Martin v Jung[2021] QCAT 320

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Mr Martin had a bathroom renovation undertaken. Mr Martin says that he entered into an agreement with Mr Jung to carry out the work and that Mr Jung did in fact carry out the work. Mr Martin says that the building works are defective and has commenced these proceedings. Mr Jung has applied to dismiss the proceedings.
2. [2]
   The tribunal may dismiss a proceeding in circumstances where the proceeding is frivolous, vexatious or misconceived, is lacking in substance or is otherwise an abuse of process.^[1] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) confers upon the tribunal what is, in effect, a summary judgment power.^[2] The power to order summary judgment is one that should be exercised with great care and should not be exercised unless it is clear that there is no real question to be tried.^[3]

What do the parties say?

3. [3]
   The sole basis upon which Mr Jung relies in support of his application might be succinctly stated thus: Mr Martin has named the wrong respondent.
4. [4]
   Mr Jung says:

   1. (a)
      He is an employee of ‘Point Tiling Pty Ltd and Construction ACN 620 856 706’ (Point Tiling);^[4]
   2. (b)
      Mr Martin contacted Point Tiling and made enquiries in relation to a proposed bathroom renovation at a private dwelling;
   3. (c)
      Point Tiling provided to Mr Martin a quote for the bathroom renovation;
   4. (d)
      The same day, Mr Martin paid a deposit of $2,200.00 to Point Tiling;
   5. (e)
      The bathroom renovation works subsequently commenced with Mr Jung and a number of other workers in attendance at the property;
   6. (f)
      Within a day of the bathroom renovation works commencing the parties fell into dispute, with Mr Jung and his co-workers being asked to leave the property;
   7. (g)
      The building works were left in an incomplete state;
   8. (h)
      He was not engaged in his personal capacity to undertake the bathroom renovation works and there was no contract between Mr Martin and Mr Jung;
   9. (i)
      The agreement to undertake the bathroom renovation works was between Mr Martin and Point Tiling.
5. [5]
   Mr Martin says:

   1. (a)
      Mr Jung provided the quote for the renovation works;
   2. (b)
      Mr Jung told him that he owned Point Tiling and had been operating for 10 years;
   3. (c)
      Point Tiling is not licensed to undertake building work;
   4. (d)
      Mr Jung is licensed to undertake waterproofing and tiling work;
   5. (e)
      Mr Jung is not an employee of Point Tiling;
   6. (f)
      Mr Jung is attempting to avoid responsibility for the building works, leaving Mr Martin to ‘sue a company that does not exist without him’;
   7. (g)
      Mr Jung told Mr Martin that he ‘owned the company’ and, for that reason, Mr Martin employed Mr Jung to undertake the renovation works.

Consideration

6. [6]
   There can be no doubt that the building work, the subject of the proceedings, was domestic building work and that the dispute between the parties is a domestic building dispute. The Tribunal has jurisdiction to hear and determine the dispute. The present application requires consideration of whether the correct parties to the dispute have been named in the proceedings. 
7. [7]
   The parties were directed to file their statements of evidence some time ago. Mr Martin complied with the directions while Mr Jung did not. Mr Jung responded to the directions by bringing the present application. Mr Jung has filed a statement of evidence in support of the application to dismiss the proceedings.
8. [8]
   Mr Martin’s statement of evidence largely mirrors his submissions in response to the present application. Attached to Mr Martin’s statement is an ASIC company extract for Point Tiling and Construction Pty Ltd. The search reveals that Mr Jung is not an officer of the company.
9. [9]
   Attached to Mr Jung’s statement is a quote dated 29 July 2019. The quote is under the name of ‘Point tiles & Construction Pty Ltd’ and refers to an ABN. The ABN is held by Point Tiling and Construction Pty Ltd.^[5] Curiously, the name on the quote is different to the holder of the ABN. The quote is not signed. Also attached to Mr Jung’s statement is a PAYG payment summary detailing Mr Jung as the payee and Point Tiling and Construction Pty Ltd as the payer.
10. [10]
    Attached to Mr Martin’s originating application for a building dispute is a letter from the QBCC to Mr Martin in which the QBCC states that it will not be directing Mr Jung to rectify the complaint items raised by Mr Martin. Also attached to the originating application is a copy of the complaint form lodged by Mr Martin with the QBCC. The contractor is identified in the complaint form as ‘Point Tiles & Construction Pty Ltd Danny Jung’. The form references a QBCC licence number. The licence is held by Won Kyo Jung, presumably one and the same person as the respondent.^[6]
11. [11]
    There are a number of things to say about the evidence, such as it is. Firstly, Mr Martin does not dispute that the quote attached to Mr Jung’s statement was the quote provided to him. Secondly, there is no evidence that the quote was signed by the parties. Thirdly, the name on the quote is different to the holder of the ABN referenced on the quote. Fourthly, there is no evidence that Point Tiling held a license to undertake building work. Fifthly, at the relevant time, Mr Jung was licensed to undertake wall and floor tiling. Sixthly, Mr Jung appears to have been an employee of Point Tiling during the period 23 September 2019 to 30 June 2020 although there is no evidence of how much he earned, if anything, during this period.
12. [12]
    To the extent that the PAYG payment summary is relied upon by Mr Jung as evidence of his employment with Point Tiling, I note the employment did not commence until 23 September 2019. The relevant building works were undertaken in August 2019. This is prior to the commencement of Mr Jung’s employment. It would seem therefore, at least from the PAYG payment summary, that Mr Jung was not employed by Point Tiling at the time the relevant building work was undertaken.
13. [13]
    To the extent that the quote is relied upon by Mr Jung as evidence of the identities of the contracting parties, I would observe that the quote is not signed by the parties. The building work the subject of the dispute was domestic building work.^[7] The amount of the quote was for more than $3,300.00 but less than $20,000.00. The contract was therefore a level 1 regulated contract.^[8] A level 1 regulated contract is of no effect unless it is in writing, dated and signed by the parties.^[9] In the absence of evidence of a signed and dated contract, it would appear that the agreement between the parties is of no effect.
14. [14]
    This is not a case like Mousa v Vukobratich Enterprises Pty Ltd.^[10] In that case, the homeowners entered into a contract with Vukobratich Enterprises Pty Ltd for the performance of building work. The company went into liquidation and the homeowners sought to pursue a claim against the director of the company who was also the builder. The homeowner’s claim was confined to an allegation that the builder had failed to personally and adequately supervise the building work. Henry J held that the homeowners were able to take steps to protect themselves financially from disappointed expectations via the building contract. They had not done so and their claim against the builder failed. There are important distinctions however between Mousa and the present case. As the evidence presently stands it appears that there was no enforceable contract between Mr Martin and Point Tiling. It also appears that Mr Jung was not a director of Point Tiling. Unlike in Mousa, Point Tiling held no licence to undertake building work. The licence to undertake building work was held by Mr Jung who curiously states that he was simply an employee of Point Tiling although the evidence would suggest that such employment did not commence until after the events the subject of the present dispute.
15. [15]
    I am satisfied that there are a number of real questions to be determined at a contested hearing including:^[11]

    1. (a)
       Who were the parties to the contract?
    2. (b)
       Is the contract enforceable?
    3. (c)
       As a licensed contractor who undertook building work, did Mr Jung owe to Mr Martin a duty of care?
    4. (d)
       What was Mr Jung’s role in the events at the time of the preparation and delivery of the quote and the performance of the building work noting that, according to the PAYG summary at least, he was not an employee of Point Tiling.
16. [16]
    I am not satisfied that this is a case in which Mr Martin has no real prospects of success. I am not satisfied that Mr Martin’s claim is frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. The application to dismiss the proceedings is refused.
17. [17]
    I will make directions to progress the matter to hearing.