DISTRICT COURT OF QUEENSLAND

1. [1]
   Andrews SC DCJ: This is an application for leave to appeal and to appeal a decision of the Commercial and Consumer Tribunal delivered on 4 February 2008.

Appeals from the Tribunal

2. [2]
   Argument on both the substance of the appeal and the separate issue of leave was not kept separate by either party. The practice of bringing an application for leave with an appeal has become usual because of its convenience and economy though the question of whether to grant leave is to be considered separately.^[1]

3. [3]
   Section 100 of the Commercial and Consumer Tribunal Act 2003 provides so far as is relevant:

“100 Appeals

3. (1)
   A party to a proceeding before the tribunal may appeal to the District Court against a decision of the tribunal, with the court’s leave, only on the ground of —

3. (a)
   error of law; or

3. (b)
   excess, or want, of jurisdiction.”

4. [4]
   The applicant for leave submits that the tribunal erred in law and lacked jurisdiction.

5. [5]
   When considering the question of whether leave should be granted the approach of the District Court is analogous to the approach of the Court of Appeal to the grant of leave to appeal from a decision of the Planning and Environment Court.^[2]

6. [6]
   When seeking leave to appeal on the basis of error of law the applicant must show a reasonable prospect of showing an error or mistake in law on the part of the tribunal.^[3]  Applicants for leave must show also that the error of law could have materially affected the decision.^[4]

7. [7]
   When an applicant seeks leave to appeal on the ground of want of jurisdiction it has been said that “it is difficult to conceive of any circumstances where any appeal on the ground of want of jurisdiction would not justify leave …”^[5]

Background to this litigation

8. [8]
   For simplicity, I will refer to the applicant/appellant as the builder because that was his occupation at the time he rendered invoices for building work being the invoices the subject of a dispute in the tribunal. The respondents were then, allegedly, owners of a house on which the builder did work. For simplicity, I refer to them as the owners. I do not pre-judge the argument of the builder that the owners were “owner-builders” nor the assertion in the notice of appeal that “the respondents were the owners of the land without proof thereof”. I infer that assertion to have raised an argument that there was insufficient evidence upon which to find that the owners were in fact the owners.

9. [9]
   The owners by an amended statement of claim seek relief below being:

1. (a)
   payment of an amount to be assessed as damages for breach of contract or as monies had and received by the builder;

2. (b)
   an order that the builder provide records showing the “actual Cost of the Works making up progress claims rendered calculated in accordance with” clauses in a written contract alleged by the owners to have been entered into with the builder.

10. [10]
    Consequent upon a hearing before a mediator the owners and the builder agreed that the builder would provide certain documents within 14 days. The agreement was dated 17 August 2006, is on the file and was in the following terms:

“Within 14 days the respondent shall provide the applicant’s solicitor with:

1.1 Copies of all suppliers’ tax invoices in their possession relating to each of the invoices issued to the applicant.

1.2 Extracts from the respondent diaries showing the hours spent on this job by the respondent.

1.3 A spreadsheet linking the suppliers’ invoices and the respondent’s hours with the tax invoices given to the applicant.

1.4 Scissor truss plans provided by Gympie Truss/maker.

2. Each party reserves their rights in relation to the matters in dispute.

3. The application be adjourned to the Registry pending compliance by the respondent with paragraph 1 above.”

11. [11]
    The owners achieved some success with respect to the relief they claimed which is described at (b) in paragraph [9] above. On 24 August 2006 the Tribunal ordered as follows:

“Upon consideration of a consent order signed on behalf of the parties dated 17 August 2006, the Commercial and Consumer Tribunal makes the following orders:

1. The respondent will provide the applicant’s solicitor with:

1. (a)
   Copies of all suppliers’ tax invoices in their possession relating to each of the invoices issues (sic) to the applicant;

2. (b)
   Extracts from the respondent (sic) diaries showing the hours spent on this job by the respondent;

3. (c)
   Spreadsheet linking the suppliers (sic) invoices and the respondents (sic) hours with the tax invoices given to the applicant; and

4. (d)
   Scissor truss plans provided by Gympie Truss Maker by:

4:00 pm on 31 August 2006.”

12. [12]
    On 29 August 2006 the builder’s then solicitors wrote to the Tribunal, so far as is relevant, as follows:

“We … confirm that we are concerned by the issuing of the Tribunal of Order dated 24 August 2006, a copy of which … was received by us on 29^th instant. …  You will note that the delivery of documents was the principal relief sought in the application.  Our clients’ defence raised the question of the Tribunal’s jurisdiction and the justification of such an Order.

It might be assumed from the text of the Order that our client had waived or foregone his objection and defence.  This is not so.

We would ask that the Tribunal consider varying or revoking the Order.  With respect it seems that an order effectively granting principal relief is not directed to the resolution of a proceeding rather it resolves the proceeding.”

13. [13]
    On 31 August 2006 the builder’s new solicitor, being its current solicitor sent a facsimile letter to the Tribunal in the following terms, so far as is relevant:

“We are now instructed to act on behalf of the Respondent, Anthony McGill … Counsel advises on a preliminary basis:

…

3. The piece of paper that was signed by the Respondent was not a ‘Consent Order’ and was never intended to be the same.

4. The Jurisdiction of the Tribunal should be challenged for the above reasons.

…

7. Our client has not been shown Natural Justice in the making of the order and as such the making of such order is, in the circumstances, wrong in law.

Having regard to the above the order of 29^th September (sic) 2006 should be vacated, and if this is not possible without an application then the order be stayed for fourteen (14) days so that proper instructions and counsel’s written advices can be obtained and considered by our client.”

14. [14]
    The builder has made no appeal against the Order of 24 August 2006.  The builder was at liberty to appeal to this court from the Order of 24 August 2006 within 28 days after that Order took effect.^[6]  The builder did not appeal and the 28 days has expired.  The appeal before me is not an appeal against the Order of 24 August 2006.  No oral submissions have been made to me to the effect that there was an error of law in respect of the Order of 24 August 2006.  

15. [15]
    The builder filed an application on 5 October 2006 which the member described as challenging the jurisdiction of the tribunal and in the event that jurisdiction is found to exist asserting that the statement of claim disclosed no cause of action.  The statement of claim was subsequently amended on 12 April 2007 but the builder has maintained that the amended statement of claim too discloses no cause of action.

16. [16]
    Directions were made on 29 August 2007 that the matter of jurisdiction of the tribunal (to deal with this dispute) and in the event that the tribunal considers that it has jurisdiction whether a cause of action is pleaded be determined on the papers.  Each party was to file and serve written submissions.  The builder abandoned for the time being any further application contained in his application filed on 5 October 2006.  On 4 February 2008 the tribunal dismissed the application by the builder.  The tribunal made no further orders.

17. [17]
    The grounds of appeal, the written and oral submissions for the builder were each difficult to distil. It seems necessary to set out some relevant background matters because of this difficulty.

18. [18]
    The parties have not advised me what papers were before the tribunal when this matter was heard and there is no appeal book. However, I can deduce from the application filed 5 October 2006, from the written submissions of the builder filed in the tribunal on 5 October 2006 and the owners’ counsel’s supplementary submissions filed in the tribunal on 26 September 2007 and from their contents that the following documents should have been before the tribunal for the member’s consideration:

1. (a)
   The application filed 5 October 2006 which referred at annexure D to certain documents one of which was an affidavit of Anthony McGill;

2. (b)
   The owners’ counsel’s submissions filed 29 March 2007 and his supplementary submissions filed 26 September 2007 which refer to an affidavit of Anthony McGill dated 19 October 2006;

3. (c)
   An affidavit of Anthony Douglas McGill sworn 19 October 2006 and filed in the tribunal on 31 October 2006.  I infer that this is the affidavit referred to in (a) and in (b);

4. (d)
   Submissions of the builder’s counsel filed in the tribunal on 13 September 2006 referring at par 13 to an order issued by the tribunal on 29 (sic) August 2006 ordering the supply of documents;

5. (e)
   Amended statement of claim filed in the tribunal 12 April 2007;

6. (f)
   Builder’s submissions filed 5 October 2006;

7. (g)
   Order of Chairperson Ms J Schafer dated 24 August 2006 ordering the builder to supply documents to the owner’s solicitor.  I infer that this is the order referred to in (d);

8. (h)
   Amended schedule to statement of claim filed in the tribunal 12 April 2007;

1. (i)
   Amended schedule to defence filed in the tribunal 17 April 2007.

19. [19]
    By the amended schedule to defence filed in the Tribunal on 17 April 2007 the builder:

1. (a)
   Admits he was at all material times a licensed builder;^[7]

2. (b)
   Alleges that the owners, in or about February 2005, entered into an oral agreement with him as sub-contractor, terms of which agreement included that the builder would assist with carpentry work with the owners’ dwelling at $40.00 per hour, that the owners would pay the builder for materials acquired by them on the builder’s accounts with suppliers at cost plus 10%;^[8]

3. (c)
   Alleges that he was at all material times a sub-contractor as requested by the owners and supplied material at the request of the owners;^[9]

4. (d)
   Alleges he invoiced the owners for work and material provided to the owners by him as a sub-contractor.^[10]

20. [20]
    By the affidavit of Anthony Douglas McGill sworn 19 October 2006 and filed in the Tribunal on 31 October 2006 the following facts were deposed to by the builder:

“20. I asked the applicants if they wanted to supply the materials or for me to obtain them at cost plus ten (10) per cent profit.  They both agreed that I was to provide the materials.  The materials were the hardwood timber and steel posts for the back. …

21. At all material times the applicant remained the “owner builder” and I was a sub-contractor for the supply of labour only, save such material as I was requested to provide. …
22. The applicant supplied the timber for the hardwood floor, hardwood exposed rafters, steel posts for the car port, which was an extra to the original plan, tiles, vanities, bath tub, shower trays, toilets, shower screen, kitchen cupboards (done by cabinetmaker), light fittings, laundry tubs, grouting for tiles, steel posts for court yard (extra not on plan), hardwood timber for balustrades, vinyl sliders, mirrors, pre-fabricated windows and sliding doors.”

The Order of 24 August 2006

21. [21]
    The grounds of appeal, in an obtuse way, appear to raise for consideration the efficacy of the Order of 24 August 2006.  So far as seems relevant the grounds include:

“2…

7. As to paragraph 17 that the agreement was an order of the Tribunal when the respondents solicitor specifically requested that it not be an order. (Evidence to be produced at the hearing).

…

5  On the grounds of excess, or want of jurisdiction in that the order of the Tribunal that the Tribunal found jurisdiction on did not comply with Act nor was such Order made an Order of the Tribunal on the above grounds but also that the parties expressly agreed that it not be made an Order of the Tribunal.”

22. [22]
    The written submissions for the builder also, obtusely, appear to attack the efficacy of the Order of 24 August 2006 where they submit:

“14 The Respondent alleged that he is entitled to the original agreement and subsequent Order … Therefore there is no basis for the Order … the Order is without legislative foundation …

19 The objection taken by the Applicant goes to the heart of the Matter in that it was never to be an Order of the mediation and the Applicant says that he was cajoled into signing the agreement by the mediator and his solicitor.”

23. [23]
    The said grounds of appeal and submissions are matters which I take to be related to the decision of the member at paragraphs 16 and 17 which, so far as is relevant, provide:

“16 The respondent submitted that the applicants’ statement of claim does not raise any cause of action in that –

…

3. (iii)
   The Tribunal’s Order for Disclosure made 24 August 2006, essentially, the documents sought by the applicants in their primary relief, should be set aside, because there was no provision in the mediation agreement for that agreement to become an Order of the Tribunal.

19 Dealing with the last of these matters first, there is no issue that the mediation agreement between these parties required the respondent to supply the invoices requested by the applicants in their primary relief.  The Tribunal’s power in respect of mediation agreements appears, essentially, in s 119(5) of the Commercial Consumer Tribunal Act 2003 (“the CCT Act”), and is that the Tribunal may make a decision in terms of the settlement.  The Tribunal’s Order of 24 August 2006 seems to me to be, clearly, an Order consequent upon a decision by the Tribunal and in the very terms of the settlement, as contained in the mediation agreement.  Accordingly, there is no basis (even if it was otherwise appropriate) in my view, for such an Order to be set aside, as requested by the respondent.”

24. [24]
    The member might properly have added that the hearing before him was not an appeal against the making of the Order of 24 August 2006.

25. [25]
    Section 119 of the Commercial and Consumer Tribunal Act provides so far as is relevant:

“119 Matters about Mediation

…

3. (4)
   If … some of the issues in the dispute are, settled, the mediator must report the terms of the settlement to the Tribunal.

3. (5)
   The Tribunal may make a decision in terms of the settlement, and may make consequential orders or give consequential directions.”

The word “decision” is defined in Schedule 2 to the Commercial and Consumer Tribunal Act to include “order and direction”.

26. [26]
    The builder put no evidence before this court of the kind foreshadowed by ground of appeal 2 sub paragraph 7 nor evidence of the kind foreshadowed by ground of appeal 5. Nor was there any evidence of the kind foreshadowed by submission 19.

27. [27]
    If the grounds of appeal and submissions by the builder can be read as seeking to appeal the Order of 24 August 2006 on the basis that the Order involved an error of law they have no proper basis.  If those grounds and submissions are to be read as suggesting an error of law in the member’s reasons extracted above from the decision at paragraphs 16 and 17 they have no proper basis.  The making of the order on 24 August 2006 is within the power given to the tribunal by s 119 of the Commercial and Consumer Tribunal Act. 

The tribunal’s jurisdiction

28. [28]
    The source of the tribunal’s jurisdiction is s 8(1) of the Commercial and Consumer Tribunal Act which provides:

“8 Jurisdiction of tribunal

3. (1)
   The tribunal has jurisdiction to deal with the matters it is empowered to deal with under this Act or an empowering Act.”

29. [29]
    The dictionary at schedule 2 of the Commercial and Consumer Tribunal Act defines “empowering Act” to include the Queensland Building Services Authority Act 1991.

30. [30]
    The Queensland Building Services Authority Act 1991 empowers the tribunal to decide a “building dispute” where it provides at s 77(1):

“77 Tribunal may decide building dispute

3. (1)
   A person involved in a building dispute may apply to the tribunal to have the tribunal decide the dispute.”

31. [31]
    The dictionary at schedule 2 of the Queensland Building Services Authority Act defines “building dispute” so far as is relevant to the issues in this appeal as follows:

“building dispute means—

1. (a)
   a domestic building dispute; or

2. (b)
   a minor commercial building dispute…”

32. [32]
    Counsel for the owners referred in his written submission filed in tribunal on 26 September 2007 to a statement of Jason Paul Beaumont.  Mr Beaumont’s statement contains his opinion that he overpaid $33,000 for materials.  It was sought to be relied upon by counsel for the owners to show that the owners do not envisage the claim exceeding $50,000.  The purpose for relying upon this matter was to found an argument that, whatever the correctness of the member’s decision below about whether the tribunal had jurisdiction, the matter of dispute could have been classified, further and in the alternative, as a “minor commercial building dispute”.  It was submitted that a “minor commercial building dispute” was a matter over which the tribunal has jurisdiction.  The tribunal did not make findings on this issue.  The submission by counsel for the owners is that the owners “do not envisage the claim exceeding $50,000”.  It is not submitted that the owners have limited their claim to $50,000.  If they have not limited their claim to a claim for $50,000 it is not properly classified as a “minor commercial building dispute”.  The amended schedule to statement of claim does not express a limit of $50,000.  I do not regard the evidence or the submission as yet justifying a finding that this is a “minor commercial dispute”.   

33. [33]
    The dictionary at schedule 2 of the Queensland Building Services Authority Act defines “domestic building dispute” so far as is relevant to the issues in this appeal as follows:

“domestic building dispute means—

1. (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

2. (b)
   a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work …”

34. [34]
    The dictionary at schedule 2 of the Queensland Building Services Authority Act defines “building contractor”, “building owner” and “reviewable domestic work” so far as is relevant to the issues in this appeal as follows:

“building contractor 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.

…

building owner 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.

…

reviewable domestic work means domestic building work under the  Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.”

35. [35]
    The Queensland Building Services Authority Act defines “tribunal work” at s 75.  So far as is relevant for this appeal it provides:

“75 Tribunal work defined

3. (1)
   The following is tribunal work—

…

2. (b)
   the renovation, alteration, extension, improvement or repair of a building;

…

3. (2)
   To remove doubt, it is declared that reviewable domestic work is tribunal work.”

36. [36]
    The Domestic Building Contracts Act s 8 defines “domestic building work” so far as is relevant to the issues in this appeal, as follows:

“8 Meaning of domestic building work

3. (1)
   Each of the following is domestic building work—

1. (a)
   the erection or construction of a detached dwelling;

2. (b)
   the renovation, alteration, extension, improvement or repair of a home;

3. (c)
   removal or resiting work for a detached dwelling.

3. (2)
   However—

1. (a)
   removal work for a detached dwelling is domestic building work only if the dwelling is intended to be resited at another place and used, at the place, as residential premises; and

2. (b)
   resiting work for a detached dwelling is domestic building work only if the dwelling is intended to be used at the place at which it is being resited as residential premises.

3. (3)
   Domestic building work includes—

1. (a)
   work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and

2. (b)
   work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.

3. (4)
   Without limiting subsection (3), associated work includes—

1. (a)
   landscaping; and

2. (b)
   paving; and

3. (c)
   the erection or construction of a building or fixture associated with the detached dwelling or home.

Examples of buildings and fixtures for subsection (4)(c)—

retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas

3. (5)
   For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.

3. (6)
   For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated.

Examples of services and facilities for subsections (5) and (6)—

lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage

3. (7)
   Also, domestic building work includes—

1. (a)
   site work relating to work mentioned in subsection (1), (3), (5) or (6); and

2. (b)
   work declared under a regulation to be domestic building work if there are reasonable grounds for considering the work to be domestic building work.

3. (8)
   However, domestic building work does not include excluded building work.

3. (9)
   In this section—

1. (a)
   a reference to a detached dwelling includes a reference to any part of a detached dwelling; and

2. (b)
   a reference to a home includes a reference to any part of a home; and

3. (c)
   a reference to site work includes a reference to work required to be carried out to gain access, or to remove impediments to access, to a site.

3. (10)
   In this section—

removal work, for a detached dwelling, means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place.

resiting work, for a detached dwelling, means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.”

There was no issue raised by the builder that the work done or agreed to be done was “excluded building work” within the meaning of subsection 8(8).

37. [37]
    The work which was done by the builder was carpentry work on the owners’ dwelling.^[11]  Thus it was “domestic building work” within the meaning of that phrase in s 8 of the Domestic Building Contracts Act.  Thus it was “reviewable domestic work” and “tribunal work” within the meaning of those phrases where they respectively appear in Schedule 2 and in s 75 of the Queensland Building Services Authority Act. 

38. [38]
    The builder raised oral arguments at the hearing which are not obvious from reading the Notice of Appeal. I refer to arguments by the builder relating to the definition of “domestic building dispute”. The builder accepts that the tribunal has jurisdiction to decide a building dispute which is a “domestic building dispute”. The builder submitted that the dispute before the tribunal was not a “domestic building dispute”.

39. [39]
    One of the submissions of counsel for the builder implied a nice point. I inferred that the steps in this submission were:

1. (a)
   The contract alleged by the owners is a written contract which is void, ab initio, having been induced by fraud;

2. (b)
   The agreement actually performed by the builder was not the written contract alleged by the owners but was an oral agreement;^[12]

3. (c)
   The builder’s alleged claim relates to a nullity rather than to a “contract for the performance of reviewable domestic work”. 

4. (d)
   The tribunal has jurisdiction where there are disputes.  It follows that the tribunal has jurisdiction where a respondent disputes an applicant’s allegation by denying it.  However, there can be no jurisdiction if a respondent disputes an allegation of fact which founds the jurisdiction such as an allegation of the existence of “a contract for the performance of reviewable domestic work”. 

40. [40]
    The definition of “domestic building dispute” at subparagraph (a) and (b) begins with the words “a claim or dispute”. The use of the word “dispute” appears to me to enlarge the definition. Unfortunately, Mr Cremin did not rely upon any authority for the submission and, perhaps because it was not obvious from the Notice of Appeal, counsel for the owners was unable to assist me with any authority. Neither the word “claim” nor the word “dispute” is given a definition in the Queensland Building Services Authority Act or in the Acts Interpretation Act 1954 or in the Commercial and Consumer Tribunal Act 2003. 

41. [41]
    The use of the word “dispute” in the expression “dispute arising between a building owner and a building contractor” in subparagraph (a) of the definition of “domestic building dispute” suggests that the content of “dispute” depends upon more than the allegations of fact by an applicant and depends also upon the response to those allegations by a respondent. In the instant case the builder denies the validity of the written contract alleged by the owners and alleges, instead, an oral agreement pursuant to which building work was performed.

42. [42]
    It seems to me that there is a “dispute arising between” the owners and the builder relating to “a contract for the performance of reviewable domestic work” whether it be the contract alleged by the owners or the contract created by the oral agreement alleged by the builder.

43. [43]
    It becomes unnecessary for me to consider precisely what is meant by the word “claim” in the definition of “domestic building dispute”. Mr Cremin submitted that there may be cases where a tribunal would need to determine the case before deciding whether the tribunal had jurisdiction. As I understand his submission, there may be occasions where there is “a claim … relating to … a contract for the performance of reviewable domestic work” which does not enliven the jurisdiction of the tribunal because the contract is a nullity but where the tribunal cannot determine whether it has jurisdiction until it has heard the matter. The impracticality of interpreting the word “claim” in this way suggests that the proper interpretation of “claim” is one which would include a claim based upon disputed allegations as to the existence of a contract. However, it is unnecessary for me to decide this matter and, in the absence of any assistance from either party on this issue by way of reference to authority or argument I will not decide it.

The “owner-builder” argument about jurisdiction

44. [44]
    The grounds of appeal and written submissions obtusely raise an argument that the tribunal lacked jurisdiction because the owners were owner-builders. The grounds of appeal provided so far as is relevant:

“3. The Tribunal failed to find that the Respondent failed and or neglected to admit that at all times material the Respondents were owner builders and not subject to the Tribunal’s jurisdiction pursuant to s 13 of the Building Services Authority Regulations 2003.

4. On the grounds of excess, or want of jurisdiction in that the material before the Tribunal was based on non admissions in defiance of evidence showing the Respondent were an owner Builders.

…

7. That the Order made by the Tribunals was based on deception by the Respondents and their failure to disclose fully and frankly material that led the Tribunal into errors of law, namely that the Applicant/Respondent was at all times material an owner builder and not subject to the Domestic Building Act.”

By written submissions counsel for the builder wrote:

“15. The Queensland Builders Authority Regulations 2003 Regulation 13 sets out that:

1) Each of the following is not classified as residential  construction work –

2. (b)
   building work carried out by a building contractor for a person who is the holder of an owner-builder permit covering the work.

…

16. It is therefore submitted that pursuant to the regulation the work carried out by the Applicant was not residential construction work, and therefore not such that the Tribunal was seized of jurisdiction.
17. … However the above clearly states in the regulation that ‘residential construction work” is not “building work.’”

45. [45]
    I understand the argument from the builder to have been a précis for the following:

1. (a)
   The owners should be found to be holders of an “owner-builder permit”;

2. (b)
   The builder is a “building contractor” within the meaning of those words in s 13(b) of the Queensland Building Services Authority Regulation 2003;

3. (c)
   Section 13 of the Queensland Building Services Authority Regulation provides so far as is material:

“Each of the following is not classified as residential construction work—

…

2. (b)
   Building work carried out by a building contractor for a person—

1. (i)
   who is the holder of an owner-builder permit covering the works; or

2. (ii)
   who should have obtained an owner-builder permit to carry out the work;”

4. (d)
   Therefore the work done by the builder for the owners is “not classified as residential construction work” by virtue of s 13(b) of the Queensland Building Services Act Regulation and cannot be “residential construction work” within the meaning of those words in the Queensland Building Services Authority Act;

5. (e)
   If building work is not classified as “residential construction work” under the Queensland Building Services Authority Act it cannot be “reviewable domestic work” within the meaning of those words in Schedule 2 to the Queensland Building Services Authority Act;

6. (f)
   If the work is not “reviewable domestic work” a dispute relating to the performance of it cannot be a “domestic building dispute” within the meaning of those words in Schedule 2 to the Queensland Building Services Authority Act;

7. (g)
   If the dispute is not a “domestic building dispute” it is not a “building dispute” within the meaning of those words in Schedule 2 and s 77(1) of the Queensland Building Services Authority Act.

46. [46]
    No authority was relied on for the submission. I reject the submission. Step (e) in the sequence is the flaw. The definition of “domestic building dispute” in the Queensland Building Services Authority Act is not dependent upon a dispute’s being about work classified as “residential construction work”.  The classification, of work as “residential construction work” serves a different purpose from the classification of a dispute as a “domestic building dispute”.  One classification relates to determining which building work should, before it is commenced, be insured with the Queensland Building Services Authority pursuant to a statutory insurance scheme in Part 5 of the Queensland Building Services Authority Act.  The other classification relates to determining which disputes about building work may be decided by the Tribunal.

47. [47]
    Put another way, work which is “not classified as residential construction work”^[13] because it is performed by a building contractor for a person who is the holder of an owner-builder permit is not prevented for that reason from becoming the subject of a “domestic building dispute”^[14] and the subject of a “building dispute” within the meaning of those words in s 77 of the Queensland Building Services Authority Act.

No evidence owners owned land

48. [48]
    Counsel for the builder, consistently with ground 2 subparagraph 6 of the notice of appeal in the section relating to jurisdiction, initially criticised the member’s reasons at the second paragraph of 12(ii) where the member observed that “there is no suggestion that the applicants are not the owners of the land upon which the construction… was to be carried out.” The criticism was based on a submission that there was no evidence to support the assumption that the owners were owners of the land. The purpose of the submission was not clear from argument. I have assumed it was made for the purpose of establishing that the owners were not a “building owner” as defined in the Queensland Building Services Authority Act and thus supporting an implied submission that subparagraph (a) of that Act’s definition of “domestic building dispute” was not apt to describe the dispute between the owners and the builder.  Mr Cremin conceded in argument before me that the builder was not running a case that the owners were not owners of the land and further conceded that it was an important premise of one of the builder’s arguments to establish that the owners were “owner-builders” within the meaning of the Queensland Building Services Authority Act which premise required the builder to accept that the owners were owners of the land.

49. [49]
    Section 44 of the Queensland Building Services Authority Act is headed “Permits for owner-builders”.  “Owner-builder” is not defined by that Act.  By s 44 of that Act the Queensland Building Services Authority may issue a permit which is later described in Schedule 2 to that Act as an “owner-builder permit”.  Section 44 provides for the issue of such a permit only upon application by “the owner of land”. 

50. [50]
    Ground of appeal 2 subparagraph 6 added that the member made “an assumption not sustainable in law”. This referred to the member’s observation “there is no suggestion that the applicants are not the owners of the land upon which the construction … was to be carried out”. The member’s finding was entirely consistent with the case of the builder that the owners were “owner-builders” because the premise for that case is that the owners were owners of the land. The member cannot be properly criticised by the builder for this finding.

51. [51]
    The definition of “building owner” found in Schedule 2 of the Queensland Building Services Authority Act is set out above.  Scrutiny of the definition reveals that it is not necessary for a person to be the owner of land before the person may be a “building owner”.  A “building owner” includes “a person for whom tribunal work … has been carried out”.  That is, a building owner may include a person for whom renovation, alteration, improvement or repair of a building has been done.  Though the builder is precluded from criticising the member’s finding that “there is no suggestion that the applicants are not the owners of the land, upon which the construction pursuant to the contract was to be carried out” it seems unnecessary to determine whether or not the owners were “owners of the land” in order to determine whether they were a “building owner” within the meaning of those words used in the Queensland Building Services Authority Act.

Reasons paragraph 13 – error of law

52. [52]
    The Notice of Appeal did not make an attack on paragraph 13 of the Reasons of the member. However, the outline of argument for the builder submitted that the member made inconsistent findings of fact which resulted in an error of law. The member observed in paragraph 13 of his reasons:

“Even if I am wrong in my finding that the applicants, as owner-builders, are not building contractors, and that the applicants are, in fact, building contractors, then such a status is not the impediment to this Tribunal’s jurisdiction that the respondent submits.”

53. [53]
    The builder’s submissions on this point were that the member made inconsistent findings of fact and did not isolate which finding was the basis of the tribunal’s jurisdiction but concluded that there was jurisdiction on one basis or on the other. The builder’s counsel cited no authority for the proposition that this approach involved an error of law. It was not submitted that the member would have been incorrect if he had found that the owners were “a building owner” or alternatively “building contractors”. The criticism was that the member failed to decide between the two alternatives. If the owners were one or the other the dispute would be a “domestic building dispute”. The member’s failure to select between them was not the making of inconsistent findings of fact. It did not involve an error of law.

Conclusion

54. [54]
    I give leave to appeal because the appeal raised as grounds that there was a want of jurisdiction and because it was not immediately apparent that the grounds had no merit.

55. [55]
    I dismiss the appeal.

56. [56]
    I will hear the parties as to costs.