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  4. Hutchins v Parath Ouk Aussie Painterz - [2021] QCAT 312

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Hutchins v Parath Ouk Aussie Painterz[2021] QCAT 312

Hutchins v Parath Ouk Aussie Painterz[2021] QCAT 312

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hutchins v Parath Ouk Aussie Painterz [2021] QCAT 312

PARTIES:

David hutchins

(applicant)

v

Parath Ouk Aussie Painterz

(respondent)

APPLICATION NO/S:

BDL240-19

MATTER TYPE:

Building matters

DELIVERED ON:

6 September 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. Parath Ouk trading as Aussie Painterz pay to David Hutchins the sum of $12,286.60 within 21 days of the date of this order

CATCHWORDS:

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.

Civil liability Act 2003 (Qld) s 9, s 11, s 12, s 13, s 14

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

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

Thompson v Shen and Kao [2017] QCAT 33

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

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]
    David Hutchins commenced an action in July 2018 against Parath Ouk trading as Aussie Painterz in the Minor Civil Dispute jurisdiction of QCAT in the Pine Rivers Magistrate’s Court for defective work undertaken by Mr Ouk in the painting of Mr Hutchins’ driveway.  Mr Ouk quoted $4,400.00 to pressure clean, acid wash, prepare and paint Mr Hutchins’ driveway.
  2. [2]
    On 3 September 2019 this matter was transferred to the QCAT building list and directions were made for this matter to be determined on the papers without an oral hearing.
  3. [3]
    Mr Ouk has played no part in these proceedings.  He has filed no documents and attended no Tribunal events.  I am however satisfied that Mr Ouk did receive the notices and directions from the Tribunal as on 1 July 2020, the Tribunal received an email from Mr Ouk.
  4. [4]
    Mr Ouk’s email informed the Tribunal that he is an undischarged bankrupt and that his bankruptcy commenced prior to his contracting with Mr Hutchins for the work on his driveway.  
  5. [5]
    On 16 July 2018 Mr Ouk was paid $3,000.00 as part payment for the works. 
  6. [6]
    The work commenced on 14 July 2018.  Mr Hutchins says the wrong colour was applied on two occasions and the paint wrongly applied, so that it “bubbled” and lifted off the driveway surface.
  7. [7]
    After a complaint to the Queensland Building and Construction Commission (the “QBCC”) and an inspection of the works, an initial report was issued by the QBCC on 21 January 2019.
  8. [8]
    The report noted Mr Ouk is an unlicensed builder.  The report further identified:
    1. (i)
      The paint was delaminating and bubbling over the entire area of the driveway;
    2. (ii)
      There were differing levels of sheen and chalkiness in the paint finish;
    3. (iii)
      Berger Jet Dry Heavy Duty Gloss was the product supplied and applied;
    4. (iv)
      Bubbles inflated and deflate according to the temperature;
    5. (v)
      The driveway was painted and then repainted (each time with the incorrect colour) within 2.5 hours on 21 July 2018;
    6. (vi)
      On 26 July 2018, after rainfall the driveway was mopped at 9.00am and a further coat of an incorrect colour was applied at around 11.00am;
    7. (vii)
      On 27 July the driveway was scraped and patch painted at various sites.
  9. [9]
    The QBCC Inspector concluded:
    1. (i)
      Mr Ouk failed to adhere to the recommendations of the product used;
    2. (ii)
      The driveway painting is defective and not in accordance with building practice and the manufacturer’s recommendations, in that, poor preparation, moisture present during and rapid application if coats has resulted in the paint bubbling and delaminating from the surface creating an unacceptable surface finish unable to be maintained by the occupants;
    3. (iii)
      The QBCC found Parath Ouk responsible to rectify these defects. 
    4. (iv)
      A Notice to Rectify was issued by the QBCC to Mr Ouk but no action was taken by him.  
  10. [10]
    In the absence of any evidence from Mr Ouk, I am satisfied that the work performed by him was defective.
  11. [11]
    Mr Hutchins has provided invoices and proof of payment for the following rectification of the work:
    1. (i)
      30 June 2020 Strip and clean driveway    $   868.50
    2. (ii)
      3 August 2020 Strip and clean driveway   $2,475.00
    3. (iii)
      12 October 2020 Media blast driveway  $3,000.00
    4. (iv)
      31 October 2020 Repaint driveway  $2,822.60
    5. (v)
      Total      $9,166.10

 

What are the issues for the Tribunal to decide?

  1. [12]
    The Tribunal has original jurisdiction to hear and decide ‘building disputes’.[1]  The definition of a building dispute includes a ‘domestic building dispute’.[2]  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.[3]
  2. [13]
    Because the work is domestic building work above the regulated amount,[4] a regulated contract must be in writing, dated and signed by the parties.[5] 
  3. [14]
    Mr Ouk’s quote does not conform with these requirements and so there is no written contract for the works that was entered into between the parties. The quote from Mr Ouk undated, but signed as accepted by Mr Hutchins’ wife on 16 July 2018, sets out the work Mr Ouk was to undertake for Mr Hutchins.  Mr Hutchins relies on this as evidence of the agreement between the parties. 
  4. [15]
    The building work performed by Mr Ouk is however associated building work. Domestic building work includes associated building work[6] and is ‘reviewable domestic work’.[7] The application relates to the performance of that work. The Tribunal may therefore award damages, restitution and costs.[8]
  5. [16]
    However, the Tribunal has recognised[9] that it may still consider an informal agreement in any claim for negligence:

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…[10]

  1. [17]
    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 economic loss. By agreeing to perform and performing the work, Mr Ouk owed Mr Hutchins a duty to take reasonable care in performing the work.[11]
  2. [18]
    In considering the claims of both parties, the Tribunal must decide:
    1. (a)
      Did Mr Ouk breach that duty of care;
    2. (b)
      If so, did the breach of duty of care result in damage to Mr Hutchins; and
    3. (c)
      If the claim of negligence was proven what was the quantum of damages to be awarded

Has Parath Ouk breached his duty?

  1. [19]
    The test is whether it was reasonably foreseeable that if Mr Ouk was careless in carrying out the building works Mr Hutchins would suffer loss.
  2. [20]
    Mr Ouk is an unregistered builder but held himself out as competent to complete the work he quoted for.  I am satisfied that he owed Mr Hutchins a duty to take reasonable care while undertaking that work.
  3. [21]
    On the basis evidence provided by the QBCC Inspector and with no response from Mr Ouk, I was satisfied the work performed by Mr Ouk was defective, in that the work was not in accordance with building practice and the manufacturer’s recommendations.
  4. [22]
    I am further satisfied Mr Ouk’s work breached the duty of care he owed Mr Hutchins to competently undertake the stripping, painting and resealing of the driveway. 
  5. [23]
    As a result of his  breach of duty of care Mr Ouk is liable to the Mr Hutchins for damages. The purpose of damages in tort is to calculate the pecuniary sum which will make good to Mr Hutchins, so far as money can do, the loss which he has suffered.[12]
  6. [24]
    I am satisfied that is the amount Mr Hutchins has outlaid in the restitution of his driveway, calculated above as being $9,166.10 and that this amount fairly represents his loss.

The effect of Mr Ouk working as an unlicensed builder

  1. [25]
    Mr Ouk was not licensed to carry out the 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.
  2. [26]
    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.
  3. [27]
    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.
  1. [28]
    Again, Mr Ouk has filed no documents in these proceedings. 
  2. [29]
    In Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L)[13] 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 s 42(3) and s 42(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) …

  1. [30]
    In Thompson v Shen and Kao[14] 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 s 42(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.

  1. [31]
    As Mr Ouk is an unlicensed builder, he is disentitled to receive payment for his work, so Mr Hutchins as a homeowner, is entitled to recover the monies he paid to him. This was an amount of $3,000.00 which must be added to the damages assessed above.  The total being $12,166.10.

Costs of the Proceedings

  1. [32]
    Mr Hutchins also seeks the costs he incurred in these proceedings.  The costs he seeks is the original QCAT filing fee of $120.50.
  2. [33]
    This Tribunal has the power to award costs in building matters.[15] 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. 
  3. [34]
    I am satisfied the filing fee was a necessary cost in Mr Hutchins’ pursuit of his claim against Mr Ouk and will allow this cost. 
  4. [35]
    The total amounts of the restitution cost, the refund amount and the costs of the proceedings is $12,286.60.
  5. [36]
    I therefore order Parath Ouk trading as Aussie Painterz pay to David Hutchins the sum of $12,286.60 within 21 days of the date of this order.

Footnotes

[1]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).

[2]Definition of ‘building dispute’, Schedule 2 of the QBCC Act.

[3]Definition of ‘domestic building dispute’, Schedule 2 of the QBCC Act.

[4]QBCC Act, Schedule 1B s 1 – ‘regulated amount’ means $3,300 or the higher amount, if any, prescribed by a regulation.

[5]QBCC Act, Schedule 1B ss 13, 14.

[6]‘Domestic building work’ includes the renovation, alteration, extension, improvement or repair of a home and associated work – QBCC Act, Schedule 1B s 4.

[7]QBCC Act, Schedule 2 (definition of ‘reviewable domestic work’).

[8]QBCC Act s 77(3), Schedule 2 (definition of ‘domestic building dispute’).

[9]Barbi v Brewer [2013] QCAT 348, [10]; Ghama v Crew & Anor [2020] QCAT 149.

[10]Voli v Inglewood Shire Council (1963) 110 CLR 74 (Windeyer J).

[11]Bryan v Maloney (1995) 182 CLR 609, [14]; Civil liability Act 2003 (Qld) s 9, s 11, s 12, s 13, s 14

[12]Admiralty Commissioners v SS Valeria [1922] 2 AC 242.

[13][2009] QCA 75.

[14][2017] QCAT 33.

[15]QBCC Act, s 77(3)(h).

Close

Editorial Notes

  • Published Case Name:

    Hutchins v Parath Ouk Aussie Painterz

  • Shortened Case Name:

    Hutchins v Parath Ouk Aussie Painterz

  • MNC:

    [2021] QCAT 312

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    06 Sep 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
Barbi v Brewer [2013] QCAT 348
1 citation
Jump To
Cite 1 - [2013] QCAT 348
Bryan v Maloney (1995) 182 CLR 609
1 citation
Jump To
Cite 1 - (1995) 182 CLR 609
Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75
2 citations
Jump To
Cite 1 - [2009] QCA 75
Cite 2 - [2009] QCA 75
Ghama v Crew [2020] QCAT 149
1 citation
Jump To
Cite 1 - [2020] QCAT 149
The Valeri (1922) 2 AC 242
1 citation
Jump To
Cite 1 - (1922) 2 AC 242
Thompson v Shen [2017] QCAT 33
2 citations
Jump To
Cite 1 - [2017] QCAT 33
Cite 2 - [2017] QCAT 33
Voli v Inglewood Shire Council (1963) 110 CLR 74
1 citation
Jump To
Cite 1 - (1963) 110 CLR 74
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
1 citation
Jump To
Cite 1 - [2017] QCAT 228

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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