Widdows v Pacific Blue Painting Pty Ltd & Anor [2022] QCAT 114

Clare Turner |  Sam Rafter |  Yibing Mao

Key takeout

Parties must attempt to resolve building disputes through the established processes of the Queensland Building and Construction Commission (QBCC) before commencing any proceedings in the Queensland Civil and Administrative Tribunal (QCAT).

If there is no established process for a dispute, parties will not be in breach for failing to comply with the QBCC processes if they commence proceedings in QCAT.

Facts

The applicant, Peter Widdows (Widdows) engaged Pacific Blue Painting Pty Ltd (PB Painting) to undertake painting work at his home. Widdows subsequently commenced proceedings against PB Painting for damages for the cost of rectifying defective work.  PB Painting denied the work was defective. 

Widdows applied to QCAT to determine the dispute.  PB Painting applied to dismiss the proceedings on the basis that the prescribed dispute resolution process under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) had not been complied with.

Although the QBCC had initially been involved in the matter, its intervention was limited and dependent on Widdows permitting PB Painting access to the property for inspection. The QBCC closed the complaint after Widdows refused to permit PB Painting access to the property to inspect the work. Widdows was prepared to allow access subject to PB Painting providing a valid certificate of insurance, which PB Painting refused to do. Widdows advised the QBCC that he was not comfortable allowing access to PB Painting without proof of insurance.

PB Painting relied on this refusal as evidence of Widdows’s non-compliance with the mandatory dispute resolution process under the QBCC Act.  

Decision

Under the QBCC Act, parties involved in a building dispute may apply to QCAT to decide the dispute, however, they must first attempt to resolve the dispute via the processes established by the QBCC.

The Tribunal was of the opinion that Widdows had complied with the QBCC Act.  

The Tribunal accepted that the QBCC’s closing of the complaint demonstrated that the QBCC was satisfied that the steps undertaken by the parties were sufficient to demonstrate compliance with the dispute resolution process.   All that was necessary was an attempt to resolve the dispute.  

The QBCC Act did not require Widdows to grant PB Painting access to his property. It was undisputed that Widdows was prepared to grant access providing PB Painting could produce evidence of insurance. The QBCC could not compel Widdows to permit access if he was not comfortable to do so. QCAT inferred from the QBCC’s letter closing the complaint that it was satisfied Widdows had taken sufficient steps to satisfy compliance with the QBCC Act. QCAT noted that PB Painting’s submissions did not address why the QBCC’s letter should not be accepted as evidence of compliance.