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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
O'Neill v Suburban Trades Pty Ltd  QCAT 229
suburban trades pty ltd
23 June 2020
On the Papers
Suburban Trades Pty Ltd pay to Michael and Julisa O'Neill the sum of $12,003.
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – no written contract – non-compliance with s 13(2) of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld).
TORTS – NEGLIGENCE – whether builder owed a duty of care – whether homeowner suffered material damage caused by builder’s breach of duty – whether proximate connection between action of builder and damage.
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 home owner entitled to be reimbursed money paid for building work – where no statutory claim for reasonable remuneration for performing the work.
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 if wrongful acts had not occurred.
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 68H, s 77, Schedule 1B s 13, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9, s 10
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
What is this application about?
- Mr and Mrs O'Neill paid Suburban Trades Pty Ltd (ST) $5,700 to lay two concrete slabs at their place of residence, one to the carport, the other around their swimming pool (the Works). The O'Neills claim that both slabs are defective and require rectification. They seek compensation for the cost of rectification.
- No written contract was entered into for the Works and ST was not licenced to do the work.
- ST claims the O'Neills still owe $9,382 and seeks an order for payment along with interest and costs.
- ST filed their claim in the Minor Civil Dispute jurisdiction of the Tribunal. By Order of the Tribunal the matter was transferred to the building list and consolidated with this proceeding.
- Despite being directed by the Tribunal to do so, ST has not filed any submissions in support of its claim or in defence to the application by the O'Neills.
What are the issues for the Tribunal to decide?
- In considering the claims of both parties, the Tribunal must decide:
- (a)Is ST liable to the O'Neills?
- (b)Has ST breached its duty of care?
- (c)If so, can the O'Neills recover damages?
- (d)What are the appropriate orders?
Is ST liable to the O'Neills?
- A domestic building dispute includes a claim or dispute arising between a building owner and a building contractor related to the performance of reviewable domestic work or a claim or dispute in negligence related to the performance of reviewable work.
- The building work performed by PT is associated building work. Domestic building work includes associated building work and is ‘reviewable domestic work’. The application relates to the performance of that work. The Tribunal may therefore award damages, interest thereon, restitution and costs.
- No written contract for the Works was entered into between the parties. The O'Neills rely upon a quote and text messages as evidence of their contract with ST. Because the Work is domestic building work above the regulated amount, a regulated contract was required to be entered into, and be in writing, dated and signed by the parties.
The fact the law recognises the existence of concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity…
- 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. By agreeing to perform and performing the work, ST owed the O'Neills a duty to take reasonable care in performing the work.
Has PT breached their duty?
- Following the pour of the slabs by PT, the O'Neills identified multiple issues with the Works which subsequently resulted in them lodging a complaint to the Queensland Building and Construction Commission (the QBCC). The QBCC inspected and reported on the Works. The QBCC determined the Works by PT to be defective and issued a Direction to Rectify/and or Complete (the Direction) with respect to:
- The QBCC finds the respondent responsible as the installation of the concrete to the front driveway was not of a suitable trade quality, which has led to a poor finish which is visible from a normal viewing position. Pertains to Item 1.
- The QBCC finds the respondent responsible as the installation of the concrete was not of a suitable quality, which has led to a poor finish which is visible from a normal viewing position. Pertains to Item 2.
- PT failed to comply with the Direction.
- Because PT was unlicensed, the O'Neills were unable to avail themselves of the Queensland Home Warranty Scheme established by the QBCC Act.
- The Tribunal is satisfied that the work performed by PT was defective and that PT breached its duty of care to the O'Neills in that:
- (a)the work and materials failed to meet acceptable standards;
- (b)PT failed to hold the required license to carry out the works.
Can the O'Neills recover damages?
- As a result of its breach of duty of care PT is liable to the O'Neills for damages. The purpose of damages in tort is to calculate the pecuniary sum which will make good to the O'Neills, so far as money can do, the loss which they have suffered.
- PT claims that the O'Neills still owe $9,382 under the contract. It is unclear how this amount has been calculated. The bundle of invoices attached to PT’s claim total $18,051, less the amounts said to have been paid by the O'Neills which would leave a balance of $12,351. Little explanation is provided by PT to explain its calculation. Some guidance can be found in the claim itself, which seems to suggest that the additional amounts relate to a discount that was offered to the O'Neills that was withdrawn as a result of the complaint lodged by the O'Neills with the QBCC. This is supported by the evidence of the O'Neills in which they state:
On 8 July 2019 being some 8 months after the work was performed Suburban Trades issued us with invoices totalling $13,882 … and advised that they would enforce these invoices unless we withdraw the complaint to the QBCC.
- In relation to the contract amount and monies paid and/or owing, I prefer the evidence of the O'Neills being the quote dated 9 October 2018 for $5,700 and that this amount was paid by them to PT.
- PT has not made any such claim and is therefore not entitled to any remuneration for the work done. The O'Neills are entitled to recover the full amount of $5,700 paid to PT as an unlicensed contractor.
- The O'Neills have sought the cost to remove the defective slabs and return the area to the condition it was before the defective works by PT. On the basis of the uncontested material filed by the O'Neills, the Tribunal is satisfied that the cost to remove the slabs and level the affected areas is $6,303 and that this cost is directly attributable to PT’s performing the work without the requisite building licence, failing to perform the work with due care and skill, and failing to complete the work to a proper standard.
- The Tribunal is satisfied that the cost to remove the defective slabs is reasonable.
- Damages are therefore calculated at $12,003.
- The order of the Tribunal is that Suburban Trades Pty Ltd pay to Michael and Julisa O'Neill the sum of $12,003.
 Dated 5 November 2019.
 Sections 9 and 10 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) and s 77(1) of the Queensland and Building and Construction Commission Act 1991 (Qld) (QBCC Act).
 Definition of ‘building dispute’, Schedule 2 of the QBCC Act.
 Definition of ‘domestic building dispute’, Schedule 2 of the QBCC Act.
 ‘Domestic building work’ includes the renovation, alteration, extension, improvement or repair of a home and associated work – QBCC Act, Schedule 1B s 4.
 QBCC Act, Schedule 2 (definition of ‘reviewable domestic work’).
 QBCC Act s 77(3), Schedule 2 (definition of ‘domestic building dispute’).
 Quote dated 9 October 2018, text messages dated 9, 15 and 16 October 2018.
 QBCC Act, Schedule 1B (1) – ‘regulated amount’ means $3,300 or the higher amount, if any, prescribed by a regulation.
 QBCC Act Schedule 1B ss 13, 14.
 Barbi v Brewer  QCAT 348, ; Ghama v Crew & Anor  QCAT 149.
 Voli v Inglewood Shire Council (1963) 110 CLR 74 (Windeyer J).
 Bryan v Maloney (1995) 182 CLR 609, .
 QBCC Resolution Services Initial Inspection Report dated 9 May 2019.
 Direction to Rectify and/or Complete No. 0104731 dated 20 May 2019.
 QBCC Act, Part 5. Coverage for unlicensed work under the Scheme only extends to work carried out under a contract with a person fraudulently claiming to hold the required licence: QBCC,
s 68H (1)(c)
 Admiralty Commissioners v SS Valeria  2 AC 242.
 Refer Statement of Michael and Julisa O'Neill dated 5 March 2020.
 Queensland Building and Construction Commission Act 1991 (Qld), s 42(3).
 Queensland Building and Construction Commission Act 1991 (Qld), s 42(4); Yongwoo Park v Betaland Pty Ltd  QCAT 228, .
 Marshall v Marshall  1 Qd R 173, 176.
 Refer Quote dated 9 October 2019 from Top Tier Concreting – attachment 16 to the Statement of Michael and Julisa O'Neill dated 5 March 2020.
- Published Case Name:
O'Neill v Suburban Trades Pty Ltd
- Shortened Case Name:
O'Neill v Suburban Trades Pty Ltd
 QCAT 229
23 Jun 2020