one divides them up into sets of three, they will be still not domestic building work, but if exactly the same project is undertaken but with the blocks divided up into sets of two, it will suddenly become domestic building work. There does not seem to me to be any logical reason why that distinction would be drawn by the legislature, but I think I have noted on previous occasion that the boundaries of the jurisdiction of the Commercial Consumer Tribunal are very curiously obscure.
Unfortunately for people who find themselves in a dispute of this nature, the position under section 40 is clear: if the Tribunal has jurisdiction then the matter has to be dealt with in the Tribunal and, conversely, if the Tribunal does not have jurisdiction then it has to come back to a Court. Plainly, the Tribunal cannot deal with something if it does not have jurisdiction to deal with it.
His Honour in Black identified the issue as whether all of the matters that have to be decided in order to determine the proceeding in the Court or in a Tribunal as the case may be are matters within the jurisdiction of the Tribunal. I would respectfully agree.
In that case, his Honour said, at paragraph 28 in relation to a particular component which appears to relate to both duplexes and triplexes:
“With further particulars it is likely also that some of what is claimed in this invoice could be attributed solely to the domestic work of the construction of one or more of the duplexes. Much of this $58,137 relates to the work involved in the construction of stage 2 as a whole: for example, the engineers fees of $10,680. It is possible that there is, at least, enough of the total claim of $58,137 which relates only to domestic building work so that what remains as a claim relating to 1 commercial work could not exceed $50,000, if so, then the applicant's claim would still be within the Tribunal's jurisdiction.”
In the particular circumstances in which his Honour had to determine the matter, the fact that it was not possible at that stage to determine definitely what the situation was in relation to the claim meant that his Honour could not make any orders and the application was dismissed.
In the present case, no part of the plaintiff's claim is directed specifically to any particular part of the work. No part of it relates to damages for detective workmanship or incomplete work in relation to any particular part of the premises. There was one contract to do all the work and the plaintiff is claiming, firstly, liquidated damages under the contract up to the date on which the contract was terminated by the acceptance of the second defendant's repudiation, together with consequential loss in relation to delay in having the project completed thereafter, and in having to go to the trouble of engaging new contractors and in incurring certain legal costs in connection with the termination of the contract.
But no part of the claim relates to any additional cost of completing the work because it had to be completed by other contractors. Accordingly, no part of the claim, it seems to me, is particularly referable to any particular work done by either the second defendant or the replacement contractors in relation to any particular part of the building. All of it is referable simply to the contract overall and the fact of the repudiation of the contract by the builder.
In these circumstances, it seems to me that it is not possible to show, even with the assistance of further particulars, that any part of the claim relates only to domestic building work. If that is the case, it cannot be said that there would be a balance of the claim which did not exceed $50,000. The total claim is an amount of just over $100,000. It seems to me that no part of that claim can be apportioned between the duplexes and the triplex.
It was submitted that the claim, in so far as it related to the liquidated damages, might be able to be apportioned on the basis of whether it was the duplexes or the triplex which were not at the stage of practical completion, which was said to give rise to the delay triggering the liquidated damages clause. However, there was one contract in this case in respect of the whole project and the liquidated damages clause is that a particular amount per day is payable under the liquidated damages clause, not payable by reference to what part of the work is completed or uncompleted, and whether it is the duplexes or the triplex, it is simply an amount payable under the contract in respect of the whole work if the whole work is not completed.
Accordingly, it does not seem to me that any part of that can be sensibly described as relating only to work on the duplexes and, therefore, relating only to domestic building work. The position it seems to me is that all of the claim relates to the contract as a whole. The contract as a whole does not relate solely to domestic building work, and therefore the whole of the claim does not relate solely to domestic building work, and no part of it can be apportioned specifically to commercial building work so as to show that part of the claim comes out under $50,000.
I do not think the fact that four of the seven units were included within the duplexes means that the amount claimed can be apportioned on the basis of three-sevenths to the triplex and four-sevenths to the duplexes. That does not seem to me to be consistent with the approach adopted by Justice Mc Murdo in paragraph 28 which I have quoted, and it also does not seem to me to be an approach which is really consistent with the situation that applies when there is one contract which requires both domestic building work and commercial building work to be done.
I can understand that where there is a claim arising under one contract in that situation which relates specifically to the commercial building work or the domestic building work, then that claim could be apportioned in this way, but it seems to me that when the claim relates to a contract as a whole, and the contract as a whole is not one which provides only for domestic building work, then the claim as a whole is not a domestic building dispute.
The idea of dividing up the claim in the way contemplated by McMurdo J really involves the assumption that parts of the claim will relate specifically to the domestic building work, and that is not the case here.
Accordingly, it seems to me that no useful purpose would be achieved by adjourning this application to enable further particulars of the claim to be obtained. Further particulars of the basis upon which the work was uncompleted as at the date for practical completion under the contract would not, in my opinion, provide a basis for apportioning the amount of the plaintiff's claim to domestic building work rather than commercial building work.
In my opinion this is an unapportionable claim for something which includes commercial building work, and because it exceeds $50,000 the Tribunal would not have jurisdiction and, accordingly, it is not appropriate to make an order under section 40. No good purpose would be achieved by investigating the question of particulars further. The application should be dismissed and, unfortunately, will have to be dismissed with costs.
I say “unfortunately” because as I say the definition of the jurisdiction of the Tribunal is so obscure, so awkward to apply that it becomes very difficult for people in this position wanting to sue, or who are being sued, to know just where they should be commencing their proceedings.
So for those reasons I will refuse the application for the adjournment of the application, and I will dismiss the application, and order the defendants to pay the plaintiff's costs of the application to be assessed.
I have modified paragraph 2 so that it just says to pay the plaintiff's cost in relation to the application to be assessed. I do not think there is any need to make an order under paragraph 3, so I order then in terms of the draft.