CITATION: Blackwhite Pty Ltd v Ryall Smyth Architects Pty Ltd [2013] QCAT 142

PARTIES: Blackwhite Pty Ltd (ABN 63 123 813 981)

(Applicant)

Ryall Smyth Architects Pty Ltd (ABN 71 096 060 409)

(Respondent)

APPLICATION NUMBER: MCD309-12

MATTER TYPE: Other minor civil dispute matters

HEARING DATE: 13 July 2012

HEARD AT: Brisbane

DECISION OF: Andrew McLean Williams, Member

DELIVERED ON: 5 April 2013

DELIVERED AT: Brisbane

ORDERS MADE: Application dismissed

CATCHWORDS: MINOR CIVIL DISPUTE – claim by Applicant for “monies due and owing” – judgement obtained in Magistrates Court on the basis of the decision of an Adjudicator under s 31 Building and Construction Industry Payments Act 2004 (BCIPA); claim by Applicant that the adjudicator’s decision wrong in law – meaning of minor civil dispute – relationship between BCIPA and QCAT Act – scope of declaratory power under QCAT Act s 60 – meaning of “trader” for QCAT Act s 12

Early Property Group Pty Ltd t/a Early Group Valuers v Cavallaro [2010] QCATA 65. Randall v Body Corporate for Runaway Cove Bayside [2011] QCATA 010; Spencer v Jack & Grace Cheng Family Trust [2011] QCATA 26; Surfabear P/L v GJ Drainage & Concrete Construction PL (2009) QSC 308;

Building and Construction Industry Payments Act 2004 (Qld), s 31

Magistrates Court Act 1921 (Qld), s 43 Civil Proceedings Act 2011 (Qld), s 10 Queensland Civil and Administrative Tribunal Act 1999, s 60

APPEARANCES and REPRESENTATION (if any):

APPLICANT: Mr D Cliff, Clarke Kann Lawyers

RESPONDENT: Mr Troy Smyth.

REASONS FOR DECISION

Preliminary

[1] This matter was heard at Brisbane on 13 July 2012, after which the matter was reserved for decision. Regrettably, a delay has arisen due to the file in this matter having become misplaced. These now are my reasons.

[2] For reasons that I shall elaborate, I determine that QCAT has no jurisdiction to hear and determine this matter.

[3] The Respondent is a firm of architects, who were retained by the applicant pursuant to an agreement to provide design services in relation to the development of modular housing. These professional services were delivered pursuant to a contract entered into on 9 December 2010. The parties were the respondent, Ryall & Smyth Architects on one hand, and “New Wave Global” on the other. Professional services were then rendered by the respondent on behalf of New Wave Global. After a few invoices had been paid, Mr Tim McGary (a person associated with both New Wave Global and Black White Pty Ltd) sent an email to the respondent, requesting that all further invoices be made out in the name of the Black White Pty Ltd.

[4] On 1 November 2011, the respondent submitted a payment claim dated 31 October 2011 to the applicant. This payment claim claimed the sum of $16 731 (inclusive of GST), and was referable to work performed by the respondent for New Wave Global, as instanced in invoices 0715/06, 0744/01, 0736/01 and 0715/07.

[5] In response to that payment claim, the applicant provided a payment schedule pursuant to s 18 of the Building and Construction Industry Payments Act 2004 (“BCIPA”). The payment schedule specified that the amount due and owing was “nil”. Having received that payment schedule, the respondent referred the matter to an Adjudicator pursuant to BCIPA. On 8 December 2011, the Adjudicator made a decision, substantially in favour of the respondent. The Adjudicator ordered that the applicant should pay the respondent $13,981, interest on that sum at 10%, as well as the costs of the adjudication.

[6] Having received that favourable adjudication, the respondent then took the adjudication decision to the Magistrates Court, and had it registered as a judgment, pursuant to s 31 of BCIPA.

[7] On 3 February 2012, Black White Pty Ltd paid $16,299.74 on that judgment, which was the amount assessed as being due and owing during the enforcement hearing in the Magistrates Court.

[8] The applicant now applies to QCAT in its minor civil disputes jurisdiction seeking the sum of $16,299.74 as “monies due and owing”. The applicant says that it should be entitled to obtain this sum in this minor civil disputes jurisdiction for the following reasons:

(a) The decision (here referring to that of the BCIPA adjudicator) was “erroneous”, because the construction contract on which the adjudication decision had been based was not one between the applicant and the respondent;

(b) The judgment registered in the Magistrates Court is then founded upon that erroneous decision, such that it too is infected by error;

and

[9] As authority for this proceeding, the Applicant cites the decision of Martin J in Surfabear P/L v GJ Drainage & Concrete Construction PL. In that case there was a construction contract between a residential homeowner and a builder, Surfabear Pty Ltd. The homeowner independently retained GJ Drainage to undertake certain earthworks. The homeowner then refused to pay for those earthworks, such that GJ Drainage commenced an adjudication pursuant to BCIPA against Surfabear Pty Ltd, and was successful. In that instance the adjudicator identified that the earthworks company had performed construction work under a construction contract. The earthworks company then obtained an adjudication certificate and had that registered as a judgment pursuant to s 31 of BCIPA, in the Magistrates Court at Southport. The matter was taken before the Supreme Court of Queensland seeking declaratory relief. His Honour Martin J held that the earthworks company was not a party to the building contract, which was one between the homeowner and Surfabear Pty Ltd, such that the adjudication process under BCIPA could not in these circumstances be utilised by the earthworks contractor.

[10] I accept that the factual circumstances here in issue are somewhat similar to those that arose in Surfabear , at least in the sense that the sued party (the applicant), is not the same as the contracting entity (New Wave Global). That, however, is not sufficient to make this matter capable of determination in this jurisdiction.

[11] Pursuant to s 43 of the Magistrates Court Act 1921 all judgments and orders made in the Magistrates Court are “final and conclusive”. It is clear that QCAT does not have the jurisdiction to entertain an appeal against either a decision by a judicial registrar, nor one that has been made by a Magistrate. The appropriate step in order to surmount that judgement would have been to apply, pursuant to s 31(4) of BCIPA to have that judgment set aside or, to seek declaratory relief in a court of competent jurisdiction. There is not sufficient power for this Tribunal to make such a declaration, given that the powers of QCAT to grant declaratory relief arise only within jurisdiction, and are not “at large”. In this regard, one need only consider s 60 of the Queensland Civil and Administrative Act 2009 (QCAT Act) and then compare it against the far more expansive power to grant declaratory relief conferred on the Supreme Court by s 10 of the Civil Proceedings Act 2011. I am not satisfied that QCAT has any jurisdiction to provide declaratory relief in these circumstances because there would first need to be jurisdiction in relation to the dispute. Although the applicant asserts that this is a claim for “monies due and owing” (a matter that would be within the minor civil disputes jurisdiction), that would first require relief in the manner of a declaration, which I cannot give, unless the matter is otherwise already properly before me. In this regard it is to be noted that BCIPA is not an “enabling Act” for purposes of the QCAT Act. A further confounding factor arises because the respondent is a firm of architects, and hence are a firm acting within the parameters of a professional discipline. These do not fulfil the criteria necessary to be defined as a “trader” for the purposes of the minor civil disputes jurisdiction.

[12] For the foregoing reasons the application is dismissed.