McNulty v Sel[2017] QCAT 10

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?

1. [1]
   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.
2. [2]
   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.^[1]
3. [3]
   The Tribunal must now assess their damages.

On what basis does the Tribunal assess damages?

4. [4]
   The work agreed to be performed by Mr Sel is ‘reviewable domestic work’.^[2] The application relates to the performance of that work.^[3] The Tribunal may therefore award damages, interest thereon, restitution and costs.^[4]
5. [5]
   Ms McNulty and Ms Ralph relied upon a Quote^[5] and bank receipts^[6] 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.^[7] However, the Tribunal has recognised^[8] 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…^[9]

6. [6]
   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.^[10]
7. [7]
   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.

8. [8]
   Ms McNulty and Ms Ralph filed written evidence^[11] 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.

9. [9]
   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?

10. [10]
    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.^[12]

What costs to rectify and complete are Ms McNulty and Ms Ralph entitled to recover?

11. [11]
    The below table is a summary of the costs and supporting evidence to rectify the damage.

12. [12]
    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.
13. [13]
    I am therefore satisfied the above costs of $19,931.32 to rectify and complete the work are necessary and reasonable.^[13]
14. [14]
    However, I do not consider the costs of $375.00 to obtain the quote for further rectification work to be reasonably incurred.^[14] 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.
15. [15]
    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.
16. [16]
    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?

17. [17]
    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.  
18. [18]
    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’.
19. [19]
    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?

20. [20]
    Ms McNulty and Ms Ralph also claim costs of $616.76, including “reasonable costs for the time taken to gather evidence and prepare documents”.
21. [21]
    The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.^[15] However, preparation time incurred by self-represented parties in the Tribunal is not recoverable.^[16]
22. [22]
    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.^[17]

What are the appropriate orders?

23. [23]
    The appropriate orders are that:

    1. Tony Sel pay to Marnie McNulty and Robyne Ralph the sum of $19,931.32 by 27 January 2017; and

2. Tony Sel pay to Marnie McNulty and Robyne Ralph costs of $305.00 by 27 January 2017.