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  4. Richards v Building Buddy.Com Pty Ltd - [2021] QCAT 120

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Richards v Building Buddy.Com Pty Ltd[2021] QCAT 120

Richards v Building Buddy.Com Pty Ltd[2021] QCAT 120

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Richards & Anor v Building Buddy.Com Pty Ltd [2021] QCAT 120

PARTIES:

phillip richards

arietta cocozza

(applicants)

v

building buddy.com pty ltd

(respondent)

APPLICATION NO/S:

BDL055-20

MATTER TYPE:

Building matters

DELIVERED ON:

13 April 2021

HEARING DATE:

22 October 2020

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – where respondent advertises free preliminary concept design service – where no written contract for drafting services – where applicants invoiced for $4,400, following three months of design work – whether applicants entitled to a refund of the payment made – where dispute as to what payment was for – where applicants terminated the contract – whether breach of contract by the respondent – whether respondent negligent – whether promotional material misleading and deceptive within the meaning of s 18 of the Australian Consumer Law

Australian Consumer Law, s 18

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, Schedule 2

DSGN Kartell Pty Ltd v Pathmaperuma [2020] QCAT 211

APPEARANCES &

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

  1. [1]
    This is a dispute as to whether the applicants are entitled to recover $4,400 paid for drafting work done by the respondent for the applicants[1] and whether the applicants are entitled to damages. The claim originally filed was limited to claiming a refund but by the time of the hearing included a claim for “compensation” for $6,150.73,[2] presumably in addition to the $4,400.[3] The legal basis for the claim for compensation is not clear but appears to be that the respondent breached its duty of care and was in breach of contract.[4]
  2. [2]
    The applicants paid $4,400 to the respondent which they understood to be an advance for “working drawings, engineering and contour surveys”. They say as they did not receive completed working drawings or any engineering surveys or workings that they are entitled to have the $4,400 reimbursed. In subsequent submissions filed in the Tribunal the applicants also allege that the respondent breached its duty of care it owed to them. Further, that the promotional material displayed on the respondent’s website was misleading and deceptive in breach of s 18 of the Australian Consumer Law (Cth) (ACL) and constituted false and misleading advertising as defined in ss 29 to 34 of the ACL.[5] The applicants in their submissions[6] claim “compensation” for ‘the full costs of the work that the respondent charged them for but did not provide’. This sum totals $6,150.73 and comprises: $454.55 for the soil test report; $1,318.18 for an engineering design and $4,378 for drafting and design by DPW Designs.
  3. [3]
    The respondent admits the $4,400 was paid to it but says it was for “preliminary building work for the purpose of preparing a custom design and build proposal with one of their partner builders”. The respondent denies the money was for completed “working drawings, engineering and contour surveys”. The respondent also denies it was for the preliminary design phase which it maintains was not charged for.

Background 

  1. [4]
    There is no written contract between the parties.
  2. [5]
    The respondent says a contract was entered into on 28 March 2018. That is when Ms Cocozza initiated contact with the respondent by sending Mr Joh Domingo an email which stated, relevantly:

Hi Joh

I wanted to know if it possible to come and have a chat about a house design. We want to make sure we can fit what we want in a home before we buy land and find it won’t work. We haven’t been able to find any plans available off the shelf that suit our needs. If it looks like it will work then we will go ahead and buy land.

…

  1. [6]
    The parties met on 9 April 2018.
  2. [7]
    The business model used by the respondent can be gleaned from its website which, in March 2018, provided as follows, relevantly:

How does this all work?

We provide a risk-free customized home design solutions (sic) that is a low-cost alternative to an architecturally designed home.

…

We can modify any our (sic) plans to suit, or we will draw one from scratch…FREE

Get what you want…EXACTLY!!

What if I don’t go ahead?

If you don’t go ahead, then you won’t be using our design and there will be no charge. We carry the risk.

What about your ‘standard plans’

You can select one of our existing designs. We will modify to suit. It often is better if we draw a home specifically for your site….

How much will this cost?

There is no charge for our preliminary concept design work.

Along with build-cost estimates, these concept design (sic) allow you the flexibility to better plan for a favourable home design and build outcome.

You are then able to make an informed decision to move forward or not.

Can I pay you for your design?

We get paid by our builders to provide this service.

If you would like more control, and be free to shop the design around, we provide a cut-price drafting service. You still benefit from our design expertise. The fee for construction plans are (sic)

  • Single storey - $990 GST inclusive
  • Tow (sic) storey - $1, 500
  • Split level or more complicated plans – POA.

The fee is payable up-front.

  1. [8]
    The applicants made significant use of the respondent’s design service. The first 10 page concept plan was drafted on 18 April 2018 and sent to the applicants on 19 April 2018 (PLM 1).
  2. [9]
    On 23 April Ms Cocozza sent through an amended plan requesting various changes. Mr Domingo telephoned her about the plan and there were further emails requesting changes on 26 April 2018.
  3. [10]
    On 27 April 2018 a further set of concept plans were drafted with a different, more “boxy” exterior (as requested by Ms Cocozza) and incorporating the changes to date (PLM 02). These were forwarded by Simin, the designated draftsperson for the respondent at that time, on 30 April 2018 at around 11am.
  4. [11]
    Ms Cocozza replied around 7pm that same day thanking Simin for the “prelim design” and commenting that the “outside looks great” and that there are “just a few problems with [the] floorplan”. Those problems seem to relate to the unexplained loss of the powder room and that Ms Cocozza had told Joh she “[didn’t] want cooktop or sink in the island bench”. Ms Cocozza attached a further draft floor plan to make the house smaller which she says they preferred. The new plan was explained by Ms Cocozza as her attempt to combine Ms Cocozza’s “first and second attempts” which she said “seems to work”. Ms Cocozza asks Simin in the email:

Can you have a look and see if you think it works and what should be changed please.

  1. [12]
    On 1 May 2018 Ms Cocozza sent through a photo of a different exterior she liked from an internet architectural page in Melbourne.
  2. [13]
    On 3 May 2018 Ms Cocozza wrote to Simin as follows:

Hi Simin

I haven’t heard back from you so wondering what your thoughts were on the draft possible plan I sent and if you had suggestions, concerns, improve,ents (sic) or better ideas?

We are very keen to progress our build ASAP.

Kind regards Arietta

  1. [14]
    On 4 May 2018 a further set of concept plans were provided (PLM 03).
  2. [15]
    Ms Cocozza then sent a further amended draft plan on 6 May 2018 with an accompanying email that said:

I think this is probably a trickier plan than it would seem at first glance in fitting in specific requirements, so I appreciate the work you have done.

…

The problem with the latest iteration is that the right side of the house has blown out the maximum 24 mtrs from front fence to end of alfresco (house limited to 20 mtrs) which was an essential criterion. So we end up with the house on top of the pool and on top of the existing garden wall.

The other problem is the powder room is back in but it is internal with no window which is a bit yucky.

I think the only real way to get it to really work well is with a relaxation for the garage to come forward.

…

Have a look and we can talk.

  1. [16]
    On 8 May 2018 Ms Cocozza sent Joh an email (1 and ½ pages) listing finishes but saying that she hadn’t thought in detail about a lot of them as she wanted to get the plan sorted first. She also mentions that in general everything will be basic and that they will “upgrade or deduct items that we have (doors etc) as we finalise after builder quotes”.
  2. [17]
    A further set of plans were provided, dated 9 May 2018 which were forwarded to the applicants on 10 May 2018 (PLM 04). Simin had needed to align the exterior wall of the kitchen with meals and family wall to allow for a window behind the kitchen sink due to regulations.
  3. [18]
    A further set of plans dated 14 May 2018 were prepared. On 15 May 2018 Simin responded to 10 detailed queries by Ms Cocozza on those plans and made further changes to the plans as required (PLM 05).
  4. [19]
    On 16 May 2018 Ms Cocozza wrote:

Hi Joh

We are going to look at window showrooms on Friday to look at cost and what we like.

So we will be pretty ready to get the floor plan and design costs/changes sorted so we can move to getting build plans drawn up and quotes in.

…

  1. [20]
    Further changes were requested by Ms Cocozza at around 1:30pm on 22 May 2018. There were nine changes requested relating to, for example, the location of leadlight windows, other windows and stacker doors. Ms Cocozza said in her email:

Hi Simin, can you make these changes as soon as you get a min please. Let me know if anything is not clear.

  1. [21]
    Further concept plans were provided, incorporating those changes, at 3:30pm on 23 May 2018 (PLM 06).
  2. [22]
    On 28 May 2018 Ms Cocozza sent a detailed email to Mr Domingo setting out numerous requests including details of bath, details of ceramic kitchen sink, type of robe (ie kit form) and wall mounted TV and fireplace. The email attached numerous photographs of doors and windows that the applicants wanted to use in their build. The tone of the email gave no indication that the working relationship between the parties was in any way strained. For example:

Media Room

  1. 1)Change name to Carlton Lounge (our grandsons thing Lol)

…

  1. 6)Would like to do a Wall mounted TV 7 Fireplace as in example Photo. We would use some of the old house timber for the shelf.

Pantry

…

  1. 3)Add west facing window to pantry ONLY IF YOU THINK IT WILL NEED EXTRA LIGHT JOH

Family Room

…

  1. 4)Arch is super effing heavy old wrought iron from bank building = 1700 long x 500 from bottom edge to highest part of curve.
  1. [23]
    On 29 May 2018 at 5:40pm Mr Domingo sent through a revised plan (PLM 07) and an invoice for $4,400 for “Prelim Building Work”. Mr Domingo asked if they would let him know if they were on the right track and he would get the construction plans started.
  2. [24]
    Ms Cocozza replied at 6:22pm as follows:

Hi Joh, I haven’t gone through the list checking but looks great and v clear with measurement details written in. Just a couple of minor points

…

Finally, the invoice came through blank

Thanks Joh

Cheers Arietta

  1. [25]
    Ms Cocozza then wrote at 7:14 pm on 29 May 2018 as follows:

Thanks Joh, Just a bit concerned that this includes time Simin spent correcting drafts which didn’t follow the requirements and had to be redone?

I’ll have a ponder on the bathroom and get back to you tomorrow…dinner awaits

Cheers Arietta

  1. [26]
    Mr Domingo responded at 7:16 pm:

Hi Arietta

No the invoice is for the working drawings, engineering and a contour survey so we can finalise the scope and detail.

We don’t charge for preliminary revision drafts.

  1. [27]
    Ms Cocozza responded the next morning on 30 May at 6:26 am:

Morning Joh

That sounds better phewww!

Can you send me bsb & acc details so I can deposit today.

Also can you move the other door to line up with the Carlton room door in the entry

Bathroom…still pondering. The plan that I sent Simin which she modelled this plan from had the bathroom at 3 metres wide – where did we lose the metre?

  1. [28]
    On 31 May 2018 a further set of plans were sent through. These Plans were different. They were to scale, with a legend, more detailed and are headed “Preliminary Drawing – Not for Construction”.
  2. [29]
    On 3 June 2018 Mr Domingo emailed a further correction to the Plans and wrote in a covering email:

Hello Arietta

Please check these small changes we spoke about before we go hell bent and complete the working drawings.

Timeline is about 4 weeks after we finish the WD. This will give us time to get trade packages and finish the engineering. (the Engineering cannot be ordered before the WD are finalised.

We can only really get certification after we do a building agreement. Allow abot (sic) 4-6 weeks from now.

  1. [30]
    On 5 June 2018 a further two sets of amended plans (six pages and 13 pages) were produced. These plans are headed ‘Preliminary Drawing – Not for Construction’ and are drawn to scale. They have a legend for different external wall types and a legend for details like overhead cabinets, smoke detectors and toilet roll holder. They also have a window and glass door schedule with detailed diagrams of the lounge leadlights and porch leadlights. There is also a roof plan, electrical plan and bracing schedule.
  2. [31]
    On 13 June 2018 Mr Domingo sent the plans, stating in a covering email:

Hi Arietta & Phil

Please find a copy of the Working Drawings.

This copy has been sent out for Trade Packages, but please have a look and see if you want change (sic) anything.

…

  1. [32]
    On 14 June 2018 Ms Cocozza replied:

Hi Joh, all looks good at a quick glance. Only thing I spotted was we’ve lost the oven again.

  1. [33]
    On 20 June 2018 a further set of plans were provided and issued. On this day, Mr Domingo states that Ms Cocozza mentions for the first time that she would like to get her builder to quote and is going to “[shop] the plans around”.
  2. [34]
    The parties met on 26 June 2018 to discuss issues the applicants had with the design process. The applicants sent an email that afternoon summarising the meeting and outlining further changes, including for example, adding an 800 wide double sink to the middle of the island bench and changes associated with removing or changing items or finishes for the purposes of the costings:

Hi Joh & Amy

Great minds think alike Joh, I as (sic) just preparing this summary of the meeting when you called.

Thank also for your time today, I think we cleared up a lot of unfinished detail. I appreciate also that we may not be your usual clients, but also most people don’t do 9 major build/renovations as owner builders – so I’m sure we are more detailed and observant than the norm.

….

Also can you find out when (was it Mick) the builder could be ready to start when we have the certifications etc done, which you said takes about ten days from site clearance being completed which I will get done by next week.

Cheers Arietta & Phil

  1. [35]
    A further set of plans were produced dated 27 June 2018 but the applicants say these plans were never issued.
  2. [36]
    On 29 June 2018 Mr Richards sent an email to Mr Domingo with the subject line Serious Plan Issues as follows:

Joh,

There are serious problems w (sic) the working drawings. We need to come in today to sort this.

  1. [37]
    The parties met that day. At that meeting of 29 July 2018 the applicants sought a refund of half of the monies paid ($2,200) in exchange for the CAD file to allow them to “progress the incorrect preliminary plans to a successful working drawing plans stage”. The applicants say that Mr Domingo stormed out of the meeting. Mr Domingo says that he listened to them and then asked them to leave.
  2. [38]
    On 2 July 2018, Mr Domingo sent a lengthy email as follows:

Dear Arietta & Phil

I did promise to get back to you today regarding your project …

After reviewing the situation, I have concluded that you are intent on picking a fight. So I am just going to respond to the issues as I see them.

…

You paid to have preliminary building work done to enable us to provide the documentation to get your home built. This came at no cost to you as is our practice to eliminate the need for customers to waste money on designs that will never be built. When you gave the go ahead and paid for preliminary work, it was after we had produced preliminary drafts and a building estimate price. You could have walked away at that point if you were unhappy.

To date we have provided you a generous amount of our services; which has cost us time and money, and more than eats away any credit you may have with us. It does seem that you are being badly advised. You are perfectly entitled to choose your path; however, it won’t be at our expense. You won’t be receiving any relief from us regarding your plans, nor will you have any money refunded. We also reserve the right to bill you for any administration and out-of-pocket expenses that may be more than what you have paid to date.

Consideration

  1. [39]
    I am satisfied that this is a domestic building dispute,[7] that the applicants have complied with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) and that, accordingly, the Tribunal has jurisdiction to determine the matter. As neither party contended otherwise, it is not necessary to explore this issue further.
  2. [40]
    When the parties agreed to proceed with the design work it is tolerably clear that they agreed to do so on the basis that there would be no charge for preliminary concept design work. I find that to be a term of the contract between them, the contract evidenced by the parties’ conduct. A term to that effect is consistent with the advertised arrangements on the respondent’s website.
  3. [41]
    I also find that the drawings for which the invoice was issued had proceeded beyond preliminary concept design work. The parties first met on 9 April 2018. The applicants purchased their property on 12 April and by 18 April, the applicants had the first of seven preliminary draft plans.
  4. [42]
    By 28 May 2018, the detail of the plans had descended to the bath, ceramic kitchen sink, the robe and wall mounted TV and fireplace.
  5. [43]
    The invoice on 29 May 2018 was described as being for “Preliminary Building Work” and the respondent’s correspondence of 29 May described the invoice as including working drawings, engineering and a contour survey (for the site). On 29 May 2018, Mr Domingo asked if the plans were on the right track, and said that he would get the construction plans started.
  6. [44]
    Also on 29 May 2018 Mr Domingo, in response to a query regarding what the invoice was for, answered that the fee was not for the preliminary concept design work but, in effect, was to go toward the next stage. It is of note that the applicants paid the invoice and accepted at the time that it was appropriate to do so.
  7. [45]
    Following the invoice of 28 May 2018, the respondent provided a number of further drawings. The drawings provided on 5 June 2018 were of more particular detail than those earlier and the drawings provided on 13 June were described in the covering email from Mr Domingo as working drawings. The applicants, notwithstanding their considerable experience, did not at that time protest that description, and indeed replied that “all looks good at a quick glance”. A further set of drawings were provided on 20 June, and a meeting was held on 26 June.
  8. [46]
    The applicants contend that they did not receive the benefit of any work commensurate with the next stage, and claim the return of the $4,400 paid.
  9. [47]
    For the applicants to be entitled to repayment of the money paid, they need to establish a proper legal basis upon which such a claim can succeed.
  10. [48]
    It is accepted that if a consumer pays money under a contract which a contractor fails to complete, the consumer can recover that money in an action for money had and received if there has been a total failure of consideration arising out of the contractual duties in respect of which the payment is due.[8] If the person has received any of the benefit bargained for from performance by the contractor, there has not been a total failure of consideration[9] and any payment is not normally recoverable even though it was made in advance of performance.[10]
  11. [49]
    The onus of proving total failure of consideration lies upon the applicants. In my opinion, the applicants have failed to show a total failure of consideration.
  12. [50]
    Indeed, the evidence is to the contrary, and it is clear that considerable work was done in the nature of providing and progressing working drawings throughout June 2018.
  13. [51]
    It follows that the applicants have not established a basis upon which they are entitled to recover the $4,400 already paid.
  14. [52]
    Are the applicants entitled to damages for breach of contract?
  15. [53]
    It is pertinent at this stage to note that there was no agreement between the parties concerning the time by which the working drawings would be provided. In that circumstance, I am prepared to infer a term that they be provided within a reasonable time. That said, the applicants have not proved that such a term has been breached. The various iterations of the drawings had been provided within reasonable despatch by the respondent and there is no real complaint that the service was too slow.
  16. [54]
    On my view of the evidence, including the many iterations of the concept plans, Simin, on behalf of the respondent, responded quickly to Ms Cocozza’s many requests for changes and incorporated her requests with reasonable care and skill. Ms Cocozza was, in her own words, an experienced owner/builder and someone who was, as a result, more demanding than a person who was not. The requests by Ms Cocozza were in fact, on many occasions, requests for changes due to a change of mind by the applicants and not as a result of any errors by the respondent. Even if there had been errors, and I accept that there were some instances where requested changes were not communicated to the relevant draftsperson, that does not necessarily amount to a breach of contract.
  17. [55]
    The working drawings were apparently progressing. I am not satisfied that the quality of the drawings as they progressed was so poor as to constitute a repudiation of the contract.
  18. [56]
    It was the applicants’ decision to no longer require the services of the respondent. I am not satisfied that the applicants were entitled to terminate the contract. Having abandoned the contract, they excused the respondent from further performance.
  19. [57]
    Further, even if I was to find that there had been a breach of contract by the respondent, the applicants have not proved that they suffered damage as a result. The evidence from Alps Constructions that, in effect, the design process had to be started from scratch, is irrelevant when it is appreciated that the ultimate design used by Alps Constructions was different in concept to the design produced by the respondent. It follows that the ‘compensation’ did not flow from any breach by the respondent and cannot be claimed as a consequence.
  20. [58]
    I also do not find that the applicants have established a breach of duty of care by the respondent. In any event, for similar reasons above, the applicants have not established that they suffered loss or damage as a result of any breach, given the ultimate design settled on by them using Alps Constructions was different to the design they had previously settled upon with the respondent.
  21. [59]
    There is no sensible basis for a claim for misleading and deceptive conduct.
  22. [60]
    Accordingly, the claim is dismissed.

Footnotes

[1]Application for domestic building dispute filed by the applicants on 5 March 2020.

[2]Applicants’ submissions filed on 14 September 2020.

[3]Although in response to a direction requiring the applicants to identify the order sought, amount of the claim and how the amount is calculated, the applicants refer only to their claim for $6,150.73: Applicants’ submissions in respect of amended directions filed on 15 September 2020, response to direction G(i)-(ii).

[4]Applicants’ submissions in respect of amended directions filed on 15 September 2020, [13].

[5]Ibid, [23]-[25].

[6]Applicants’ submissions filed on 14 September 2020.

[7]Queensland Building and Construction Commission Act 1991 (Qld), s 77, sch 2, sch 1B; DSGN Kartell Pty Ltd v Pathmaperuma & Anor [2020] QCAT 211, [19] – [22].

[8]Fibrosa Spolka Akcyjna v Fairbairn Lawson Ltd [1943] AC 32, HL; Guinness Mahon v Kensington LBC [1999] QB 215, CA.

[9]Fibrosa Spolka Akcyjna v Fairbairn Lawson Ltd [1943] AC 32, HL , 48.

[10]Ibid.

Close

Editorial Notes

  • Published Case Name:

    Richards & Anor v Building Buddy.Com Pty Ltd

  • Shortened Case Name:

    Richards v Building Buddy.Com Pty Ltd

  • MNC:

    [2021] QCAT 120

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • 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.

Cases Cited

Case NameFull CitationFrequency
DSGN Kartell Pty Ltd v Pathmaperuma; DSGN Kartell Pty Ltd v Hennig Bros Construction Pty Ltd; DSGN Kartell Pty Ltd v Craig Russell Stranger [2020] QCAT 211
2 citations
Jump To
Cite 1 - [2020] QCAT 211
Cite 2 - [2020] QCAT 211
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd. (1943) AC 32
2 citations
Jump To
Cite 1 - (1943) AC 32
Cite 2 - (1943) AC 32
Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough Council [1999] QB 215
1 citation
Jump To
Cite 1 - [1999] QB 215

Cases Citing

Case NameFull CitationFrequency
de Oliveira v Cyber Drafting Brisbane Pty Ltd [2024] QCAT 5882 citations
1

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