[1] Mr Gullick wanted a new kitchen in his home. He engaged the respondent ('KWB') to do that.
[2] The parties signed two contracts. The first was on 23 October 2017, but, according to Mr Gullick, it was cancelled because the job was not 'QBCC insured'.[1]
[3] They signed another contract on 15 November 2017. Both contracts were apparently very similar, though the complete contract of 23 October 2017 was not put into evidence.
[4] According to Mr Gullick the contract of 23 October 2017 was cancelled because it was not QBCC compliant. In statements of evidence he described the first contract as not 'QBCC insured'[2] and the contract of 15 November 2017 as 'a new QBCC insured contract'.
[5] Mr Cumming for KWB says there were changes made and that was why another contract was made. He did not elaborate on what the changes were.
[6] Mr Gullick says that the second contract (25 November 2017) was to both manufacture and install the kitchen.
[7] KWB says that was not so, it was only to manufacture, not install. They recommended certain tradesmen to Mr Gullick to install the kitchen, but the installers were acting in their own right and had nothing to do with the work done by KWB under the contract manufacturing and supplying the kitchen.
[8] The recommended installers did attend and did install most of the kitchen, but the kitchen was never finished because the parties fell out over payment of outstanding money claimed to be owed by KWB.
[9] Mr Gullick refused to pay the final money under the contract relying on QBCC level 2 contract requirements, which apparently conflicted with the terms of payment in the contract.
[10] KWB maintain the contract was never a building contract but a consumer contract and the dispute should not be in the building list in the tribunal for determination as a building dispute.
[11] Mr Gullick's claimed relief has changed through the course of the action, but at last iteration is for an amount of $9,446.32 representing costs to complete and his claimed loss in not being able to rent out the house from 5 February 2018 until 6 August 2018 at $400 per week.
[12] Whilst Mr Cumming says his company hasn't been paid $3,883.70 representing the final payment due under the contract, KWB has not claimed that amount by way of counter application in the proceeding. Indeed they appear to have resiled from that claim in order to facilitate a compromise. That offer hasn't been accepted by Mr Gullick however and it is unclear whether KWB intend to pursue the outstanding amount as a debt due.
[13] The initial issue for determination however, is whether or not the tribunal has jurisdiction to decide the dispute.
[14] If the dispute is a building dispute, the tribunal has jurisdiction and the matter is correctly before me in the building list.
[15] If it is a consumer dispute however, the issue of jurisdiction to determine a consumer dispute in the building list arises for consideration.
[3]
[16] On the first page of the contract signed by the parties (unchanged in its various iterations as discussed below) and at the last page of the terms of the contract, the foregoing are described as 'conditions of sale'.
[17] Leaving aside some handwritten notations added above clause 7, which notations do not detract or alter the stated typed terms, clause 7 provides:
[4]
Installation Contract
(a) Under this contract KWB will supply the kitchen only.
(b) KWB recommends that you enter into a separate agreement with KWB's licensed installer, in which case KWB will liaise with the licensed installer for installation of the kitchen.
(c) If you do not enter into a separate agreement with KWB's licensed installer, then installation is your responsibility and KWB's warranty regarding workmanship will not apply.
[5]
Initial request was for fixed price quote for supply and install need confirmation of cap of $1,100 for installation costs
[6]
[19] As stated, the handwriting does not detract from or change the meaning of the typewritten terms of clause 7, which might perhaps be described as the original standard terms.
[20] Clause 9 refers to 'Consumer guarantees and KWB warranty' and states:
(b) In addition to these guarantees, KWB offers an express warranty as outlined in our 'warranty'.
(c) If the kitchen fails to meet a consumer guarantee under the CCA then KWB will added selection repair, pay for the repair, replace or refund the cost of the relevant part of the kitchen.
[8]
[21] The original standard terms suggest the contract is one of supply of goods only covered by the consumer protection provisions of the Australian Consumer Law ('ACL'),[4] not a building contract extending to installation of the kitchen onsite.
[22] There are other handwritten additions to the original standard terms.
[23] Mr Gullick says they were added to the second contract as agreed terms. Amongst other things, on page one of the copy contract tendered by Mr Gullick[5] are the words '+ installation @ Kitchen Connection Quote per Page 4 $1100.00 $22337.32'.
[24] The reference to $22,337.32 is apparently intended to represent an increased cost of the contract including an installation fee of $1,100. At the bottom of page four there has also been added:
[9]
With installation costs capped as $1,100 maximum
[10]
[25] At page three of the version of the contract submitted by Mr Gullick, under the item entitled Payments, that part of the original standard terms specifying 60% (the balance) of payment of the price to be made three working days prior to delivery has been crossed out and the following written in by hand:
[11]
Upon completion or payment held by lawyer for release upon satisfactory completion to protect both parties
[12]
[26] Mr Cumming disputes that the handwriting formed part of the contract. He says it was added by Mr Gullick after the contract was signed. Mr Gullick denies that.
[27] The contract was signed by a sales representative for KWB who no longer works for that company and has not worked for the company for some years. That person did not give evidence.
[28] None of the handwritten additions are initialled as agreed changes to the contract save they bear Mr Gullick's initials. The changes made to the first page seem to be in a different hand to the other handwriting, and perhaps with a different pen.
[29] A copy of the contract with the handwriting on pages three and four but not on page one is to be found in the material submitted by KWB in its response document as a copy of the second contract, but no signature of the sales representative added.
[30] KWB subsequently filed a copy of the second contract[6] signed by the KWB sales representative at the bottom of page one and four, but the handwriting saying '+ installation @ Kitchen Connection Quote per Page 4 $1100.00 $22337.32' is missing.
[31] Mr Gullick agreed at hearing that the first page of the contract relied on by KWB was the correct page of the second contract, but claimed the remainder were pages from the first contract. There are two 'first pages' filed by KWB. Neither show the handwriting purporting to add the cost of installation of $1,100 to the price of the contract.
[32] The writing at the top of page four neither adds to nor subtracts from the otherwise clear typewritten terms of the contract.
[33] I am not persuaded that the handwriting on page one of the second contract was added to the contract before the parties signed the contract. I do not accept that the parties agreed to add the work and cost of installation to the price of the contract.
[34] Mr Gullick as proponent of the version of the document with handwritten changes bears the onus of proof of the document on the balance of probabilities. He has failed to satisfy that burden before me.
[35] I determine that the agreement struck was that KWB would manufacture and supply a kitchen, but KWB would not install it.
[36] Rather, in accordance with the provisions of clause 7 of the contract, KWB would submit a list of suggested tradesmen to Mr Gullick and he could at his option engage them to install the kitchen, but as a separate contract between Mr Gullick and the tradesmen concerned.
[37] Indeed Mr Cumming said in giving his evidence at the hearing that Mr Gullick had paid the tradesmen direct, and there was no demur from Mr Gullick to that.
[38] As to Mr Gullick's claim that KWB took out QBCC statutory home warranty insurance, and that was evidence of the contract being a building contract, I disagree.
[39] Leaving aside the fact that it was not KWB that took out QBCC insurance but Mr Cumming personally, the QBCC insurance gave Mr Gullick QBCC insurance cover over the installation work done at his premises by the separately engaged tradesmen.
[40] The price of the kitchen was $21,237.32. It is unclear how much the cost of installation was. It appears it was slightly more than anticipated however (anticipated as say $1,100) because the contractor charged Mr Gullick for some changes made.
[41] Regardless that the installation cost was some figure not much more than $1,100, the insurable value under the QBCC insurance was necessarily much greater. Here it was $22,000.
[42] Insurable value for the purpose of QBCC home warranty insurance is defined in s 67WA of the QBCC Act as:
[13]
an amount representing the reasonable cost to the insurer of having the work carried out by a licensed contractor on the basis that all building and other materials are to be supplied by the contractor (whether or not the work is carried out by a licensed contractor on that basis).
[14]
[43] Accordingly whilst the cost of the contractors installing the kitchen was something around $1,100, the legislation required that the full cost of the kitchen manufacture be included. That is why the QBCC insurance was for $22,000.
[44] There is no equivalence between the insurance provisions and building disputes falling within the Tribunal's jurisdiction for determination.
[45] All of the kitchen was built off-site. I have found it was no part of the contract between the parties that KWB was responsible for installation of the kitchen at Mr Gullick's home.
(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.
[16]
[47] As relevant, building dispute is defined in schedule 2 of the QBCC Act as:
[17]
(a) a domestic building dispute; or
(b) a minor commercial building dispute
[18]
[48] Domestic building dispute is in turn defined in schedule 2 (as relevant) as:
[19]
(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
[20]
reviewable domestic work means domestic building work under schedule 1B, section 4, except that for applying schedule 1B, section 4(8), the definition excluded building work under the schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition.
[21]
[50] Schedule 1B contains many of the former provisions of the repealed Domestic Building Contracts Act. Domestic building work under schedule 1B, s 4 as relevant provides that domestic building work includes:
[22]
(1) 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.
...
3 (b) work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.
(4) Without limiting subsection (3), associated work includes
(a) landscaping; and
(b) paving; and
(c) the erection or construction of a building or fixture associated with the detached dwelling or home.
Examples of buildings and fixtures - retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas
...
[23]
[51] All the aspects of domestic building work bear some connection or nexus at some point with work to be done at a place of final installation or construction, namely at a dwelling, a home or at a building site.
[52] It is contemplated that a portion of work under a regulated contract[7] might be done off-site - see QBCC Act schedule 1B s 33(1) - but not all the work as in the matter at hand.
[53] It is to be noted that schedule 1B s 4(1)(d) specifically captures the work of installing a kit home at a building site as domestic building work, but not that of the actual manufacture of the kit home.
[54] All the work covered by the contract between the parties here being work done off-site and there being no aspect of the work done on-site, I find that the dispute that has arisen between the parties is not a domestic building dispute.
[24]
[55] In so far as tribunal jurisdiction is concerned, the dispute between the parties might be a consumer dispute. Have I jurisdiction to determine it in this proceeding?
[56] Section 50 of the Fair Trading Act1989 (Qld) ('FTA') gives the tribunal original jurisdiction for certain consumer disputes. That might be a cause of action available in the matter at hand. That is, if the dispute as a minor civil dispute within the meaning of that term used in the QCAT Act:
[25]
50 Proceedings referred to court of competent jurisdiction
(1) 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 -
(a) for the tribunal, whether the subject of the proceeding -
(i) would be a minor civil dispute within the meaning of the QCAT Act; or
(ii) would be a matter to which section 50A applies
[26]
[57] The wording of the provision granting jurisdiction must be carefully considered. The provision says a claim (such as a consumer claim for damages for breach of a consumer guarantee) '... must be heard...having regard to ... whether the subject of the proceeding ... would be a minor civil dispute....'
[58] A proceeding that is a minor civil dispute within the meaning of the QCAT Act is original jurisdiction conferred on the tribunal by s 11 of the QCAT Act.
[59] The jurisdiction of the tribunal to determine a building dispute derives by contrast from s 77(1) of the QBCC Act:
[27]
Tribunal may decide building dispute
77(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.
[28]
[60] The difference between lists, MCD and building, is significant. The monetary jurisdiction of MCD claims is limited to $25,000. With domestic building disputes such as the matter at hand there is no monetary jurisdictional limit.[8]
[61] There are strict limitations on cost orders in minor civil dispute actions (in minor civil disputes which are consumer disputes, limited to an applicant recovering the filing fee only).[9] In marked contrast there is a general power to award costs in building disputes which may sound in extensive cost orders in favour of or against a party.[10]
[62] Similarly there are an entirely different range of powers granted the tribunal to resolve building disputes[11] compared to the restricted scope of orders permitted the tribunal in resolving minor civil disputes.[12]
[63] There are differences in the awards of interest possible in the different jurisdictions.[13]
[64] The matter of Sovereign Homes Pty Ltd v Edwards[2016] QCAT 461 was a building dispute in which the builder sought recovery of payment of the final instalment under the contract. The homeowner filed a response and counter application based on the builder's breach of ACL provisions concerning misleading and deceptive conduct. The builder applied to strike out the counterapplication on the grounds that the tribunal had no jurisdiction to deal with the ACL complaints.
[65] The tribunal found the homeowner's complaints about the builder's misleading and deceptive conduct in performing the work under the contract fell within the meaning of domestic building dispute and therefore the homeowner's complaints could be considered as part of the building dispute.
[66] The tribunal went on to consider the complaints about misleading and deceptive conduct as complaints under the ACL and determined the complaints could also be dealt with by the tribunal regardless that they could be considered as falling within the meaning of the expression domestic building dispute because the tribunal was granted jurisdiction by s 50 FTA to consider the homeowner's claims under the ACL on the basis:
[29]
... the jurisdiction exists in the tribunal's minor civil dispute division, the tribunal's mandate to be economical, informal and quick and its flexibility of process allow Mr Edwards' claims to be considered within the building jurisdiction.[14]
[30]
[67] The tribunal's jurisdiction under the ACL is a very narrow one. Other than the matters listed in s 50 and s 50A, there is no general ACL jurisdiction granted the tribunal. There is no jurisdiction to entertain claims under s 18, misleading and deceptive conduct, which was the claim in Sovereign Homes. That was been made clear in Sanctuary Cove Golf and Country Club Pty Ltd (ACN 120 308 410) v Machon[2019] QCATA 1.
[68] Even if the limited ACL jurisdiction granted the tribunal were able to be considered in a building dispute, how is that to be done? As a discrete minor civil dispute matter to be determined as such? As an additional cause of action available in course of resolving the building dispute?
[69] As stated above, the jurisdiction exercised by the tribunal in minor civil disputes is entirely different to that jurisdiction granted for building disputes.
[70] I cannot see how the two can be appropriately dealt with together, either as one building dispute or as a minor civil dispute determined in the course of deciding the building dispute. The difficulties in separating evidence and issues and consequently appropriate cost orders cannot be ignored.
[71] Nor do I consider that the FTA jurisdiction is intended (save for s 50A jurisdiction) to be exercised other than in the course of minor civil dispute proceedings commenced in the tribunal as such.
[72] But in any case, by s 15 of the QCAT Act the tribunal may exercise its original jurisdiction conferred by an enabling Act if a person applies to the tribunal to do that. Mr Gullick has not done that here.
[73] In Sovereign Homes Pty Ltd the claim to reliance on s 18 ACL was raised and relied on by the homeowner in the response and counterapplication. Here Mr Gullick makes no claim on the tribunal to exercise its jurisdiction under the ACL granted via the FTA. In fact he rejects the suggestion that the ACL provisions apply, because he has maintained throughout that the matter concerned a 'QBCC insurance contract', not a consumer contract.
[74] It is not appropriate that I consider any consumer dispute between the parties. Whether Mr Gullick (or KWB) proceeds in the tribunal with a minor civil dispute claim is up to Mr Gullick.
[75] The appropriate course in this building dispute however is to dismiss the application.
[31]
[1] Application for domestic building dispute attached statement page 1.
[6] KWB statement of evidence filed 13 July 2021 page 8 of 20 - not formally tendered at hearing but relied on at hearing.
[34]
[8] Commercial building disputes claiming less the $50,000 may be determined in the tribunal by right, but where the claim exceeds that, the dispute may be determined in the tribunal only with the consent of the parties.
[13] See s 14(3)(b) QCAT Act and s 77(3)(c) QBCC Act together with s54B of the QCAT Regulation (the award of interest limited to that period on and from the day after the day the amount became payable until and including the day the amount is paid).