Meyers v Pollard[2021] QCAT 310

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   The hearing of this application commenced on 25 August 2021.  M Pollard, the respondent to this application, did not appear at the hearing.  The Tribunal attempted to call Mr Pollard from the hearing room on the mobile telephone number supplied by him in the Response he filed in the Tribunal on 16 July 2020.  This telephone number had been disconnected. 
2. [2]
   An examination of the file reveals that Mr Pollard was emailed a Notice of hearing to the email address also provided by him in the Response he filed in the Tribunal on 16 July 2020 on 29 June 2021.
3. [3]
   The material Mr Pollard filed in Response to the initial application was sufficient for me to be satisfied Mr Pollard was aware of the matters raised against him by Ms Meyers and that he had provided his response. 
4. [4]
   I was satisfied that Mr Pollard had notice of the hearing and had elected to not take part in the hearing.  I was satisfied the hearing could proceed in his absence. 

The Proceedings

5. [5]
   Maria Meyers accepted three quotes from Ian Pollard trading as Rocky’s Rock Walls in August and September 2016 to replace a sleeper boundary wall and retaining wall and for the installation of pavers on the boundary between her property and the adjoining property.  Mr Pollard undertook the work and completed it in October 2016. Ms Meyers paid him in full – the total sum of $17,195.00.
6. [6]
   After the work was completed, problems developed with the wall construction and the pavers. In May 2018, having not been able to negotiate a solution with Mr Pollard, Ms Meyers complained to the Queensland Building and Construction Commission (the ‘QBCC’).
7. [7]
   An initial inspection report was provided by the QBCC after inspections on 10 and 11 July 2018.  This report dated 11 July 2018 indicated defects with the installation of the fence post and uncompleted work around a storm water drain. A direction to rectify was issued to Mr Pollard.  
8. [8]
   Mr Pollard is an unlicensed builder.  The QBCC remedial notice required the work to be undertaken by a licenced contractor. Some of Ms Meyer’s complaints were identified as contractual and out of scope for the QBCC inspector. 
9. [9]
   On 22 August 2018 Ms Meyers says she received a letter from the QBCC saying the work had not been satisfactorily attended to.  Ms Meyer says she had this problem resolved by employing a licensed plumbing service at a fee of $2,852.00. The plumber identified further problems with Mr Pollard’s work. 
10. [10]
    A further initial inspection was undertaken by the QBCC on 4 June 2019 and another initial inspection report issued that day. 
11. [11]
    This further initial inspection report dated 4 June 2019 identified problems concerning defective or incomplete work and another remedial notice was issued to Mr Pollard in July 2019.  Again, some of Ms Meyer’s complaints were identified as contractual and out of scope for the QBCC inspector.  
12. [12]
    A re-inspection report was issued by the QBCC on 11 September 2019 indicating that the defects in this next report had been remedied. 
13. [13]
    Eventually, Ms Meyers commissioned an independent report as to all the defects (including contractual) in Mr Pollard’s construction of the wall and other structures. 
14. [14]
    This expert report was undertaken by Brent Smith from Twenty/20 Building Consultancy.  This report shows:

    1. (i)
       That Mr Pollard was and is an unlicensed builder;
    2. (ii)
       A section of the retaining wall had been constructed within 1 metre of a building. This requires engineering and certification, neither of which was undertaken;
    3. (iii)
       The retaining wall is within 1.5 metres of a structure (the neighbour’s garage building) and appears to be supporting that building. This work becomes assessable, requiring a Building Approval through a certifier and engineer certificates.  This was also not undertaken.             

15. [15]
    As part of Mr Smith’s report, advice was sought from a Senior Structural Engineer, Mr Buckley.  Mr Buckley advised the retaining wall had been constructed in close proximity to the existing garage slab such that loads from the slab are supported by the wall.  Preliminary calculations by Mr Buckley indicate that the footings of the existing retaining wall are insufficient to resist the retained earth loads, the imposed live loads and the wind load from the attached fence.

16. [16]
    Mr Buckley further says the retaining wall has been constructed without drainage to eliminate water pressure behind the wall and prevent loss of backfill in high rainfall events.  This report attaches comparison drawings of the work as constructed and the work as it should have been constructed.  The difference is substantial.
17. [17]
    Concerning the paving, the engineer commented the paving does not fall away from the dwelling at 50mm over the first meter in accordance with the requirements of the Building Code of Australia Volume 2 Clause 3.1.2.3.  According to the engineer’s drawing as the construction should have been, the site should have been excavated, requiring an additional row of sleepers to ensure the correct fall.
18. [18]
    A surveyor’s inspection also shows the retaining wall to have been constructed off the boundary alignment, varying from 0.32 to 0.04 from the boundary to the base of the retaining wall.  There is an encroachment of the guttering of the adjoining garage and the wall of the garage is only clear of the boundary by up to 0.07m. 
19. [19]
    The wall was not constructed straight or parallel to the boundary and the house, indicating no site survey was undertaken to ensure the boundary line was identified and the wall constructed in the correct position. 
20. [20]
    Earth and backfill was seen by Mr Smith to have been escaping from the base of the retaining wall via the horizontal joints and under the bottom sleepers during wet periods.  This potentially creates subsidence in the foundations of the area.  No geofabric was found to have been installed against the excavated soils face to prevent soil transitioning across the build.
21. [21]
    In Mr Smith’s professional opinion, the construction of the concrete retaining wall and paving was deficient, inappropriate and unsuitable. 
22. [22]
    Ms Meyers obtained 2 quotes to remove and replace the defective wall, install drainage and relay the pavers.  These quotes were for $35,343.00 or $58,981.34 respectively.  She also claims the costs of building approvals and advice set at $1403.80 and engineering cost of $2,500.00.  Ms Meyers provides documents to support each of these claims.  She also claims $10,000.00 effectively for her pain and suffering and distress of the 3 year process.  This last claim was not pursued by Ms Meyers at the hearing of this matter.
23. [23]
    In his response, Mr Pollard says:

    1. (i)
       Ms Meyers impeded his ability to access the property to arrange rectification;
    2. (ii)
       Ms Meyers wanted a cheap job because she is a single parent;
    3. (iii)
       The areas is damp because there is no breeze and little or no sun;
    4. (iv)
       The block has been cut and filled;
    5. (v)
       The neighbouring property is practically on the boundary;
    6. (vi)
       The concrete sleeper wall followed the same line as the previously existing timber sleeper wall;
    7. (vii)
       The concrete wall does not need to be lowered and there is no issue;
    8. (viii)
       A plumber is not licensed to give advice in the construction of retaining walls;
    9. (ix)
       The wall was built with a slight turn to accommodate the neighbour’s garage;
    10. (x)
        Ms Meyers was aware of this and agreed to have it built to the same line as the previous fence;
    11. (xi)
        There is no trip or step hazard from the pavers and the QBCC Report said there was no problem with the pavers.
24. [24]
    Mr Pollard further says:

    1. (i)
       there is no regulation for a wall constructed 2m away from the house with the drainage sloping away from the building;
    2. (ii)
       Surveyors are not licensed to advise whether a retainer wall can be built on a boundary;
    3. (iii)
       You cannot build a retaining wall with only 70mm clearance from the shed.
25. [25]
    Mr Pollard says he has all insurances but makes no counterclaim. 

Does the Tribunal have Jurisdiction?

15. [15]
    The Tribunal has original jurisdiction to hear and decide ‘building disputes”.^[1] The definition of building dispute includes a ‘domestic building dispute’.^[2]
16. [16]
    A domestic building dispute includes a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a claim or dispute in negligence related to the performance of reviewable work.^[3]
17. [17]
    The building work performed by Mr Pollard is associated building work. Domestic building work includes associated building work^[4] and is ‘reviewable domestic work’.^[5]

The contract

18. [18]
    There is no written contract for the works that was entered into between the parties. There are however two quotes Ms Meyers has signed dated 17 and 18 August 2016.  These documents set out the work Mr Pollard is to undertake for Ms Meyers and detail the payment schedule.  There is a further third document dated 26 September 2016 which adds an extra cost to the details itemized in the quote dated 18 August 2016.  Ms Meyers explains this further addendum was to add an extra concrete wall.  This document is unsigned.
19. [19]
    Because the work is domestic building work above the regulated amount,^[6] a regulated contract was required to be entered into, and be in writing, dated and signed by the parties.^[7] 
20. [20]
    On their own, the three quotes provided to Ms Meyers (two of which were signed by her comply with the formal statutory requirements of a regulated contract) do not confirm with the other requirements of a regulated contract as the quotes are not signed by Mr Pollard.  The third addendum although not signed by Ms Meyers is sufficiently referable to the quote of 18 August 2016 for me to be satisfied it is an amendment to the quote of 18 August 2016.
21. [21]
    However, the Electronic Transactions (Queensland) Act 2001 provides that a transaction is not invalid under a State law merely because it took place wholly or partly by one or more electronic communications.
22. [22]
    Pursuant to section 14 of that Act if, under a State law, a person’s signature is required, the requirement is taken to have been met by an electronic communication if:

    1. (a)
       a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
    2. (b)
       the method used was as reliable as appropriate for the purposes for which the electronic communication was generated or communicated, having regard to all the circumstances, including any relevant agreement; and 
    3. (c)
       the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in (a).
23. [23]
    Section 14(2) provides that reference to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
24. [24]
    In this matter the quotes that are referred to above were transmitted between the parties by email on 18 August 2016 and 26 September 2016. The contract is not signed by handwritten signature by Mr Pollard.  The Electronic Transactions (Queensland) Act 2001 provides that a transaction is not invalid under a State law merely because it took place wholly or partly by one or more electronic communications.
25. [25]
    I find that the contract is in written form, comprising the quotations sent by email to Ms Meyers by Mr Pollard on 18 August 2016 and 26 September 2016, signed by Ms Meyers as acceptance and returned to Mr Pollard.
26. [26]
    Based on the operation of the Electronic Transactions (Queensland) Act 2001, I am satisfied that the parties have entered into a binding contract under the QBCC Act.^[8]

The Works

27. [27]
    Mr Pollard was not licensed to carry out the building work. Section 42 of the QBCC Act exhibits a clear intention to render illegal both the making and the performance of a contract by an unlicensed builder insofar as building work is concerned. The effect of s 42(1) of the QBCC Act is that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work. The consequence of this prohibition is that the contract is unenforceable by the builder.
28. [28]
    Section 42(3) of the QBCC Act provides that a builder is not entitled to any monetary or other consideration for undertaking building work in respect of which the builder does not hold a licence.
29. [29]
    Section 42(4) of the QBCC Act further provides that an unlicensed builder may claim reasonable remuneration for performing 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
       4. is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
       5. 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.
30. [30]
    Again, Mr Pollard has made no counterclaim in these proceedings. 
31. [31]
    In Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L)^[9] the Court of Appeal considered the operation of s 42:

[37] Section 42(1) renders illegal the making and performance of a contract for building work by an unlicensed builder. It is the conduct of the builder which is struck at. The provision is plainly intended to operate for the benefit of the other party to the building contract.

[38] It is clear from the terms of s42(3) and s42(4) that neither provision purports to create a right of action to recover money in any person. Rather, each subsection is concerned to regulate a cause of action for payment which is assumed to have arisen, either under contract or under the principles of the common law which permit claims for payment for work done at the request of another. These common law claims have variously been described as claims in quantum meruit or in quasi-contract or to prevent unjust enrichment.

[39] Section 42(3) is, in terms, concerned to sterilise any claim which might otherwise be made under a contract or under the common law by an unregistered builder. Section 42(4) is concerned to impose limitations upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without s 42(4), the entitlement of an unregistered builder to payment which would, apart from the Act, arise upon the performance of work by the builder, would be defeated by s 42(1) and s 42(3).

…

[41] It is true that, as the appellant argues, the operation of s 42(3) of the Act is qualified by s 42(4). But it is also clear that s 42(4) permits an unlicensed builder to claim “reasonable remuneration” for carrying out building work, but only if the amount claimed satisfies the criteria in paragraphs (a) to (d). It is only the amount of the claim so quantified that the builder may recover despite s 42(3). Absent a good claim so quantified, the operation of s 42(3) is, for practical purposes, unqualified by s 42(4) …

32. [32]
    In Thompson v Shen and Kao^[10] Member Allen applying Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) stated at [10]:

In my opinion it is clear that the effect of s42(1) is that a builder who is unlicensed is not able to make a claim under any contract for the performance of building work. This would without any other provision still enable the unlicensed builder to make a claim such as in quantum meruit. Where Keane JA says that s 42(3) does not create rights he is stating that the right already exists in quantum meruit. On the one hand s 42(3) sterilises that right which has the effect of enabling the home owner to avoid payments of any amounts claimable or paid under the contract. Section 42(4) on the other hand ensures that any claim the unlicensed builder makes for quantum meruit is limited to an amount which complies with the requirements of s 42(4)(a) to(d) and the onus is on the builder to prove that claim to the fullest extent. That is that he must ensure that all of the requirements of paragraphs (a) to (d) are met otherwise his claim will not be allowed as was the case in Cooks Construction.

33. [33]
    As Mr Pollard as an unlicensed builder is disentitled to receive payment for his work, so Ms Meyers as a homeowner, is entitled to recover the monies she paid to Mr Pollard.^[11]

The claim

34. [34]
    Ms Meyers claim for restitution is as follows:

Previous Rectification

Report JRW Plumbing 31/10/17   $     198.00

Rectification works JRW 22/11/18   $  2,852.00

Current Rectification

Building approvals     $  1,403.80

Engineering costs     $  2,500.00

Removal of wall, drainage and paving   $35,343.00

Total Restitution Costs    $42,296.80

35. [35]
    In addition to the claims for restitution, Ms Meyers is also entitled to the return of the monies she paid Mr Pollard for the work undertaken by him as an unlicensed builder under the contact between them. This amount was $17,195.00.  Mr Pollard makes no counter claim against this amount.  
36. [36]
    I am therefore satisfied that pursuant to s 42(4) of the QBCC Act Mr Pollard has no entitlement to retain any of the amount paid to him by Ms Meyers.  In addition to the restitution costs, $17,195.00 is to be refunded to Ms Meyers.

Costs of the Proceedings

37. [37]
    Ms Meyers also seeks the costs she incurred in these proceedings.  The costs she seeks are the QCAT filing fee of $345.80 and the costs incurred in the expert building inspection, report and the expert’s Tribunal attendance to give evidence, totalling $5,390.00.
38. [38]
    This Tribunal has the power to award costs in building matters.^[12]  This is a broad discretionary power but must be exercised judicially, not based on irrelevant, or extraneous consideration, but on the findings of fact in a particular matter. 
39. [39]
    I find Ms Meyers is entitled to the costs outlaid by her in these proceedings.  This includes the filing fee to commence the application but also the necessary evidence of an independent expert as to the state of the work undertaken by the unlicenced Mr Pollard.  These costs were reasonable and necessary to enable Ms Meyers to pursue her claims.  I fix these costs at $5,735.80
40. [40]
    The total amounts of the restitution cost, the refund amount and the costs of the proceedings is $65,227.60.
41. [41]
    I therefore order Ian Pollard pay to Maria Meyers the sum of $65,227.60 within 21 days of the date of this order.