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Natalie Cooper v Daniel Murray McGaveston[2019] QCAT 244

Natalie Cooper v Daniel Murray McGaveston[2019] QCAT 244

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:

Natalie Cooper v Daniel Murray McGaveston [2019] QCAT 244

PARTIES:

NATALIE COOPER

(applicant)

v

DANIEL MURRAY MCGAVESTON

(respondent)

APPLICATION NO:

BDL256-18

MATTER TYPE:

Building matters

DELIVERED ON:

28 August 2019

HEARING DATE:

16 May 2019

HEARD AT:

Brisbane

DECISION OF:

Member Garner

ORDERS:

  1. The Respondent pay to the Applicant damages in the sum of $14,158.00 within 14 days of the date of this decision.
  2. The Respondent pay to the Applicant costs in the sum of $3,153.18 within 14 days of the date of this decision.
  3. The proceeding is listed for a directions hearing on a date to be fixed.
  4. The proceeding is listed for further hearing on a date to be fixed, so that the parties can be heard in relation to whether, by virtue of ss 42(1) and 42(3) of the Queensland Building and Construction Commission Act, 1991 (Qld), the Tribunal should make an order that the Respondent refund to the applicant the sum of $14,705.00 she paid for the Works.
  5. Unless the Tribunal otherwise orders, no further evidence in chief will be allowed at the further hearing.
  6. Unless the Tribunal otherwise orders, all witnesses relied upon must be available in person for cross-examination.
  7. Further costs are reserved.

CATCHWORDS:

BUILDING DISPUTE – BREACH OF CONTRACT  –   where informal and unsigned contract – where non – compliance with s 13(2) of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld)

BUILDING DISPUTE – NEGLIGENCE – whether builder owed a duty of care to homeowner – whether builder breached duty of care – whether homeowner suffered material damage caused by builder’s breach of duty – whether proximate connection between action of builder and damage

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTION FOR TORT – where damages to be assessed – where builder had duty to take reasonable care in performing work – where purpose of damages to restore homeowner to position they would have been in had wrongful acts not occurred – whether evidence of damages claimed – where person preparing quote not made available for cross-examination – whether natural justice afforded

BUILDING DISPUTE – where work performed by unlicensed builder – effect of non-compliance with s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether homeowner entitled to be reimbursed money paid for building work – whether natural justice afforded to parties

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

AL Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319

Bryan v Maloney (1995) 182 CLR 609

Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661

Drossos v Marvel Homes Pty Ltd [2014] VSC 384

Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329

Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196

Haines v Bendall (1991)172 CLR 60

Marshall v Marshall [1999] 1 Qd R 173

Nicinski v Chemay (Building and property) [2016] VCAT 649

Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207

O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257

Smart v Berry (Building and Property) [2016] VCAT 540

Subramainiam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70

Sutton v Zulllo Enterprises Pty Ltd [2000] 2 Qd R 196

Waid v Casey [2012] QCAT 533

APPEARANCES

& REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Introduction

  1. [1]
    This application, filed in the Tribunal on 25 September 2018, is for the Tribunal to resolve a ‘domestic building dispute’ pursuant to s 77 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  2. [2]
    The dispute between the Applicant and the Respondent relates to tiling and other works (‘the Works’) performed by the Respondent for the Applicant at her residential premises in Queensland (‘the Home’) in or about April and May 2017.
  3. [3]
    The Applicant alleges that the Respondent’s work was defective and claims relief for loss and damage.

Factual background

  1. [4]
    The Tribunal received evidence of:
    1. (a)
      The Applicant;
    2. (b)
      The Respondent;
    3. (c)
      Mr Maurizio Cavarretta, Tiler;
    4. (d)
      Mr Scott Palmer, formerly State Retail Manager of Beaumont Tiles;
    5. (e)
      Mr Bejairaj Luckan, Building Inspector, Queensland Building & Construction Commission; and
    6. (f)
      Mr Finlay Hayhurst, Senior Structural Building Inspector, JHA Australia Group Pty Ltd.
  2. [5]
    The factual background is largely not in dispute. Based on the pleadings and evidence, the Tribunal is satisfied that the factual background to the dispute is as follows.
  3. [6]
    The Applicant is the owner of the Home, which is a detached residential dwelling located in Queensland.[1]
  4. [7]
    At all relevant times, the Respondent carried on business as a tiling contractor.[2]
  5. [8]
    On 14 February 2017, the Respondent met with the Applicant at the Home to discuss the Works.
  6. [9]
    On 22 February 2017, the Respondent gave the Applicant a written quote dated 14 February 2017 (‘Written Quote’) to carry out the Works at the Home for a price of $14,705.00.[3] The Written Quote stated:

Description

Quantity

Rate

Amount

To tile 140 meters of floor, including ensuite floor, 300 x 600 tile or 600 x 600 tile.

140

$65.00

$9,100.00*

Ensuite bathroom walls + wet area walls in main bathroom.

28

$55.00

$1,540.00*

Priming of floor to allow tile to stick to existing flooring.

1

$600.00

$600.00*

Waterproofing ensuite

1

$450.00

$450.00*

Waterproofing wet area in main bathroom

1

$150.00

$150.00*

Screeding ensuite floor for falls

7

$35.00

$245.00*

Screeding wet area in main bathroom

1

$100.00

$100.00*

Sealing tiles: includes cleaning and pre seal before grouting tiles and then final seal and polish after grouting.

140

$18.00

$2,520.00*

 

* Indicates non-taxable item

 

 

 

 

 

Subtotal

$14,705.00

 

 

Total

$14,705.00

  1. [10]
    On 24 February 2017, Applicant accepted the Written Quote by text message.
  2. [11]
    To enable the Works to be undertaken, skirting boards and furniture was removed from the Home. The Applicant and her family, apart from the Applicant’s father, moved out of the Home for the duration of the Works.
  3. [12]
    Between about 18 April and 5 May 2017, the Respondent undertook the Works, which relevantly included:
    1. (a)
      Laying new limestone tiles (‘the Limestone Tiles’) to virtually the entire of the floors in the Home. The Applicant had selected and purchased the Limestone Tiles from Beaumont Tiles. The Limestone Tiles were a natural stone product which was noted to have natural imperfections such as irregular markings, lines and veins. The Limestone Tiles were laid over the top of the pre-existing flooring (‘Substrate’) which was cork tile flooring in the entry, lounge, study and bedrooms and natural slate tile flooring in the kitchen, dining laundry and back hall; and
    2. (b)
      Tiling and installation of shower drains (‘the Shower Drains’) on the floor of an ensuite and main bathroom.
  4. [13]
    Mr Maurizio Cavarretta assisted the Respondent with the Works.
  5. [14]
    The Respondent was not licenced pursuant to the QBCC Act at the time when the Respondent provided the Written Quote and undertook the Works. The Respondent did not become licenced pursuant to the QBCC Act until 27 April 2018, when he commenced to hold contractor’s licence number 15088098.[4]
  6. [15]
    The Applicant paid the Respondent the entire of the quoted amount of $14,705.00 in respect of the Works. That amount was paid by one instalment of $7,000.00 paid on or about 13 March 2017 and a second instalment of $7,705.00 paid on or about 20 April 2017.
  7. [16]
    Between at least February 2017 and December 2017, the Applicant and the Respondent exchanged numerous SMS text messages regarding the Works.
  8. [17]
    The Respondent complained about cracks appearing in bathroom wall tiles which were also laid by the Respondent as part of the Works. That issue is not the subject of this dispute as the manufacturer of the bathroom wall tiles accepted responsibility in that regard.
  9. [18]
    Relevant to this dispute, from at least October 2017, the Applicant made a number of complaints to the Respondent about cracks appearing in the Limestone Tiles and cracking and disintegrating of the grout surrounding the Limestone Tiles.
  10. [19]
    On 11 October 2017, the Respondent attended at the Home with the Applicant, her husband, Mr Cavarretta, Mr Palmer and a representative of Southern Cross Ceramic to inspect the Works.
  11. [20]
    On 24 November 2017, the Applicant and the Respondent had the following SMS text message exchange regarding the Applicant’s complaints about the Limestone Tiles and grout cracking and her desire to engage an independent assessor to inspect them:

Applicant:  Hey Dan Can you please sent me a invoice/ recite of payment for the money we have paid you Thanks

Respondent: Hey, I can send you a invoice but then I have to put it through my books.

Applicant:  Ok

Respondent: Which means gst

Applicant:  I thought your not registered for GST??

...

Respondent: The inspector is going to want to see a licence, which Maurice has, and is what he uses to covers my requirements. They won’t look at it with you using mine

Applicant:  I’m happy to pay the GST if that’s what I need to do to get a invoice/recite

Respondent: Yea sweet. Just didnt want to put you out of pocket. Il have to give Maurice my qoute as it was cash and I never sent a final invoice, so he can then back date his invoice to when the job was done

Applicant:  Ok well I didn’t know you were doing it thought the books or unlicensed to do the job through yourself With them cracking and the inspector is coming out Monday we will need these documentation Im just guessing and being proactive You know it’s not personal at all strictly professional and I know you would understand if you had spent $33k on Floors that are cracking and the grout disintegrating after 6months you would follow the Same process...

Respondent: Exactly that’s y iam making sure that everything is done correctly so there is no problems with an inspector looking at the job

Applicant:  Thanks Dan :)

(sic)

  1. [21]
    On 27 November 2017, Mr Finlay Hayhurst, Senior Structural Building Inspector with Jeffrey Hills and Associates Consulting Engineering Services (which had been independently engaged by the Applicant), inspected the Works and prepared a report in relation to the Applicant’s complaints (‘the Hayhurst Report’). The Hayhurst Report relevantly stated:

Introduction

Our company confirms your request to undertake a site inspection, and then provide a report on the cracking occurring in the limestone floor tiles throughout the floor and to undertake a Hydraulic Level Survey of the floor slab.

The following statements outline our observations and opinion in relation to the cause of the cracked floor tiles and the structural integrity of the foundations of the building, as inspected.

...

A site inspection was carried out to determine the cause of cracking of floor tiles throughout the house. Our observations and findings are as follows...

[photos] Cracking showing evidence of recent movement or shrinkage.

[photos] Further evidence.

Findings

Some of the tiles inspected that appear to be cracked are smooth on the crack line indicating that the lines are scars and not cracks.

It was also suggested that the scar lines that look like cracks are tiles that cracked and were epoxied together prior to delivery. Professionals and suppliers interviewed disagree and state that this may happen after a tile is laid but cracked tiles normally discarded if the cracks are initially evidence unless this was a low quality tile in the first place. It is suggested that the scars that look like cracks were in the blocks that were quarried from the strata and transferred into the image to the tile. This is supported by the evidence that there were already scar lines when the tiles were delivered and not yet laid.

Failure cracks were visible in many tiles and some tiles have already been replaced. Three to four more have recently cracked and show ridges and slight chips as seen in the photos.

It was also observed that no intermediate control joints were installed in the floor tiles throughout the areas, as required by Australian Standard AS3958 Guide to the Installation of Ceramic Tiles. These control joints are necessary to cater for general movements, the thermal expansion and contraction of tiles, and in some cases, expected tile growth.

A summary of the Australian Standard AS3958 – Ceramic Tile Installation states:

Flexible joints are required to separate the tiled elements from the fixed elements, such as columns and walls.

Intermediate joints are required that subdivide larger tiled areas into smaller sections, in particular in internal floors subjected to sunlight where any dimension of the floor exceeds 6m. The joints should be evenly spaced at not more than 4.5 m.

Please find below excerpts from a Beaumont tiles Brochure:

Allow for expansion joints

Expansion joints for both the substrate and the tiles are necessary to prevent cracking due to movement. Any stone laid against a pool edge or house must also have an expansion joint at this point. Drainage, appropriate to your particular application, is an important consideration to prevent moisture related issues. Please refer to the Australian Standards.

Prepare the substrate

Stone tiles must be laid on a solid substrate, such as a concrete slab, that is both level and free from movement.

We recommend stone tiles be laid on a base of concrete that is at least 75mm for normal foot traffic. For driveways the base should be a minimum of 100mm.

It is our understanding from the owners that the new limestone tiles were laid on top of existing cork tiles in the entry, lounge, study and bedrooms and also laid on top of existing slate tiles in kitchen, dining, laundry and back hall. This is not only against recommendations of the suppliers brochure but also against Australian standard tiling practices regarding substrate preparation and mediums, i.e concrete surface.

Slate is a layered rock that sheers and has uneven surfaces with differing characteristics to limestone. Even though a larger notched trowel was used, the differing thicknesses of the flexible glue would possibly contribute to movement and cracking in the tiles.

Slate is a fine-grained, foliated, homogenous metamorphic rock derived from an original shale-type sedimentary rock composed of clay or volcanic ash through low-grade regional metamorphism. It is the finest grained foliated metamorphic rock.

Limestone is most commonly formed in clear, warm, shallow marine waters. It is usually an organic sedimentary rock that forms from the accumulation of shell, coral, algal, and fecal debris. It can also be a chemical sedimentary rock formed by the precipitation of calcium carbonate from lake or ocean water.

Because of these two different mediums it is not recommended to lay one over another, therefore the slate should have been removed and the slab prepped prior to laying the limestone tiles.

The cork should have been removed and the slab prepped before laying the limestone tiles...

Summary

There are two problems that were encountered on inspection and the investigation into the tiles. A summary of each is given

Scar lines

The tiles were delivered to site with an inherent scar line that looks as if the tiles are cracked. The lines are an aesthetic flaw in the tiles and were probably formed in the limestone rock from which the tiles were quarried.

The tiles were purchased from – Beaumont Tiles, Labrador.

It appears that the tiles where (sic) a low quality tile and that the scars that look like cracks are an inherent aesthetic flaw in the tiles.

The tiles that have scars are not considered to be cracked and do not need replacing unless they are aesthetically unacceptable.

Cracking of laid tiles

Some of the tiles that had been laid have developed failure cracks.

The hydraulic survey indicated that there is movement. The movement is not considered to be excessive. As further gross foundation movement is not anticipated, structural stabilisation work is not recommended for the building at this time.

Cracking has occurred in tiles subsequent to them being laid. This is owing to the incorrectly (sic) preparation of the sub base and the lack of expansion joint.

The foundational settlement would most likely have occurred prior to the laying of the tiles and ongoing movement would have been compensated had the correct expansion joints been installed.

Conclusion

Some of the tiles that were supplied have an inherent scar line that looks like a crack. These tiles are not cracked but are not aesthetically acceptable.

The substrate has not been properly prepared and other mediums removed prior to the limestone tiles being laid. This is considered to be a major cause of tiles that have cracked.

Articulation/expansion joints have not been installed as per Australian Standards. This is also considered to be a major reason while the tiles are cracking.

Recommendations for foundation maintenance around the building are provided which should be adopted to minimise long-term building movement...

  1. [22]
    On or about 28 November 2017, Mr Cavarretta sent the Applicant a tax invoice in his name in respect of the Works.  The Applicant requested it to be amended. On or about 30 November 2017, Mr Cavarretta sent the Applicant a further tax invoice in his name in respect of the Works for the total amount of $16,175.00 which comprised the amount of $14,705.00 plus GST of $1,470.00.
  2. [23]
    On an unknown date, the Applicant made two complaints to the Commission regarding the Works:
    1. (a)
      Complaint 1 – that the Limestone Tiles were cracking and lifting and the grout was disintegrating due to Substrate movement; and
    2. (b)
      Complaint 2 – that in the main bathroom and ensuite, shower water runs out of the shower missing the Shower Drain and out into the main area.
  3. [24]
    On 15 May 2018, Mr Bejairaj Luckan, Commission Inspector, conducted an inspection of the Works at the Home. Mr Luckan prepared a report dated 4 June 2018 (‘the Luckan Report’).
  4. [25]
    The Luckan Report noted that the Respondent and Mr Cavarretta were not in attendance at the inspection by Mr Luckan. It noted that prior to the inspection the Applicant and Mr Cavarretta informed Mr Luckan that they were not able to attend the QBCC Inspection. The Luckan Report also noted that the Applicant informed Mr Luckan that the Limestone Tiles were installed on the existing floor coverings which consisted of slate tiles in the entrance, laundry, bathroom and ensuite and cork tiles in the lounge room, study, kitchen and three bedrooms.
  5. [26]
    The Luckan Report stated:
    1. (a)
      In relation to Complaint 1 –

Entrance – (substrate is slate):

Lifting

The applicant pointed to tiles that were Lipping

The worst lipping tile was tested with a straight edge and thickness gauge The maximum Lip measured 1.5mm at the interface between adjacent tiles. This was the 3rd tile – 5th row from the door entrance.

Three tiles were tested for flatness with a straight edge, thickness gauge and a Vernier Calliper.

The maximum diagonal warp in the worst tile measured 0.75mm.

The grout joint width was measured 3 mm and less.

The warp in the tile has exacerbated the lip between adjacent tiles

QBCC Standards & Tolerances Guide 2016 Part 11.7 – Uneven Tiling is referenced

Within the first 12 months, lippage between two adjacent tiles is defective if it exceeds 2 mm and for tiles where the surface has been ground flat, e.g. polished tiles; tiles are defective if the lippage exceeds 1.5 mm, and for joint widths of 3 mm or less, 1 mm.

The Applicant supplied the tiles.

The tiler should have set aside and not used the tiles that were excessively warped

Tiler has performed Defective work

Cracking:

Visual inspection of all the tiled floors noted evidence of numerous tiles that had scar lines in the grain of the tiles

These were polished and produced a smooth surface. When I scratched my nails across the scar I could not feel a change on the floor

I was able to feel the crack on the surface of the tile that are cracked.

Lounge (substrate – Cork tiles):

3 areas had continuous cracks across adjacent tiles including 1 area near the exit sliding door

There were several tiles that had natural grain scars within the limestone that gave the appearance of a crack.

There were 3 areas where grout was inconsistent with low spots in several areas on the floor

QBCC Standards and Tolerances Guide 2016 Part 11.5 Grout is referenced

Finished grout is defective if it is not uniform in colour and is not smooth, without voids, pinholes or low spots and finished to the cushion on cushion edged tiles and flush with square edge tiles, except for tooling in accordance with AS 3958.1 – Ceramic tiles – Guide to the installation of ceramic tiles.

Study (substrate – Cork tiles):

There was one tile that had a shattered crack from under the tile.

This shatter appears to be from a solid point under the tile against the softness around the remainder of the tile.

There were low spots in the grout in some areas on the floor

Dining area – (substrate – Cork tiles):

3 areas had continuous cracks across adjacent tiles

There were low spots in the grout in some areas on the floor

Kitchen (substrate is slate):

No defects were pointed to me

Laundry (substrate is slate):

1st tile from door has double continuous cracks.

Bedroom 1 (substrate – Cork tiles):

Applicant stated, Quote: We haven’t noticed any continuous cracking except those with natural stone scars.

Bedroom 2 (substrate – Cork tiles):

Applicant stated, Quote: Haven’t seen any.

Bedroom 3 (substrate – Cork tiles):

Applicant stated, Quote: Haven’t seen any.

Excerpts from Beaumont Tiles Brochure is reproduced to identify compliance with the Manufacturers installation Guidelines

Prepare the substrate

Stone tiles must be laid on a solid substrate, such as a concrete slab that is both level and free from movement.

We recommend stone tiles be laid on a base of concrete that is at least 75mm for normal foot traffic...

Control Joints:

The length from the front entrance to the rear of the laundry is approx... 17,20 M. and width across from the front bedroom to the RH side of the Lounge is approx... 10,60 M.

There was no evidence of any control joints in the whole floor.

Australian Standard AS 3958.1 – 2007 – A Guide to Installation of Ceramic Tiles: states:

Intermediate joints are required that subdivide larger tiled areas into smaller sections, in particular in internal floors subjected to sunlight where any dimension of the floor exceeds 6m.

The joints should be evenly spaced at not more than 4.5 m.

QBCC Conclusion:

The substrate has not been prepared and other mediums removed prior to the limestone tiles being laid.

This is considered to be a major cause of tiles that have cracked.

Control/expansion joints have not been installed as per Australian Standards. This is also considered to be a major reason why the tiles have cracked.

QBCC Direction:

The Limestone tiles installed on all the cork substrates, does not comply with the Beaumont tiles installation specifications and Australian Standards in that floor tiles have cracked in the Entrance, the Lounge, the Study, the Dining and the Laundry, and control joints have not been installed, is therefore unacceptable.

  1. (b)
    In relation to Complaint 2:

Ensuite

Visual inspection and water testing noted the complaint

I tested the fall on the floor and identified a fall of 7.5 mm using a 600 mm long spirit level.

This equates to a fall of 1:80 therefore complies with AS3958.1 – 2007 below

...

There was a strip drain at the entrance to the shower

I measured the lip between the edge of the strip drain pan and the top of the tile. There was a lip of .75mm.

This was preventing water to flow into the strip drain and causing a pond after use of shower.

I tested the shower using the standard shower head, not the Rain head.

Water flowed across the flat transverse ribs that form the strip drain grate.

I removed the strip drain grate and tested the flow rate.

Water did not flow out over the strip drain pan.

If the strip drain grate had longitudinal ribs then it would facilitate the flow into the pan. The transverse ribs encourage water to flow over the grate.

The outlet measured 38 mm where the outlet in the pan should be a minimum of DN 40 mm. AS3500.5 – 2000 National Plumbing and Drainage Domestic Installations – Table 4.2 below

It was indicated that the drain under the outlet is a 100 mm PVC pipe.

It is recommended that the contractor slightly increase the diameter of the outlet in the strip drain pan to about 45mm, to assist the flow rate fro (sic) the Rain Shower Head

QBCC Direction:

The strip drain in the entrance to the shower floor is 0.75mm higher than the tiled floor is causing water to pond on the shower floor is adversely affecting the health and amenity of the occupants of the building.

The ribs on the strip drain grate are transverse instead of longitudinal to the drain is not directing the water into the strip drain and allowing water to flow out of the shower is adversely affecting the health and amenity of the occupants of the building.

...

Main Bathroom:

Visual inspection and water testing noted the complaint

The applicant raised complaint about the flow rate – gradual build up during a shower. The water floods out of the shower recess. I opened the shower and there was a gradual build up of water in the shower.

Applicant confirmed water does not pond on the shower floor.

The shower outlet connects to existing drainage in the floor slab.

Visual inside the waste outlet was undertaken by removing the shower outlet grate.

A small part of the top edge of the 40 mm puddle flange was visible.

The edge of the cement bedding is protruding within the outlet diameter thereby reducing the diameter of the opening

The outlet reduction in size has reduced the flow rate, hence the gradual flooding of the shower.

The protruding lumps of cement bedding need to be removed and the edge of the cement bedding made smooth with an epoxy grout.

QBCC Direction:

The cement bedding in the shower floor to the General bathroom is installed in a manner that shows chunks of cement bedding protruding into the outlet space thereby reducing the size of the outlet, resulting in reduction of the flow rate from the shower is causing flooding outside of the shower cubicle is therefore adversely affecting the health and amenity of the occupants of the building...

(sic)

  1. [27]
    The Luckan Report noted that a direction to rectify the defects would be issued to both the Applicant and Mr Cavarretta.
  2. [28]
    On or about 22 June 2018, the Commission issued a direction to rectify (‘Direction to Rectify’) to the Respondent as follows:
  1. The limestone tiles installed on all the cork substrates, does not comply with the Beaumont tiles installation specifications and Australian Standards in that floor tiles have cracked in the Entrance, the Lounge, the Study and the Dining and the Laundry, and control joints have not been installed, is therefore unacceptable. (Pertains to item 1 of the QBCC complaint form.)
  2. The strip drain in the entrance to the shower floor is 0.75mm higher than the tiled floor is causing water to pond on the shower floor is adversely affecting the health and amenity of the occupants of the building.

The ribs on the strip drain grate are transverse instead of longitudinal to the drain is not directing water into the strip drain and allowing water to flow out of the shower is adversely affecting the health and amenity of the occupants of the building.

The cement bedding in the shower floor to the General bathroom is installed in a manner that shows chunks of cement bedding protruding into the outlet space thereby reducing the size of the outlet, resulting in reduction of the flow rate from the shower is causing flooding outside of the shower cubicle is therefore adversely affecting the health and amenity of the occupants of the building. (Pertains to item 2 of the QBCC complaint form).

  1. [29]
    On 22 June 2018, the Commission sent a letter to the Applicant which enclosed the Luckan Report. The letter advised that the Commission had directed the Respondent to rectify the Works by 25 July 2018.
  2. [30]
    On an unknown date, the Respondent submitted an application for internal review of the Commission’s decision to issue the Direction to Rectify.
  3. [31]
    On 16 August 2018, the Commission issued a Decision Notice (‘Internal Review Decision Notice’) in respect of the Respondent’s application for internal review. It referred to an attached Internal Review Desktop Report of Steven Noble, Commission Building Inspector and Senior Technical Internal Review Officer, dated 16 August 2018. The findings of Mr Noble in relation to the Applicant’s complaints were consistent with the findings of Mr Hayhurst and Mr Luckan. The Decision Notice then concluded:

Having considered Mr Noble’s findings, I am satisfied that the work is defective. I can see no reason why it would be unfair to direct rectification.

CONCLUSION

You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision...

You may also be able to make a complaint about the decision to the Queensland Ombudsman. The Queensland Ombudsman may investigate complaints about administrative decisions made by the QBCC...

Your review file has now been closed...

  1. [32]
    The Respondent did not carry out the required rectification work.
  2. [33]
    On 25 September 2018, the Applicant filed in the Tribunal the application to resolve a ‘domestic building dispute’ pursuant to s 77 of the QBCC Act.
  3. [34]
    On 31 October 2018, the Commission wrote a letter to the Applicant which stated:

DIRECTION No. 0103886     ISSUED 21 September 2018

On 21 September 2018 QBCC directed Daniel Murray McGaveston to carry out rectification work at your property. The Direction items have not been attended to, within the specified timeframe.

...

This correspondence serves as notification that you have participated in the QBCC’s dispute resolution process as prescribed by legislation and your dispute resolution case has now been finalised.

If you wish to pursue the matter further you may now apply to QCAT for assistance...

The Commission regrets not being able to resolve your matter via its dispute resolution service on this occasion and your case will now be referred to insurance services.

The Applicant’s claim

  1. [35]
    The Applicant claims:
    1. (a)
      That the Respondent was in breach of an implied term in a contract between them that he would exercise reasonable care and skill in performing the Work;
    2. (b)
      That the Respondent was negligent, being in breach of a duty to take reasonable care in performing the Works; and further and in the alternative,
    3. (c)
      That the Respondent induced the Applicant to enter into the contract by misrepresentation, namely that the Works would be undertaken under the QBCC licence 1121288 of Mr Cavarretta.
  2. [36]
    The Applicant claims relief for consequential loss and damage. At the hearing, the Tribunal granted the Applicant leave to amend her claim. The Applicant now claims damages in the total sum of $150,199.18 to compensate her for what she alleges is reasonable and necessary expenses to remedy the defects.[5] The Applicant also seeks costs for witnesses to appear at the hearing.

The Respondent’s response

  1. [37]
    The Respondent denies the entire of the Applicant’s claim.
  2. [38]
    He denies that the Works were not carried out with reasonable care or skill or in accordance with the manufacturer’s guidelines and Australian standards. He says that the materials used were of the highest quality and that the Works were free of defects.
  3. [39]
    Further, the Respondent claims that the costs to rectify claimed by the Applicant are in any event excessive and amount to a failure by the Applicant to mitigate her loss.

Issues for determination

  1. [40]
    The following issues must be determined:
    1. (a)
      Does the Tribunal have jurisdiction to hear and determine the application?
    2. (b)
      Was the Respondent in breach of an implied term in a contract between them that he would exercise reasonable care and skill in performing the Work?
    3. (c)
      Was the Respondent negligent, being in breach of a duty to take reasonable care in performing the Works?
    4. (d)
      Did the Respondent induce the Applicant to enter into the contract by misrepresentation, namely that the Works would be undertaken under the QBCC licence 1121288 of Mr Cavarretta?
    5. (e)
      What orders, if any, should the Tribunal make?

Does the Tribunal have jurisdiction to hear and determine the application?

Is there a building dispute application made under s 77 QBCC Act?

  1. [41]
    The Tribunal has original jurisdiction to hear and decide ‘building disputes’ pursuant to ss 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and s 77(1) of the QBCC Act.
  2. [42]
    The Tribunal’s jurisdiction to decide a ‘building dispute’ is effectively limited by s 77(2) of the QBCC Act, which prohibits a person from applying to the Tribunal unless they have complied with a process established by the Queensland Building and Construction Commission (‘the Commission’) to resolve the dispute.
  3. [43]
    Consequently, the Tribunal has jurisdiction to decide this application only if:
    1. (a)
      It is satisfied that there is a ‘building dispute’; and
    2. (b)
      It is satisfied that, prior to making the application to the Tribunal, the Applicant complied with the Commission process to resolve the dispute.

Is there a ‘building dispute’?

  1. [44]
    As to the first requirement, the definition of ‘building dispute’ relevantly includes a ‘domestic building dispute’.[6]
  2. [45]
    The definition of ‘domestic building dispute’ relevantly includes:[7]
    1. (a)
      a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; and
    2. (b)
      a claim or dispute in negligence related to the performance of reviewable domestic work other than a claim for personal injuries.
  3. [46]
    ‘Reviewable domestic work’ means domestic building work under s 4 of Schedule 1B of the QBCC Act. However, for applying s 4(8) of Schedule 1B of the QBCC Act, the definition of ‘excluded building work’ under the Schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition.[8]
  4. [47]
    ‘Domestic building work’ relevantly includes the renovation, alteration, extension, improvement or repair of a home[9] which is not ‘excluded building work’.[10]
  5. [48]
    ‘Domestic building contract’ relevantly includes ‘a contract to carry out domestic building work’[11].
  6. [49]
    ‘Building owner’, in the case of domestic building contracts, means the person for whom domestic building work has been, is being, or is to be, carried out.[12]
  7. [50]
    ‘Building contractor’, in the case of domestic building contracts, means a person who:[13]
    1. (a)
      Carries out domestic building work;
    2. (b)
      Manages the carrying out of domestic building work;
    3. (c)
      Has carried out, or managed the carrying out of, domestic building work; or
    4. (d)
      Intends to carry out, or manage the carrying out of, domestic building work.
  8. [51]
    The issues in dispute between the Applicant and the Respondent concern the Works performed and managed by the Respondent at the Home, which is the Applicant’s residential dwelling.
  9. [52]
    I am satisfied that the Works which is the subject of this dispute is ‘reviewable domestic work’ because it is work in the nature of renovation, alteration or improvement of the Applicant’s residential dwelling. It is not ‘excluded building work’.
  10. [53]
    I am satisfied that the dispute is between a ‘building owner’, who is the Applicant for whom the domestic building work has been carried out, and a ‘building contractor’, who is the Respondent who carried out the ‘domestic building work’.
  11. [54]
    I am satisfied that:
    1. (a)
      The claim that the Respondent was in breach of an implied term in a contract between them that he would exercise reasonable care and skill in performing the Work, is a claim or dispute arising between a ‘building owner’ and a ‘building contractor’ relating to the performance of ‘reviewable domestic work’ or a contract for the performance of ‘reviewable domestic work’;
    2. (b)
      The claim that the Respondent was negligent, being in breach of a duty to take reasonable care in performing the Works, is a claim or dispute in negligence related to the performance of ‘reviewable domestic work’ other than a claim for personal injuries; and
    3. (c)
      The claim that the Respondent induced the Applicant to enter into the Contract by misrepresentation is a claim or dispute arising between a ‘building owner’ and a ‘building contractor’ relating to a contract for the performance of ‘reviewable domestic work’.
  12. [55]
    On that basis, I am satisfied that the Applicant’s claims are each a ‘building dispute’ between the Applicant and the Respondent, which is in the nature of a ‘domestic building dispute’.[14]

Did the Applicant comply with the Commission process to resolve the dispute prior to making the application to the Tribunal?

  1. [56]
    Section 77(2) of the QBCC Act requires the Applicant to have ‘complied with a process established by the Commission to attempt to resolve the dispute’. The Tribunal will not have jurisdiction to hear and determine the dispute if this requirement is not satisfied.[15]
  2. [57]
    The Applicant cannot be regarded as having complied with a dispute resolution process by merely lodging a complaint with the Commission. For the Applicant to have complied with the disputes resolution process, she must have complied with the series of actions required by the Commission directed to the end of resolving the dispute.[16]
  3. [58]
    The Commission’s dispute resolution process to which s 77(2) QBCC Act refers, taken from the Commission’s website, is described in O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257 at [6]. It is as follows:
    1. (a)
      A complaint is lodged with the Commission;
    2. (b)
      The assigned building inspector will attempt negotiation between the parties;
    3. (c)
      The assigned building inspector will inspect the site; and
    4. (d)
      The assigned building inspector will determine if the builder needs to rectify any defects.
  4. [59]
    The Applicant gave evidence that she complied with the Commission’s dispute resolution process prior to making the application to the Tribunal on 25 September 2018.
  5. [60]
    The Respondent alleges that the Applicant did not comply with the dispute resolution process because the Respondent was not formally notified of the date and time of Mr Luckan’s inspection of the Works on 15 May 2018 and the Respondent therefore did not attend that inspection.[17]
  6. [61]
    Mr Luckan gave oral evidence that the normal procedure of the Commission is that it gives written notice to a building contractor of defects and that both the owner and the building contractor were advised of the date and time of an inspection by the Commission’s building inspector. Mr Luckan said that both Mr Cavarretta and the Respondent were so notified in this case. Mr Luckan said that received a telephone call from Mr Cavarretta who advised that he would not be able to attend the inspection because he was away, however the Respondent would attend the inspection. Mr Luckan contacted the Respondent by telephone regarding the inspection. The Respondent advised that he would attend the inspection however he failed to attend.
  7. [62]
    During cross-examination of Mr Luckan, the Respondent conceded that Mr Luckan spoke with him on the morning of the inspection. The Respondent also conceded that he was aware of when the inspection was to occur.
  8. [63]
    The Luckan Report noted that the Respondent and Mr Cavarretta were not in attendance at the inspection by Mr Luckan. It stated that, prior to the inspection, the Respondent and Mr Cavarretta had both informed Mr Luckan that they were not able to attend the inspection. There is no evidence that the Respondent sought an extension of time so that he could attend the inspection. The Luckan Report noted that the Respondent informed Mr Luckan that the tiles were installed on the existing floor coverings which consisted of slate tiles in the entrance, laundry, bathroom and ensuite and cork tiles in the loungeroom, study, kitchen and three bedrooms. The Luckan Report also noted that the Commission obtained declarations from Mr Cavarretta and the Respondent to identify who was responsible for the Works.
  9. [64]
    The letter from the Commission to the Applicant dated 22 June 2018 noted that the Respondent would be issued with a Direction to Rectify which would require him to rectify identified defects by 25 July 2018.
  10. [65]
    On 22 June 2018, the Commission issued a Direction to Rectify to the Respondent.
  11. [66]
    The Respondent submitted an application for internal review of the Commission’s decision to issue a Direction to Rectify.
  12. [67]
    On 16 August 2018, the Commission issued the Internal Review Decision Notice in respect of the Respondent’s application for internal review. The Internal Review Decision Notice confirmed the Direction to Rectify. It is particularly relevant that the Internal Review Decision Notice then concluded:

You have the right to have this decision externally reviewed in the Queensland Civil and Administrative Tribunal (QCAT). An external review application must be lodged with QCAT within 28 days of receiving this decision...

You may also be able to make a complaint about the decision to the Queensland Ombudsman. The Queensland Ombudsman may investigate complaints about administrative decisions made by the QBCC...

Your review file has now been closed...

  1. [68]
    On the basis of the above evidence, I am satisfied that:
    1. (a)
      A complaint was lodged with the Commission by the Applicant;
    2. (b)
      The Respondent was notified of the complaint and of the date and time of the inspection of the Works by the assigned building inspector;
    3. (c)
      The Respondent declined to attend the inspection;
    4. (d)
      The Respondent provided information to the assigned building inspector relevant to investigation of the complaint;
    5. (e)
      The assigned building inspector attempted negotiation between the parties;
    6. (f)
      The assigned building inspector inspected the Works;
    7. (g)
      The assigned building inspector determined that the Respondent needed to rectify the defects;
    8. (h)
      The Respondent failed to rectify the defects;
    9. (i)
      The Commission advised the Applicant that she had the right to have the decision externally reviewed by the Tribunal or may be able to make a complaint about the decision to the Queensland Ombudsman; and
    10. (j)
      The Commission closed the complaint file.
  2. [69]
    Accordingly, I am satisfied that the Applicant complied with a process established by the Commission to attempt to resolve the dispute prior to making the application to the Tribunal.
  3. [70]
    On that basis, I am satisfied that the Tribunal has jurisdiction to decide the application.
  4. [71]
    In exercising its original jurisdiction, the Tribunal may perform the functions conferred on it by the QCAT Act and the QBCC Act.[18]
  5. [72]
    In deciding the Application, the Tribunal is required to perform its functions in a manner which achieves the objects of the QCAT Act.[19]

Was the Respondent in breach of an implied term in a contract between them that he would exercise reasonable care and skill in performing the Work?

Was there a contract between the Applicant and Respondent?

  1. [73]
    On the basis of the evidence, I accept that on or about 24 February 2017, a contract came into existence between the Applicant and the Respondent, to the effect that the Respondent would carry out the Works specified in the Written Quote for an agreed fixed price of $14,705.00 (‘the Contract’). The Contract was formed partly orally, partly in writing (being the Written Quote) and partly by text messages exchanged between the Applicant and the Respondent.

What is the effect of the Contract not complying with the requirements of s 13(2) of Schedule 1B of the QBCC Act?

  1. [74]
    The Contract is a ‘domestic building contract’ under the QBCC Act because it is ‘a contract to carry out domestic building work’.[20]
  2. [75]
    Further, the Contract is a ‘Level One Regulated Contract’ under the QBCC Act because it is a ‘domestic building contract’ for which the contract price is more than the regulated amount, which is $3,300.00, but less than the level two amount, which is $20,000.00.[21]
  3. [76]
    Section 13(2) of Schedule 1B of the QBCC Act requires a Level One Regulated Contract to be in written form, dated and signed by each party.[22]
  4. [77]
    Section 13(3) of Schedule 1B of the QBCC Act requires a Level One Regulated Contract to contain certain information such as the names of the parties, the building contractor’s licence number, a description of the work, plans and specifications, the contract price, date for practical completion and a conspicuous note advising the building owner of the right to withdraw under s 35 of Schedule 1B of the QBCC Act.[23]
  5. [78]
    The Contract did not comply with the requirements of ss 13(2) and 13(3) of Schedule 1B of the QBCC Act.
  6. [79]
    Section 13(5) of Schedule 1B of the QBCC Act provides that a Level One Regulated Contract has effect only if it complies with s 13(2) of Schedule 1B of the QBCC Act.
  7. [80]
    The consequence of s 13(5) of Schedule 1B of the QBCC Act is that because the Contract did not comply with the requirements of s 13(2) of Schedule 1B of the QBCC Act, the Contract is of no effect.
  8. [81]
    The consequence of the Contract being of no effect is that the parties are unable to enforce any rights or obligations arising from the Contract. This is the case even if the Contract would have been binding but for the provisions of s 13(5) of Schedule 1B of the QBCC Act.[24]
  9. [82]
    The result is that the Applicant is unable to enforce any rights that she might otherwise have arising from the Contract.
  10. [83]
    Accordingly, the Applicant’s claim that the Respondent was in breach of an implied term in a contract between them that he would exercise reasonable care and skill in performing the Work must fail.

Was the Respondent negligent, being in breach of a duty to take reasonable care in performing the Works?

  1. [84]
    For the Applicant to succeed in a claim in negligence she must establish that:[25]
    1. (a)
      The Respondent owed her a duty of care recognised by the law;
    2. (b)
      There has been a breach of that duty by the Respondent: that is, a failure to conform to the required standard of care;
    3. (c)
      The Applicant suffered material damage which was caused by the Respondent’s breach of duty;
    4. (d)
      There is a reasonable proximate connection between the action of the Respondent and the damage done to the Applicant: that is, the damage must not be too remote; and
    5. (e)
      Any defences raised by the Respondent to refute his liability are countered.
  2. [85]
    If it is determined that the Applicant should be entitled to damages, it is then necessary to consider what quantum is appropriate.[26]

Did the Respondent owe the Applicant a duty of care and, if so, what was that duty?

  1. [86]
    A builder owes a duty of care to a building owner to exercise reasonable care in relation to building work to avoid a foreseeable risk of injury and what is known as pure economic loss.[27]
  2. [87]
    This has been equated to “that which an ordinarily skilled builder would be expected to employ. The standard may be set by industry practice, such as the use of standards or codes. Another means of assessing the standard of care used often in relation to building and construction cases is by analysis of the information and knowledge generally available on a specific material or problem at the time of the alleged negligence”.[28]
  3. [88]
    On that basis, I am satisfied that the Respondent owed the Applicant such a duty in performing the Works.

Did the Respondent breach the duty of care in relation to the Limestone Tiles?

  1. [89]
    The Respondent denies that he breached a duty of care in relation to the Limestone Tiles. He says that he exercised all reasonable care in carrying out the Works. He said that there is no Australian Standard that applies to laying natural stone tiles such as the Limestone Tiles. He said that that the Limestone Tiles were laid in accordance with the manufacturer’s guidelines.
  2. [90]
    The Respondent said that before he laid the Limestone Tiles over the existing Substrate of cork tile flooring and slate tile flooring, he satisfied himself that it was ‘rock solid’ and flat. For the cork tile flooring, he washed the surface and applied a primer. For the slate tile flooring, he grinded back the slate, washed it and applied a recommended primer. He used a cement-based tile adhesive which was specifically designed for premium stone tiles and was suitable to be used ‘over timber flooring and over rubber sound proof matting which are very expectable to substrate movement’.
  3. [91]
    The Respondent said that he did not install expansion joints within the body of the Limestone Tiles ‘as it would have changed the visual look of the tiles to standard lay’ style which was different to the ‘brick lay’ style required by the Applicant. The Respondent said that he ‘ensured, however, that appropriate expansion joints were installed around the perimeter of the tiling works and considered that this was sufficient’. He did this by leaving a 5mm gap around the perimeter of the whole house for expansion joints to be inserted by the Applicants as agreed.
  4. [92]
    Mr Hayhurst confirmed his opinion in relation to the Limestone Tiles which is detailed in the Hayhurst Report. Mr Hayhurst stated:
    1. (a)
      The Substrate had not been properly prepared and other mediums removed prior to the Limestone Tiles being laid. This was ‘not only against recommendations of the suppliers brochure but also against Australian tiling practices regarding substrate preparation and mediums, i.e. concrete surface... The slate should have been removed and the slab prepped prior to laying the limestone tiles. The cork should have been removed and the slab prepped before laying the limestone tiles...’;
    2. (b)
      No intermediate control joints were installed in the floor tiles throughout the areas, as required by Australian Standard AS3958 Guide to the Installation of Ceramic Tiles, which was necessary to cater for general movements and thermal expansion and contraction of tiles;
    3. (c)
      There were numerous cracks in the Limestone Tiles and disintegration of the grout;
    4. (d)
      He attributed that to incorrect preparation of the Substrate and lack of intermediate control joints.
  5. [93]
    Mr Luckan confirmed his opinion in relation to the Limestone Tiles which is detailed in the Luckan Report. Mr Luckan stated:
    1. (a)
      In the entrance of the Home, Limestone Tiles are lipping and not in accordance with the QBCC Standards & Tolerances Guide 2016 Part 11.7 – Uneven Tiling;
    2. (b)
      In the lounge room of the Home, three areas have continuous cracks across adjacent Limestone Tiles including one area near the exit sliding door and there were three areas where grout is inconsistent with low spots in several areas on the floor and not in accordance with the QBCC Standards and Tolerances Guide 2016 Part 11.5 Grout;
    3. (c)
      In the study of the Home, one tile has a shattered crack which appears to be from a solid point under the tile against the softness around the remainder of the tile and there are low spots in the grout in some areas on the floor;
    4. (d)
      In the dining area of the Home, three areas have continuous cracks across adjacent tiles and there are low spots in the grout in some areas on the floor;
    5. (e)
      In the laundry of the Home, the first tile from the door has double continuous cracks;
    6. (f)
      The Limestone Tiles are not laid on a solid substrate, such as a concrete slab at least 75mm, which is inconsistent with the Beaumont Tiles Manufacturers Installation Guidelines;
    7. (g)
      The Limestone Tiles are laid without installation of intermediate control joints, which is inconsistent with Australian Standard AS 3958.1 – 2007 – A Guide to Installation of Ceramic Tiles;
    8. (h)
      He attributed the cracking of the Limestone Tiles and grout to incorrect preparation of the Substrate and lack of intermediate control joints; and
    9. (i)
      He expects that further cracking of the Limestone Tiles and grout will occur in the future.
  6. [94]
    I prefer and accept the evidence of Mr Hayhurst and Mr Luckan because I accept that they are independent witnesses and qualified to undertake such assessments and their evidence is largely consistent.
  7. [95]
    Having regard to their evidence, I am satisfied that the risk of cracking of the Limestone Tiles and grout was reasonably foreseeable and not insignificant. Further, it was a risk that an ordinarily skilled builder carrying out the work would have taken precautions to avoid by complying with relevant Australian Standards and supplier’s recommendations.
  8. [96]
    I am satisfied that the Respondent breached the duty to exercise reasonable care in relation to the Limestone Tiles. He did not exercise the standard of care which an ordinarily skilled builder would be expected to apply consistent with relevant Australian Standards and supplier’s recommendations.

Did the Respondent breach the duty of care in relation to the Shower Drains?

  1. [97]
    The Respondent said that the Shower Drains were installed in accordance with relevant specifications. He said that any issue with drainage was the fault of the manufacturer of the Shower Drains.
  2. [98]
    Mr Luckan confirmed his opinion in relation to the Shower Drains which is detailed in the Luckan Report. He stated:
    1. (a)
      In the main bathroom of the Home, the cement bedding in the shower floor has chunks of cement bedding protruding into the outlet space thereby reducing the size of the outlet, resulting in reduction of the flow rate from the shower and causing flooding outside of the shower cubicle; and
    2. (b)
      In the ensuite of the Home, the Shower Drain in the entrance to the shower floor is 0.75mm higher than the tiled floor which causes water to pond on the shower floor. The transverse (rather than longitudinal) ribs on the Shower Drain do not direct the water into the Shower Drain and instead allow water to flow out of the shower. The outlet measured 38mm, which is less than the minimum 40mm recommended by AS3500.5-2000 National Plumbing and Drainage Domestic Installations.
  3. [99]
    I prefer and accept the evidence of Mr Luckan because I accept that he is an independent witness and qualified to undertake such an assessment.
  4. [100]
    Having regard to their evidence, I am satisfied that the risk of water pooling or flooding was reasonably foreseeable and not insignificant. Further, it was a risk that an ordinarily skilled builder carrying out the work would have taken precautions to avoid including by complying with relevant Australian Standards.
  5. [101]
    I am satisfied that the Respondent breached the duty to exercise reasonable care in relation to the Shower Drains. He did not exercise the standard of care which an ordinarily skilled builder would be expected to apply consistent with relevant Australian Standards.

Did the Applicant suffer material damage which was caused by the Respondent’s breach of duty?

  1. [102]
    The Respondent asserted that the Works in respect of the Limestone Tiles was not defective. He denied that any of the Limestone Tiles were cracked. He said that any marks on the Limestone Tiles were a natural feature of the stone. He denied that there was any cracking of the grout surrounding the Limestone Tiles. He also denied that there was any movement in the Substrate consequent upon laying the Limestone Tiles.
  2. [103]
    In support of his assertion that the Works in respect of the Limestone Tiles was not defective, the Respondent provided emails that he received from the Applicant on 22 April 2017 and 4 May 2017 (during and just after the Works were completed), where the Applicant respectively stated ‘Wow love love love them... Great job Dan!! Your [sic] amazing’ and ‘It looks fabulous... Your [sic] amazing Thankyou’.
  3. [104]
    I note that the Applicant’s emails to the Respondent on 22 April 2017 and 4 May 2017 were sent during and just after the Works were completed. However, from at least October 2017, the Applicant has consistently complained about cracks in the Limestone Tiles and cracking and disintegration of the surrounding grout.
  4. [105]
    Mr Cavarretta gave evidence in support of the Respondent. He said that he found no fault in relation to the Limestone Tiles when he inspected the Works on or about 11 October 2018. He said that any marks in the Limestone Tiles were a naturally occurring feature of the stone. He said that there was no apparent cracking in the grout and no movement of the Substrate.
  5. [106]
    Mr Palmer also gave evidence in support of the Respondent. He also said that he found no fault in relation to the Limestone Tiles when he inspected the Works on or about 11 October 2018. He said that there were some marks known as ‘scars’ in the Limestone Tiles however they were a naturally occurring feature of the stone and not a defect.
  6. [107]
    In contrast, the evidence of Mr Hayhurst and Mr Luckan support the evidence of the Applicant that the Works are defective in relation to the Limestone Tiles. Mr Hayhurst and Mr Luckan both gave evidence that there were numerous cracks in the Limestone Tiles and disintegration of the grout. They attributed this to incorrect preparation of the Substrate and lack of intermediate control joints as detailed above. Mr Luckan said that he expects that further cracking of the Limestone Tiles and grout will occur in the future.
  7. [108]
    The Respondent also asserted that the Works in respect of the Shower Drains was not defective. He said that the Shower Drains were installed in accordance with relevant specifications. He asserts that it is the fault of the manufacturer of the Shower Drains, not his installation, which is the cause of any relevant problem. Alternatively, he asserts that it is the fault of the Applicant having used harsh cleaning chemicals which is the cause of any problem.
  8. [109]
    However, the evidence of Mr Luckan supports the evidence of the Applicant that the Works are also defective in relation to the Shower Drains. Mr Luckan gave evidence that the Shower Drains in both the ensuite and main bathroom of the Home do not adequately discharge water which results in water pooling/flooding. He attributed this in the main bathroom to chunks of cement bedding protruding into the outlet space thereby reducing the size of the outlet. He attributed this in the ensuite to the entrance to the shower floor being 0.75mm higher than the tiled floor, the transverse (rather than longitudinal) ribs on the Shower Drain not directing water into the Shower Drain and the outlet measuring 38mm, which is less than the minimum 40mm recommended by AS3500.5-2000 National Plumbing and Drainage Domestic Installations.
  9. [110]
    I prefer and accept the evidence of Mr Hayhurst and Mr Luckan for the reasons set out above.
  10. [111]
    On the basis of the evidence of Mr Hayhurst and Mr Luckan, I am satisfied that the Applicant suffered the following material damage which was caused by the Respondent’s breach of duty:
    1. (a)
      The Limestone Tiles and grout has cracked in numerous places throughout the Home and it is likely that it will continue to crack further; and
    2. (b)
      The Shower Drains in the ensuite and main bathroom of the Home do not adequately discharge water which results in water pooling/flooding.

Was there a reasonable proximate connection between the action of the Respondent and the damage done to the Applicant: that is, was the damage not too remote?

  1. [112]
    Having regard to the evidence of Mr Hayhurst and Mr Luckan, I am satisfied that there is a reasonable proximate connection between the action of the Respondent and the damage done to the Applicant. The damage was not too remote from the action of the Respondent.

Has the Applicant countered any defences raised by the Respondent to refute his liability in negligence?

  1. [113]
    The Respondent generally denies liability, on the basis that he denies that the Works were defective and says that he performed the Works with due care and in accordance with accepted standards of practice. As set out above, I prefer the evidence of Mr Hayhurst and Mr Luckan and I do not accept the Respondent’s assertions in that regard.
  2. [114]
    The Respondent seems to claim that the Applicant did not adequately mitigate her loss by failing to accept the Respondent’s subsequent offer to rectify the Limestone Tiles by inserting expansion joints. The Respondent stated that ‘as a gesture of goodwill [he offered]... to grind expansion joints through the Applicant’s floor, but noted that this defeats the purpose of laying the floor in the brick pattern. This is because if expansion joints are grinded in, the tiles will then have the appearance of a standard lay (not a brick lay)’.[29]
  3. [115]
    Given the adverse effect on the visual amenity of the Limestone Tiles of subsequently inserting expansion joints in the manner suggested by the Respondent, I am satisfied that it was not unreasonable for the Applicant to have refused the Respondent’s offer. Accordingly, I am not satisfied that the Applicant failed to adequately mitigate her loss.
  4. [116]
    The Respondent has not raised any other specific defences to refute his liability in negligence.
  5. [117]
    On that basis, I am satisfied that the Applicant has established the necessary elements of negligence and the Applicant should be entitled to damages in that regard.

Did the Respondent induce the Applicant to enter into the Contract by misrepresentation, namely that the Works would be undertaken under the QBCC licence 1121288 of Mr Cavarretta?

  1. [118]
    Due to my findings and decision in relation to the claim of negligence, this issue is moot and it is not necessary for me to finally decide this element of the Applicant’s claim.
  2. [119]
    However, I make the following observations in the event that there is some utility in considering this issue.
  3. [120]
    I am not satisfied that the Applicant discharged her onus of proof on the balance of probability that she was induced to enter into the Contract by misrepresentation, namely that the Works would be undertaken under the licence of Mr Cavarretta. I did not find the Applicant’s evidence in this regard to be particularly persuasive. Further, I note that the Applicant’s assertions in this regard seems to be inconsistent with other evidence. For example, in a text message that the Applicant sent the Respondent on 24 November 2017 (approximately six months after the Works were completed) she stated ‘...I didn’t know you were doing it thought (sic) the books or unlicensed to do the job through yourself...’.
  4. [121]
    Accordingly, the Applicant’s claim that the Respondent induced the Applicant to enter into the Contract by misrepresentation, namely that the Works would be undertaken under the QBCC licence 1121288 of Mr Cavarretta, would fail.

The Applicant’s Claim for Damages

  1. [122]
    As noted above, I am satisfied that the Applicant has established the necessary elements of negligence and the Applicant should be entitled to damages in that regard.
  2. [123]
    The purpose of an award of damages in such a case is to restore the Applicant to the position she would have been in had the breach of duty not occurred, so far as money can do so.[30]
  3. [124]
    I accept the evidence of Mr Hayhurst given during cross-examination that to rectify the defects in relation to the Limestone Tiles, it is necessary to remove all of the flooring and reinstall new tiles. This will require the furniture to be removed from the Home and for the Applicant and her family to vacate the Home for the duration of the remedial work, as occurred originally when the Works were conducted.
  4. [125]
    I accept the evidence of Mr Luckan, given in the Luckan Report, that to rectify the defects in relation to the Shower Drain, it is necessary to increase the outlet flows.
  5. [126]
    The below table is a summary of Applicant’s claim for damages to rectify the defects claimed and supporting evidence.

Description

Amount

Supporting Document

Skip bins to remove debris

$440.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – quote of Coastal Skip Hire dated 4 January 2019.

Accommodation while the works are completed

$7,537.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – quote of Treasure Island Holiday Resort dated 13 December 2018.

Furniture removal and return

$5,250.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – quote of A Superior Move undated.

Furniture storage

$931.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – quote of Storage King Ashmore dated 9 January 2019.

Repair/replace defects

$132,890.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – quote of DKM Giles Building dated 14 January 2019

  1. [127]
    I will consider each item separately.

Skip bins to remove debris

  1. [128]
    During cross-examination, the Respondent accepted that the Applicant’s claim of $440.00 for skip bins to remove debris was necessary and reasonable.
  2. [129]
    Accordingly, I accept this element of the Applicant’s claim.

Alternative accommodation while the works are completed

  1. [130]
    The Applicant claims $7,537.00 for alternative accommodation for her and her family for three weeks whilst rectification works are being undertaken. The Applicant gave oral evidence that she and her family previously stayed at the proposed accommodation, Treasure Island Holiday Resort, when they vacated the Home whilst the Works were originally undertaken by the Respondent.
  2. [131]
    In cross-examination, the Respondent acknowledged that it would be necessary for the Applicant and her family to relocate for the duration of any works to the floors of the Home.  However, he asserts that the amount claimed is unreasonable. He asserts that the Applicant and her family could stay in a granny flat next door to the Home.
  3. [132]
    On balance, I accept that it is necessary and reasonable for the Applicant and her family to relocate from the Home for the duration of rectification works. I am satisfied that the proposed alternative accommodation is reasonable for the reason that the Applicant and her family stayed there when the Works were originally undertaken.
  4. [133]
    On that basis, I accept this element of the Applicant’s claim.

Furniture removal and return

  1. [134]
    The Respondent asserts that the Applicant’s claim of $5,250.00 for furniture removal and return is unnecessary and unreasonable. In cross-examination, he gave evidence that the Applicant and her family previously removed the furniture themselves although he is unsure whether they returned it themselves.
  2. [135]
    On balance, I accept that it will be necessary for all furniture to be removed from the Home to complete the rectification work to the floors. The Tribunal is satisfied that professional furniture removal and return is reasonable.
  3. [136]
    On that basis, I accept this element of the Applicant’s claim.

Furniture storage:

  1. [137]
    During cross-examination, the Respondent accepted that the Applicant’s claim of $931.00 for furniture storage was necessary and reasonable.
  2. [138]
    Accordingly, I accept this element of the Applicant’s claim.

Repair/replace defects:

  1. [139]
    The Applicant claims $132,890.00 for rectification work.
  2. [140]
    The Applicant has only provided a single quote in support of that claim, which is from DKM Giles Building. The quote for the total project is $132,890.00.
  3. [141]
    It is clear from the quote that substantial work is proposed to rectify the defects in relation to the Limestone Tiles and the Shower Drains.
  4. [142]
    Whilst the quote lists individual items of work that are proposed, it does not itemise the cost of those individual items of work proposed.
  5. [143]
    The individual items included in the quote are:
    1. (a)
      home warranty insurance;
    2. (b)
      site set up and preparation;
    3. (c)
      strip all floor surface of tiles and existing cork and slate surfaces;
    4. (d)
      prepare substrate which could include levelling using floor leveller;
    5. (e)
      strip out ensuite and main bathrooms including wall linings and screeded floors and plumbing fixtures – keep vanities, tall mirrored cabinet and benchtops if they can be reused;
    6. (f)
      dismantle all built in robes and laundry cabinets and reuse;
    7. (g)
      strip skirting and architraves and all internal doors;
    8. (h)
      plaster to re-hang wall sheets in ensuite and bathroom and tape and set ready for waterproofing;
    9. (i)
      plasterer to patch all damage to walls and ceiling when needed;
    10. (j)
      waterproof all required wet areas in ensuite, bathroom, toilet, laundry and supply Form 15 Certificate to AS3740;
    11. (k)
      tiler to screed floors to ensuite and bathroom;
    12. (l)
      supply and install client selected tiles to floor and walls in ensuite and bathroom;
    13. (m)
      supply and install new cornice to ensuite and bathroom;
    14. (n)
      plasterer to realign ensuite reveal entry;
    15. (o)
      reinstate plumbing fixtures, including floor drains, vanities and toilet if they can be reused;
    16. (p)
      supply and install new frameless glass shower screens to ensuite and bathroom and supply Form 15 Certificate to AS1288;
    17. (q)
      supply and lay client selected floor tiles to existing floors, grout and seal including expansion joints as required;
    18. (r)
      reinstate all build in robes and kitchen pantry glass doors;
    19. (s)
      supply and install new internal doors and reinstate door furniture;
    20. (t)
      supply and install new architraves and skirting throughout tiled areas;
    21. (u)
      prepare and paint all new work and ceilings in ensuite and bathroom including doors, builders clean;
    22. (v)
      floor tiles - $28 each;
    23. (w)
      shower screens - $2,300.
  6. [144]
    The Respondent asserts that the claim of $132,890.00 for rectification work is excessive. He disputes that several of the items included in the quote are required. He said that it is not necessary nor reasonable to remove the entire of the Limestone Tiles and to replace the Substrate before laying new tiles. He also asserts that in any event, it is not necessary nor reasonable for various items of work to be undertaken by a third party, which he said could instead be undertaken by the Applicant or her family. He gave evidence that when he undertook the Works, the Applicant and her family members themselves carried out work such as pluming, sheeting walls including bathroom walls and silicone application.
  7. [145]
    The Applicant’s claim of $132,890.00 for costs of rectification work is substantial. Prima facie, one could undertand how the claim might be viewed as excessive, particularly when compared to the sum of $14,705.00 that the Applicant originally paid for carrying out the Works (which included tiling and waterproofing of the bathroom and ensuite walls). In circumstances where the Respondent asserts that the claim is excessive, the Respondent should have had the opportunity to test the evidence by cross-examination of a representative of DKM Giles Building.
  8. [146]
    The importance of calling witnesses to give evidence and making them available for cross-examination was explained to the Applicant by Senior Member Brown at the Directions Hearing on 11 April 2019:

...

SENIOR MEMBER:  Well, you will need to because anyone you want to rely upon to give evidence in relation to your claim has to turn up and give evidence at the hearing.

...

SENIOR MEMBER:  Okay. The reason that witnesses turn up at hearing to give evidence is twofold:  Firstly, to support the case of whoever has called them to give evidence;  and, secondly, so that the other party can ask questions of the witness to test their evidence. The second part is absolutely critical if there is to be procedural fairness and natural justice provided to the other party.

Now, in the absence of the witness turning up and the other party having the opportunity to cross-examine – that is, ask questions of the witness and basically challenge their evidence, the effect of that is the Tribunal will be unable to place a great deal of weight on the evidence because the other party hasn’t been given the opportunity to challenge the evidence. And that is a fundamental aspect of procedural fairness in any court or tribunal.

APPLICANT:  Okay.

SENIOR MEMBER:  So just because a witness ---

APPLICANT:  So ---

SENIOR MEMBER:  --- says something, it doesn’t mean that it can go unanswered. The other party’s ---

APPLICANT:  Okay.

SENIOR MEMBER:  --- always allowed to challenge the evidence.

...

SENIOR MEMBER;  Okay. So what evidence have you filed and rely upon in respect of the cost of rectification work?

APPLICANT:  Yep. So I’ve given – I’ve supplied quotes.

SENIOR MEMBER:  Okay.

APPLICANT:  Building quotes for what it’s going to cost for us to have this, you know, repaired.

SENIOR MEMBER:  Okay.

APPLICANT:  In the way it was supposed to be originally.

SENIOR MEMBER:  Generally speaking, a party is not going to be able to just rely on a quote in respect of the cost of the rectification work. The QCAT Appeals Tribunal has previously held – that is, found, made a decision about – parties relying upon quotes and invoices and generally that is not going to be sufficient for the reason that I outlined earlier that the other party has to be given the opportunity to ask questions of the person who would otherwise be giving the evidence about the cost of rectification work.

So that usually requires the party to have a statement by the person who prepared the quote and the person turns up and gives evidence at the hearing about the work that has been quoted to be undertaken and the other party then gets an opportunity to test that evidence, including the reasonableness of the amounts contained in a quote in relation to rectification work. So ---

APPLICANT:  Okay. So that will – obviously I’ll have to ask the builder if that’s something that they’re going to be able to do because surely – like, originally I got individual quotes from every bits and bobs, you know , like, and then I decided that was a lot of work for me. It was a lot of hours of waiting and getting those quotes and I did get quite a few, actually, but that’s a lot of people to arrange to come to a court. That’s a lot of individual businesses, I guess. And that’s going to be a really expensive – and I just – I feel like it’s a little bit unfair that I’m going to have to, like – like, I could probably ask the builder but, again, that’s going to be another cost.

SENIOR MEMBER:  Okay. Now, it is possible for witnesses to give evidence by telephone and you can apply. You can make an application to the Tribunal for witnesses to give telephone evidence. And that way they can – they’re not required to physically attend if the Tribunal allows the evidence to be given over the telephone and often the Tribunal will allow that evidence to – will allow evidence to be given over the telephone because it is a much more cost effective way of dealing with things.

APPLICANT:  Thank you. That would be a lot better.

SENIOR MEMBER: But you’ll have to apply ---

 

APPLICANT:  Also, can I just ask you a question, please? The statement that you said each person needs to get; is the quote the statement from the builder ---

SENIOR MEMBER:  The ---

APPLICANT:  --- and then the builder needs to stand by his quote?

SENIOR MEMBER:  The statement might be the builder saying, “I attach a quote, and this is my quote for repair works to be carried out, and it’s true and correct.”  Now, that’s – it’s just so that there is a statement, and the builder nails his colours to the mast on the quote. But he has to turn up so that, in this case, Mr McGaveston gets a chance to ask him questions...

  1. [147]
    The Applicant did not call a representative of DKM Giles Building to give evidence and be available for cross-examination about the need for the various items of the proposed rectification work and the quantum of the quote. The Applicant’s failure to call a witness to give such evidence, has resulted in the Respondent not having had an opportunity to test the evidence in that regard. Failure to call the witness to give evidence has resulted in the Respondent not being afforded natural justice.[31]
  2. [148]
    In the circumstances, I do not afford the quote of DKM Giles Building any weight.
  3. [149]
    As there is no other evidence as to the cost of rectification work, the Applicant’s claim in that regard is not satisfactorily proven. Accordingly, I do not accept this element of the Applicant’s claim.

What, is the effect of s 42(1) of the QBCC Act and the Respondent not holding a contractor’s licence on the Tribunal’s determination of the application?

  1. [150]
    Section 42 of the QBCC Act provides:

42 Unlawful carrying out of building work

  1. Unless exempt under schedule 1A, 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 –

For a first offence – 250 penalty units; or

For a second offence – 300 penalty units; or

For a third or later offence, or if the building work carried out is tier 1 defective work – 350 penalty units or 1 year’s imprisonment.

  1. An individual who contravenes subsection (1) and is liable to a maximum penalty of 350 penalty units or 1 year’s imprisonment, commits a crime.
  2. 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.
  3. A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed –
  1. is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
  2. does not include allowance for any of the following –
  1. the supply of the person’s own labour;
  2. the making of a profit by the person for carrying out the building work;
  3. costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
  1. is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
  2. 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. [151]
    Recognised exclusions and exemptions from the operation of s 42 of the QBCC Act are:
    1. (a)
      Section 42 of the QBCC Act only applies to ‘building work’ defined by Schedule 2 of the QBCC Act;
    2. (b)
      Exclusions from ‘building work’ are set out in the QBCC Regulation 2003;
    3. (c)
      Exemptions are also provided by Schedule 1A of the QBCC Act; and
    4. (d)
      Item 2 of Schedule 1A of the QBCC Act exempts work ‘of a value of $3,000 or less’ from the requirement to be performed by a licenced builder under s 42 of the QBCC Act.
  2. [152]
    The effect of non-compliance with s 42 of the QBCC Act on a construction contract has not yet been resolved with finality by the courts.[32]
  3. [153]
    In this case, none of the recognised exclusions or exemptions from the operation of s 42 of the QBCC Act apply. The value of the Works was $14,705.00, which was the amount quoted by the Respondent and paid by the Applicant in respect of the Works.
  4. [154]
    Accordingly, the Respondent was required by s 42(1) of the QBCC Act to hold a contractor’s licence of the appropriate class under the QBCC Act at the time that he carried out, and undertook to carry out, the Works.
  5. [155]
    The Respondent admits that he did not hold a contractor’s licence under the QBCC Act at the time that he provided the Written Quote and carried out the Works. Accordingly, the Respondent undertook to carry out the Works and carried out the Works in contravention of the requirements of s 42(1) of the QBCC Act.
  6. [156]
    The consequence is that, pursuant to s 42(3) of the QBCC Act, the Respondent is ‘not entitled to any monetary or other consideration for’ carrying out ‘building work’ in contravention of s 42(1) of the QBCC Act. That is subject to s 42(4) of the QBCC Act, which would nevertheless permit the Respondent to claim ‘reasonable remuneration’ for carrying out building work, provided that the amount claimed satisfies the various criteria set out in that subsection.
  7. [157]
    Prima facie, it appears that the Applicant may be entitled to an order that the Respondent reimburse her the sum of $14,705.00, subject of course to any claim by the Respondent for ‘reasonable remuneration’ pursuant to s 42(4) of the QBCC Act.
  8. [158]
    The issue arises as to whether, in the present circumstances and by virtue of ss 42(1) and 42(3) of the QBCC Act, the Tribunal may now make an order that the Respondent refund to the Applicant the sum of $14,705.00 she paid for carrying out the Works.
  9. [159]
    Neither of the parties have addressed the Tribunal in respect of this issue. The application does not include a claim for recovery of money paid to the Respondent.[33] Further, the Respondent has not made any claim nor provided evidence which proves that the criteria are satisfied which would justify a claim to ‘reasonable remuneration’ pursuant to s 42(4) of the QBCC Act.[34]
  10. [160]
    I am conscious of the Tribunal’s obligation to deal with matters in a way that is economical and quick however that must be balanced with its obligation to deal with matters in a way that is fair and just.[35]  The Tribunal must provide the parties with procedural fairness.
  11. [161]
    In the circumstances, I decline to make any such order at this point in time. I consider that it would not be procedurally fair to now make an order in that regard without first giving the parties the opportunity to formally address the Tribunal on the issue.
  12. [162]
    However, I will give the parties the opportunity to be heard in relation to whether an order should be made that the Respondent refund to the Applicant the sum of $14,705.00 she paid for carrying out the Works.

The Applicant’s claim for costs

  1. [163]
    The below table is a summary of Applicant’s claim for costs relevant to these proceedings and supporting evidence.

Description

Amount

Supporting Document

Legal fees to prepare Tribunal claim including conduct of searches (property, property dealing, bankruptcy, and ASIC)

$2,328.18

Applicant’s affidavit dated 15 January 2019, exhibit “O” – tax invoices of Simon Taylor, Solicitor dated 5 September 2018 and 10 September 2018.

Engineer inspection and report

$825.00

Applicant’s affidavit dated 15 January 2019, exhibit “O” – tax invoice of Jeffrey Hills & Associate dated 6 December 2017.

  1. [164]
    The Tribunal’s powers to resolve a ‘building dispute’ include power to award costs.[36]
  2. [165]
    The general rule in building disputes is that a successful party is entitled to recover its costs from the other party.[37]
  3. [166]
    Having particular regard to the legal and factual complexity of the issues in dispute and the evidence required, I consider that the costs claimed by the Applicant are reasonable in all the circumstances.
  4. [167]
    Accordingly, I accept this element of the Applicant’s claim.
  5. [168]
    I note that the Applicant also seeks to claim additional costs of witnesses attending at the hearing (the amount is presently unknown). The Tribunal will give the parties the opportunity to address it in that regard. Those costs are reserved.

What orders does the Tribunal make?

Orders

  1. [169]
    On the basis of the matters set out above, I make the following orders:[38]
    1. (a)
      The Respondent pay to the Applicant damages in the sum of $14,158.00 within 14 days of the date of this decision; and
    2. (b)
      The Respondent pay to the Applicant costs in the sum of $3,153.18 within 14 days of the date of this decision.

Directions for further hearing

  1. [170]
    The Tribunal’s power to make a decision in a proceeding includes a power to make an ancillary direction for achieving the purpose for which the Tribunal may exercise the primary power.[39]
  2. [171]
    I direct that in due course the proceeding will be listed for further hearing so that the parties can be heard in relation to whether, by virtue of ss 42(1) and 42(3) of the QBCC Act, the Tribunal should make an order that the Respondent refund to the Applicant the sum of $14,705.00 she paid for the Works.
  3. [172]
    No further evidence in chief will be allowed at the further hearing, unless the Tribunal otherwise directs. Unless otherwise ordered by the Tribunal, all witnesses relied upon must be available in person for cross-examination.
  4. [173]
    At the further hearing, the Tribunal will give the parties the opportunity to address it in relation to the Applicant’s claim for costs of witnesses attending at the hearing and any further application for costs.
  5. [174]
    I direct that the proceeding will be listed for a directions hearing to prepare for the further hearing, on a date to be fixed.
  6. [175]
    Further costs are reserved.

Footnotes

[1]  Statement of Claim, paragraph 1; Response, Annexure “A”, paragraph 1.

[2]  Statement of Claim, paragraph 2(a); Response, Annexure “A”, paragraph 1.

[3]  Statement of Claim, paragraph 4(a), 5; Response, Annexure “A”, paragraph 1, 4(c); Applicant’s Affidavit dated 15 January 2019, paragraph 4(i). The Respondent provided other quotes but this quote was the one that the Applicant accepted in relation to the Works.

[4]  Statement of Claim, paragraphs 2(b), 2(c); Response, Annexure “A”, paragraph 1.

[5]  Itemised at paragraphs 10 to 12 of the Applicant’s affidavit dated 15 January 2019.

[6]  Definition of ‘building dispute’ in Schedule 2 of the QBCC Act.

[7]  Definition of ‘domestic building dispute’ in Schedule 2 of the QBCC Act.

[8]  Definition of ‘reviewable domestic work’ in s 4 of Schedule 1B of the QBCC Act.

[9]  Section 4(1)(b) of Schedule 1B of the QBCC Act.

[10]  Section 4(8) of Schedule 1B of the QBCC Act.

[11]  Section 3(1)(a) of Schedule 1B of the QBCC Act. This is subject to the provisions of ss 3(2), (3) and (4) which are not applicable in this case.

[12]  Definition of ‘building owner’ in s 1 of Schedule 1B of the QBCC Act.

[13]  Definition of ‘building contractor’ in s 1 of Schedule 1B of the QBCC Act.

[14]  Definition of ‘building dispute’ and definition of ‘domestic building dispute’ in Schedule 2 of the QBCC Act. ‘Domestic building contracts’ are regulated under Schedule 1B of the QBCC Act: section 67AZN of the QBCC Act.

[15] O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257; Subramainiam & Anor v Queensland Roofing Pty Ltd & Anor [2019] QCAT 70.

[16] O'Toole & Anor v Qld Building Company Pty Ltd [2018] QCAT 257 at [10].

[17]  Respondent’s affidavit dated 6 May 2019 at paragraph 45.

[18]  Section 16 of the QCAT Act.

[19]  Sections 3 and 4 of the QCAT Act.

[20]  Section 3(1)(a) in Schedule 1B of the QBCC Act. The provisions of ss 3(2), (3) and (4) in Schedule 1B of the QBCC Act do not operate in this case to exclude the Contract from the definition of ‘domestic building contract’.

[21]  Section 6(1)(a) in Schedule 1B of the QBCC Act.

[22]  Section 13(2) in Schedule 1B of the QBCC Act.

[23]  Section 13(3) in Schedule 1B of the QBCC Act.

[24]Nicinski v Chemay (Building and property) [2016] VCAT 649 [23]; Smart v Berry (Building and Property) [2016] VCAT 540 [27]-[34]; Drossos v Marvel Homes Pty Ltd [2014] VSC 384 [31]-[33].

[25] Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [17]; Waid v Casey [2012] QCAT 533 at [6].

[26] Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207, [17].

[27] Bryan v. Maloney (1995) 182 CLR 609 at [14].

[28] Bailey I and Bell M, Construction Law in Australia Third Edition, Lawbook Co at 131.

[29]  See Respondent’s statement dated 6 May 2019, at [46].

[30] Haines v Bendall (1991)172 CLR 60, Mason C.J., Dawson, Toohey and Gaudron JJ.

[31] Olindaridge Pty Ltd v & Anor v Tracey & Anor [2014] QCATA 207, [43].

[32] See Queensland Building Service, Westlaw AU, Thomson Reuters (Professional) Australia Limited at [QBCCA 42.30]; Sutton v Zulllo Enterprises Pty Ltd [2000] 2 Qd R 196; see also consideration of s 42 QBCC Act in Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196, per Brown SM at [32] to [41].

[33]  There has been judicial consideration of the effect of non-compliance with s 42 of the QBCC Act in relation to the right of owners to recover monies paid to an unlicensed builder: Queensland Building Service, Westlaw AU, Thomson Reuters (Professional) Australia Limited at [QBCCA 42.50]; Marshall v Marshall [1999] 1 Qd R 173, [176]-[179]; Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661 at [124] – [125].

[34]  The Respondent would bear the onus of proving that a claim is made out in conformity with s 42(4) of the QBCC Act: (Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (2009) 254 ALR 661 Fraser JA at [139]-[141], Keane JA at [43], [60].

[35]  Section 3(a) of the QBCC Act.

[36]  Section 77(3)(h) of the QBCC Act.

[37] Faulks v New World Constructions Pty Ltd (No 2) [2014] QCAT 329 at [17]; AL Builders Pty Ltd v Fatseas (No. 2) [2014] QCATA 319 at [4]. However, self-represented parties in the Tribunal cannot recover costs in respect of their preparation time: Hitchman v Prime building & Pest Consultants Pty Ltd (No. 2) [2016] QCAT 476 at [9].

[38]  The Tribunal’s powers to resolve a building dispute are set out in s 77(3) of the QBCC Act.

[39]  Section 114 of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    Natalie Cooper v Daniel Murray McGaveston

  • Shortened Case Name:

    Natalie Cooper v Daniel Murray McGaveston

  • MNC:

    [2019] QCAT 244

  • Court:

    QCAT

  • Judge(s):

    Member Garner

  • Date:

    28 Aug 2019

Appeal Status

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

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