Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Thompson v Shen[2017] QCAT 33

CITATION:

Thompson v Shen and Kao [2017] QCAT 33

PARTIES:

Allan Thompson

(Applicant)

v

Howard Shen and May Kao

(Respondents)

APPLICATION NUMBER:

BDL123-15

MATTER TYPE:

Building matters

HEARING DATE:

21 June 2016

HEARD AT:

Brisbane

DECISION OF:

Member Allen

DELIVERED ON:

6 February 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Mr Shen and Ms Kao are ordered to pay Mr Thompson the amount of $6,503.07 within 14 days

CATCHWORDS:

BUILDING MATTER – where building contractor unlicensed at time of entering agreement – where claim for reasonable remuneration for carrying out building work – where building contractor submitted copies of invoices for labour and materials – where expert evidence provided by respondent as to reasonable remuneration – whether building contractor satisfied onus of proof as to reasonable remuneration

Queensland Building and Construction Act 1991 (Qld), s 42, s 56AC, s 77

Cook Constructions P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L [2009] QCA 75

APPEARANCES:

 

APPLICANT:

Mr Thompson

RESPONDENT:

Mr Shen and Ms Kao

REPRESENTATIVES: :

 

APPLICANT::

Mr Thompson represented himself

RESPONDENT:

Mr Wall of Counsel instructed by represented Mr Shen and Ms Kao.

REASONS FOR DECISION

  1. [1]
    Mr Thompson held a builder’s licence under the Queensland Building and Construction Commission Act 1991 (Qld), the QBCC Act, until 8 October 2014 when it was revoked due to him becoming an excluded individual[1]. As a consequence of this it became unlawful for Mr Thompson to carry out, or undertake to carry out building work[2], as defined in the QBCC Act.
  2. [2]
    Mr Thomspon entered a written agreement with Mr Shen and Ms Kao on 2 December 2014 to classify, organise and supervise  works specified by the owner in the scope of works in respect of Mr Shen and Ms Kao’s property at Clear Island on the Gold Coast. Mr Shen and Ms Kao were required to pay a deposit of $5,000 and a fee equal to 22.5% on top of all costs. With progress payments to be paid within five days. The deposit was paid on the signing of the agreement.
  3. [3]
    The scope of works were as follows:-
    1. To remove and remodel the walls as outlined in the final plan;
    2. To prepare and install a new kitchen as outlined on the final kitchen plan;
    3. To dismantle and remodel the 3 bathrooms as specified;
    4. To prepare the floors for new tiling on ground floor and for floating timber floors upstairs;
    5. To build a new timber deck on the pool side with a new frameless glass panel to the pool side;
    6. To install new entrance doors and “crimsafe” screens throughout;
    7. To install new balustrading sheeting TBC;
    8. To install 2 new shade sails TBC;
    9. New electrical installation as per plan TBC and
    10. Total new internal paintwork and new door handles.
  4. [4]
    Mr Thompson arranged for tradespeople, materials and labour to perform the work set out in the agreement and rendered tax invoices for the work, being tax invoice 000146 on 2 January 2015 in the amount of $22,000.00 and tax invoice 000152 on 19 January 2015 in the amount of $27,700.00[3]. Mr Shen and Ms Kao claim they paid the amount due in respect of these invoices and a further amount for doors and windows of $8,802.16. Those payments would total $63,502.16. Mr Thompson claimed that the amount paid by Mr Shen and Ms Kao to him was $62,802.00. Mr Shen and Ms Kao confirmed at the hearing that they paid the total amount due of $63,502.00
  5. [5]
    About the 3rd of February 2015 Mr Shen and Ms Kao terminated the agreement with Mr Thompson with one of the grounds being that he was an unlicensed builder. Mr Thompson issued a further tax invoice on that day no 000154 in the amount of $37,500. Mr Shen and Ms Kao did not pay that amount.
  6. [6]
    Mr Thompson has now made application to the Tribunal. He acknowledges that as he was an unlicensed builder Mr Shen and Ms Kao are not bound by the contract and he was precluded from recovering the full contract sum[4]. He has made his claim in accordance with s 42(4) of the QBCC Act.

The legislation

  1. [7]
    Section 42 of the QBCC Act was in the following terms at the time Mr Thompson entered the agreement with Mr Shen and Ms Kao:

42 Unlawful carrying out of building work

  1. (1)
    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 under this Act. Maximum penalty—250 penalty units.
  1. (2)
    However, subsection (1) does not apply to a person to the extent that the person is exempt under schedule 1A.
  1. (3)
    Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
  1. (4)
    A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
  1. (a)
    is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
  1. (b)
    does not include allowance for any of the following—
  1. (i)
    the supply of the person’s own labour;
  1. (ii)
    the making of a profit by the person for carrying out the building work;
  1. (iii)
    costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
  1. (c)
    is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
  1. (d)
    does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.
  1. [8]
    Mr Wall submitted that Justice Keane had considered s 42 In Cook’s Construction P/L v SFSA 007.298.633 P/L[5]. I note that Mr Thompson considered that this amounted to new evidence. These are submission as to the law. Mr Thompson was given an opportunity to respond in his submissions.  Justice Keane relevantly stated as follows:

[37] Section 42(1) renders illegal the making and performance of a contract for building work by an unlicensed builder. It is the conduct of the builder which is struck at. The provision is plainly intended to operate for the benefit of the other party to the building contract.

[38] It is clear from the terms of s 42(3) and s 42(4) that neither provision purports to create a right of action to recover money in any person. Rather, each subsection is concerned to regulate a cause of action for payment which is assumed to have arisen, either under contract or under the principles of the common law which permit claims for payment for work done at the request of another. These common law claims have variously been described as claims in quantum meruit or in quasi-contract or to prevent unjust enrichment.

[39] Section 42(3) is, in terms, concerned to sterilise any claim which might otherwise be made under a contract or under the common law by an unregistered builder. Section 42(4) is concerned to impose limitations upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without s 42(4), the entitlement of an unregistered builder to payment which would, apart from the Act, arise upon the performance of work by the builder, would be defeated by s 42(1) and s 42(3).

[41] It is true that, as the appellant argues, the operation of s 42(3) of the Act is qualified by s 42(4). But it is also clear that s 42(4) permits an unlicensed builder to claim “reasonable remuneration” for carrying out building work, but only if the amount claimed satisfies the criteria in  paragraphs (a) to (d). It is only the amount of the claim so quantified that the builder may recover despite s 42(3). Absent a good claim so quantified, the operation of s 42(3) is, for practical purposes, unqualified by s 42(4).

[42] in my respectful opinion, it is important that the concern of the courts to avoid an unjust outcome in a particular case should not distort the operation of a statute intended to encourage the licensing of builders by disadvantaging unlicensed builders and advantaging consumers of building services at their expense. It is hardly surprising that the legislature should have left the burden of proving a claim for reasonable remuneration on the builder. What would have been surprising would have been a provision which cast the burden of disproof of an unlicensed builder’s claim on the consumer of the building services. What is most surprising, of course, is the failure of the builder in this case to adduce evidence capable of proving a claim for an amount of reasonable remuneration in conformity with s 42(4) of the Act.

[42] There can be no doubt that where the builder is making a claim to recover payment of reasonable remuneration which has not been paid by the other party, the builder bears the onus of proving the amount to which it is entitled in conformity with s 42(4). There is no indication in the text of s 42 that the onus of proof shifts to the other party (and becomes an onus of disproof) if progress payments have been made under the contract which s 42(1) and (3) have sterilised. It would be distinctly odd if the onus of proof of a claim under s 42(4) were to be altered by the fortuitous circumstance of the making or non-making of progress payment by the other party to the contract.

[57] Subject to an entitlement in the builder under s 42(4), s 42(3) operated both to deny a claim by an unlicensed builder for payment for building work, and to oblige the builder to disgorge payments received by it for the work. The amendments were not concerned to alter the provision of s 42(3), so as to allow an unlicensed builder to retain any payment made to it by the other party. The operation of s 42(3) was to be limited only to the extent that the builder was entitled to reasonable remuneration in conformity with the criteria in s 42(4). Beyond the amount of that entitlement, the consequences of s 42(3) were to be unaltered.

  1. [9]
    Mr Wall submitted, in which I concur, that the effect of Keane JA’s decision in Cook’s Construction was that:
    1. Neither s 42(3) or 42(4) of the QBCC Act creates a right of action to recover money in any person.
    2. Section 42(3) operates to sterilise a claim which might otherwise be brought under contract or under common law by an unlicensed builder on the grounds of unjust enrichment.
    3. Unless a builder conforms to the conditions imposed by s 42(4) the builder’s right to reasonable remuneration cannot defeat the purpose of s 42(3).
    4. Section 42(3) of the QBCC Act affords the basis for the recovery of money paid by any owner to an unlicensed builder, subject to the extent that s.42(4) reduces any such amount.
    5. The unlicensed builder has the onus of proof in respect of a claim for reasonable remuneration under s 42(4) of the Act.
  2. [10]
    In my opinion it is clear that the effect of s 42(1) is that a builder who is unlicensed is not able to make a claim under any contract for the performance of building work. This would without any other provision still enable the unlicensed builder to make a claim such as in quantum meruit. Where Keane JA says that s 42(3) does not create rights he is stating that the right already exists in quantum meruit. On the one hand s 42(3) sterilises that right which has the effect of enabling the home owner to avoid payments of any amounts claimable or paid under the contract. Section 42(4) on the other hand ensures that any claim the unlicensed builder makes for quantum meruit is limited to an amount which complies with the requirements of s 42(4)(a) to(d) and the onus is on the builder to prove that claim to the fullest extent. That is that he must ensure that all of the requirements of paragraphs (a to (d) are met otherwise his claim will not be allowed as was the case in Cooks Construction.
  3. [11]
    I note that In Cook’s Construction interest was payable under s 47 of the Supreme Court Act at [83].
  4. [12]
    Mr Wall submitted that the question of what constitutes “reasonable remuneration” was considered by Martin J in Cook’s Construction Pty Ltd v Stork Foods Systems Aust P/L[6] where he compared it the concept of quantum meruit. Martin J said “it is an essential first step to in any assessment under s 42(4) to determine the “reasonable remuneration”. He referred to the decision in Flett v Deniliquin Publishing Co Ltd ([1964-65] NSWR 383) where Herron CJ said “in a case of quantum meruit the value of services rendered is, as the latin expression implies, a claim for what the services reasonably were worth. It is therefore properly assessed at the normal market rate or price prevailing when the benefit was received. In seeking a measure of reasonable reward, the parties ineffective contract may be looked at for this purpose and in some cases the degree of benefit conferred on the defendant may be taken into account. But there must be some evidence of a market or prevailing price”.
  5. [13]
    I consider that where the court was referring to a market rate in Flett it was referring to the rate in respect of the services performed by the person who is claiming the entitlement to the quantum meruit it is not in respect of any costs incurred by that person. I note that in respect of s 42(4) the requirement is that the reasonable remuneration is not more that the amount paid by the person in supplying materials and labour without an allowance for the persons own labour or the making of a profit by the person. Importantly here though it does not include an allowance for costs incurred, in the circumstances, the costs were not reasonably incurred.
  6. [14]
    Mr Wall submitted in relation to the legal position that the language of s 42(3) is explicit, and disentitles an unlicensed builder from receiving any remuneration whatsoever for work that the builder carried out whilst unlicensed, subject to the builder satisfying the requirements of s 42(4). The burden lies squarely with Mr Thompson to prove the reasonable costs of the work performed, not with Mr Shen and Ms Kao to disprove those costs. Mr Thompson cannot rely on evidence adduced by Mr Shen and Ms Kao to prove its reasonable costs because the onus so squarely falls with Mr Thompson to prove such costs on the balance of probabilities.

Mr Thompson’s claim

  1. [15]
    Mr Thompson claims he engaged licensed carpenters, electricians, plumbers, joiners, plasterers, painters and glaziers and obtained appropriate certificates as work progressed. That he obtained estimates and quotes for the performance of work at the property and confirmed those with Mr Shen and Ms Kao. Further that at all material times Mr Shen and Ms Kao confirmed their instructions as to the scope of work to be performed and selection of items.
  2. [16]
    Mr Thompson claimed that he reasonably incurred costs in the purchase of goods, materials and services for the performance of the contract work up to the time the contract work was suspended and that he has paid the amounts incurred to the contractors and suppliers. The particulars of which are as follows following admissions and allowances made by Mr Thompson at the hearing which are contained in his final submissions:-

Plumbing services

$2,150.00

Electrical services

$9,098.68

Carpentry

$24,047.25

Tiles

$7,920.00

Tiling

$14,941.00

Joinery

$8,802.00

Plasterwork

$8,090.00

Waste service

$1,059.00

Labour

$11,596.00

Materials

$4,386.00

Bookkeeping

$1,600.00

Total cost

$93,689.65

  1. [17]
    Mr Thompson claims that he is entitled to claim and seeks an order for the payment of reasonable remuneration for the carrying out of the work under the contract pursuant to s 42(4) of the QBCC Act. Which he states is the amount paid by him for the carrying out of the building work, but not including his own labour, profit margin or benefit for the performance of work. The reasonable remuneration he says is the amount of $93,689.65   of which he has received $62,802 and is entitled to an additional amount of $30,687.65 plus interest and costs.
  2. [18]
    Mr Thompson provided copies of tax invoices with his statement[7] in support of the amounts claimed above. He also provided a document which he described as an amended estimate of work completed before the date of the stop work. He said this was relevant because the advised estimate at that point was $145,775 which included the contract management fee of 22.5%.
  3. [19]
    Mr Thompson conceded at the hearing that he had made no attempt to ensure that the people he engaged to carry out work on the job had appropriate licenses and claimed that it was not necessary for him to do so. He also stated that he did not know he needed to be licensed at the time he entered the agreement with Mr Shen and Ms Kao. While he agreed that his margin of 22 1/2 percent should include overheads he did not consider the bookkeeper fees constituted an overhead as they were particular to this job. In particular in regard to the invoices in the amount of $15,250.00 for Mr Sedal Gnesh who was a carpenter Mr Thompson accepted that he did not  know if Mr Gnesh was licensed. He stated “I did not check if Mr Gnesh was licensed nor in respect of any other trades”. Mr Thompson confirmed that all invoices are of materials and labour in respect of Mr Shen and Ms Kao’s premises

Mr Shen and Ms Kao’s response and counterclaim

  1. [20]
    Mr Shen and Ms Kao in their response noted that Mr Thompson had not complied with the agreement in various ways including by not accepting and confirming email requests, disregarding instructions in regard to such things as tile colour in the bathrooms and type of tapware. Mr Thompson also removed a steel frame for the front door and part of the pool fence without instructions.  Mr Shen and Ms Kao claim that they instructed Mr Thompson to rectify these defects and that he had not done at the time of termination of the contract.
  2. [21]
    Mr Shen and Ms Kao also claim that Mr Thompson only outlined the description of work carried out on his invoices but failed to itemise all expenses incurred which falls short of his contractual duty to list out specified items and costs incurred. When the final expended cost list was delivered to them they found numerous invoices that had not been used for the purpose of the construction work including receipts for items incurred prior to the construction period, receipts for café and invoices issued by Mr Thompson himself.
  3. [22]
    Mr Shen and Ms Kao accepted that some of the work had been performed adequately such as in regard to the removal and remodelling of the walls by Mr Thompson. They had issues with the tiles that were chosen for the bathrooms and noted that the kitchen had not been installed nor the timber floor finished.
  4. [23]
    Mr Shen and Ms Kao made a counter claim on the basis that Mr Thompson is not entitled to make claim or seek any further payment of reasonable remuneration as they had remunerated him for an amount in excess of the costs. They say they paid $63,502 in advance that they accept the receipts for payments in advance which fall within the timeframe on good faith that all materials were used and found at worksite which were done according to the instructions given by the respondents. They give a list of items they are willing to accept which includes:-
    1. Gold coast skips    $399.00;
    2. Chase electrical contractors   $2,782.50
    3. Bunnings warehouse   $719.50

Total     $3,901.16

  1. [24]
    The counterclaim was in the amount of $59,601.00
  2. [25]
    Mr Shen and Ms Kao later in their statement[8] agreed in recognition of the works completed, despite the fact that the tiles used in the bathrooms were not as selected to accept the following particulars which are not in dispute:-
    1. Tiles   $7,920.00
    2. Tiling   $14,941.00
    3. Joinery  $8,802.16
    4. Waste service $1,059.00
    5. Plumbing  $2,150.00

Total  $34,872.15 

  1. [26]
    Mr Shen and Ms Kao disputed the charges in regard to the electrical work. They also were not satisfied that the invoices for plaster work, carpentry and labour represented work that had been performed at their premises and whether or not the tradespeople were qualified. There were also some items of materials in dispute. They also did not accept that they were required to pay for the book keeping fee.
  2. [27]
    Shen and Ms Kao believe they have paid more than sufficient monies to cover the costs incurred by Mr Thompson. They say that it is apparent from his continuous inclusion of unjustifiable costs and over calculations, he is claiming remuneration he is not entitled to. Given that there is no stipulated contract price for the work and the contract price is heavily dependent on Mr Thompson’s substantiating all costs incurred, Mr Shen and Ms Kao are not willing to make further payment unless Mr Thompson can provide further explanations as requested.
  3. [28]
    Mr Shen agreed in cross-examination that the amount of $37,722 was not in dispute and that the amount for plumbing should be $2,150.00. He confirmed the amount of $9,098.68 was in dispute in regard to the electrician. Mr Thompson accepted that the total of the carpenters invoices was $24,047.25. Mr Shen confirmed that they had paid $63,502.00 and that he did not accept the amounts for plasterers and labour as doesn’t agree work carried out at the house. Mr Thompson accepted that the concerns raised in regard to materials by Mr Shen. Mr Shen confirmed that he should not have to pay for the bookkeeper as it was not his responsibility.
  4. [29]
    Ms Kao in her cross-examination also confirmed that they had paid $63,502 to Mr Thompson. She said the work was not the way they had wanted and that they had paid an amount of $1,302 to the electrician and $308 to the plumber. She confirmed that they had used the plumber, electrician and one of the carpenters, Nathan to finish the work.
  5. [30]
    Mr Thompson submitted that Mr Shen and Ms Kao’s testimony was unreliable.  He submits that they are trying to avoid due to the QBCC Act the management fee $26,775 and the costs of his work and supervision $25,279 and that they are trying to avoid his out of pocket expenses.
  6. [31]
    Mr Peter Stormonth, a registered builder provided an expert report on behalf of Mr Shen an Ms Kao. Mr Stormonth had inspected the premises had been given copies of relevant documents to enable him to prepare his report[9]. These included the agreement; copies of Mr Thompson’s invoices and receipts for labour, plant, materials and subcontract expenses; floorplan of the house and invoices for rectification of defective and incomplete work performed by Mr Thompson. Mr Stormonth advised that the building work he inspected included the following:-
    1. Dining room removal of existing window and installation of new bi-fold door
    2. Replacement of kitchen window
    3. Family room removal of existing window and installation of new bi-fold door
    4. Repositioning of kitchen walls
    5. Repositioning of WC/bathroom walls
    6. Repositioning of laundry and office wall, and robe wall in office
    7. Tile to ground floor areas
    8. Full tiling to ground floor WC/Bathroom (floor to ceiling)
    9. Frame up and sheet over eastern window to master bedroom
    10. Frame up and sheet over western window to bedroom 3 (N/W corner)
    11. Replacing north window to bedroom 3
    12. Tiling to 1st floor master bedroom ensuite and bedroom
    13. Laying of laminated floating timber flooring to 1st floor, all areas excluding wet areas.
  7. [32]
    The report also notes that Mr Shen and Ms Kao had engaged contractors to complete a number of items that had not been done by Mr Thompson.
  8. [33]
    Mr Stormonth states that he knows Mr Thompson claims that the reasonable value of the work was $96,713 and noted that after his review of the material provided to him and his site inspection there were a number of discrepancies in the invoices for material and labour supply. Some of the invoices were for material that would not have been used to complete this work for which he gives examples. Other dockets and invoices did not include final amounts. The labour invoices did not always refer to this project. In his opinion the labour content seemed very high for a comparable job, perhaps up to twice the amount that should have been expended on the project. Also the amounts claimed and the time frame between invoices did not make reasonable sense to him.
  9. [34]
    Mr Stormonth was also concerned that in regard to waterproofing there was no evidence that the person who installed it had a licence. Usually the waterproofing installer would give a from 16 certificate of compliance and warranties.
  10. [35]
    Mr Stormonth’s opinion as to the reasonable cost of undertaking the work that Thompson did on Mr Shen and Ms Kao’s house was $70,005.07. made up as follows:
    1. Materials  $36,485.50 plus GST =  $40,134.05
    2. Subcontractors $14,170.47 plus GST = $15,587.52
    3. Labour ($35/hour) $12,985.00 plus GST = $14,283.50

Total   = $70,005.07 (GST inclusive)

  1. [36]
    This was said not to include any cost for supervision, overheads or profit.
  2. [37]
    Mr Stormonth gave evidence at the hearing. He confirmed he had not provided expert evidence before but had performed renovation work similar to that performed in respect of Mr Shen and Ms Kao’s property. When asked how do you know what work was done he explained that Mr Shen had taken him through the house and shown him photos of the house pre-work. He also confirmed that he would always get licensed trades.
  3. [38]
    Mr Thompson had attempted to raise with Mr Stormonth matters in regard to the work that was done in respect of the renovation which was outside of that set out in Mr Thompson’s evidence. This was objected to and sustained so there was no questions allowed in regard to work which had not been disclosed in Mr Thompson’s application or statement. That is work which was outside of the scope of works in the agreement of 2 December 2014.
  4. [39]
    Mr Stormonth conceded that he was not aware in regard to the Bunnings invoices that material not circled was not claimed. Mr Thompson suggested that the labour content was high because of things not included by Mr Stormonth. Mr Stormonth said that the labour was still too high in regard to the number of hours. Mr Stormonth acknowledged that he not notice any leaks in respect of the bathrooms. Mr Stormonth explained that his calculations included Mr Thompson’s windows, plumber and electrician and used what he would allow for plastering. He agreed though that the honest value of a project would be in the actuals.
  5. [40]
    Mr Stormonth agreed that now he knew a little more about the job he would expect his estimate to be subject to variation with may be a higher rate for labour of $40 per hour. Mr Stormonth confirmed in re-examination that poor supervision or being unsupervised could affect costs and that this was reason not to use cost plus contracts.
  6. [41]
    Mr Thompson in his submissions again raised issues in regard to work which may have been performed in respect of the premises which he had not previously raised in his material and for which he was not able to cross-examine Mr Stormonth. He submits that having regard to the additional work Mr Stormonth’s estimate of reasonable costs should have been $28,000 higher.
  7. [42]
    As Mr Thompson did not raise this evidence during the course of the proceeding I will only take this into account to the extent that Mr Stormonth’s estimate only represents the work which he was able to quantify and cost based on the material that was before him. Mr Thompson did not at any stage introduce any of the other material to show that additional work was done and so it will not be taken into account in this decision. I note that Mr Thompson has the onus of proof and it is the submission of Mr Wall that Mr Stormonth’s evidence of the reasonable cost should not be available to support Mr Thompson’s claim.

Discussion

  1. [43]
    The effect of s 42(3) of the QBCC Act is that apart from any entitlement that Mr Thompson may prove under s 42(4) of that Act Mr Shen and Ms Kao are entitled to recover the amount they have paid to Mr Thompson under the contract they entered with him on 2 December 2014. I accept the evidence of them that they paid Mr Thompson the amount of $63,502 which is the amount they were required to in accordance with the progress payments in exhibit 3 with the deposit and the additional amount for the windows. Mr Thompson provided no evidence to refute that they had paid this amount and they appeared to be witnesses of honour.
  2. [44]
    Mr Thompson has based his claim under s 42(4) on the amount he says he has incurred for labour and materials in respect of the work performed under the agreement. Mr Thompson provided copies of invoices to prove that he was entitled to this amount and swore that he had incurred all of the invoices in respect of work on Mr Shen and Ms Kao’s property and that this represented the reasonable cost of performing such work and hence reasonable remuneration. It is fair to say that Mr Thompson made no attempt in the evidence that was filed to describe exactly what work was performed only raising it at the hearing when cross-examining Mr Stormonth which was disallowed.
  3. [45]
    It is clear that Mr Thompson has the onus of proving his claim. Mr Wall submitted that the proof provided by Mr Thompson is insufficient provided a bundle of invoices without any explanation or rationale as to where the amounts claimed were incorporated into the works. He did not take the opportunity to have the value of the works assessed by an independent expert and referred to the claimed amounts as the bare costs. He otherwise provided no evidence as what in fact the “reasonable cost” of the work is, as opposed to the claimed actual cost, and certainly has not provided any evidence as to the “normal rate or market price” in existence at the time the work was carried out as contemplated by Martin J in Stork No. 1. Has provided no objective evidence that the amounts claimed have actually been paid to any third party. No books of account, bank statements or any other proof of payment was provided by the applicant.
  4. [46]
    Mr Wall submitted that Mr Thompson’s evidence is not reliable having regard to his behaviour during cross-examination where he was evasive and on a number of occasions denied facts such as the date he lost his builders licence. Mr Thompson submitted that he had no memory problems as a result of health conditions he suffered. I accept that his does not go to the veracity of Mr Thompson’s evidence having regard to his medical conditions.
  5. [47]
    I am satisfied that Mr Thompson has provided evidence in terms of the invoices that the amount he claims is not more than the amount paid by him in supplying materials and labour for carrying out the building work as required under s 42(4)(a). These are third party amounts and there is no requirement that they be assessed in accordance with any market rate. Having regard to the invoices there is no amount claimed for Mr Thompson’s own labour so s 42(4)(b)(i) of the QBCC Act is complied with. All of the invoices relate to third parties so again there is no allowance for the making of a profit by Mr Thompson for carrying out the work so s 42(4)(b)(ii) of the QBCC Act is complied with.
  6. [48]
    Mr Thompson was required to also prove that there was no allowance in the costs incurred by him in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred in accordance with section 42(4) (b)(iii) of the QBCC Act. It was his submission that the costs were reasonably incurred. There was evidence though that some of his tradespeople may not have been appropriately qualified, Mr Gnesh the carpenter and the waterproofer. There were concerns raised by Mr Shen and Ms Kao about the work performed discussed above. There was also the evidence of Mr Stormonth that the reasonable costs of performing the work would have been an amount of $70,005.76. Mr Thompson tried to introduce new evidence to change Mr Stormonth’s position and this was disallowed by the Tribunal.
  7. [49]
    I consider that the purpose of s 42 of the QBCC Act to ensure that contractors were licensed would be thwarted if an unlicensed builder was able to obtain payments in respects of work performed by other unlicensed tradespeople. Mr Thompson made it clear in his evidence that he did not check whether his tradespeople were licensed or not and therefore I do not consider it reasonable that payment be made in respect of such unlicensed tradespeople this particularly related to Mr Gnesh for whom payments totalled an amount of $15,250.00.
  8. [50]
    Mr Stormonth opinion was that the reasonable amount was $70,005.76 and that in particular there was an excessive amount claimed for labour which he considered unreasonable. It was Mr Wall’s submission that Mr Thompson should not have the benefit of Mr Stormonth’s evidence as proof of his claim. I do not consider that Mr Stormonth’s evidence is proof of Mr Thompson’s claim I consider that it is evidence refuting the amount that he may be otherwise be entitled to and thus limits his claim.
  9. [51]
    Mr Wall submitted that if the Tribunal is minded to award Mr Thompson any amounts in relation to the work performed those amounts should be capped at the reasonable cost of $70,005.07 set forth in Mr Stormonth’s amended evidence.
  10. [52]
    On the basis that Mr Thompson is entitled to that amount in accordance with s 42(4) of the QBCC Act Mr Shen and Ms Kao have no entitlement available to them under s 42(3) of the Act as they only paid Mr Thompson an amount of $63,502 which is less than the amount he is entitled to.
  11. [53]
    Mr Shen and Ms Kao paid Mr Thompson an amount of $63,502. If Mr Thompson has entitlement to $70,005.07 for reasonable remuneration then they will be required to pay him an additional amount of $6,503.07.
  12. [54]
    Mr Thompson requested interest on any amount that he is entitled to. There is an entitlement to interest where damages are payable in accordance with s 77(3)(C) of the QBCC Act. The amount that Mr Thompson is entitled to is an amount for reasonable remuneration and is not in respect of damages. There is then no interest payable to Mr Thompson.
  13. [55]
    Both parties requested that they be able to make submissions in regard to costs. I consider that Mr Thompson has won his claim and he was not legally represented so he has no entitlement and that otherwise costs would follow the cause. So there will be no award of costs.
  14. [56]
    Mr Shen and Ms Kao are ordered to pay Mr Thompson the amount of $6,503.07 within 14 days.

Footnotes

[1] QBCC Act, s 56AC.

[2] QBCC Act,  s 42.

[3] Exhibit 3.

[4] QBCC Act ss 42(1) and (3).

[5] [2009] QCA 75.

[6] [2008] QSC 179.

[7] Exhibit 1.

[8] Exhibit 5.

[9] Exhibit 4.

Close

Editorial Notes

  • Published Case Name:

    Allan Thompson v Howard Shen and May Kao

  • Shortened Case Name:

    Thompson v Shen

  • MNC:

    [2017] QCAT 33

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    06 Feb 2017

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.