Mackenzie v Gant & Ors [2026] QCAT 74

[3] Ms Mackenzie says that while some of the claims she makes in the proceeding may be 'building disputes' not all are. Ms Mackenzie says that the proceeding should be transferred to the District Court where all of the claims she makes can be determined.

[4] As against Mr Gant, Ms Mackenzie says that Mr Gant provided false or misleading information to her at the time of the purchase of the property, specifically that all required approvals had been obtained in respect of the dwelling relocated on the land.

[5] As against Mr Wilmot, Ms Mackenzie says that Mr Wilmot undertook the building work in respect of the dwelling negligently.

[6] As against RMO Ms Mackenzie says that the solicitors were negligent when acting for her in the purchase of the property, and specifically in failing to identify, and inform of Ms Mackenzie, that all necessary approvals in respect of the relocation of the dwelling had been obtained by Mr Gant.

[7] As against Mr Messer, Ms Mackenzie says that Mr Messer breached the pre-purchase building inspection contract between the parties by failing to identify and report on defective building work.

[8] As against Mr Cobon and Southern Downs Regional Council, Ms Mackenzie says that Mr Cobon issued a final certificate in respect of the relocated dwelling without having previously issued certificates of inspection for the footing stage, frame stage and final stage of the relocation. Ms Mackenzie also says that Mr Cobon wrongly approved the application to relocate the dwelling. Ms Mackenzie's claim against Mr Cobon is one for breach of duty.

[9] As against Southern Downs Regional Council, Ms Mackenzie says that it is vicariously liable for the actions of Mr Cobon.

[10] Mr Gant says that he sold his property to Ms Mackenzie in March 2019. Mr Gant says that in 2009 he engaged Mr Wilmot to relocate the dwelling on the property to another part of the property. Mr Gant says that he is not, nor ever has been, a building contractor as that term is defined in the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act')[1] and therefore the claim by Ms Mackenzie cannot be a building dispute within the meaning of that term in the QBCC Act,[2] with the result that the Tribunal does not have jurisdiction to decide the dispute.[3]

[11] Regarding the application to transfer the proceeding to the District Court, Mr Gant says that Ms Mackenzie has presented her claim in such a way that it is not amenable to a pleadings jurisdiction. Mr Gant refers to the originating application containing hundreds of paragraphs of submissions and almost two hundred exhibits which does not clearly articulate the claims being made and the causes of action relied upon.

[12] Mr Gant says that Ms Mackenzie's claim against him relates to contractual matters and the limitation period for a breach of contract claim has now expired. Mr Gant says that if the proceeding is transferred to the District Court Ms Mackenzie will need to apply to amend her claim to include a new cause of action after the end of the limitation period.

[13] Mr Gant says that the application to transfer the proceeding to the District Court should be refused and the proceeding against him dismissed.

[14] Mr Wilmot says that the proceeding should not be transferred but dismissed and Ms Mackenzie may commence fresh proceedings which are properly pleaded. Mr Wilmot says that Ms Mackenzie has failed to properly articulate her claims against the respondents nor has the relief sought been adequately identified or at all.

[15] Mr Wilmot says that Ms Mackenzie has adopted a scattergun approach to a claim she has been pursuing for over five years. Mr Wilmot says that Ms Mackenzie has, without any plausible explanation, delayed commencing the proceeding notwithstanding that she has had the benefit of legal advice since 2020.

[16] Mr Wilmot says that any potential prejudice Ms Mackenzie may face in respect of the Limitations of Actions Act 1974 (Qld) ('LAA') if the proceeding is dismissed may be cured by Ms Mackenzie seeking the leave of the court to commence the proceeding out of time.

[17] For various reasons set out in his submissions, Mr Wilmot says that the claim by Ms Mackenzie against him has no reasonable prospect of success. Mr Wilmot says that there is no utility in transferring a proceeding which cannot succeed.

[18] RMO says that the proceeding should be dismissed. RMO says that in the absence of a properly articulated claim by Ms Mackenzie, it is unclear whether the District Court is the correct jurisdiction for the claim to proceed in.

[19] RMO says that before commencing the proceeding and since no later than 2020, Ms Mackenzie has had the benefit of legal advice that the District Court was the correct jurisdiction in which to bring the claim. Subsequent to the commencement of the proceeding RMO says it advised Ms Mackenzie that the Tribunal did not have jurisdiction in respect of her claim. RMO says that the claim by Ms Mackenzie is unmeritorious and cannot succeed and Ms Mackenzie has been told this.

[20] RMO says that the application to transfer the proceeding should be refused and the claim against it dismissed.

[21] I will refer in this part of the reasons to Mr Cobon and Southern Downs Regional Council collectively as the respondents.

[22] The respondents say that Ms Mackenzie has failed to identify the causes of action against each of the six respondents and that it is therefore unclear as to what, as a matter of fact and law, is sought to be transferred.

[23] The respondents say that the proceeding should not be transferred and the claim dismissed. The respondents say that Ms Mackenzie made the decision to commence the proceeding in the Tribunal in circumstances where it was apparent that the Tribunal did not have jurisdiction. The respondents say that s 52 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') should not be used to cure Ms Mackenzie's election to commence the proceeding in the Tribunal in circumstances where she had sought legal advice which anticipated the commencement of proceedings in the District Court. The respondents also say Ms Mackenzie should be bound by her election.

[24] The respondents say that if the claim by Ms Mackenzie is one in negligence, the claim is statute barred and in any proceeding in the District Court the LAA will be pleaded in defence of the claim.

If the tribunal considers it does not have jurisdiction to hear all matters in a proceeding, the tribunal may, by order, transfer the matter or matters for which it does not have jurisdiction to -

(a) a court of competent jurisdiction; or

(b) another tribunal or entity having jurisdiction to deal with the matter or matters.

[27] With the exception of the claims by Ms Mackenzie against Mr Wilmot and Mr Messer, it may be readily accepted that none of the claims asserted by Ms Mackenzie against the respondents is a 'building dispute' within the meaning of that term in schedule 2 of the QBCC Act.

[28] Section 77(2) of the QBCC Act provides that a person involved in a building dispute may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute. Insofar as the claims by Ms Mackenzie against Mr Wilmot and Mr Messer are concerned, there is no evidence before the Tribunal that Ms Mackenzie has satisfied the requirements of s 77(2) either by complying with a dispute resolution process established by the QBCC or providing evidence that there was no such process established in relation to the particular dispute.

[29] The claim by Ms Mackenzie against Mr Messer arises out of the pre-purchase inspection undertaken by Mr Messer. The Tribunal has previously held that a dispute between a building owner and a building contractor about the inspection of a completed building is a commercial building dispute.[4] The amount claimed by Ms Mackenzie exceeds $50,000. The claim against Mr Messer is therefore a major commercial building dispute.[5] Ms Mackenzie did not comply with the requirements in the QBCC Act relating to commencing proceedings in the Tribunal for a major commercial building dispute.[6] Even if Ms Mackenzie was able to overcome the hurdle presented by s 77(2), the failure to comply with the requirements of the QBCC Act in relation to commencing a proceeding for a major commercial building dispute would be fatal to the claim against Mr Messer.

[30] It is relevant that Ms Mackenzie brought proceedings in the Tribunal in 2021 against an engineer and building contractor relating to the dwelling. After purchasing the property Ms Mackenzie had engaged the engineer to provide a report about the issues affecting the structural integrity of the dwelling and any necessary rectification work. Ms Mackenzie engaged the building contractor to undertake the rectification work. Ms Mackenzie was unsuccessful in her claims against both the engineer and the builder at first instance and on appeal.[7] It seems that this lack of success led Ms Mackenzie to commence the present proceeding. It is clear that Ms Mackenzie was contemplating a claim against RMO in November 2020 and a claim against Southern Downs Regional Council in May 2021. By March 2022, a draft District Court claim and statement of claim had been prepared by Ms Mackenzie's solicitors and sent to RMO. It is also clear that during 2022 Ms Mackenzie's solicitors were corresponding with RMO's insurer regarding the possibility of resolving Ms Mackenzie's claim. Ms Mackenzie's earlier proceeding in QCAT against the engineer and the builder to which I have referred was also progressing at this time.

[31] With the exception of Mr Messer who has not filed submissions, the respondents say that the claims against each of them lack merit and should be dismissed. By s 47 of the QCAT Act, the Tribunal may dismiss a proceeding if the Tribunal considers the proceeding to be frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. A proceeding brought in the Tribunal which the Tribunal does not have jurisdiction to determine is liable to be dismissed pursuant to s 47(2)(a). Where the Tribunal lacks jurisdiction, it is not open to the Tribunal to determine the merits of the claim which is the subject of the proceeding. This would be to assume jurisdiction where there is none.

[32] As I have earlier observed, the claim against Mr Messer has been commenced absent compliance with the requirements of the QBCC Act relating to major commercial building disputes. Mr Messer undertook the inspection of the dwelling on 9 February 2019. If the proceeding against Mr Messer is dismissed and Ms Mackenzie is required to commence a further proceeding, the potential for prejudice is significant noting that the present proceeding was commenced on 3 February 2025.

[33] The submission by Mr Wilmot that, if the proceeding against him is dismissed, Ms Mackenzie will be at liberty to seek the leave of the court to commence a claim against him out of time, does not refer to the basis upon which such leave may be applied for or granted. The submission cannot be based upon the extension of time provisions in the LAA as these relate only to claims for damages for personal injury. If the submission is premised upon the application of rule 376 of the Uniform Civil Procedure Rules 1999 (Qld) ('UCPR') then it is misconceived. Rule 376(4) has application in circumstances where there is an extant proceeding in which an application is made to include a new cause of action after the limitation period has ended and where the new cause of action arises out of the same, or substantially, the same facts as a cause of action for which relief has been claimed in the proceeding. The claim by Ms Mackenzie against Mr Wilmot is expressed as one in negligence. Mr Wilmot's submission that the dismissal of the proceeding will not result in prejudice to Ms Mackenzie in respect of the application of the LAA cannot be accepted. If Ms Mackenzie commenced the proceeding against Mr Wilmot within the relevant limitation period, dismissal of the proceeding will result in prejudice to Ms Mackenzie by the proceeding being dismissed. Contrary to Mr Wilmot's submission if Ms Mackenzie is required to commence a fresh proceeding against Mr Wilmot, it seems to me that she will not be able to avail herself of rule 376.

[34] As to the claims against those respondents which is not a building dispute, it would not be appropriate to make any determination of the merits of the claims given the absence of jurisdiction. However, it is relevant to consider that Ms Mackenzie may be prejudiced if the proceedings against these respondents is dismissed and she is required to commence a further proceeding in a court which may be met with a limitations defence.

[35] I accept that the application filed by Ms Mackenzie is not in a form consistent with a pleadings jurisdiction. Absent the potential for prejudice to Ms Mackenzie to which I have referred, if she is required to commence a further proceeding, I would have been inclined to dismiss the proceeding. As it is, and given the potential prejudice, it is appropriate that the proceeding is transferred to the District Court. There is no doubt Ms Mackenzie will be required to amend her claim to conform with the requirements of a pleadings jurisdiction. That is a matter for the parties and for the court.

[36] The proceeding is transferred to the District Court of Queensland at Brisbane.

[1] Queensland Building and Construction Commission Act 1991 (Qld) sch 2 (definition of 'building contractor') ('QBCC Act').

[2] Ibid sch 2 (definition of 'building dispute' para (a)), (definition of 'domestic building dispute').

[4] Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections [2021] QCAT 114, [14] (Senior Member Brown). See also QBCC Act s 75(1)(g), sch 1B s 4(1), sch 2 (definition of 'commercial building dispute' para (a)), (definition of 'reviewable commercial work'), (definition of 'reviewable domestic work), (definition of 'tribunal work'); See, eg, Brinin v Kasabel Investments Pty Ltd t/as Twin Cities Building & Pest Inspections [2021] QCAT 114, [7]-[15] (Senior Member Brown).

[5] QBCC Act sch 2 (definition of 'major commercial building dispute').

[7] Mackenzie v Leroy Palmer Consulting Engineers Pty Ltd [2025] QCATA 10.