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McNulty v Sel QCAT 10
McNulty & Ralph v Sel  QCAT 10
On the papers
17 January 2017
DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – DAMAGE TO LAND AND BUILDINGS – where informal and unsigned contract with unlicensed builder – where builder did not file response – where damages to be assessed – where Tribunal may consider informal agreement in claim for negligence – where builder had duty to take reasonable care in performing work – where purpose of damages to restore applicants to position they would have been in had wrongful acts not occurred – where costs to rectify and complete directly attributable to builder performing work without licence, without due care and skill, not to proper standard or at all, without authorisation and supplying and using materials not fit for purpose – where partial refund not recoverable in addition to costs to rectify and complete
Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, Schedule 2
A L Builders Pty Ltd v. Fatseas (No. 2)  QCATA 319
Barbi v. Brewer  QCAT 348
Bellgrove v. Eldridge (1954) 90 CLR 613
Bryan v. Maloney (1995) 182 CLR 609
Faulks v. New World Constructions Pty Ltd (No. 2)  QCAT 329
Hitchman v. Prime Building & Pest Consultants Pty Ltd (No. 2)  QCAT 476
Robinson v. Harman  EngR 135
Voli v. Inglewood Shire Council (1963) 110 CLR 74
APPEARANCES and REPRESENTATION (if any):
This application was determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
What is this Application about?
- Entering into informal and unsigned contracts with unlicensed builders is fraught with risk. Marnie McNulty and Robyne Ralph paid $30,000.00 to Tony Sel to replace their decking. Unfortunately, Ms McNulty and Ms Ralph did not sign a contract with Mr Sel, who is not a licensed builder and did not complete the work.
- Mr Sel did not file a response to the claim or engage with the Tribunal process. Ms McNulty and Ms Ralph are therefore entitled to a final decision in the proceeding, with damages to be assessed.
- The Tribunal must now assess their damages.
On what basis does the Tribunal assess damages?
- Ms McNulty and Ms Ralph relied upon a Quote and bank receipts as evidence of their contract with Mr Sel. Because the contract did not comply with formal statutory requirements including signing by all parties, it has no effect. However, the Tribunal has recognised that it may still consider an informal agreement in any claim for negligence:
The fact that the law recognises the existence of a concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity…
- By agreeing to perform the work and partly performing the work, Mr Sel owed Ms McNulty and Ms Ralph a duty to take reasonable care in performing the work.
- Mr Sel agreed to perform the following work:
- Replace all decking with ECO DECK material, reinforcing and replace support beams if necessary;
- Replace railing top and bottom support with 50/50 powder coated steel, fit upright eco deck slats;
- Replace bottom fascia panels with ECO DECK panels all around house;
- Replace three veranda gates;
- Replace back deck top panels and side panels with ECO DECK upright slats inside and outside;
- Replace steps and railings;
- Dispose all unwanted material; and
- Paint poles and slats on back veranda same colour as roof.
- Ms McNulty and Ms Ralph filed written evidence of the following breaches of Mr Sel’s duty to take care:
- Failing to supply all materials;
- Incomplete work;
- Work and materials not meeting acceptable standards;
- Unauthorised electrical work; and
- Leaving old materials and rubbish on the footpath.
- Ms McNulty and Ms Ralph are entitled to damages as a result of these failures by Mr Sel to take care.
What damage did Ms McNulty and Ms Ralph suffer due to Mr Sel’s beach of duty?
- The purpose of damages is to restore Ms McNulty and Ms Ralph to the position they would have been in had the wrongful acts not occurred.
What costs to rectify and complete are Ms McNulty and Ms Ralph entitled to recover?
- The below table is a summary of the costs and supporting evidence to rectify the damage.
Complete unfinished decking
Paid Quote of S&D Building Maintenance dated 6 April 2016 for $2,065.00
Invoice No. 272 of S&D Building Maintenance dated 13 September 2016 for $220.00
Invoice No. 1109 of Shocksafe Electrical dated 18 April 2016 for $300.00
Skip Bin Hire
Invoice No. 998897/0 of Ipswich Waste Services for $210.00
Materials to paint timber handrails
Invoice No. 12539 of The Fastener Factory dated 4 April 2016 for $528.90
Invoice No. 14814 of The Fastener Factory dated 29 July 2016 for $319.00
Bundle of Receipts from Stratco, Bunnings and Masters dated various totalling $761.94
Powder coating steel handrails
Replace veranda planks
Replace support beams
Replace stair handrails and steps
Quote of Shane Peter Bunney dated 15 September 2016 for $10,313.37
Complete bottom fascia boards
Complete two gates
Complete two stair handrails and steps
Paint back deck posts
Quote of Shane Peter Bunney dated 15 September 2016 for $5,213.11
- On the basis of the uncontested material filed by Ms McNulty and Ms Ralph, I am satisfied the costs to rectify and complete the house are directly attributable to Mr Sel performing the renovations work without a builder licence or qualifications, failing to perform the work without due care and skill, failing to complete the work to a proper standard or at all, performing work without authorisation and supplying and using materials not fit for the purpose.
- I am therefore satisfied the above costs of $19,931.32 to rectify and complete the work are necessary and reasonable.
- However, I do not consider the costs of $375.00 to obtain the quote for further rectification work to be reasonably incurred. Ms McNulty and Ms Ralph could have obtained a quote from a builder who does not charge for quoting work. To this extent, they did not mitigate their loss.
- Because volunteer help from friends was not from skilled tradespersons, I am also not satisfied to award the claim of $400.00 for their friends’ food and drink while working.
- Ms McNulty and Ms Ralph are therefore entitled to $19,931.32 to rectify and complete.
Are Ms McNulty and Ms Ralph entitled to a partial refund?
- Ms McNulty and Ms Ralph also - at least initially - claimed a partial refund of $10,000.00 for building materials and work not supplied by Mr Sel.
- To remove any uncertainty, this is not recoverable in addition to the costs to rectify and complete. This is because the cost of work and materials not supplied is factored into the above costs to rectify and complete. To award this expenditure in addition to the costs of rectification would amount to ‘double-dipping’.
- Ms McNulty and Ms Ralph are not entitled to a partial refund of $10,000.00.
What costs can Ms McNulty and Ms Ralph recover?
- Ms McNulty and Ms Ralph also claim costs of $616.76, including “reasonable costs for the time taken to gather evidence and prepare documents”.
- Ms McNulty and Ms Ralph did incur a fee of $305 to file the Application. As they incurred this fee to prove their claim, I consider it in the interests of justice to award them their filing fee.
What are the appropriate orders?
- The appropriate orders are that:
- Tony Sel pay to Marnie McNulty and Robyne Ralph the sum of $19,931.32 by 27 January 2017; and
- Tony Sel pay to Marnie McNulty and Robyne Ralph costs of $305.00 by 27 January 2017.
Directions dated 31 August 2016, paragraph 4.
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2 definition of ‘reviewable domestic work’.
‘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.
Queensland Building and Construction Commission Act 1991 (Qld), s 77(3), Schedule 2 definition of ‘domestic building dispute’.
Email Tony Sel to Marnie McNulty dated 1 September 2015.
BOQ Receipts for $20,000.00 undated and for $10,000.00 dated 2 November 2015.
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, ss 13, 14.
Barbi v. Brewer  QCAT 348 at .
Voli v. Inglewood Shire Council (1963) 110 CLR 74 per Windeyer J.
Bryan v. Maloney (1995) 182 CLR 609 at .
Alleged defective work / incomplete work schedule, Attachments 1 and 2, Annexures 2.4, 2.5, 2.6, 2.7, 2.8 and 2.10 dated 11 May 2016; Statement of Evidence filed 5 October 2016.
Robinson v. Harman  EngR 135.
Bellgrove v. Eldridge (1954) 90 CLR 613.
Invoice of Shane Peter Bunney dated 15 September 2016.
Faulks v. New World Constructions Pty Ltd (No. 2)  QCAT 329 at ; A L Builders Pty Ltd v. Fatseas (No. 2)  QCATA 319 at .
Hitchman v. Prime Building & Pest Consultants Pty Ltd (No. 2)  QCAT 476 at .
Queensland Building and Construction Commission Act 1991 (Qld), s 77(3)(h).
- Published Case Name:
Marnie McNulty and Robyne Ralph v Tony Sel
- Shortened Case Name:
McNulty v Sel
 QCAT 10
17 Jan 2017