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  • Unreported Judgment

Tottman v James

 

[2020] QCAT 250

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Tottman v James [2020] QCAT 250

PARTIES:

GREG TOTTMAN

(applicant)

 

v

 

ADAM JOHN JAMES

(respondent)

APPLICATION NO/S:

BDL 120-18

MATTER TYPE:

Building matters

DELIVERED ON:

26 May 2020

HEARING DATE:

26 June 2019

HEARD AT:

Brisbane

DECISION OF:

Member Gunn

ORDERS:

  1. Adam John James is to pay to Greg Tottman the amount of $18,167 within twenty eight (28) days of the date of this decision.
  2. Adam John James is to pay to Greg Tottman the amount of $326 by way of costs within twenty eight (28) days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder performed unlicensed building work – where builder did not complete works – where contract terminated – where remedial and rectification works were required – where homeowner entitled to recover money paid to builder under the contract, and to recover damages to rectify and complete works pursuant to s 42, s 77, Schedule 1B, Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld).

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2

Barbi v Brewer [2013] QCAT 348

Bellgrove v Eldridge (1954) 90 CLR 613

Bryan v Maloney (1995) 182 CLR 609

Marshall v Marshall [1999] 1 Qd R 173

Robinson v Harman (1848) EngR 135

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES &

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

What is this application about?

  1. [1]
    Mr Tottman, is the applicant homeowner in a domestic building dispute,[1] and Mr James is the respondent builder.
  2. [2]
    In 2017, Mr Tottman purchased a home at Advancetown, in the hinterland of the Gold Coast.  He wanted some garden and pool works done.  A Mr Weies referred Mr James to Mr Tottman.  Mr James provided a four page quote which was described on its face as a “scope of work” totalling $19,555.35 for the job and agreed to finish it in nine days from late November 2017.[2] 
  3. [3]
    Mr Tottman paid part of the price, namely $11,000 to Mr James, specifically to an account conducted by a Chevron Industries.[3]  Mr James was not a licensed builder.[4]  He was required to be so licensed as the scope of works exceeded $3,300.  Mr James did not complete the works and the contract was terminated.  Mr Tottman was required to engage alternate contractors to replace all of the turf and carry out proper drainage works, complete the decking and re-do the tiling.  The site needed to be cleared of materials left by Mr James and there were other incidental costs.
  4. [4]
    Mr Tottman specifically claims $18,493 being for:
    1. (a)
      $11,000 paid to Mr James (Chevron Industries);
    2. (b)
      $4,417 for the new turf laid;
    3. (c)
      $1,750 for site cleanup;
    4. (d)
      $250 for nut grass treatment;
    5. (e)
      $750 for damage to a retaining wall; and
    6. (f)
      costs of $326.

Key Issues for Determination

  1. [5]
    The key issues are as follows:
    1. (a)
      Was there a contract between Mr Tottman and Mr James and what did it provide; or was Mr Weies the party contracting with Mr Tottman?
    2. (b)
      If so, what is the effect of Mr James not being a licensed builder?
    3. (c)
      Was that contract terminated?
    4. (d)
      What damages if any, flow from the termination?

The Facts

  1. [6]
    Mr James did not appear.  I have had regard to his Affidavit[5] in which he denies being a party to the contract.  Inconsistently, he gives evidence that the applicant told him to “F--- off his property”[6] part way through the works.  I do not accept this for the reasons set out below.
  2. [7]
    In November 2017, Mr James quoted works in three stages, to be finished by Christmas 2017, so that Mr Tottman could hold a staff Christmas function at the home.  The works were to start on or about 4 December 2017 and take ‘nine days’.[7]
  3. [8]
    Mr James attended the home and prepared a quote[8] in three stages totalling $19,555.35.  Mr James emailed the quote to Mr Weies, asking that he on-forward it to Mr Tottman as Mr James had “tried to contact Greg but got no answer”.  Mr Weies did so.  Mr James denies that he was a party to the contract.[9]  Mr Weies was called as a witness by Mr Tottman, and gave evidence that he introduced the parties, and that he on-forwarded an email estimate.  Mr Weies denied being a party to the contract.  Mr Tottman denied that Mr Weies was a party to the contract.  A reading of the email[10] from Mr James to Mr Tottman sent via Mr Weies clearly implies that Mr James is the party contracting with Mr Tottman.
  4. [9]
    There were sms texts directly between Messrs Tottman and James.
  5. [10]
    Mr Tottman paid $11,000 to a bank account as directed by Mr James.[11]
  6. [11]
    Mr James organised deliveries of turf and topsoil and timber and tiles etc to the site, and brought in a small excavator machine.
  7. [12]
    The Invoice from the turf supplier is addressed to “Adam Boags” which corresponds to Mr James’ email address.[12]  Adam is Mr James’ first name. 
  8. [13]
    Some of the point of sale receipts[13] for materials are from Bunnings Warehouse and are marked “trade desk” and carry a notation for a numbered account styled “AJ Traders... Adam James”.
  9. [14]
    Mr James spread the topsoil and laid the turf that had been delivered, and did some tiling.  He started footings for the decking work.  Mr Tottman gave evidence that the turf was not laid immediately upon delivery nor properly, which caused it to not grow properly.  The decking was not laid, and the tiles that were laid were drummy.[14] 
  10. [15]
    By 6 February 2018, the works were substantially incomplete, and such as they were, were defective.  Mr James took his own gear away, leaving the site in a “mess”, with timber decking and other materials lying around.
  11. [16]
    Finding:  I find that the contract to carry out the works was between Mr Tottman and Mr James, in the terms as outlined in the ‘scope of works’.  Critically, the final page carries a notation: Project start date Monday 4th December. 9 working days. ... 50 percent deposit. Remaining on completionABN number will be supplied.  
  12. [17]
    A handwritten invoice issued later carries an ABN registered to Adam John James.
  13. [18]
    Finding: I find that Mr Weies was not a party to the contract. 

The Effect of Non-Registration, Termination and Damages

  1. [19]
    The work performed by Mr James was ‘reviewable domestic work’.[15]  This application relates to the performance of that work.[16]   The tribunal may award damages, interest thereon, restitution, and costs.[17]  Since Mr James is an unlicensed builder, he is not entitled to payment for the work.[18]
  2. [20]
    Mr Tottman relied on oral representations by Mr James, an estimate sent by Mr James, the deposit payment of  $11,000 to Chevron Industries, Mr James starting the work, and his subsequent handwritten invoice as evidence of a contract.  That the contract was not in compliance with the formal statutory requirements including signing by all parties, and not being signed by both parties renders it of no effect.[19]  The builder is not entitled to rely upon it.
  3. [21]
    This Tribunal recognises that it may still consider an informal agreement as between the parties[20] in any claim for negligence. 
  4. [22]
    In agreeing to perform the works, and not doing so effectively, doing damage to a wall, and leaving materials abandoned on the site, Mr James owed Mr Tottman a duty to take reasonable care in performing the work.[21]
  5. [23]
    Further, following the principles, set out in Yongwoo,[22] applying the principles of Marshall[23] Mr Tottman’s entitlement to claim damages (ie. a homeowner to recover monies paid to an unlicensed builder) is the reciprocal of the builder’s disentitlement to receive the payment.
  6. [24]
    Finding:  I find that Mr Tottman is entitled to claim damages from Mr James.

Was that contract terminated?

  1. [25]
    Mr Tottman gave evidence that Mr James departed from the site, and left turf, building materials including decking and rubbish at the site.  In any event, I find that the contract was terminated and that Mr Tottman is entitled to claim damages arising from that termination.  The works were substantially incomplete.  Mr Tottman had the turf removed, the site cleared of rubbish and materials, and the works completed according to his original specifications by another contractor.
  2. [26]
    I find that Mr James breached a number of the essential terms of the contract, namely that he be licensed to do the work, that it would be completed within the time agreed, and that the work performed would be of an acceptable standard.

Assessment of Damages

  1. [27]
    I have had regard to and followed the reasoning set out in Yongwoo Park[24] as discussed.  In summary I assess the damages payable to Mr Tottman by Mr James as follows:
    1. (a)
      Mr James was not a licensed builder and as such he was not entitled to receive the $11,000 paid by Mr Tottman to him or his nominee Chevron Industries.  I find that this is to be repaid;
    2. (b)
      Mr Tottman is entitled to have the work performed as required by the agreement.[25]  He is entitled to damages to restore him to the position he would have been in, had the wrongful acts not occurred.[26]  I accept the cost of $4,417 for fresh turf laid by Mr Tottman’s new contractor to replace the turf laid by Mr James;
    3. (c)
      I accept $1,750 for site cleanup as being reasonable;
    4. (d)
      I accept $250 for nut grass treatment;
    5. (e)
      I accept $750 for damage to a retaining wall; and
    6. (f)
      costs of $326 are reasonable and should be paid to Mr Tottman as his application was successful.
  2. [28]
    Mr Tottman does not claim the unpaid portion of the contract price. 

 The Orders are:

  1. Adam John James is to pay to Greg Tottman the sum of $18,167 within twenty eight (28) days of this order. 
  2. Adam John James is to pay to Greg Tottman the amount of $326 by way of costs within twenty eight (28) days of the date of this decision.

Footnotes

[1] Filed in QCAT on 3 May 2018, pursuant to the Queensland Building and Construction Commission Act 1991.

[2] By emails 24 November 2017 from Mr James to Mr Weies and to Mr Tottman seen in submissions filed by Mr Tottman 5 September 2018 and Exhibit 1 to the affidavit of Adam John James filed 23 September 2018.

[3] Exhibit 1 is sms messages between Messrs James and Tottman clearly indicating the contractual relationship and that Chevron Industries was Mr James’ business.

[4] Neither Adam John James nor Chevron Industries were registered with QBCC.

[5] Filed 25 September 2018.

[6] Paragraph 5 of affidavit filed by Mr James 25 September 2018 (profanity used).

[7] Scope of works (quote) provided by Mr James to Mr Tottman.

[8] The quote does not refer to the premises or either contracting party, but is exhibited by both parties as the relevant written evidence of the scope of works.

[9] By affidavit filed 25 September 2018.

[10] Submission filed by Mr Tottman 5 September 2018.

[11] At the request by text message (exhibit 1) to account of Chevron Industries BSB 014 679 A/C No. 231293963.

[12] Evidenced in a copy of the email received by Mr Tottman in his submission filed 5 September 2018.

[13] Exhibit 4 in the affidavit filed by Mr James on 25 September 2018.

[14] A building term meaning that the tiles had air gaps under them such that they drummed and gave a different sound to those with no air gaps when struck; and evidence that the surface was uneven and not properly prepared and/or the tiles not glued properly.

[15] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.

[16] Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home and associated work: Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 4.

[17] Queensland Building and Construction Commission Act 1991 (Qld), s 77(3), Schedule 2 definition domestic building dispute.

[18] Queensland Building and Construction Commission Act 1991 (Qld), s 42(3).

[19] Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B ss 13, 14.

[20] Barbi v Brewer [2013] QCAT 348 at 10.

[21] Bryan v Maloney (1995) 182 CLR 609, [14].

[22] Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228.

[23] Marshall v Marshall [1999] 1 Qd R 173, 176.

[24] Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228.

[25] Bellgrove v Eldridge (1954) 90 CLR 613.

[26] Robinson v Harman (1848) EngR 135.

Close

Editorial Notes

  • Published Case Name:

    Tottman v James

  • Shortened Case Name:

    Tottman v James

  • MNC:

    [2020] QCAT 250

  • Court:

    QCAT

  • Judge(s):

    Member Gunn

  • Date:

    26 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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