Hutchings v Arty Concreting Pty Ltd
[2022] QCAT 81
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- Unreported Judgment
- Hutchings v Arty Concreting Pty Ltd[2022] QCAT 81
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Hutchings v Arty Concreting Pty Ltd[2022] QCAT 81
Hutchings v Arty Concreting Pty Ltd[2022] QCAT 81
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Hutchings v Arty Concreting Pty Ltd [2022] QCAT 81 |
PARTIES: | debbie hutchings (applicant) V arty concreting pty ltd (respondent) |
APPLICATION NO/S: | BDL018-21 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 17 March 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
ORDERS: | The application filed on 20 January 2021 is dismissed. |
CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where claim for defective or incomplete work – where lack of evidence of legally enforceable contract – where lack of evidence of defective building work sufficient to establish negligence – where lack of evidence to establish damages Queensland Civil and Administrative Tribunal Act 2009 (Qld), Schedule 1B s 3, s 4, s 5, s 13 Electronic Transactions (Queensland) Act 2001 (Qld), s 14 Barbi v Brewer [2013] QCAT 348 Marsh v Walter Iezzi Property Group [2021] QCAT 191 |
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]This matter has come to me pursuant to a decision made on 13 July 2021 in the following terms:
There is a final decision for Debbie Hutchings against Arty Concreting Pty Ltd, conditional upon the assessment of damages.
- [2]No reasons were provided for this decision. In particular, the learned member did not indicate whether he found that Arty Concreting Pty Ltd (‘Arty’) was liable for a breach of contract, in negligence, or both.
- [3]In those circumstances, rather than merely proceeding to assess damages, it is necessary for me to examine upon what basis Arty may be liable to Ms Hutchings.
Contractual claim
- [4]Ms Hutchings provided print outs of conversations she had on Facebook in September and October 2020. These show that Ms Hutchings entered into negotiations for concreting work with a person named “Sean”.
- [5]Sean provided the following quote to Ms Hutchings for work at the front of her house:
- Supply machine work to remove existing ground
- Disposal and dump fees of non required ground waste
- Box up 3 sections
- Supply and lay reo mesh
- Supply and pour approx. 4.4m3 of coloured concrete
- Please existing back stone into concrete where existing pathway is
- Clean areas up as best as possible
- Supply all labour required to complete work
2 full days is required to complete this work.
Quoted price of $3475.
- [6]Ms Hutchings offered to pay cash to reduce the price, and requested a quote for additional works. Sean provided the following additional quote to Ms Hutchings for work at the back of her house:
- Strip paint from existing concrete pathways (approx. 45m2)
- Acid wash concrete pathway
- Repaint pathway with 2 coats of nonslip matt concrete paint (colour to be chosen)
- Seal top of the pathway with long wear sealant
- Repair along pool fence edge with Ardent concrete fill
- Pressure clean exposed stone around pool
- Seal expose stone with high gloss sealant x 2 quotes
Quoted prices of $2725+GST
- [7]Ms Hutchings sent the following reply to Sean:
I left a message on your phone just wondering did you organise times to start the job
- [8]Sean subsequently sent Ms Hutchings the following message:
I popped around yesterday afternoon with Rob my concrete guy to show him the job. In regards to the from (sic) pathways area, he has said that by setting the rocks into the concrete will cause issues in the short term. The issue is that the concrete will start to have hairline cracks around the rocks causing them to fall out and then the hairline cracks will start to chip away and small flake chops will happen.
- [9]Ms Hutchings then asked Sean how he went with the price for the front yard. Sean sent Ms Hutchings the following message:
Hey Debbie, yes sorry, I was able to drop it by $100. Do you still want to go ahead with the work.
- [10]Ms Hutchings replied to Sean:
Yes I do.
- [11]Ms Hutchings and Sean then discussed the payment of a reposit of $1695, with Sean sending the following message:
The boys will be there first up and you can give the deposit to Rob … I have another job to be at as well.
Yes let’s get the front done and finished and sorted before anything with the back. That way you know what our work is like and be comfortable with me and the lads.
- [12]The above exchange indicates that Ms Hutchings entered into a contract with Sean. The work was to be performed by “Rob my concrete guy”. I am prepared to infer that Rob was Robert John Trevisan, a director of Arty.
- [13]The use of the term “my concrete guy” is suggestive that Arty was a sub-contractor to Sean. Whatever the relationship between Sean and Arty, there is insufficient evidence that Ms Hutchings entered into a contract with Arty.
- [14]Even if I am incorrect, and there was a contract between Ms Hutchings and Arty, such a contract would be unenforceable under the Queensland Building and Construction Commission Act 1991 (Qld).
- [15]‘Domestic building contract’ is defined in s 3(1)(a) of Schedule 1B to include ‘a contract to carry our domestic building work’.
- [16]‘Domestic building work’ is in turn defined in s 4(1)(b) of Schedule 1B to include ‘the renovation, alteration, extension, improvement or repair of a home’. Accordingly, concreting work falls within the definition of domestic building work.
- [17]‘Regulated contract’ is relevantly defined in s 5(1)(a) of Schedule 1B to be a domestic building contract for which the price is more than the regulated amount of $3,300. As the price quoted for the front, and the total prince for front and back, is more than $3,300 but less than the level 2 amount of $20,000, the contract is a level 1 regulated contract pursuant to s 6 of Schedule 1B.
- [18]Section 13(5) of Schedule 1B provides that a level 1 regulated contract has effect only if the contract is in a written form, dated and signed by or on behalf of each of the parties to it. It follows that, in the absence of a written contract signed by the parties, the contract between the parties is of no effect. That is, Ms Hutchings has no contractual claims against Arty.
- [19]For completeness, I have also considered s 14 of the Electronic Transactions (Queensland) Act 2001 (Qld), which provides as follows:
- (1)If, under a State law, a person’s signature is required, the requirement is taken to have been met for an electronic communication if—
- (a)a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
- (b)the method used was either—
- (i)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; or
- (ii)proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
- (c)the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in paragraph (a).
- (2)The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
- [20]There was no method used to identify Sean, whose surname is not disclosed in the material filed. There is also no evidence of Sean’s consent to any method of identification.
Negligence claim
- [21]In Barbi v Brewer [2013] QCAT 348 at [10], the Tribunal recognised that while a contract which has no effect under the Act cannot form the basis of a claim in contract, the Tribunal may still have regard to the contract between the parties to the extent that it is relevant to the negligence claim.
- [22]In order to establish a negligence claim, Ms Hutchings must prove that Arty owed her a duty of care, that Arty breached that duty by failing to take reasonable care, the breach resulted in damage to Ms Hutchings and the damage is not too remote.
- [23]It is trite to state that Arty owed Ms Hutchings a duty to take reasonable care in performing the concreting work.
- [24]Ms Hutchings articulated the defects in the work as follows:
All front of concrete cracked, crumbling, colour patches, uneven, no mesh layed, pooling water, no pathway feature.
Backyard concrete all coming away. Pictures in documents already sent previously.
- [25]Ms Hutchings provided a series of photographs attached to her application. Some of the photographs show cracking in the concrete, but no scale is provided to show the size of the cracks. Other photographs appear to show discolouration, although it is not clear whether this is water sitting on the surface of the concrete. Still other photographs show what appear to be blemishes in the concrete, but there is no scale to identify whether these blemishes are small or large. Other photographs are simply unclear as to what they are purporting to show.
- [26]What Ms Hutchings did not do was to provide any independent expert evidence that the concreting work was defective. In Marsh v Walter Iezzi Property Group [2021] QCAT 191 at [6]-[8], Member Hughes (as he then was) stated:
The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate. However, it must also act fairly and according to principles of natural justice with as little formality and as much speed as matters permit. Ms Marsh must establish her case against Walter. She must prove her claim to the reasonable satisfaction of the Tribunal:
… “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect references… the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.
It would not be fair to order Walter to rectify work without sufficient evidence of the elements required to establish Ms Marsh’s case. Ms Marsh has an obligation to act in her own best interests:
The statutory regime under which QCAT operates places obligations upon parties themselves to take care in their dealings with Tribunal matters, and to act in their own best interests. QCAT’s resources for the resolution of disputes are in high demand and serve, as the High Court has recently observed in relation to court resources, ‘… the public as a whole, not merely the parties to the proceedings’. Finality in litigation is highly desirable, because any further action beyond the hearing can be costly and unnecessarily burdensome on the parties.
The onus is always upon Ms Marsh to present her case. The Tribunal cannot make orders without sufficient proof:
In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. Parties must take responsibility for the preparation of their own case.
[footnotes omitted]
- [27]Given the very limited evidence provided by Ms Hutchings, I am not satisfied that she has established breach of duty to the requisite standard of proof.
Assessment of damages
- [28]While I am not satisfied that Ms Hutchings has established her case in either contract or negligence, I am mindful of the Tribunal’s decision of 13 July 2021 that she is entitled to a final decision against Arty subject to the assessment of damages. That decision has not been appealed.
- [29]Ms Hutchings provided two quotes in relation to damages. One was from Adstyle Concreters Pty Ltd for $11,040. The description of the work to be undertaken was as follows:
To remove existing driveway and replace with new driveway & exposed aggregate pathway to front door [unclear] address.
- [30]The second quote was from Michael Hally trading as Queensland Coast Concrete for S10,950. The description of the work to be undertaken was as follows:
Remove concrete LH and RH sides of carport and resurface (colours to be advised).
Grind off paint on rear path and resurface.
Remove uneven concrete RH side of pool and replace with exposed concrete.
- [31]As will be apparent, the quotes relate to different works. Neither quote appears to directly correlate with the initial works quoted by Sean to be undertaken by Arty. Nor do the quotes contain any explanation as why the works are required to rectify any defects by Arty (for example, why removal of the concrete is required as opposed to some other form of rectification).
- [32]In the circumstances, I am not satisfied that Ms Hutchings has provided sufficient evidence to enable me to assess her damages.
Disposition
- [33]Given that I have been unable to award damages to Ms Hutchings, I consider that the appropriate order is to dismiss the application.