Zhang v Lane
[2017] QCAT 366
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- Unreported Judgment
- Zhang v Lane[2017] QCAT 366
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Zhang v Lane[2017] QCAT 366
Zhang v Lane[2017] QCAT 366
CITATION: | Zhang & Lin v Lane [2017] QCAT 366 |
PARTIES: | Xian Ling Zhang Sen Lin v David Campbell Lane |
APPLICATION NUMBER: | BDL261-16 |
MATTER TYPE: | Building Matters |
HEARING DATE: | 13 September 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Hughes |
DELIVERED ON: | 13 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
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 defective work – where home owner entitled to recover money paid under Agreement plus damages to rectify and complete Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2 A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319 Bellgrove v Eldridge (1954) 90 CLR 613 Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2009] QCA 075 Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329 Marshall v Marshall [1991] 1 Qd R 173 Robinson v Harman [1848] EngR 135 Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228 |
APPEARANCES and REPRESENTATION (if any): | |
APPLICANT: | Sen Lin appeared in person and on behalf of Xian Ling Zhang |
RESPONDENT: | David Campbell Lane did not appear |
REASONS FOR DECISION
What is this Application about?
- [1]Xian Ling Zhang and Sen Lin paid $76,000.00 to David Lane for building works. Mr Lane was not licensed. He did not complete the works.
- [2]Mr Lane did not file a response to the claim or engage with the Tribunal process. Ms Zhang and Mr Lin are therefore entitled to a final decision in the proceeding, with damages to be assessed.[1]
- [3]The Tribunal must now assess their damages.
On what basis does the Tribunal assess damages?
- [4]Ms Zhang and Mr Lin signed a written Agreement with Mr Lane on 7 August 2016. Although the Agreement was performed by an unlicensed builder and did not include formal statutory requirements of the builder’s licence number and a notice that the building owner has the right to withdraw,[2] this does not make it illegal, void or unenforceable by the home owner.[3]
- [5]The Agreement was that Mr Lane would perform the following work:
- Both sides retaining wall. Paint off fence;
- Front brick wall with lights and aluminium fence;
- Electric gate, side gate and mail box on front fence;
- Pave footpath to the side gate;
- The deck, paint off deck;
- The turf area around the house;
- Garden around council sewage;
- Building off rock and pave path from house to fences;
- Building off pave areas side of house;
- Trees and plants;
- Garden boxes; and
- Clothing lines.
- [6]
- [7]Ms Zhang and Mr Lin provided uncontested evidence,[7] including a report from an expert building contractor, of the following breaches of warranty by Mr Lane:
- Failing to supply all materials;
- Incomplete work; and
- Work and materials not meeting acceptable standards.
- [8]Based on this evidence, I find that Mr Lane performed the work in breach of these warranties.
- [9]Ms Zhang and Mr Lin are entitled to damages as a result of Mr Lane’s breaches of these warranties.
What damages are Ms Zhang and Mr Lin entitled to?
- [10]Because Mr Lane is unlicensed, he is not entitled to payment for the work.[8] The onus is upon him to make a statutory claim for reasonable remuneration for performing the work.[9] Mr Lane has not made any claim and has not engaged with the Tribunal process. He is therefore not entitled to any remuneration for the work done. Conversely, Ms Zhang and Mr Lin are entitled to recover the amount of $76,000.00 they paid to Mr Lane as an unlicensed builder.[10]
- [11]In addition, Ms Zhang and Mr Lin are entitled to have the work performed as required by the Agreement.[11] They are entitled to damages to restore them to the position they would have been in had the wrongful acts not occurred.[12] This is the amount required to rectify the defective work and the costs to complete.[13]
- [12]
- The cost to rectify the substandard work is $8,900.00; and
- The cost to complete the work is $50,500.00.
- [13]No reduction is to be made for the unpaid final instalment of $12,000.00, because Mr Lane was not entitled to any payment under the Agreement and the works were not completed or performed to a proper standard.[15]
- [14]Damages are therefore calculated at $59,400.00.
- [15]Accordingly, Ms Zhang and Mr Lin are entitled to recover from Mr Lane the amount paid under the Agreement of $76,000.00 plus damages of $59,400.00, equalling $135,400.00.
What costs can Ms Zhang and Mr Lin recover?
- [16]The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.[16]
- [17]Ms Zhang and Mr Lin incurred a fee of $315.70 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?
- [18]The appropriate orders are that:
- David Campbell Lane pay to Xian Ling Zhang and Sen Lin the sum of $135,400.00 by 20 October 2017; and
- David Campbell Lane pay to Xian Ling Zhang and Sen Lin costs of $315.70 by 20 October 2017.
Footnotes
[1]Direction 2 dated 19 July 2017.
[2]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 13, s 14.
[3]Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228, [5] - [22].
[4]QBCC Act, Schedule 2, definition of ‘reviewable domestic work’.
[5]Ibid, Schedule 1B, s 4, ‘Domestic building work’ includes the renovation, alteration, extension, improvement or repair of a home and associated work.
[6]Ibid, s 77(3), Schedule 2, definition of ‘domestic building dispute’.
[7]Statement of Xian Ling Zhang and Sen Lin dated 18 April 2017; Report of The Continental Property Pty Ltd dated 23 February 2017.
[8]QBCC Act, s 42(3).
[9]Ibid, s 42(4); Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228, [21].
[10]Marshall v Marshall [1991] 1 Qd R 173, 176.
[11]Bellgrove v Eldridge (1954) 90 CLR 613.
[12]Robinson v Harman [1848] EngR 135.
[13]Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228, [43].
[14]Report of The Continental Property Pty Ltd dated 23 February 2017.
[15]Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228, [45] to [47], applying Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2009] QCA 075.
[16]Faulks v. New World Constructions Pty Ltd (No. 2) [2014] QCAT 329, [17]; A L Builders Pty Ltd v. Fatseas (No. 2) [2014] QCATA 319, [4].
[17]QBCC Act, s 77(3)(h).