Lin v Maboudi[2015] QCAT 79

APPEARANCES:

REPRESENTATIVES:

REASONS FOR DECISION

1. [1]
   Ms Lin seeks a refund of all moneys paid, costs in the sum of $421.30 and interest at the rate of 5.05% per annum on the sum of $16,740 from 15 July 2013 because:

   2. a)
      Vakuke’s building licence was suspended as at 9 July 2013 when the contract document was signed;

   2. b)
      she withdrew from a building contract with Vakuke under the Domestic Building Contracts Act 2000 (Qld) (‘DBC Act’);

   2. c)
      the contract document signed was not complete and therefore was not valid;

   2. d)
      Vakuke breached a number of statutory provisions.
2. [2]
   Vakuke denies that all moneys paid are refundable. It contends that:

   2. a)
      it was not engaged to perform all of the work;

   2. b)
      most of the work was performed by Bana Consulting Engineers Pty Ltd, an engineering company;

   2. c)
      third parties were engaged and paid out of the moneys received;

   2. d)
      its building licence was only suspended for a short period through a mistake of its accountant and Mr Maboudi was unaware of the suspension at the time of signing the contract document;

   2. e)
      Bana and Vakuke are entitled to compensation for work carried out.
3. [3]
   Bana is not a party to these proceedings and no order can be made against it or in favour of it.
4. [4]
   Ms Lin was introduced to Mr Maboudi, an engineer and builder. From about late 2012 and through 2013 they discussed Mr Maboudi being engaged to remove an existing house and to design and build a new house on a block of land at Kenmore, which Ms Lin contracted to buy at Mr Maboudi’s suggestion.
5. [5]
   On 9 July 2013 Mr Maboudi and Ms Lin signed a document stated to be a residential building contract.^[1] The contracting party was stated to be Vakuke Pty Ltd.
6. [6]
   On 9 October 2013 Ms Lin gave notice under the DBC Act and elected to withdraw from the contract. She subsequently became aware that Vakuke’s licence was suspended at the time the contract document was signed.
7. [7]
   Some initial work was performed as a consequence of informal agreements reached primarily through discussions between Mr Maboudi and Ms Lin. Ms Lin gave evidence that at all times she believed she was dealing with Mr Maboudi as a director of Vakuke. Mr Maboudi contends that he explained to Ms Lin that the initial work, in the nature of engineering, design and approval work would be performed by Bana. Ms Lin denies any such explanation was given.
8. [8]
   Mr Maboudi is a director of both Vakuke and Bana. Both businesses operate out of the same premises, which Ms Lin attended from time to time to discuss the proposed construction. It is easy to see that confusion may arise as to the contracting entity where Ms Lin dealt with Mr Maboudi and there was little documentation and where emails from Bana email addresses bore prominent Vakuke logos.
9. [9]
   It is not disputed that Ms Lin paid the sum of $31,598, most of it was paid in cash and no refund has yet been made.
10. [10]
    It is necessary to consider the circumstances surrounding the payments and the work performed to ascertain whether the contracting party for the work was Vakuke and whether any right to a refund arises.
11. [11]
    Mr Maboudi gave evidence that to the extent that Vakuke submitted an invoice and reconciliation for all amounts received and work performed^[2] that was an error and that the Tribunal should have regard to a document labelled Appendix 1^[3] which sets out amounts due to Bana, Vakuke and amounts paid for applications and council fees.
12. [12]
    The documents before the Tribunal and in particular the reconciliation documents demonstrate that there was not always a strict delineation between the activities of Bana and Vakuke and the documentation associated with the activities. The documentation shows that Mr Maboudi withdrew the Vakuke invoice and reconciliation^[4] and replaced them with Bana invoices and reconciliations for all amounts received and work performed^[5]. He subsequently allocated them in Appendix 1 between Vakuke and Bana.

Informal agreements

13. [13]
    Ms Lin claims that all money paid by her was paid to Vakuke. Vakuke claims that most of the money (other than the deposit under the building contract) was paid by Ms Lin to Bana.
14. [14]
    For the reasons set out in respect of each item of work below, I find that on the balance of probabilities that moneys paid by Ms Lin to Mr Maboudi was paid to him in his capacity as a director of Vakuke except for amounts paid for specific engineering work undertaken by Bana, which were the subject of an invoice or quote.
15. [15]
    I find that Vakuke is required to refund to Ms Lin the amount of $1,948.50 calculated as follows:

    2. a)
       house removal  $178.50

    2. b)
       deposit paid for plans/deposit $10,900

    2. c)
       less soil test  $440

    2. d)
       less sewer line lodgement fee $800

    2. e)
       less paid to Bana – drawing and drafting  $5,250

    2. f)
       less paid to Bana – build over sewer $2,640 $  1,770

   $1,948.50

Survey – $1,560

16. [16]
    Vakuke claims that Ms Lin engaged Bana to perform this work so that no refund is payable by Vakuke. Vakuke contends that Bana is entitled to the amount paid to the surveyor and an administration fee.
17. [17]
    I find no amount is refundable by Vakuke for this item.
18. [18]
    The first amount paid by Ms Lin, $1,300, was paid by cheque. It is not disputed that this amount was paid for survey fees. Ms Lin gave evidence that Mr Maboudi requested that the cheque be made out to Vakuke and that she did so. During the hearing she referred to her cheque book to confirm the payee.
19. [19]
    Mr Maboudi denied that he would have made such a request because the work was to be performed by the surveyor for Bana but did not specifically recall the conversation and did not have books and records with him to be able to verify whether the cheque had been made out to Vakuke.
20. [20]
    I prefer the evidence of Ms Lin on this point because she has a specific recollection whereas Mr Maboudi has no specific recollection of the conversation.
21. [21]
    During the hearing Mr Maboudi produced an invoice dated 14 January 2013 for survey fees from Goodwin Midson in the sum of $1,300 (incl GST).^[6] The invoice is addressed to Vakuke not Bana. It has a handwritten notation that it was paid on 7 March 2013.
22. [22]
    On the balance of probabilities, I find that:

    2. a)
       Ms Lin engaged Vakuke to perform this survey work;

    2. b)
       such work was performed by Vakuke’s surveyor; and

    2. c)
       Vakuke paid its surveyor the whole amount paid by Ms Lin;

    2. d)
       no amount is refundable to Ms Lin in respect of this payment.
23. [23]
    There is no claim by Vakuke for a builder’s margin on this amount (because its case was that Bana was the contracting party). There is no evidence before the Tribunal that Ms Lin agreed to pay more than $1,300 for this work.
24. [24]
    All of the other amounts were paid in cash to Mr Maboudi, including an amount of $16,470 paid shortly after the building contract document was signed, representing a deposit under that agreement and an amount of $1,758 was paid on 5 September 2013 in respect of sewer connection works.

Relocation of Sewer Connection – $2,859.60

25. [25]
    Vakuke claimed that Ms Lin engaged Bana to perform this work so that no refund is payable by Vakuke. Vakuke contends that Bana is entitled to the amount paid to Urban Utilities and an administration fee.
26. [26]
    I find that Vakuke is not required to refund any amount from the amount of $1,758 paid by Ms Lin.
27. [27]
    There is evidence before the Tribunal that Vakuke not Bana received a quote from Urban Utilities in the sum of $2,383 for the installation of a sewer connection^[7] on Ms Lin’s land. There is also evidence that Urban Utilities was paid. The BPoint payment receipts were emailed to Mr Maboudi at a Vakuke email address.^[8] Ms Lin conceded this work was completed.
28. [28]
    During the hearing Ms Lin conceded that this work was not included as work within the scope of the fixed price building contract having regard to the terms of the specification.
29. [29]
    On the balance of probabilities, I find that:

    2. a)
       Ms Lin engaged Vakuke to perform sewer relocation work;

    2. b)
       such work was performed by its subcontractor; and

    2. c)
       Vakuke paid Urban Utilities the whole amount paid by Ms Lin;

    2. d)
       no amount is refundable to Ms Lin in respect of this payment.
30. [30]
    There is no claim by Vakuke for the balance (because its case was that Bana was the contracting party). There is no evidence before the Tribunal that Ms Lin agreed to pay more than $1,758 for this work. In fact Ms Lin gave evidence that she only agreed to pay $1,758, the amount was paid under protest because she was of the view that the fixed price building contract ought to have included this work. I accept Ms Lin’s evidence.
31. [31]
    In addition to the deposit and the above amounts a further $11,800 was paid by Ms Lin in cash to Mr Maboudi.

Sewer line lodgement fee to certifier – $960

32. [32]
    Vakuke claims that it paid this fee and is entitled to a builder’s margin on the amount paid.
33. [33]
    I find that Vakuke is entitled to retain an amount of $800 for this item.
34. [34]
    Mr Maboudi gave evidence that this fee was paid by Vakuke. During the hearing Ms Lin conceded this fee was paid.
35. [35]
    There is no evidence before me as to any agreement by Ms Lin to pay a builder’s margin on such work. The fact that the building contract document^[9] contains an agreement to pay a builder’s margin of 20% is not evidence that there was an agreement in respect of this item of work. There is no evidence before me as to when the agreement for this work was made so that I can be satisfied that Vakuke’s licence was not suspended at this time nor is there evidence as to when this amount was paid. I am not satisfied that Vakuke is entitled to a builder’s margin.

Drawing and Drafting – $5,250 (incl GST)

36. [36]
    Vakuke claims that Ms Lin engaged Bana to perform drawing and drafting work and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke.
37. [37]
    I find on the balance of probabilities that Ms Lin engaged Bana to perform drawing and drafting work and that $5,250 is to be taken into account in determining the refund owing to Ms Lin.
38. [38]
    Ms Lin gave evidence that:

    2. a)
       during February 2013 she held discussions with Mr Maboudi in relation to preliminary site plans and that during March and April revised planning continued;

    2. b)
       on or about 12 March 2013 she received an invoice from Bana for design and drafting costs in the sum of $5,250;^[10]

    2. c)
       she paid $1,500 in about April 2013 for ‘drawing deposit’;

    2. d)
       amounts claimed for work performed are inflated by comparison to amounts she paid to her subsequent builder;

    2. e)
       her subsequent builder charged $2,180 for similar work;

    2. f)
       although approval was eventually obtained for the plans prepared by Mr Maboudi the subsequent builder prepared new plans which were then approved.
39. [39]
    During the hearing Ms Lin’s gave a number of different answers as to when she became aware that Mr Maboudi traded through Bana for engineering work. Her evidence on this point is unreliable because of the varying answers. Mr Maboudi gave evidence that at an early time he discussed his engineering experience and that engineering work would be performed through his engineering company. I prefer Mr Maboudi’s evidence on this point.
40. [40]
    It is not disputed that Mr Maboudi and Ms Lin agreed that a discount would be given for the initial work if Ms Lin proceeded with a construction contract with Vakuke. As matters transpired Vakuke did not complete the construction work. I find that on the balance of probabilities Ms Lin was not entitled to the promised discount. There is little evidence of the other terms upon which the design work was to be performed.
41. [41]
    There is no direct evidence from an engineer or builder as to the reasonable costs of preparing the plans. There is little evidence as to the differences between the plans prepared by Mr Maboudi and the subsequent builder’s plans. Ms Lin gave evidence that the new design was different to that prepared by Mr Maboudi because the subsequent builder had concerns about building it as designed. As the subsequent builder did not provide a statement and was not available to be questioned as to the work he performed and the new design I place little weight on the difference in price.
42. [42]
    There is evidence that various drawings were emailed to Ms Lin on 22 March 2013^[11], 26 March 2013^[12], 28 March 2013^[13], 5 April 2013^[14], 9 April 2013^[15], 18 April 2013^[16], 19 April 2013^[17], 23 April 2013^[18], 17 May 2013^[19] and 22 May 2013^[20]. Each were sent from a Bana email address but the covering email prominently displayed a Vakuke logo. In most instances the attachments to these emails were not in evidence before the Tribunal.
43. [43]
    Ms Lin received an invoice from Bana in March 2013 for design work before she paid a deposit for such work. The invoice was raised long before the parties came into dispute.

Demolition application fee – $865.80; Removal of House – $605 (incl GST)

44. [44]
    Vakuke claims that Ms Lin engaged Bana to perform work in relation to arranging the demolition of the existing house on the land and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contends that Bana is entitled to the amount paid to Brisbane Building Approval Centre and an administration fee. Vakuke also contended that Bana is entitled to $605 in relation to work performed associated with the removal of the house.
45. [45]
    During the hearing Mr Maboudi informed the Tribunal that he did not have any documentation to support the claim for $605 and later in the hearing he accepted that this claim and the claim for the application fee were for the same work so the claim for $605 was not pursued.
46. [46]
    I find that Vakuke is entitled to retain the sum of $721.50 in respect of this work and is required to refund the sum of $178.50 to Ms Lin from the $900 paid.
47. [47]
    There is evidence that Vakuke not Bana was invoiced $721.50 by Brisbane Building Approval Centre^[21] and that the amount was paid. There is also evidence that Ms Lin paid $900 in about April for ‘house removal’.^[22]
48. [48]
    On the balance of probabilities, I find that:

    2. a)
       Ms Lin engaged Vakuke to perform work to obtain demolition approvals;

    2. b)
       such work was performed by its subcontractor;

    2. c)
       Vakuke paid $721.50 to its subcontractor out of the $900 paid by Ms Lin.
49. [49]
    There is no claim by Vakuke for a builder’s margin (because its case was that Bana was the contracting party). There is no evidence that Ms Lin agreed to pay a builder’s margin for this work.

Soil Test – $528

50. [50]
    Vakuke claims that Ms Lin engaged Bana to carry out the soil tests and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contends that Bana is entitled to the amount paid to its subcontractor and an administration fee.
51. [51]
    I find that on the balance of probabilities Vakuke was engaged to perform this work and is entitled to retain $440 from the moneys Ms Lin paid.
52. [52]
    Mr Maboudi gave evidence that Bana paid a subcontractor $440 for this work and was entitled to an administration fee of $88.00.
53. [53]
    There is evidence that a soil test invoice was emailed to Ms Lin’s sister on 17 October 2013 from a Bana email address but which displayed a prominent Vakuke logo.^[23] The invoice was not in evidence as at the date of the hearing. There is evidence that Ms Lin accepted that the actual cost incurred was $440.^[24]
54. [54]
    I am not satisfied that Bana was the contracting party. Mr Maboudi has given evidence that other works were undertaken by Bana but the subcontractor’s invoice has not supported that claim. As a subcontractor’s invoice directed to Bana was not produced at the hearing, I am not satisfied that Vakuke has established that Bana was engaged to perform this work. It follows that am not satisfied that Bana was entitled to an administration fee because I am not satisfied that Bana was engaged to perform or in fact performed the work.
55. [55]
    There is no claim by Vakuke for a builder’s margin (because its case was that Bana was the contracting party). In any event there is no evidence that Ms Lin agreed to pay a builder’s margin for this work.

Build over Sewer line – Engineering design – $2,640 (incl GST)

56. [56]
    Vakuke claims that Ms Lin engaged Bana to carry out engineering design work to build over the sewer line and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contended that Bana is entitled to $2,640 (incl GST). During the hearing Mr Maboudi sought to amend the amount to $4,180 (incl GST).^[25]
57. [57]
    I find that on the balance of probabilities Ms Lin engaged Bana to prepare structural design documentation ‘for built over sewer line’ and that the agreed charge for such work was $2,640 so this amount is to be taken into account in determining the refund owing to Ms Lin.
58. [58]
    Ms Lin gave evidence that:

    2. a)
       on or about 13 March 2013 she received a quote from Bana for an amount of $4,180 for structural design to build over the sewer line;^[26]

    2. b)
       she did not accept or reject the quote and did nothing in response to receiving it by email;

    2. c)
       this work was performed by Urban Utilities, being the same work set out in its quote;^[27]

    2. d)
       her subsequent builder estimated costs for this work at $200 – $300;

    2. e)
       Vakuke claimed an amount of $2,640 for this work in its reconciliation provided in November 2013;^[28]

    2. f)
       Bana claimed an amount of $2,640 for this work in its reconciliations dated 9 December 2013^[29] and 13 December 2013^[30].
59. [59]
    Mr Maboudi gave evidence that Ms Lin orally requested the work to be performed to progress the job and that the structural design work to build over the sewer was different to the work required for relocation of the sewer.
60. [60]
    Ms Lin has not provided to the Tribunal direct evidence from an engineer or builder as to the reasonable costs of preparing the design plans nor as to whether the design work was the same work as involved in the relocation of the sewer performed by Urban Utilities. Ms Lin’s subsequent builder did not give a statement and was not available to be questioned. I place little weight on this hearsay evidence.
61. [61]
    I find it implausible that Ms Lin would have done nothing in response to receiving the quote. I prefer Mr Maboudi’s evidence on this point that he was requested to progress the work.
62. [62]
    Mr Maboudi gave evidence that he had claimed a reduced amount rather than the amount set out in the quote but he wanted to amend because he may not be able to prove some of the other claims. I find it implausible that Mr Maboudi would not have included the agreed amount for this work in the first of the reconciliations.
63. [63]
    In any event having claimed the lesser amount on several occasions I find that to allow an amendment during the hearing would be prejudicial to Ms Lin and not afford her natural justice and procedural fairness.^[31] I therefore decline to permit the amendment.

Building Approval – $3,245 (incl GST)

64. [64]
    Vakuke claims that Ms Lin engaged Bana to carry out work to obtain building approval and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contends that Bana is entitled to the amount of $3,245.
65. [65]
    I find that Vakuke has failed to prove that either Vakuke or Bana is entitled to retain any amount in respect of this item.
66. [66]
    There is little evidence in relation to this work. It is not disputed that building approval was eventually obtained.
67. [67]
    There is no documentary evidence before the Tribunal as to the amount paid to obtain building approval nor whether Bana or Vakuke engaged the certifier and paid necessary Council fees.
68. [68]
    Mr Maboudi gave evidence at the hearing that:

    2. a)
       amounts paid to the certifier would usually be in the order of $1,350;

    2. b)
       some smaller amount is paid to Council;

    2. c)
       the total of those would have been about $2,100 – $2,200;

    2. d)
       the amount claimed also includes about $700 – $800 for the time spent seeking the building approval including making copies of the plans.
69. [69]
    Mr Maboudi’s oral evidence is general in nature and not a specific recollection of what occurred in this particular case. There are no invoices, proof of payment, timesheets or other evidence as to when this work was performed, by whom and as to amounts paid.
70. [70]
    I am not satisfied that Vakuke has proven that Bana was engage to undertake this work nor proven the amount claimed.

Consulting content of specification to client adjustment required – $968 (incl GST)

71. [71]
    Vakuke claims that Ms Lin engaged Bana to perform this work and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contends that Bana is entitled to the amount of $968.
72. [72]
    I find that on the balance of probabilities Vakuke not Bana prepared the specification.
73. [73]
    I also find that Vakuke has failed to prove that it is entitled to retain any amount in respect of this item.
74. [74]
    There is little evidence in relation to this work. Mr Maboudi gave evidence that:

    2. a)
       a lot of extra time was spent with Ms Lin detailing the finishes in the order of a minimum of 16 hours;

    2. b)
       the work was charged at $55 per hour.
75. [75]
    Vakuke did not produce timesheets nor any evidence of any quotes for this work nor did Vakuke give any specific evidence as to an oral agreement between either Vakuke or Bana on the one hand and Ms Lin on the other in relation to this work.
76. [76]
    Ms Lin denied that such additional work was performed.
77. [77]
    There is evidence before the Tribunal that Vakuke not Bana prepared the specification.^[32] There is no evidence as to what ‘consulting’ work was performed by Bana in respect of a specification prepared by Vakuke.

Extra time consultation for design and architectural drawings – $1,210 (incl GST)

78. [78]
    Vakuke claims that Ms Lin engaged Bana to perform this work and that most of the cash (other than the building contract deposit) given to Mr Maboudi was for Bana and not Vakuke. Vakuke contends that Bana is entitled to the amount of $1,210.
79. [79]
    I find that Vakuke has failed to prove that either Vakuke or Bana is entitled to retain any amount in respect of this item.
80. [80]
    There is little evidence in relation to this work. Mr Maboudi gave evidence that:

    2. a)
       a lot of extra time was spent with Ms Lin’s requests in the order of a minimum of 20 hours;

    2. b)
       the work was charged at $55 per hour.^[33]
81. [81]
    Vakuke did not produce timesheets nor any evidence of any quotes for this work nor did Vakuke give any specific evidence as to an oral agreement between either Vakuke or Bana on the one hand and Ms Lin on the other hand in relation to this work.
82. [82]
    Ms Lin denied that such additional work was performed.

Consequences of Licence Suspension

83. [83]
    I find that Vakuke, an unlicensed builder at the time the building contract was signed, is entitled to retain from the deposit under the building contract the sum of $5,170.78 as reasonable remuneration for carrying out building work having regard to amounts paid for materials and labour, which were reasonably incurred.
84. [84]
    If Vakuke had not been unlicensed when it signed the contract it would have also been entitled to retain a further $100 under the DBC Act.
85. [85]
    Accordingly Vakuke is required to refund to Ms Lin the sum of $11,569.22 calculated as follows:

Deposit paid $16,740.00

Less BSA Insurance $3,082.10

Surveyor $1,155.00

Fencing $ 103.68

Q Leave $ 830.00  $ 5,170.78

Refund $11,569.22

86. [86]
    Ms Lin gave evidence that Vakuke’s licence was suspended during the period 24 June 2013 to 5 July 2013 pursuant to s 38 and s 53A of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and from 5 July 2013 to 20 August 2013 because financials had not been lodged.^[34]
87. [87]
    At the hearing Mr Maboudi contended that the details set out in the licence search^[35] about the suspension were incorrect and that I should not rely upon them.
88. [88]
    I accept the details in the licence search are correct in the absence of independent evidence to the contrary.
89. [89]
    Mr Maboudi did not take any steps to obtain evidence from the QBCC supporting his assertion despite having been in possession of Ms Lin’s statement of evidence for quite some time.
90. [90]
    It is not disputed that a contract document was signed by both parties during the period of the suspension.
91. [91]
    A person must not carry out or undertake to carry out building work unless the person holds a contractor’s licence of the appropriate class.^[36] The natural consequence of a suspension is that an appropriate licence is not held. The signing of a contract is to undertake to carry out building work.
92. [92]
    A person, who carries out building work without holding an appropriate licence, may claim reasonable remuneration for carrying out building work having regard to amounts paid for materials and labour if those costs were reasonably incurred but is not entitled to any amount for their own labour or for profit.^[37]
93. [93]
    Where the director of an unlicensed company has physically undertaken work the company is not entitled to claim amounts in respect of the labour and effort of the director.^[38]
94. [94]
    Although such a contract is illegal^[39] the builder is permitted limited recovery as provided by the QBCC Act. Even though the suspension was lifted prior to Ms Lin seeking to bring the contract to an end that does not change the status of the contract.

Non compliance with DBC Act

95. [95]
    Ms Lin contends that the contract was void because Vakuke did not comply with a requirement under the DBC Act and relies upon the QBCC’s advice that they had issued an infringement notice to Vakuke for failing to comply with s 27 in relation to the form of the contract.
96. [96]
    Unless the contrary intention appears in the DBC Act a failure by a building contractor to comply with a requirement of the DBC Act does not make the building contract illegal, void or unenforceable.^[40] I am not aware of any provision of the DBC Act, which sets out a relevant contrary intention.

Incomplete contract

97. [97]
    Ms Lin also seeks rely upon the ‘incomplete’ nature of the document signed. I interpret this to mean that she contends that no contract was in fact formed between her and Vakuke when the document was signed.
98. [98]
    Whilst the document did not comply with the legislated formalities, I find that on the balance of probabilities a contract was formed subject to the consequences of the licence suspension. The evidence before the Tribunal was that a contract price had been agreed and a detailed specification had been prepared. Mr Maboudi’s evidence was that the only uncertainty was the costs of building over the sewer line and the time that construction would commence would be determined once approvals had been received. There were acts of part performance by both parties. Ms Lin paid the deposit and Vakuke performed or caused subcontractors to perform some work. During the hearing Ms Lin gave evidence that at the time of signing she thought that it was a binding fixed price contract. Mr Maboudi’s evidence was that it ‘should have been binding’.

Cooling Off

99. [99]
    Mr Maboudi took inconsistent positions as to whether Ms Lin was entitled to withdraw from the contract under s 72 of the DBC Act. The correspondence between the parties suggests that Vakuke accepted the entitlement to withdraw subject to its entitlement to retain certain moneys under the DBC Act. Vakuke’s response to the proceedings specifically references its entitlement to retain certain moneys under the DBC Act.
100. [100]
     At the commencement of the hearing Mr Maboudi did not concede the point. Toward the end of the hearing he did concede the point but then he gave evidence that Ms Lin had agreed to him not providing a copy of the contract until some further details were clarified so that she ought not be entitled to rely upon s 72 of the DBC Act. Ms Lin’s evidence was that she had agreed to a short delay not to a delay in excess of 80 days.
101. [101]
     Whether or not any such agreement was reached is of no consequence as the DBC Act prohibits any such attempt to contract out of such a right.^[41]
102. [102]
     Ms Lin’s undisputed evidence is that she received a copy of the contract on 3 October 2013 and gave notice on 9 October 2013. I find that she withdrew within five business days after receiving a copy of the signed contract.^[42]
103. [103]
     The DBC Act sets out amounts, which the builder may retain if an owner withdraws under s 72 where a ‘pre-paid amount’ under the contract was paid.^[43] Pre-paid amount for the contract is defined as the amount paid to the building contractor under the contract by the building owner before the building owner withdrew from the contract. The retainable amount out of a pre-paid amount is the sum of $100 and an amount equal to any out of pocket expenses reasonably incurred by the building contractor before the building owner withdrew from the contract.
104. [104]
     I find that the ‘pre-paid amount’ is the deposit of $16,740 paid on 10 and 15 July 2013. There is no evidence that the amounts paid prior to 9 July 2013 formed part of the payments under the building contract. Those payments were pursuant to other preliminary agreements.
105. [105]
     It is necessary to make findings as to out of pocket expenses reasonably incurred by Vakuke.
106. [106]
     Mr Maboudi claims a builder’s margin at the rate of 20% in accordance with the margin provided for in the contract document on the amounts paid by Vakuke. I find that Vakuke is not entitled to a builder’s margin. It is not an out of pocket expense recoverable under s 76 of the DBC Act.
107. [107]
     Where a building owner withdraws from a regulated contract under s 74 of the DBC Act the building contractor is entitled to receive a reasonable amount for the contracted services provided to the time of withdrawal.^[44]
108. [108]
     The withdrawal notice mentioned s 74 in the text as well as s 72. A building owner may withdraw within seven days of becoming aware that the contract should have contained a notice as required under s 29(2) of the DBC Act that the owner may have a right to withdraw under s 72.
109. [109]
     Page one of the contract document contains a note about a right to withdraw located under Item 1.^[45]
110. [110]
     I find that Ms Lin did not have a right to withdraw under s 74. Vakuke’s right to a reasonable amount for the work performed under s 77 of the DBC Act does not arise.

BSA Insurance – $3,698.52 (including builder’s margin)

111. [111]
     I find that Vakuke is entitled to deduct from the deposit the sum of $3,082.10.
112. [112]
     Mr Maboudi gave evidence that Vakuke paid the BSA Insurance in the sum of $3,082.10. Ms Lin concedes this amount was paid. Mr Maboudi gave evidence that to the extent that the certificate of insurance^[46] shows the builder as himself personally and not Vakuke, it is an error.
113. [113]
     Ms Lin gave evidence that Vakuke is entitled to make a claim for a refund as the works did not proceed and that she ought to receive the benefit of the refund less an administration fee deducted by the QBCC. There is no evidence before the Tribunal as to what the amount of any refund would be. Mr Maboudi stated that he would provide an authority to allow Ms Lin to seek a refund.

Surveyor’s costs – $1,386 (including builder’s margin)

114. [114]
     I find that Vakuke is entitled to deduct from the deposit the sum of $1,155.
115. [115]
     Mr Maboudi gave evidence that Vakuke paid Goodwin Midson, surveyors for survey peg out in the sum of $1,155. A sketch showing the peg out on 19 September 2013 at Ms Lin’s land and a statement showing an invoice was rendered on 25 September 2013 to Vakuke was tendered.^[47] Mr Maboudi gave evidence that he recalled that the surveyor rendered an invoice for this site in September 2013.
116. [116]
     Ms Lin accepted that survey peg out was performed. Ms Lin denied that the work should have been performed because approval had not been obtained. Mr Maboudi gave evidence that the certifier had given verbal approval.
117. [117]
     I accept that Vakuke incurred these out of pocket expenses and that they were reasonably incurred.

Temporary Fencing – $1,398.73 (including builder’s margin)

118. [118]
     I find that Vakuke is entitled to deduct from the deposit the sum of $103.68.
119. [119]
     Mr Maboudi gave evidence that Vakuke paid Centenary Hire for fencing for Ms Lin’s land in the sum of $1,375.29 for fencing during the month of September 2013. He tendered a statement and evidence of payment of the amount in the statement but not the invoice.^[48] There is a difference between this amount and the amount claimed in Appendix 1, which was $1,165.61 plus builder’s margin.
120. [120]
     I accept that Vakuke incurred out of pocket expenses in the sum of $103.68 in respect of fencing of Ms Lin’s land during September 2013. The statement is evidence that the running balance of Vakuke’s account was $1,375.29 as at 1 October 2013, which is comprised of the balance brought forward in the sum of $1,041.60 and an amount of $230.01 in respect of different premises in addition to $103.68 in respect of Ms Lin’s land. There was no evidence produced at the hearing that any part of the brought forward balance related to Ms Lin’s land.
121. [121]
     Ms Lin submits that the incurring of fencing costs was premature and not reasonably required at the time incurred. Mr Maboudi gave evidence that in his opinion there were health and safety risks, which needed to be mitigated by the erection of fencing. Mr Maboudi is an experienced builder whereas Ms Lin is not. Ms Lin did not produce any documentary evidence by an experienced builder to support her contentions. In these circumstances, I accept that the incurring of these out of pockets costs was reasonable.

Tree Cutting – $924 (including builder’s margin)

122. [122]
     I find that Vakuke is not entitled to deduct any amount from the deposit for this item.
123. [123]
     Mr Maboudi gave evidence that Vakuke paid two labourers to cut trees and paid for the hire of equipment. No invoices or timesheets were produced to support this claim. Mr Maboudi’s evidence was that these amounts were paid in cash.
124. [124]
     There is evidence before the Tribunal that Vakuke claimed 24 hours work at the charge out rate of $35 per hour and no separate amount for equipment.^[49] Mr Maboudi’s evidence was that two labourers attended for a day. Ms Lin disputes that the labourers attended the site for more than a couple of hours.
125. [125]
     I am not satisfied that Vakuke has established on the balance of probabilities that out of pocket costs in the sum of $840.00 were incurred.

Q Leave Levy – $996 (including builder’s margin)

126. [126]
     I find that Vakuke is entitled to deduct from the deposit the sum of $830.
127. [127]
     Mr Maboudi gave evidence that Vakuke had paid Q Leave Levy in the sum of $830.00.^[50] Ms Lin concedes this amount was paid. Ms Lin gave evidence that Vakuke is entitled to make a claim for a refund as the works did not proceed and that she ought to receive the benefit of the refund. There is no evidence before the Tribunal as to what the amount of any refund would be. Mr Maboudi stated that he would provide an authority to allow Ms Lin to seek a refund.

Interest on deposit refund

128. [128]
     Ms Lin claims interest at the rate of 5.05% per annum on the amount of the deposit required to be refunded from 15 July 2013 when the deposit was fully paid.
129. [129]
     During the hearing Ms Lin gave evidence that her home loan incurred interest at the rate of 5.05% per annum and Mr Maboudi conceded interest at that rate was payable on whatever amount was found to be refundable.
130. [130]
     The entitlement to a refund arose upon giving notice of withdrawal. I find that interest accrues from 9 October 2013 until payment. On my calculation interest at 5.05% per annum on $11,569.22 equates to $1.60 per day. The period from 9 October 2013 to 11 March 2015 is 518 days so that interest in the sum of $828.80 is payable to the date of this decision. Interest continues to accrue at the rate of $1.60 per day until the deposit refund is paid.

Costs

131. [131]
     Ms Lin claims $421.30 for costs.^[51]
132. [132]
     The QCAT Act provides:

Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceedings.^[52]

133. [133]
     The Tribunal’s discretion to award costs in a building dispute^[53] is a broader and more general discretion than the one conferred by the QCAT Act.^[54] Section 102(3) of the QCAT Act sets out some factors, which may be considered in the exercise of the Tribunal’s discretion to award costs.
134. [134]
     The parties have not made submissions about these factors. There is evidence before the Tribunal as to a number of settlement offers made. The parties each waived their privilege in them at the commencement of the hearing. The amount found to be refundable to Ms Lin is substantially more than the highest offer Mr Maboudi made^[55] in documents before the Tribunal but substantially less than the lowest offer Ms Lin made^[56] in documents before the Tribunal. Ms Lin sought legal advice prior to commencing proceedings and her lawyer sent correspondence to Vakuke after these offers were made.^[57] The parties were not legally represented at the hearing.
135. [135]
     Having regard to the factors set out in s 102(3) and the settlement offers made, I order that each party is to bear their own costs.