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  4. Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services) - [2021] QCAT 355

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Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services)[2021] QCAT 355

Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services)[2021] QCAT 355

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services) [2021] QCAT 355

PARTIES:

SARA CECCHI

(applicant)

v

JOEL EMMERSON TAYLOR t/as jag constructions formerly j.e.t. building and renovation services

(respondent)

APPLICATION NO/S:

BDL103-20

MATTER TYPE:

Building matters

DELIVERED ON:

20 October 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

  1. Joel Emmerson Taylor is to pay to Sara Cecchi the amount of THIRTY-FIVE THOUSAND TWO HUNDRED AND EIGHTY DOLLARS AND EIGHTY CENTS ($35,280.80) within 28 days of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where builder performed unlicensed building work – defective work – where homeowner was home owner and owner/builder – effect of unlicensed building work on assessment of damages.

Electronic Transactions (Queensland) Act 2001 (Qld), s 14

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48

Bellgrove v Eldridge (1954) 90 CLR 613

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266

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

Robinson v Harman (1848) 1 Ex 850

Thompson v Shen and Kao [2017] QCAT 33

Ventura v Svirac [1961] WAR 63

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]
    Ms Cecchi advertised online for a building contractor to undertake building works at her home in early April 2019.
  2. [2]
    Mr Taylor responded, and Ms Cecchi engaged Mr Taylor to undertake the works.  Mr Taylor was to build a new deck and pergola and to remove soil to make way for a new retaining wall and concrete slab.  Ms Cecchi says that the works are incomplete and claims damages for the cost of completing the contract with.

Background

  1. [3]
    Mr Taylor submitted a quote to Ms Cecchi dated 12 April 2019 for $32,025.00 to undertake the renovation works.  This quote sets out the work Mr Taylor was to undertake for Ms Cecchi and details the payment schedule. 
  2. [4]
    Mr Taylor and Ms Cecchi agreed on further oral variation to that quote in May 2019.  The existence of this variation is documented in emails between the parties dated 20 May 2019.  No details of the work identified in the variation is provided by Ms Cecchi and no invoice for the variations is produced by Ms Cecchi. In her originating application, Ms Cecchi says the agreed variation amount was $8,975.00.
  3. [5]
    However, the emails from Mr Taylor (also on 20 May 2019) request payment for the variation and an agreement by Ms Cecchi to cover the cost of materials for the variation. Ms Cecchi’s bank records show that on 21 May 2019 an amount of $1,975.00 was paid by her to Mr Taylor in response to his request for funds for variation materials for these works.
  4. [6]
    I am satisfied that a variation to the original contract was negotiated by the parties on 20 May 2019 and that payment was made by Ms Cecchi to Mr Taylor in the sum of $1,975.00 pursuant to this variation agreement.
  5. [7]
    In total, Ms Cecchi discloses in her application the contracted amount was $41,000.00
  6. [8]
    Of this contract price, Ms Cecchi provides evidence to the Tribunal by way of bank records to show the amount of $32,975.00 paid to Mr Taylor.
  7. [9]
    After commencing work, Mr Taylor’s attendance at the premises became increasingly sporadic and on various occasions after commencement, Mr Taylor undertook to complete the works but failed to do so.  Mr Taylor did not return to the site after about July 2019.  Despite repeated attempts to contact Mr Taylor, by late 3 January 2020, no further communication had been received by Ms Cecchi from Mr Taylor.
  8. [10]
    Mr Taylor has also failed to file a response or otherwise comply with Tribunal directions, including failing to appear at a directions hearing.

Statutory framework – building disputes

  1. [11]
    The relevant enabling Act in respect of the present dispute is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The Tribunal has jurisdiction to hear and decide building disputes.[1] A building dispute can be a domestic building dispute, a minor commercial building dispute or a major commercial building dispute.[2]
  2. [12]
    Ms Cecchi is a homeowner and the argument between these parties is a domestic building dispute under the definition in the QBCC Act[3] and is reviewable domestic work as defined in the QBCC Act.[4]  
  3. [13]
    Additionally, and alternatively, Ms Cecchi is also an owner-builder.  Ms Cecchi is a building contractor under the definition of that term in Schedule 1B of the QBCC Act[5] as she manages or has managed the carrying out of domestic building work.
  4. [14]
    Because of the dualities applicable to Ms Cecchi, this dispute could also be classified as a commercial building dispute between an owner builder and a building contractor which excludes it from the definition of domestic building contract.[6] On the basis of either classification, I am satisfied that this matter is a building dispute and that I have jurisdiction. 
  5. [15]
    It is not necessary for me to decide under which classification I will consider Ms Cecchi. I address this further below.  
  6. [16]
    I am satisfied as to the following and make findings accordingly:
    1. (a)
      Ms Cecchi is a homeowner and owner-builder;
    2. (b)
      Mr Taylor is a building contractor;
    3. (c)
      The parties entered into an agreement for the performance by Mr Taylor of building work totalling $41,000.00;
    4. (d)
      Mr Taylor undertook this work but did not complete it;
    5. (e)
      Ms Cecchi paid to Mr Taylor $32,975.00;
    6. (f)
      The dispute between the parties is a minor commercial building dispute;
    7. (g)
      The Tribunal has jurisdiction to decide the dispute;
    8. (h)
      Service of the proceedings has been effected upon Mr Taylor;
    9. (i)
      Mr Taylor has, without reasonable excuse, failed to comply with Tribunal directions;[7]
    10. (j)
      The failure by Mr Taylor to comply with Tribunal directions has unnecessarily disadvantaging Ms Cecchi. Ms Cecchi is entitled to progress the proceedings to final resolution;[8]
    11. (k)
      Prior to commencing the proceedings, Ms Cecchi complied with the requirements of s 77(2) of the QBCC Act.
    12. (l)
      Ms Cecchi is entitled to a final decision in the proceedings.[9]
  7. [17]
    Ms Cecchi was directed to file a detailed statement of evidence addressing, inter alia, details of the following: the agreement entered into with Mr Taylor; the building work undertaken; the alleged defective building work and/or incomplete building work; and the cost of rectification and/or completion of the defective and/or incomplete works.
  8. [18]
    The Tribunal directed the matter would proceed to final determination on the papers in the absence of any response from Mr Taylor.
  9. [19]
    Ms Cecchi says that Mr Taylor is an unlicensed builder. She says Mr Taylor provided her with the license of another person of the same name, but that when investigated by the Queensland Building and Construction Commission (the “QBCC”), it was discovered that this person was not Mr Taylor.  This was confirmed by the initial inspection report of the QBCC dated 11 October 2019 and filed by Ms Cecchi with her application.
  10. [20]
    I find that Mr Taylor is an unregistered builder.

What was the agreement between the parties?

  1. [21]
    I find that the parties agreed that Mr Taylor would perform the following building works at Ms Cecchi’s home.  The work described in the original quote being:
    1. (a)
      to build a new deck and pergola; and
    2. (b)
      to remove soil to make way for a new retaining wall and concrete slab.
  2. [22]
    I find that the agreed price for those works was $32,025.00.
  3. [23]
    I find that the parties subsequently agreed to vary the contract and under those variations, Ms Cecchi paid Mr Taylor $1,975.00.  
  4. [24]
    I am unable, on the evidence, to make any findings as to the actual work to be undertaken under the varied contract.

The contract

  1. [25]
    The contract is a domestic building contract, being a level 1 regulated contract for the performance of domestic building work as defined in Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act).[10]
  2. [26]
    The QBCC Act sets out a number of requirements for a level 1 regulated contract. Importantly, the contract only has effect if it complies with section 13(2) of the QBCC Act. That is, the contract must be in a written form, dated and signed by or on behalf of each of the parties to it.
  3. [27]
    I find that the contract is in written form, comprising a quote transmitted to Ms Cecchi by Mr Taylor by email on 12 April 2019 and accepted that day by Ms Cecchi. The variation dated 20 May 2019 also documented in emails between the parties on that date and for which money was advanced to Mr Taylor for building materials, also form part of the written contract between these parties.
  4. [28]
    Although there is not handwritten signature, 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.
  5. [29]
    I find these emails satisfy section 14 of the Electronic Transactions (Queensland) Act 2001 and that the parties have entered a binding contract under the QBCC Act.
  6. [30]
    This binding contract can also be enforced as a commercial building dispute.
  7. [31]
    It is not necessary for me to decide under which classification I will consider the enforcement of this binding contract.

Did Mr Taylor breach the contract?

  1. [32]
    Ms Cecchi says that the works commenced on 16 April 2019 and ceased on the installation of steel in or about July 2019.
  2. [33]
    From this time on, Ms Cecchi communicated frequently with Mr Taylor to return to the job to finish the works.  He never did, and I find that on or about 3 January 2020, Mr Taylor abandoned the works and thereby evinced an intention not to be bound by the contract nor to perform his obligations under the contract.
  3. [34]
    I find that in abandoning the works, Mr Taylor repudiated the contract entitling Ms Cecchi to elect to terminate the contract.
  4. [35]
    I find that in commencing these proceedings, Ms Cecchi has communicated her clear and unequivocal acceptance of Mr Taylor’s repudiatory conduct and her election to terminate the contract and claim damages for its breach.
  5. [36]
    I am satisfied that it was an implied term of the agreement that the works would be carried out in an appropriate and skilful way and with reasonable care and skill and that Mr Taylor would carry out the works with reasonable diligence. I find that such terms are reasonable and equitable, necessary to give business efficacy to the contract, are obvious, are capable of clear expression and, do not contradict any express term of the contract.[11]

Assessment of the contractual breach

  1. [37]
    The relief sought by Ms Cecchi in the originating application is ‘costs’ in the amount of $29,279.00. I assume this reference is to the damages for the breach of the contract.  Ms Cecchi identifies the component parts of this claim in her application.
  2. [38]
    In cases of contractual breach, the innocent party is entitled to claim from the at fault building contactor damages that enable the homeowner to be placed in the same position as she would have been in had the contract been performed according to its terms.[12] This is subject to rectification or completion works being both reasonable and necessary.[13] Credit must also be given for any unpaid part of the contract price.[14]
  3. [39]
    Ms Cecchi must prove the following:
    1. (a)
      That building work undertaken by Mr Taylor was defective or incomplete;
    2. (b)
      The rectification or completion work required to be undertaken;
    3. (c)
      The cost of rectifying or completing the work;
    4. (d)
      The rectification or completion work is both necessary and reasonable.
  4. [40]
    By s 77(3)(g) of the QBCC Act, the Tribunal may order completion of defective or incomplete tribunal work.
  5. [41]
    In respect of the alleged incomplete building work, Ms Cecchi relies upon an initial inspection report of a QBCC Inspector dated 14 October 2019. 
  6. [42]
    This report states the work undertaken by Mr Taylor to point of his abandonment of the site was not found to be defective, but rather incomplete.  For this reason, the QBCC was unable to assist Ms Cecchi.  The Inspector opined that “it is likely that the contract was well underpriced and the contractor cannot afford to return to complete any other works.  On inspection the value of the works already undertaken would likely be in excess of the $24,000 already paid with the highest cost items still to be undertaken.”
  7. [43]
    The Inspector further opined “Several of the complaint items were not noted on the scope and would be noted as outside of the scope of works as defined by the quotations supplied.”
  8. [44]
    Ms Cecchi breaks down her claim for the contractual breach into a number of items in her claim for a decision by default filed 25 September 2020.  These are now addressed as to whether they are necessary and reasonable.
  9. [45]
    Ms Cecchi bears the onus of placing before the Tribunal all necessary evidence to enable an assessment to be undertaken.

Goods paid for and not delivered

  1. [46]
    Ms Cecchi paid an immediate instalment to Mr Taylor at the commencement of the works on 13 April 2019 of $10,000 itemised by Mr Taylor as being for materials.  Mr Taylor details this in the payment schedule as being for concrete, groundwork and steel.  This amount was paid for by Ms Cecchi on 15 April 2019.
  2. [47]
    Ms Cecchi claims $14,000 being $7,000 for roof materials and $7,000 for timber and fixings paid for and not delivered.  Poof of the payment of roof materials is evidenced in the Invoice from Mr Taylor Dated 1 May 2019 (numbered 0032) and paid by Ms Cecchi on 3 June 2019. Proof of the payment of material is evidenced in the Invoice from Mr Taylor dated 1 May 2019 (numbered 0029and paid by Ms Cecchi on 1 May 2019. 
  3. [48]
    In all, from Ms Cecchi’s bank records show the amount paid to Mr Taylor totalled $32,975.00.
  4. [49]
    The unpaid part of the contract price is therefore $8,025.00.
  5. [50]
    Ms Cecchi claims the costs of completing the contract as:
    1. (a)
      $4, 128.30 to complete the retaining wall.  However, I do not have evidence of a completed retaining wall being in scope under the contract.  The original quote details removing soil only.  I have no details of the scope of the variation agreement. In the absence of any cogent evidence in relation to incomplete work, I must disallow this claim.
    2. (b)
      $4,067.00 to complete landscaping works.  Ms Cecchi alleged fill was left destroying the back yard.  The QBCC inspector found there was fill and spoil present in the rear of the yard.  The report also noted the removal of the spoil and rubbish was not noted in the scope supplied on the quotation.. The Inspector did comment that the removal of rubbish is not classed as building work under the legislation and the builder would normally be responsible for the clean-up not the contractor.  Here Ms Cecchi is the owner-builder and the removal of fill and spoil is not nominated in the quote. I disallow this claim.
    1. (3)
      $981.00 to extend Ms Cecchi’s construction liability insurance.  I have no evidence of the scope or necessity of this insurance for Ms Cecchi as an owner builder.  I have no evidence of the specificity of this insurance directed only at the work of this contractor.  I am not satisfied it was reasonably necessary only for Mr Taylor’s contract. I disallow this claim.
    1. (d)
      $375.00 being the cost of additional engineering costs to determine the quality of the installed works.  In the absence of any response by Mr Taylor, I allow this item.
    2. (e)
      The remaining items - Ms Cecchi’s claims for her own time, interest on her offset account and out of pocket interest I also disallow.  They are simply not claimable as necessary or reasonable to the contract. 
    3. (f)
      What Ms Cecchi has not provided evidence of are the costs of completing the contract.  Instead, she claims the return of funds she says were outlaid for materials never delivered to site and progress payments made.  In effect she seeks the return of the monies she has paid Mr Taylor, not the cost of completing the contract. 

The consequence of Mt Taylor being an unlicenced builder

  1. [51]
    Mr Taylor 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 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. [52]
    However, 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. [53]
    Section 42(4) of the QBCC Act 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.
  4. [54]
    Mr Taylor has made no counterclaim in these proceedings nor taken part in any way. 
  5. [55]
    In Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L)[15] 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. [56]
    In Thompson v Shen and Kao[16] 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. [57]
    Mr Taylor as an unlicensed builder is disentitled to receive payment for his work, so Ms Cecchi as a homeowner, is entitled to recover the monies she paid to him.[17]
  1. [58]
    In fact, this is the claim she makes. 

Costs of the Proceedings

  1. [59]
    Ms Cecchi also seeks the costs she incurred in these proceedings.  The costs she seeks are the QCAT filing fee of $345.80 and the costs of $1,585.00 incurred in serving Mr Taylor with the QCAT document, as it appears Mr Taylor attempted to evade service. 
  2. [60]
    This Tribunal has the power to award costs in building matters.[18]  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. [61]
    I find Ms Cecchi is entitled to these costs outlaid by her in these proceedings as they are reasonable in the pursuit of her claim against Mr Taylor.  This includes the filing fee to commence the application but also the necessary expenditure locating and serving Mr Taylor.  I fix these costs at $1,930.80

Conclusion

  1. [62]
    The total amount of the refund of amounts paid to Mr Taylor and the costs of the proceedings is $35,280.80.

Footnotes

[1] QBCC Act, s 77.

[2] QBCC Act  Sch 2 (definition of ‘building dispute’).

[3] Ibid Sch 2 (definition of ‘building dispute’)

[4] Ibid, Sch 1B(definition of ‘domestic building dispute’) and Sch 1B(4).

[5] Ibid, Sch 1B(definition of ‘building contractor’)

[6] Ibid, Sch 1B s3(2)(c).

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48.

[8] Ibid.

[9] Ibid.

[10] Ibid s77

[11] BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266.

[12] Robinson v Harman (1848) 1 Ex 850.

[13] Bellgrove v Eldridge (1954) 90 CLR 613.

[14] Ventura v Svirac [1961] WAR 63.

[15] [2009] QCA 75.

[16] [2017] QCAT 33.

[17] Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228, [22].

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

Close

Editorial Notes

  • Published Case Name:

    Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services)

  • Shortened Case Name:

    Cecchi v Taylor t/as Jag Constructions (formerly J.E.T. Building and Renovation Services)

  • MNC:

    [2021] QCAT 355

  • Court:

    QCAT

  • Judge(s):

    Member Gardiner

  • Date:

    20 Oct 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
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
2 citations
Jump To
Cite 1 - (1977) 180 CLR 266
Cite 2 - (1977) 180 CLR 266
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
Robinson v Harman (1848) 1 Ex 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex 850
Cite 2 - (1848) 1 Ex 850
Thompson v Shen [2017] QCAT 33
2 citations
Jump To
Cite 1 - [2017] QCAT 33
Cite 2 - [2017] QCAT 33
Ventura v Svirac (1961) WAR 63
2 citations
Jump To
Cite 1 - (1961) WAR 63
Cite 2 - (1961) WAR 63
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
2 citations
Jump To
Cite 1 - [2017] QCAT 228
Cite 2 - [2017] QCAT 228

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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