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- Unreported Judgment
Hill v Gooley QCAT 430
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Hill v Gooley  QCAT 430
HEMI JAMES FOX HILL
DALE CHARLES GOOLEY
12 December 2021
On the papers
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DAMAGES – where contract entered into for the performance of building work – where builder was unlicensed – where builder performs unlicensed building work – where works performed were defective – assessment of damages.
Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 42(3)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s107
Cooks Construction P/L v SFS007.298.6333P/L (formerly trading as Stork Food Systems Australasia P/L  QCA 75 (3 April 2009)
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
- Mr Hill and Mr Gooley entered into a contract for the construction a retaining wall on Mr Hill’s property. Construction commenced on 12 July 2019. During construction, Mr Hill identified a number of serious concerns with the quality of the works, and also learned that Mr Gooley did not hold a QBCC license to perform building works over $3,300. On 12 August 2019 he terminated the contract and engaged an engineer to inspect the adequacy of the construction. That report recommended condemnation and removal of the retaining wall. He filed an application for a domestic building dispute in QCAT.
- Mr Gooley has not provided a response to this application, nor complied with any tribunal directions, nor participated in the proceedings in any way.
- On 12 February 2021 a decision was noted in Mr Hills favour, conditional upon assessment of damages. Mr Hill filed his evidence as to costs and damages on 18 March 2021. This is the subject of this decision.
- The report of Jeffrey Hill and Associates, Consulting Engineering Services, dated 26 August 2019, identifies fundamental flaws in the constructed wall, including major problems with the footing of the retaining wall, gaps in the blockwork, defects in reinforcement, and non-compliance with the relevant Australian Standards AS 3700:2011 Masonry Structures, and AS 3600:2018 Concrete Structures. This report recommends condemnation and removal of the unacceptably built wall. This report was an essential outlay to identify the safety of the works that had been performed and recommended action in relation to them. There is no contradictory evidence before the Tribunal. I find that this outlay was necessarily incurred to determine the safety and compliance of the wall. The cost of $2,970 was paid on 27 August 2021 should be met by the Respondent.
- The evidence before the Tribunal indicates that not only was the constructed wall profoundly defective, but works performed to construct it were carried out without a licence. S 42(1) of the QBCC Act specifies that a person must not carry out or undertake to carry out building works unless the person hold a contractor’s licence of the appropriate class under the act. The legislations states that a person who performs building work without a license has no entitlement to any monetary or other consideration. Any funds paid to an unlicensed builder must be repaid.
- There is no evidence before the Tribunal to contradict the statements that Mr Gooley was not licenced to perform the work he undertook. He has been afforded procedural fairness with opportunities to submit his case to the Tribunal but failed to do so. I find that Mr Gooley was not licensed to carry out the works. By operation of s 42(3) of the QBCC Act, all amounts paid under the contract must be repaid to Mr Hill. The evidence before the Tribunal notes that a sum of $12,000 has been paid. Records of payment are before the Tribunal noting payments made on 8 July 2019, of $1000; on 11 July 2019 of $3000, 16 July 2019, of $2000, and $5000 paid on 24 July 2019. Email correspondence between the parties notes Mr Gooley confirming receipt of $11,000 on 24 July 2019. Evidence of a subsequent payment of $1,000 made was paid to on 9 August 2019. The amount of $12,000 paid by Mr Hill to Mr Gooley must be repaid.
- Mr Hill also claims for expenses involved in removing the failed wall. He claims he incurred the following costs between 13/November 2019 and 20 November 2019, and provided documentary evidence to support the following claims:
- (a)Skip hire to remove the rubble over 5 days $2,400
- (b)Bobcat hire $355
- (c)Excavator hire, $900, and 475.20
- (d)Diesel for machinery hired $45.42
- He claims also for expenses for which he has no evidence:
- (a)Payment for workers over 2 days $400, and beer for workers $157.
- (b)Estimated costs for work yet to be done to remove gravel, concrete lumps, and remove buried rubble.
These claims were submitted on 12 March 2021, and no further evidence provided of these costs claimed. No quotes for this work to rectify abandoned materials and clean up the site were submitted.
- A party who sustains loss by virtue of a breach of contract is entitled to be placed in the same position as if the contract had been performed. The additional outlays necessary to remove the structurally unsound wall should therefore be met also. I note Mr Hills evidence that Mr Gooley had promised to remove it on several occasions and failed to make good on these promises.
- I find there is evidence of outlays involved in removing the wall as a result of the breach of contract in the amount of $4,175.62.
- I find that there is no evidence the Tribunal before of the precise costs of labour claimed to support the payment of these costs, and no basis for the Tribunal to make payments or beer provided to them at Mr Hill’s discretion. Nor is there evidence of site clean-up costs that were estimated. In the absence of evidence of the same, none of these are able payable.
- I find there is evidence of the outlays sustained for Professional Assessment by an Engineer identify the flaws in the defective structure in the sum of $2970.
- As a result of breach of the contract, a total of $19,145.62 is payable by Mr Gooley is Mr Hill.
- Mr Hill also claims his costs in pursuing his rights in relation to this matter. He identifies his outlays to be the QCAT application fees of $345.80, and postage of $15.
- The Tribunal may award costs in building dispute pursuant to s77(3)(h) QBCC Act. The clasts claimed were reasonable and necessary in pursuing his rights arising from Mr Gooley’s breach. As such he is entitled to be restored these costs. Mr Gooley is further order to make payment of these costs in the amount of $360.80
- Dale Charles Gooley pay Hemi James Fox Hill NINETEEN THOUSAND ONE HUNDRED AND FORTY FIVE dollars and sixty two cents ($19, 145.62) within 14 days of this decision
- Dale Charles Gooley pay Hemi James Fox Hill costs in the sum of THREE HUNDRED AND SIXTY DOLLARS AND EIGHTY CENTS, ($360.80) within 14 days of the date of this decision.
 Cooks Construction P/L v SFS007.298.6333 P/L (formerly trading as Stork Food Systems Australasia P/L)  QCA 75 (3 April 2009).
- Published Case Name:
Hill v Gooley
- Shortened Case Name:
Hill v Gooley
 QCAT 430
12 Dec 2021