Exit Distraction Free Reading Mode
- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Page v Brandes  QCAT 129
JAN PATRICK BRANDES
12 April 2021
19 August 2019
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – unlicensed contractor – where contractor performed unlicensed earthworks and building work – where contractor and homeowner dispute terms of contract – where contract completed – where retaining walls failed after rain event – where homeowner entitled to recover money paid to contractor under the contract, and to recover damages to rectify and complete works pursuant to s 42, s 77, Schedule 1B, Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld).
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2.
Barbi v Brewer  QCAT 348
Bryan v Maloney (1995) 182 CLR 609
Marshall v Marshall  1 Qd R 173
Robinson v Harman  EngR 135
Yongwoo Park v Betaland Pty Ltd  QCAT 228
REASONS FOR DECISION
What is this application about?
- In November 2017, Mr Page was a homeowner at Mount Tamborine, in the hinterland of the Gold Coast. His house is built on a hill, and the building site was cut into that hill. Below the cut is a stretch of sloping ground, which has presented Mr Page with historical difficulty to retain. He wanted some earthworks done, including two retaining walls built. This was to retain the soil on the slope, and in particular deal with subsoil drainage in front of his house as a result of rain events.
- Mr Brandes gave evidence that he was not aware of the extent of difficulty that Mr Page had experienced in retaining this soil, or that engineering reports had been prepared, the second of which was used in litigation against previous engineers. There was evidence of “aquifers” which flowed during rain events. Mr Brandes provided a one-page quote which enumerated nine stages or types of work, and totalled $27,500 including G.S.T. Mr Brandes took about two weeks to clear the site, erect two retaining walls, backfill the walls with gravel and drainage, and top dress the site. The job was completed by Mr Brandes and Mr Page paid the nominated sum of $27,500 to Mr Brandes.
- Mr Page gave evidence that a few days later there was a rain event, which caused the retained earth to slip. Whether this was poor design or defective work, is a moot point.
- Mr Brandes was required to be a licensed contractor as the scope of works exceeded $3,300.
- Mr Brandes was not a licensed contractor at the time of the works being performed. Mr Brandes was not a licensed contractor until 19 March 2019.
- Mr Page specifically claims $27,838.20 being for:
- (a)defective work valued at $27,500; and
- (b)costs of $338.20.
Key Issues for Determination
- The key issues are as follows:
- (a)Was there a contract between Mr Page and Mr Brandes and what did it provide?
- (b)If so, what is the effect of Mr Brandes not being a licensed contractor at the time of works?
- Both parties appeared and were sworn or affirmed. There was agreement about the price, and the works performed. There was disagreement about the scope of works, with Mr Page giving evidence that he wanted a level albeit sloping incline when finished. He gave evidence that he wanted the retaining walls ‘underground’. Mr Brandes denied this term, and gave evidence that Mr Page had never specified this, and in any event that is not what is usually done with retaining walls.
- It is not disputed that Mr Brandes built two retaining walls and that they were concrete sleeper style construction, held fast in upright steel ‘H beams’ set into concrete.
- A few days later a rain event occurred, which resulted in ‘aquifers’ flowing, and the erosion of some of the soil, as well as exposure of the concrete in which the steel uprights were held.
- Mr Brandes gave evidence to the effect that if he had been properly provided with the full history of the site, the engineering reports, and the difficulties that Mr Page and other professionals had encountered with the soil retention, he would not have carried out the works as he did.
- Both parties gave oral evidence. They disagreed as to where the walls were to be built, the efficacy of the materials actually used, the most appropriate manner in which to drain the subsoil water, especially as a result of rain events, and the final profile of the land.
- I observed that both parties tended to conflate their versions of recalled events and statements, with commentary made having the benefit of hindsight after the rain event.
- On 19 September 2019, I directed that the parties could submit on the matter of Mr Brandes’ registration as a building contractor as at the date of the works being performed. On the basis of these submissions, there is no evidence that Mr Brandes was a registered building contractor in November 2017, being when the contract was made and the works were undertaken.
The Effect of Non-Registration and Damages
- The work performed by Mr Brandes was ‘reviewable domestic work’. This application relates to the performance of that work. The tribunal may award damages, interest thereon, restitution, and costs. Since Mr Brandes was an unlicensed contractor, he was not entitled to payment for the work.
- Mr Page relied on oral representations by Mr Brandes, a quote sent by Mr Brandes, Mr Brandes starting the work, and the completion of the work by Mr Brandes. Mr Brandes relied upon the request for works by Mr Page, notably omitting the antecedent difficulty with the site. I note that at the hearing Mr Page denied that the work was completed, but how much was incomplete, and how much was altered as a result of the subsequent rain event is neither necessary, nor easy to calculate. That the contract was not in compliance with the formal statutory requirements including signing by all parties, and not being signed by both parties, renders it of no effect. The builder is not entitled to rely upon it.
- This Tribunal recognises that it may still consider an informal agreement as between the parties in any claim for a refund.
- In agreeing to perform the works, despite not being licensed at the relevant time, Mr Brandes owed Mr Page a duty to take reasonable care in performing the work. In this matter, difficulties arose, because Mr Page was not fulsome in making Mr Brandes aware of the antecedent difficulties with the retention of the soil at his property. He had not, for instance, fully explained to Mr Brandes his involvement with previous engineers, including litigation, over the very same soil retention. Nor had Mr Page fully disclosed the innate difficulties he had previously encountered. Had Mr Brandes been aware of the difficulties confronting him, he would have been better placed to discharge the duty; whether Mr Brandes’ response would have been any different is unknown. Nevertheless, his lack of licence is the primary issue.
- Finding: I find that Mr Page is entitled to claim damages from Mr Brandes. He is entitled to a refund of monies paid to Mr Brandes and to costs of rectification and of these proceedings.
Was that contract completed?
- Mr Page gave evidence that Mr Brandes departed from the site, and left the job unfinished. Somewhat curiously Mr Page insisted that the retaining walls, both of them, should have been “underground” at the completion of the job, and that the surface soil should have been flat i.e., not stepped and retained, albeit on an incline. Mr Brandes specifically denied this. It seemed to be common ground that Mr Page was not specific as to the placement positions for the walls, nor did he share the complete picture including the extensive reports, discussions, litigation history or analysis of the site with Mr Brandes.
- It was difficult to separate the facts chronologically, and as I have commented, I observed that the facts presented were a mixture of pre-works recollections, with subsequent observations made with the benefit of hindsight by both parties. There is no doubt that Mr Brandes had substantial earthworks experience, and that he was not aware of exactly the difficulties with this particular site. There is no doubt that prior to the works commencing, Mr Page gave Mr Brandes a greater degree of discretion in how to retain the earth below the house, than Mr Page’s evidence of how the job “should” have been performed with the benefit of hindsight. There is no doubt that the ‘aquifer’ issue was much more apparent after rain events.
- In any event, I find that the contract was completed and that Mr Page is entitled to claim damages arising. Mr Page was sufficiently satisfied at completion (before the rain event) to pay the contract sum of $27,500.
- I find that Mr Brandes breached a number of the essential terms of the contract, crucially that he be licensed to do the work at the time, and that the work performed would be of an acceptable standard.
Assessment of Damages
- Mr Page seeks a refund of $27,500 paid for “rectification” of the works. There were two concrete sleeper walls erected in the earth bank below the house. I observe Mr Page had significant problems with the earth bank, and had what I would describe as latent challenges with retaining the soil. Mr Page was acutely aware of these, having engaged a number of previous consultants to try to rectify this without success. I am reluctant to make an order to put Mr Page in a position where he benefits from his lack of candour.
- I have had regard to and followed the reasoning set out in Yongwoo Park as discussed. In summary I assess the damages payable to Mr Page by Mr Brandes as follows:
- (a)Mr Brandes was not a licensed builder at the time and as such he was not entitled to perform the works or receive the $27,500 paid by Mr Page to him. I find that this is to be repaid.
- (b)Mr Page is entitled to damages to restore him to the position he would have been in, had the wrongful acts not occurred. I understand there were 11 vertical steel retainers set into concrete (“H beams”) in which the concrete sleepers were secured. Doing the best I can, I have allowed a further $2,200 award of damages for the rectification by way of removal of the sleepers and beams. This is calculated on the basis of two hours to remove and transport each of the 11 ‘H-beams’and sleepers at a cost of $100 per hour.
- (c)Costs of $338.20 are reasonable and should be paid to Mr Page as his application was successful.
- The Orders are:
- Jan Patrick Brandes is to pay to Vernard Page the sum of $27,500 within sixty (60) days of this decision.
- Jan Patrick Brandes is to pay Vernard Page the sum of $2,200 by way of damages within sixty (60) days of the date of this decision.
- Jan Patrick Brandes is to pay to Vernard Page the amount of $338.20 by way of costs within sixty (60) days of the date of this decision.
Filed in QCAT on 23 August 2018, pursuant to the Queensland Building and Construction Commission Act 1991 (Qld).
Jan Patrick Brandes trading as PB Earthworks ABN 95 105 805 411.
Quote of PB Earthworks dated 27 October 2017 in the amount of $27,500 incl GST was exhibit1.
Queensland Building and Construction Commission Act 1991 (Qld), s 42(1).
Neither PB Earthworks nor Jan Patrick Brandes were registered with QBCC at the time i.e. November 2017. QBCC records reveal that Mr Brandes was first registered in 13 March 2019 as a licensee styled “Structural Landscaping (Trade)” number 15030629.
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.
Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home and associated work: Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 4.
Queensland Building and Construction Commission Act 1991 (Qld), s 77(3), Schedule 2 (definition of ‘domestic building dispute’).
Queensland Building and Construction Commission Act 1991 (Qld), s 42(3).
See footnote 3 above.
Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B ss 13, 14.
Barbi v Brewer  QCAT 348, .
Bryan v Maloney (1995) 182 CLR 609, .
Yongwoo Park v Betaland Pty Ltd  QCAT 228.
Marshall v Marshall  1 Qd R 173, 176.
Yongwoo Park v Betaland Pty Ltd  QCAT 228.
Robinson v Harman  EngR 135.
- Published Case Name:
Page v Brandes
- Shortened Case Name:
Page v Brandes
 QCAT 129
12 Apr 2021