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

Jones v Lewis[2021] QCAT 119

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Jones & Anor v Lewis [2021] QCAT 119

PARTIES:

DEAN JONES

KIM-MAREE JONES

(applicants)

 

v

 

KEELAN LEWIS

(respondent)

APPLICATION NO/S:

BDL326-18

MATTER TYPE:

Building matters

DELIVERED ON:

13 April 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

Keelan Lewis pay to Dean Jones and Kim-Maree Jones the total amount of thirty-four thousand and sixty-two dollars and ninety cents ($34,062.90) comprising of damages in the amount of $33,724.69 plus $338.20 for costs, within 28 days from the date of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – where homeowners engaged builder to renovate kitchen – where builder unlicensed to perform building work – where builder ordered to pay homeowners damages to be assessed – whether builder owed duty of  care to homeowners – where homeowners claim damages for defective and incomplete work and for costs

Queensland Building and Construction Commission Act 1991 (Qld), s 4, s 42, s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Bellgrove v Eldridge (1954) 90 CLR 613

Bryan v Maloney (1995) 182 CLR 609

Cook's Construction P/L v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75

Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

Robinson v Harman (1848) 1 Ex 850

APPEARANCES &

REPRESENTATION:

 

Applicants:

Self-represented

Respondent:

No appearance

 

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

  1. [1]
    The applicants engaged the respondent to renovate their kitchen.
  2. [2]
    The parties signed a handwritten document that identifies the work to be performed by the respondent and specifies the amount of $30,000.00 as being payable by the applicants to the respondent (‘the contract’).[1]
  3. [3]
    On 21 February 2018, the respondent removed the existing kitchen and arranged for the installation of cabinets, glass splash back and stone bench tops.
  4. [4]
    The applicants paid to the respondent the total amount of $19,300.00 on various dates between 22 November 2017 to 15 January 2018, inclusive, for the work performed. The applicants contend that they also paid other amounts to various contractors for work to be done to the kitchen; for example, the amount of $2,000.00 was paid directly to ‘Willis Bros’ for the preparation and installation of ‘stone mason labour’.[2]
  5. [5]
    Before the respondent completed the kitchen renovation work, the applicants contacted the Queensland Building and Construction Commission (‘the QBCC’) for assistance and were advised that the respondent had no record of a licence held with them.
  6. [6]
    A complaint to the QBCC followed.
  7. [7]
    On 26 June 2018, the QBCC notified the applicants that their dispute lodged on 9 May 2018 regarding the respondent and the kitchen work performed was not able to be mediated.[3]
  8. [8]
    The QBCC later advised the applicants that they had no claim for insurance under the QBCC home warranty insurance scheme because the respondent was not licensed to perform building work for the purposes of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’).[4] 
  9. [9]
    The applicants applied to the Tribunal for damages for defective and incomplete work performed by the respondent and for relief from payment of any money said to be owing to the respondent.[5]
  10. [10]
    The issue before me now is what, if any, damages should be paid by the respondent to the applicants. Relevantly, the Tribunal by order dated 6 January 2020 determined that the respondent must pay the applicants damages to be assessed.[6]
  11. [11]
    To date, the respondent has filed no material in relation to the applicants’ application and supporting material filed in the Tribunal. The Tribunal’s record reflects that the applicants and the respondent participated in a compulsory conference on 18 April 2019 and the applicants posted a copy of their material filed in the Tribunal to the respondent in September 2019.[7]
  12. [12]
    I am satisfied that the respondent has failed to comply with the Tribunal’s directions made in this matter and that it is appropriate to make a final decision in the proceeding in favour of the applicants.[8] Relevantly, the respondent was put on notice by the Tribunal’s directions dated 13 November 2019 that if he failed to file a response to the applicants’ application by ‘4:00pm on 4 December 2019’, the applicants are entitled to a final decision in the proceedings.
  13. [13]
    I will now assess damages on the basis that the Tribunal has determined that the respondent must pay the applicants damages.[9]
  14. [14]
    I am satisfied based on the evidence before me that the applicants engaged the respondent to perform ‘building work’, for the purposes of the Act, and the Tribunal has jurisdiction to determine this matter.[10] Relevantly, the Tribunal has discretionary powers to, amongst other things, award damages under s 77(3) of the Act.[11]
  15. [15]
    In this matter, the applicants rely upon their statement of evidence, various photographs of the kitchen work performed by the respondent, the evidence of a building inspector, David Brunner, who inspected the kitchen renovation work on 6 July 2018 and prepared a report, and quotations and invoices in relation to the costs of rectifying the alleged defective and incomplete work.

What, if any, damages should be paid by the respondent to the applicants for defective and incomplete work?

  1. [16]
    The handwritten document or contract detailing the work to be performed by the respondent does not comply with the requirements for a regulated contract under the Act.[12] The contract is, however, signed by the applicants and respondent and attaches a drawing of the proposed new kitchen.
  2. [17]
    Implicit in the contract signed by the parties is the requirement that the work be performed by the respondent with appropriate care and skill. I accept that the respondent owed a duty to the applicants to take all reasonable care in performing the kitchen renovation works and that the respondent may be liable to the applicants for any negligence arising from defective work and damage to their property.[13]
  3. [18]
    The applicants claim the total amount of $14,424.69 as being the costs to rectify defective and incomplete work that they say was necessary to complete the kitchen renovation as provided under the contract.[14] I accept that the applicants are entitled to claim the costs of rectifying any defective work performed by the respondent necessary to restore them to the position they would have been in had the respondent not failed to complete the works as contracted with appropriate care and skill.[15]
  4. [19]
    The applicants claim the following:
    1. (a)
      Stone bench replacement in the amount of $8,470.00;
    2. (b)
      Cabinet rectification/study nook rectification in the amount of $3,950.00;
    3. (c)
      Electrical rectification in the amount of $137.19;
    4. (d)
      Plumbing connection in the amount of $654.50;
    5. (e)
      Plasterer costs in the amount of $913.00.
  1. [20]
    An additional amount of $300.00 is claimed for the cost of Mr Brunner’s building inspection report. The applicants also claim the amount of $3,000.00 for replacement of the glass splash back and the amount of $1,000.00 for the completion of a ‘custom table’.[16]
  2. [21]
    In this matter the respondent was at all relevant times unlicensed to perform building work under the Act in contravention of s 42(1).[17] Relevantly, on 29 November 2018, the QBCC issued an infringement notice to the respondent for carrying out unlicensed building work.[18]
  3. [22]
    I am satisfied that the respondent is not entitled to any monetary consideration for the work performed pursuant to s 42(3) of the Act.[19] The respondent has not filed an application or counter-application seeking any entitlement he may have pursuant to the contract.[20] I find that the applicants are not required to pay to the respondent the balance of the contract price said to be owing and the respondent is not entitled to retain the amount of $19,300.00 received for the unlicensed building work. The total amount of $19,300.00 paid by the applicants to the respondent should be given back to the applicants in addition to any damages, as assessed, for defective and incomplete work.[21]
  4. [23]
    I do not consider, however, that the respondent should be ordered to pay back to the applicants any money paid to the various contractors for the kitchen work. Although the applicants contend that the money was paid to the various contractors on the basis that the work would be included in the written contract, it is clear from reading their statement of evidence that they made the decision to pay the contractors directly despite their concerns about what work was included in the written contract. For example, the applicants state that on 23 March 2018, the respondent advised them that the stone mason would be onsite to install the benchtops and that he (the respondent) did not mention that the cost for stone mason labour was to be met by them at completion of the work. The applicants state that they paid the stone mason the amount of $2,000.00 for the installation and preparation of the stone mason work.[22] Any claims by the applicants for the respondent to pay back the money paid by them to other contractors is refused.
  5. [24]
    I will now consider the applicants’ claims for completion and rectification of the kitchen work.

Stone bench removal and replacement in the amount of $8,470.00

  1. [25]
    The applicants contend and I accept that the bench top was included in the scope of works and was installed in accordance with the written contract.[23] The contract signed by the parties specifies the ‘supply of stone mason to supply and install 40mm siltstone [sic] (to price 60mm in smart stone and natural stone)’.[24]
  2. [26]
    The applicants contend and I accept that the benchtop level is out of level by five millimetres over a two-metre length and replacement benchtops were installed at a cost of $8,470.00. Mr Brunner inspected the benchtops on 6 July 2018. In his report, Mr Brunner identifies a number of issues with the installation of the benchtops including, for example, the edges of the benchtops were pitted and marked, the front edge is not straight and a ‘deviation/bow’ in excess of five millimetres was noted along the front edge.[25] Mr Brunner also reports that adjusting the bench tops will be difficult. I accept Mr Brunner’s evidence.
  3. [27]
    The applicants’ claim of $8,470.00 for the removal and replacement of the benchtops is supported by the evidence of Ricky Woolley of Precision Stone Services who prepared a report and quotation for the benchtop work.[26] Mr Woolley observed that the overhang on the benchtops was not consistent and that rectification was not possible and the benchtop would need to be removed, remeasured and remade. I accept Mr Woolley’s evidence.
  4. [28]
    I am satisfied that the applicants’ claim of $8,470.00 for the benchtop is reasonable and necessary to rectify and complete the kitchen work. The claim is allowed.

Cabinet rectification in the amount of $3,950.00

  1. [29]
    I accept that the scope of works as detailed in the written contract signed by the parties includes the supply, manufacture and installation of 29 cabinets. The applicants’ claim of $3,950.00 for rectification of the cabinets is supported by a quotation prepared by DAB Interiors and Mr Brunner’s observations reported in his inspection report.[27]
  2. [30]
    It is apparent from the photographs included in Mr Brunner’s report that the cabinets installed are damaged. Mr Brunner observes in his report that there are chips in the edge stripping, that screw heads are still evident and amongst other things, that caps are missing on all screw heads and the inside doors are heavily marked. I accept Mr Brunner’s evidence.
  3. [31]
    The costs of rectification and completion of the cabinets in the amount of $3,950 is supported by an invoice dated 16 October 2018 from DAB Interiors.[28] A description of the rectification work is detailed in DAB’s quotation dated 23 July 2018 and includes, amongst other things, to free up existing drawers and to install drawer fronts. I am satisfied that the applicants’ claim for the amount of $3,950.00 for the cabinets is reasonable and necessary to rectify and complete the cabinets. The amount claimed is allowed.

Electrical work in the amount of $137.19

  1. [32]
    I accept the applicants’ evidence that the scope of works included electrical connections between the oven and cooktops.[29] The written contract signed by the parties includes, as stated, ‘supply electrical to disconnect [and] reconnect’.[30]
  2. [33]
    The applicants’ claim of $137.19 for electrical work is supported by photographs taken by the applicants attached to their statement, photographs included in Mr Brunner’s report and the invoice for electrical work dated 24 September 2018.[31] I am satisfied that the amount claimed by the applicants for electrical work is reasonable and necessary to complete and rectify the kitchen work performed by the respondent. The claim for $137.19 is allowed.

Plumbing connections in the amount of $654.50

  1. [34]
    I accept, as contended by the applicants, that the scope of works includes, as provided in the written contract, ‘plumbing disconnect and reconnect’.[32]
  2. [35]
    I also accept as contended by the applicants that the amount of $654.50 was paid for plumbing connections in the kitchen and this work was necessary as part of the rectification and completion of the kitchen work.[33]
  3. [36]
    The applicants’ claim of $654.50 is supported by a report and tax invoice prepared by Danny Impellizzeri dated 20 September 2018. Mr Impellizzeri reports that he attended the site to disconnect and remove gas cooktop, kitchen sink and all water services and wastes. Mr Impellizzeri also returned to site to reconnect the services and supplied and fitted an isolation valve under the cooktop (that was missing) as per the relevant gas regulations.  I accept Mr Impellizzeri’s evidence. The claim for $654.50 is allowed.

Plasterer work in the amount of $913.00

  1. [37]
    I accept the applicants’ claim of $913.00 for rectification of the damaged ceiling and headboards. The claim is supported by a tax invoice from CRA Construction dated 12 February 2019 and Mr Brunner’s inspection report that includes photographs of the kitchen work and damaged walls and ceiling.[34]
  2. [38]
    Mr Brunner reports that there are unsealed sections at the end panel of the overhead cabinets and amongst other things, the plaster sheeting to ceiling and walls has sustained damage during the removal of the old kitchen.[35] I accept Mr Brunner’s evidence. I am satisfied that the amount claimed is reasonable and necessary to rectify damage to the ceiling and walls. The amount of $913.00 is allowed.

Glass splash back removal and replacement (incomplete work)

  1. [39]
    The applicants claim $3,000.00 for replacement of the glass splashback. The scope of works includes as stated, ‘glass splash back’.[36] Mr Brunner, building inspector, reports that the glass splash back is poorly cut with sharp edges, the joint is not sealed and as such may allow moisture egress to the sheeting behind the splash back and steam passing behind this area may also cause discolouration over a longer term.[37]
  2. [40]
    The finish of the work for the splash back is regrettable. The applicants have, however, had an opportunity to present their evidence to the Tribunal to be relied upon in support of this claim. I am not satisfied based on the evidence before me that the amount of $3,000.00 as claimed by the applicants for the splash backs is reasonable and necessary. The applicants rely on a quotation prepared by DAB Interiors and dated 23 July 2018 that states that the approximate cost of new splash backs would be $3,000.00 plus ‘GPO cut outs’.
  3. [41]
    I am not satisfied that the claim of $3,000.00 for the splash backs is reasonable and necessary to rectify any defective or incomplete work. As discussed above, Mr Brunner describes the glass splash back as being of poor workmanship. Further to that, the applicants have obtained a quotation that identifies the approximate cost only for the removal and replacement of the glass splash back. The item claimed by the applicants is refused.

The table (incomplete work) in the amount of $1,000.00

  1. [42]
    I accept that the written contract includes the supply of, as stated, ‘1200 x 1200 table laminated in colour to be chosen’. The applicants have had an opportunity to file evidence in support of their claim for $1,000.00. The applicants provide no evidence to support the claim including how the amount of $1,000.00 was calculated. I am not satisfied that the amount claimed is reasonable and necessary for the completion of the work. The claim of $1,000.00 for the table is refused.

Inspection report in the amount of $300.00

  1. [43]
    I am satisfied that the cost of obtaining Mr Brunner’s report to inspect the kitchen work was reasonable and necessary for the applicants to rectify any defective and incomplete work. The amount of $300.00 is allowed.

QCAT filing fee in the amount of $338.20

  1. [44]
    The Tribunal has the discretionary power to award costs under s 77(3) of the Act. The applicants claim the amount of $1,639.61 representing, as stated in the application filed on 22 November 2018, ‘QCAT costs plus solicitor to date’.
  2. [45]
    The applicants have provided no evidence to support their claim for the payment of their costs in the amount of $1,639.61 or how this figure was calculated.
  3. [46]
    I am, however, satisfied that an order requiring the respondent to pay the applicants’ costs of the filing fee for the application is appropriate in this matter on the basis that such costs are necessary for the applicants to recover the money paid by them from the respondent. The amount of $338.20 for the filing fee is reasonable and I allow this amount in full.

Conclusion

  1. [47]
    I am satisfied that the following items as claimed and assessed by me are reasonable and necessary costs for the rectification and completion of defective and incomplete work performed by the respondent:

Stone benchtop replacement     $  8,470.00

Cabinet rectification     $  3,950.00

Electrical work      $  137.19

Plumbing connections     $  654.50

Plasterer work      $  913.00

Inspection report      $  300.00

Total       $14,424.69

Plus contract amount paid by the applicants  $19,300.00

(to be paid back by the respondent)

Plus costs in the amount of $338.20 (filing fee)  $  338.20

Total amount payable by the respondent   $ 34,062.90

  1. [48]
    I find that the amount of $33,724.69 plus $338.20 for the costs of the filing fee is reasonable and that such costs are necessary to rectify defective and incomplete work performed by the respondent. Relevantly, the applicants have provided material to support their claims for rectification costs including payment to the respondent for the amount of $19,300.00 that was paid by the applicants on various dates during the period from 22 November 2017 to 15 January 2018, inclusive.[38]
  2. [49]
    I order that the respondent, Keelan Lewis pay to the applicants, Dean Jones and Kim-Maree Jones the total amount of thirty four thousand and sixty two dollars and ninety cents ($34,062.90) comprising of damages in the amount of $33,724.69 plus $338.20 for costs, within 28 days from the date of this order.

Footnotes

[1]  Statement of the applicants filed 23 September 2019, attachment 1.

[2]  Ibid, [52] and see attachment 9.

[3]  Ibid, attachment 19.

[4]  Ibid, attachment 20, by letter dated 17 July 2018.

[5]  Application for a domestic building dispute filed 22 November 2018.

[6]  Tribunal decision dated 6 January 2020 of Acting Senior Member Paratz.

[7]  Letter filed by the applicants dated 23 September 2019 attaching a copy of the registered post lodgement receipt.

[8]  See s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[9]  See Tribunal’s directions dated 13 November 2019.

[10] Queensland Building and Construction Commission Act 1991 (Qld), s 77 and schedule 2.

[11]  See definition of ‘domestic building dispute’, schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld).

[12]  See the Queensland Building and Construction Commission Act 1991 (Qld) schedule 1B, s 5(1)(a) and
s 1 that defines ‘regulated amount’, s 6(1)(a), s 7(2), s 13; and the Queensland Building and Construction Commission Regulation 2018 (Qld).

[13]  See Bryan v Maloney (1995) 182 CLR 609, 11.

[14]  Statement of the applicants filed 23 September 2019.

[15]  See Mousa & Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 and Bellgrove v Eldridge (1954) 90 CLR 613.

[16]  See Statement filed 23 September 2019 and application for a domestic building dispute filed 22 November 2018.

[17]  Ibid, attachment 2.

[18]  Ibid, attachment 21.

[19] Cook's Construction P/L v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75.

[20]  See s 42 of the Act.

[21]  Ibid and see Robinson v Harman (1848) 1 Ex 850.

[22]  Statement of the applicants filed 23 September 2019.

[23]  Ibid, p 11.

[24]  Ibid, attachment 1.

[25]  Ibid, attachment 23, pages 11 to 15, inclusive.

[26]  Ibid, attachment 24.

[27]  Ibid, attachments 22 and 23.

[28]  Statement of the applicants filed 23 September 2019, attachment 27.

[29]  Ibid, attachment 1.

[30]  Ibid.

[31]  Ibid, attachment 28.

[32]  Ibid, attachment 1.

[33]  Ibid, attachment 30.

[34]  Statement of the applicants filed 23 September 2019, attachments 17 and 23.

[35]  Ibid, attachment 23, p 28.

[36]  Ibid, attachment 1.

[37]  Ibid, attachment 23, page 10.

[38]  See statement of the applicants filed 23 September 2019.

Close

Editorial Notes

  • Published Case Name:

    Jones & Anor v Lewis

  • Shortened Case Name:

    Jones v Lewis

  • MNC:

    [2021] QCAT 119

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    13 Apr 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

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

Message not sent!

Something went wrong. Please try again.