Dvorak v Jensen [2023] QCAT 437

Queensland Civil and Administrative Tribunal|2023-11-24

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

[1] The respondent (Mr Jensen) undertook building work for the applicant (Ms Dvorak), specifically, the construction of a concrete driveway at Ms Dvorak's home. Ms Dvorak says that the building work undertaken by Mr Jensen is defective and incomplete and has commenced this proceeding seeking damages for rectification and completion works.
[2] Mr Jensen has applied to have the proceeding dismissed on the basis that the dispute between the parties is not a building dispute. The application to dismiss the proceeding falls to be determined.
[3] The application raises the following issues:

(a) The meaning of 'associated work' in schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act);

(b) When is domestic building work an 'improvement' of a home.

[4] For the reasons that follow, I have concluded that:

(a) The construction of the driveway is 'associated work' and therefore domestic building work;

(b) The dispute is a domestic building dispute.

[5] The Tribunal has jurisdiction to decide a building dispute[1] which may be a domestic building dispute or a commercial building dispute. A domestic building dispute includes a dispute between a building contractor and a builder owner relating to the performance of 'reviewable domestic work' or a contract for the performance of 'reviewable domestic work'.[2]
[6] It is not contentious that Ms Dvorak is a building owner. Mr Jensen does not dispute that he was, at the relevant time, a building contractor. 'Reviewable domestic work' means 'domestic building work'.[3] Section 4(1) of schedule 1B provides that each of the following is domestic building work:

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

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

(c) removal or resiting work for a detached dwelling;

(d) the installation of a kit home at a building site.[4]

[7] Section 4(3) of schedule 1B provides that domestic building work includes:

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

(b) work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.[5]

[8] Mr Jensen says that the construction of the concrete driveway did not involve the renovation, alteration, extension, improvement or repair of a home. Mr Jensen says that the concrete driveway does not fall within the definition of 'home'. Mr Jensen says that the construction of the driveway does not fall within the definition of 'associated work'. He says that the definition can only be satisfied if the associated work is undertaken when actual renovation, alteration, improvement or repair works to a home are undertaken. In other words, there must be a temporal connection between the 'associated work' and actual building work undertaken on a home. Mr Jensen also says that the construction of the driveway is not 'site work' relating to domestic building work as referred to above.
[9] The determination of the present application turns upon the proper construction of s 4 of Schedule 1B of the QBCC Act.
[10] The building work was not undertaken to the structure of the applicant's home. Section 4(1)(b) of schedule 1B is therefore not applicable.
[11] Section 4(3)(b) provides that domestic building work includes work associated with the renovation, alteration, extension, improvement or repair of a home ('associated work'). What is the scope of domestic building work covered by s 4(3)(b)?
[12] It is first necessary to look to the text of the relevant provisions of the QBCC Act. The words found in s 4(3)(b) - 'renovation', 'alteration', 'extension', 'improvement' and 'repair' - are not defined. They are not legal or technical terms. Each word must be given its plain meaning. In the context of building work involving an existing home, 'renovation' means repairing or improving; 'alteration' means a change in appearance, character or structure; 'extension' means enlarging or extending; 'repair' means to put back in good condition after damage, decay or deterioration; 'improvement' means the process of making something better. Renovation, alteration, extension and repair all involve an element of 'improvement' to a home. There is a degree of overlap between all of the terms. For example, renovation involves the alteration of a home, and the extension of a home involves both a renovation and an alteration. Nevertheless, each of the words must be given work to do. Despite the overlap in meaning 'improvement' must mean something different than, or additional to, 'renovation', 'alteration', 'extension' or 'repair'.
[13] Applying the ordinary meaning of 'improvement', a home is improved if the amenity or value of the home is enhanced or made better by building work. As McGill DCJ observed in Anderton & Anor v Parks Horticultural Services Pty Ltd:

Indeed I would hope that the carrying out of $250,000 worth of landscaping around a house, or even $150,000 worth, would amount to an improvement of the house.[6]

[14] The next issue to consider is: when is building work 'associated' with the improvement of a home? 'Associated' is not a term used in any special or technical sense and must be given its usual or ordinary meaning. 'Associated' means related, connected or combined together. The definition of associated work is inclusive and is therefore not an exhaustive definition and the legislature must therefore be taken to have contemplated a wide meaning, rather than a narrow one.[7]
[15] The use of the words 'associated with' is clearly designed to capture within the meaning of s 4(3)(b) a wide range of building work connected with or related to, inter alia, the improvement of a home. This much is apparent from s 4(4) which provides that associated work includes landscaping, paving and the erection or construction of a building or fixture associated with the detached dwelling or home.[8] The examples of buildings and fixtures found in s 4(4) include retaining structures, driveways, fencing, garages, carports, workshops and swimming pools.
[16] Accordingly, building work undertaken that improves or enhances the amenity and/or value of an existing home is 'associated work' for the purposes of s 4(3)(b) of schedule 1B. The conclusion I have reached is consistent with the overall legislative scheme established by the Act. The overarching purpose of schedule 1B is consumer protection and the provisions of the schedule are to be construed in the way that will best achieve that purpose. It does not, in my view, involve an impermissible stretching of the words in s 4(3)(b) of schedule 1B to bring within the scope of the provision building work performed at a property on which a home is situated that enhances the amenity and value of, and thereby improves, the home.
[17] I therefore conclude that the construction of the driveway is domestic building work within the meaning of s 4(3)(b) of schedule 1B of the QBCC Act. The dispute between the parties is a domestic building dispute within the meaning of s 77 of the QBCC Act.
[18] However even if I am wrong in concluding that the construction of the driveway is domestic building work, the dispute is nevertheless a building dispute for the purposes of s 77(1). I have referred in these reasons to 'tribunal work'. 'Tribunal work' includes the erection or construction of a building.[9] 'Building' is defined as 'generally, any fixed structure'.[10] The concrete driveway is a fixed structure. Accordingly, the dispute would be, if not a domestic building dispute, a minor commercial building dispute.

[19] The application for miscellaneous matters is refused. I will make further directions to progress the matter.

[7] Fraser Property Developments Pty Ltd v Sommerfeld & Ors [2004] QSC 363, per Dutney J. Although the decision was overturned on appeal, Dutney J's approach to the construction of the term 'associated work' was not criticised.

[8] A 'building' is defined in schedule 1B as 'a structure, including a temporary building and other temporary structure; and a part of a structure'. 'Fixture' is not defined however should be understood in its ordinary sense as being an object that is annexed to the building or land and becomes part of the building or land.

Anderton & Anor v Parks Horticultural Services Pty Ltd [1996] QDC 281

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