Martin v Jung[2023] QCAT 283

REASONS FOR DECISION

1. [1]
   Mr Martin engaged a person or entity to renovate a bathroom at a house in Brisbane, Queensland which was purchased in 2019 as an investment property to rent out, and was renovating for that purpose. Mr Martin operates a business known as Five Star Kennels. The legal identification of the entity who he engaged is a matter of dispute. The person he dealt with was Mr Jung.
2. [2]
   Mr Jung is the respondent in these proceedings. Mr Jung is a tiler who also involved himself in a wide range of building activity. Mr Jung has not at any relevant time been a licenced builder in Queensland. He has held a licence as a tiler.
3. [3]
   A quote dated 29 July 2019 was provided by Point Tiles and Construction Pty Ltd. No contract in writing was ever entered into for the bathroom works.
4. [4]
   Mr Martin became unhappy with the work performed by Mr Jung before the work was completed, and asked him to rectify the work that had been conducted, or to leave the job.
5. [5]
   Mr Jung requested that a Korean interpreter be made available for the hearing. An interpreter was arranged by the Tribunal as requested. At the commencement of the hearing, Mr Jung said that he spoke English, but that he wanted the assistance of the interpreter for clarity, and the interpreter provided assistance to Mr Jung throughout the course of the hearing.

The application

6. [6]
   An application for domestic building disputes was filed in the Tribunal by Mr Martin on 10 January 2020. He named Danny (Won Kyo) Jung as the Respondent and described him as a licensed building contractor holding QBCC licence number 1502 9068.
7. [7]
   Mr Martin sought restitution and costs.^[1] In the general dispute details section^[2] he wrote that ‘the work that is the subject of this dispute was performed by Point Tiling and Construction ABN 92620856706 who never offered me a contract.’
8. [8]
   In the section as to the details of what was sought from the Tribunal, Mr Martin made the following claim:

3. 1.
   I want the Tribunal to make the following order for Point Tiling and Construction Pty Ltd to reimburse me the amount of $6,175.80. Being $5,500 monies I paid to Point Tiling and Construction, $330 for building reports to substantiate my claims, and $345.80 QCAT filing fee.

9. [9]
   A Response and/or Counter-Application was filed on 23 January 2020 by Mr Jung. He noted that he disputed the allegations in all paragraphs of the Application for building dispute, and gave the following details:^[3]

The floor in question has not been damaged by the tilers.

The ceiling in question has not been damaged by the tilers.

An opportunity to finish the work had not been given.

He set out a counter-application, and sought that the Tribunal make the following orders:

3. 1.
   To discard the alleged charge of $6,175.80 filed by the applicant.

3. 2.
   To recover the cost of $3,185.60 caused by the applicant.

Application to dismiss

10. [10]
    Mr Jung filed an application to dismiss the proceedings on 18 November 2020. That application was dismissed on 21 September 2021 by Senior Member Brown who gave written reasons.
11. [11]
    Senior Member Brown noted the issue as follows:^[4]

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

12. [12]
    Senior Member Brown then went through the submissions as to the contracting for the work, and as to the relevant entities, and was satisfied that there were real questions to be determined, and dismissed the application, as follows:^[5]

3. [15]
   I am satisfied that there are a number of real questions to be determined at a contested hearing including:

3. (a)
   Who were the parties to the contract?

3. (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?

3. (d)
   What was Mr Jung’s role in the events at the time of the preparation and delivery of the quote in the performance of the building work noting that, according to the PAYG summary at least, he was not an employee of Point Tiling.

3. [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 claims are frivolous, vexatious or misconceived, lacking in substance or otherwise an abuse of process. The application to dismiss the proceedings is refused.

3. [17]
   I will make directions to progress the matter to hearing.

The hearing

13. [13]
    Evidence was given at the hearing by Mr Martin and his witness, Mr Peter Lovell. Mr Jung gave evidence on his own behalf, and did not call any witnesses.
14. [14]
    At the commencement of the hearing, I sought to identify what each party was seeking.
15. [15]
    Mr Jung said that he had not brought any documents to the hearing with him, that they were at his home, and he referred to his mobile phone in the course of the hearing.
16. [16]
    Mr Martin said that his claim at the hearing was as follows:

17. [17]
    Mr Jung said that he did not have any counter-application against Mr Martin. He said that the amount of $3,185.60 which he claimed in his Response and Counter-application was not a claim, but represented work which he did.
18. [18]
    Mr Martin said that he had paid $8,076.42 to complete the work, as follows:

19. [19]
    Mr Martin said that the amount of $8,076.42 to complete the work did not include the cost of materials which he supplied, as he did not have invoices, as follows:

    1. (a)
       Tiler
    2. (b)
       Tiles
    3. (c)
       Vanity unit
    4. (d)
       Shower screen
20. [20]
    Mr Martin estimated that the total cost to complete the work, including the cost of materials which he supplied, would have been around $12,000.00 in total.
21. [21]
    Mr Martin said that he had paid $5,500.00.00 to Point Tiling Construction Pty Ltd, so his total outlay on the project had been around $17,500.00.
22. [22]
    Mr Martin said that the original quote he had been given by Point Tiling Construction Pty Ltd was for $14,399.00, so the project had cost him an extra $3,101.00 over what he had initially agreed to.

Evidence of Mr Martin

23. [23]
    Mr Martin stated that he met Mr Jung at the site. He said that Mr Jung told him that he was the owner of Point Tiling and Construction Pty Ltd, and that he had 10 years experience in bathroom renovation.^[6]
24. [24]
    Mr Martin stated that Mr Jung represented himself as a licensed builder - tradesman.
25. [25]
    In his evidence, Mr Martin said that he did not have any medical evidence supporting his claim for personal injury, which was in relation to stress caused by dealing with the work of Mr Jung.
26. [26]
    Mr Martin said that the claim for interest on the home loan arose as the house had been bought in 2019 as an investment property to rent out, and was being renovated for that purpose. He said that it took an extra six weeks to complete the bathroom works.
27. [27]
    He said that he was unhappy with the work, and told Mr Jung to rectify the work or leave the site.
28. [28]
    He said that Mr Jung did not show him his licence for tiling and waterproofing, but that Mr Jung told him that he was a construction company.
29. [29]
    He said that Mr Jung gave him the impression that he was a registered builder.

Evidence of Mr Lovell

30. [30]
    Mr Lovell stated that he had been a friend of Mr Martin for many years. He said that he was qualified as a carpenter, had been a supervisor for a kitchen company and had been an engineer and quality control for Lockwood, who manufactured window locks.
31. [31]
    He stated that he had witnessed Mr Jung doing carpentry, plasterboard sheeting, waterproofing and plumbing at the house.
32. [32]
    He described the events of the last day that Mr Jung worked on the house as follows:^[7]

On the last day of Mr Jung being on site 8/8/2019 Paul had concerns about the workmanship, the flexi-line being inside the cavity, no villaboard sheeting around the window niche, and all the gaps in the walls just taped over then waterproofed.

With reference to the flexi-line, Jung responded ‘It will be good for twenty years. I use them all the time’.

In the bathroom the wall’s sheets were of different thickness and had large gaps. It looked a mess. Paul asked him to rectify the job or leave. Jung went to his car and I took the photo of the flexi-line connected to the mixer/tap in the cavity.

He came back and removed the flexi-line from the cavity. As he was leaving, Paul asked about a refund on money paid. Jung responded ‘I just have to work it out. I will call you when I work out your refund’.

33. [33]
    In his evidence, Mr Lovell said that he was of the understanding that Mr Jung was a qualified builder, but would describe him from his observation as a ‘jack of all trades’ and that his work was that of a home handyman, not of a tradesman.
34. [34]
    Mr Lovell said that, from his own trade experience, he knew what he was talking about when it came to work being of a tradesman standard.
35. [35]
    He said that he recalled Mr Jung saying that he had been doing bathrooms for 10 years, that Point Tiles was his company, that he had been using flexible piping extensively, and that he was doing all the plumbing on houses he worked on.

Evidence of Mr Jung

36. [36]
    Mr Jung said that he was never a director or office bearer of Point Tiling and Construction Pty Ltd. He said that the person listed as sole director of that company on an ASIC search, Sun-Nam Kim, was his wife. He said that his wife did not have any building qualifications, but that she controlled the finances, and gave him money.
37. [37]
    He said that at the time he did this job he was acting as an employee of the company.
38. [38]
    He said that after the Queensland Building Construction Commission (QBCC) investigated this matter, that he and the company were fined a total of about $7,000.00 to $8,000.00 for the nominee not being registered.
39. [39]
    He denied that the work needed to be rectified, as he said the job was not finished.
40. [40]
    He was asked about his doing plumbing work, and said that in order to save money he had to do work that a plumber should do, to help, but did not know that was against the law.
41. [41]
    He denied that he had given Mr Martin the impression that it was his company, and said that he told Mr Martin that he did the majority of the work, but did not say that he was licensed.
42. [42]
    He was asked about a business card which he gave to Mr Martin, which had on one side the words ‘Point Tiling Construction Pty Ltd’, and on the back the name ‘Danny Jung’, and said that the card did not indicate that he held any particular position in the company.
43. [43]
    Mr Jung estimated that he had completed about 60% of the work.
44. [44]
    He described the plumbing work he had done as temporary, but when it was pointed out to him that he had closed up the wall, said that it wasn’t connected to the mains, and that it was easy to see all the pipes as there was no ceiling.
45. [45]
    He said that he installed flexi-lines in the cavity. When he was asked as to whether the plumber could access the flexi-lines he said that he actually didn’t know much about the plumbing, that he would have told the plumber, and that the plumber would have told him if it was all right, or if not, and that he would have opened up the wall to repair it if needed.
46. [46]
    He was asked if he was aware that flexi-line should not be used internally, only from a toilet to a tap or a sink where it could be observed, and replied that he didn’t really know, and that the plumber would tell him about that.
47. [47]
    He was asked about the wall sheets being different thickness, and replied that was no problem as the tiler would smooth that out.

The building contract

48. [48]
    The quote that was provided to Mr Martin was headed ‘Point Tiles and Construction Pty Ltd’. It was quote number 004, and had an issue date of 29 July 2019 and was expressed to be valid until 29 July 2019. The quote was for a total of $14,399.00. The description of the work and the amounts claimed were as follows:^[8]

49. [49]
    The quote had the words written upon it:

Account Holder: point tile construction

Bank: Commonwealth Account No: 10542308

50. [50]
    No QBCC licence number appears on the quote, and there is no evidence that Point Tiling and Construction Pty Ltd was at any time ever licensed as a builder.
51. [51]
    An ASIC search was referred to, which showed that the company ‘Point Tiling and Construction Pty Ltd’ ACN 620 856 706 was registered on 3 August 2017, and that the sole director was Sun-Nam Kim who is also the holder of the 100 ordinary shares issued in the company.
52. [52]
    The company was de-registered on 9 September 2021.
53. [53]
    Mr Martin paid an amount of $2,200.00 on 29 July 2019 to CBA 10542308 as ‘Dep Bathroom’; and $3,300.00 on 2 August 2019 to CBA 1054 2308 as ‘(house address)’. Those monies were therefore paid to the account titled ‘point tile construction’.
54. [54]
    Mr Jung contends that at the time of performing the works for Mr Martin that he was acting as an employee of ‘Point Tiling and Construction Pty Ltd’. He has referred to a PAYG payment summary detailing himself as the payee and Point Tiling and Construction Pty Ltd as the payer. That aspect was commented on by Senior Member Brown in his decision on the strike-out application as follows:^[9]

3. [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.

55. [55]
    Mr Jung said in his evidence that his wife would just pay him money.
56. [56]
    It is apparent that the finances of the company Point Tiling and Construction Pty Ltd were being conducted with scant regard for established accounting practice.
57. [57]
    I am not satisfied that Mr Jung was employed by Point Tiling and Construction Pty Ltd at the time of the conduct of these works.
58. [58]
    Further, I am not satisfied that Mr Jung had any authority to enter into a building contract on behalf of Point Tiling and Construction Pty Ltd, which was not a licensed builder.
59. [59]
    The only person out of all of Point Tiling and Construction Pty Ltd, its sole shareholder and director Sun-Nam Kin, and Mr Jung, who was in any way licensed to conduct any sort of building works was Mr Jung who was a licensed tiler.
60. [60]
    Mr Jung denies that he ever represented himself as being a licensed builder, or as the person who was contracting to undertake the works. However, that contention is at odds with the acknowledgement by Mr Jung in the course of his evidence that he was not a registered builder, but that he did conduct plumbing and electrical work, that ‘I have my own way’, and had operated in that way for 10 years.
61. [61]
    In a response to the statement of Mr Jung, Mr Martin summarised his position as follows:^[10]

I went with Mr Danny Jung in the belief he was who he presented to be. A construction company that was fully licensed for the job he had agreed to take on. He refers continuously to his verbal contract. I was unaware till it was too late that my job was uninsured and I should have signed a contract. I thought I was dealing with a reputable company who was working with my best interests.

62. [62]
    Mr Martin displayed a lack of sophistication as to the nature of a legal entity when he describes Mr Jung as being a construction company. A natural person is obviously different to a company which is a legal person, so that expression can make no sense. However, it is clear that what Mr Martin was saying when he uses the expression ‘construction company’ is that he simply means ‘a business’, and that what he is really saying is that he thought Mr Jung was the proprietor of a licensed construction business.
63. [63]
    I accept the evidence of Mr Martin, and am satisfied that Mr Jung did in fact give clear representations to Mr Martin, which Mr Martin relied on, that:

    1. (a)
       he was a qualified builder, and
    2. (b)
       he was the proprietor of a business known as Point Tile Construction which was a licensed building contractor.
64. [64]
    I am satisfied that in making payment of the deposit of $2,200.00, and the further payment of $3,300.00, to ‘Point Tiling’, that Mr Martin did so in the belief that he was paying the money to the benefit of Mr Yung’s personal business.
65. [65]
    I am satisfied that the legal effect is that Mr Jung did personally contract with Mr Martin to conduct bathroom renovations as set out in the quote.

Unlicensed contracting

66. [66]
    A QBCC licence search was referred to in the course of the hearing, which showed that Won Kyo Jung held a trade contractor licence No. 15029068 for wall and floor tiling from 13 October 2016.
67. [67]
    The works as quoted extended substantially beyond tiling works and included installation of ceiling sheeting, windows, a shower screen, and plumbing works.
68. [68]
    A tax invoice number 2357, dated 8 August 2019, was given to Mr Martin. The invoice is headed ‘Point Danny’. The Invoice shows a number described as ‘Business/Tax# 92620856706, which was the ABN for Point Tiling and Construction Pty Ltd until it was cancelled from 30 June 2021.^[11]
69. [69]
    The tax invoice is for the amount of $8,690.00, and there is a handwritten notation ‘Paid $5,500.00’.
70. [70]
    The tax invoice is as follows:

71. [71]
    The works as quoted, and as invoiced, are ‘building work’ under the QBCC Act. Mr Jung was unlicensed to conduct those building works, except for any tiling works.
72. [72]
    Mr Martin told Mr Jung to leave the site before any tiling works were done, so all the works performed by Mr Jung were works he was not licensed to conduct.
73. [73]
    Section 42(1) of the Queensland Building and Construction Commission Act 1991 (the QBCC Act) provides as follows:

3. 42.
   Unlawful carrying out of building work

3. (1)
   Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless a person holds a contractors licence of the appropriate class under this act.

74. [74]
    This Section was considered by Acting Deputy President Brown in Yongwoo Park v Betaland Pty Ltd, where he noted that the effect of it is that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work; and that the consequence of this prohibition is that the contract is unenforceable by an unlicensed builder.^[12]
75. [75]
    He went on to consider whether a contract entered into in contravention of s 42(1) is enforceable by the homeowner, and concluded that the entitlement of a homeowner to recover monies paid to an unlicensed builder is the reciprocal of the builder’s disentitlement to receive the payment.^[13]
76. [76]
    He found that the builder was in breach of an essential term of the contract and that the owner was entitled to terminate the contract and assessed damages for breach of the building contract.^[14]
77. [77]
    That decision was followed in Baker v Aquatics Pool Painting Pty Ltd^[15] where no written contract for the works was entered into between the parties. It was held that because the quote did not comply with the formal statutory requirements including signing by the parties, it had no effect. The Tribunal went on to assess the refund due to the homeowner.
78. [78]
    On the basis of these authorities, Mr Martin is entitled to recover damages for breach of the contract with Mr Jung, notwithstanding the failures of Mr Jung to be appropriately licensed, and there being no signed contract, as required by the QBCC Act.

Breach of Contract

79. [79]
    Mr Martin submitted that ‘all of Danny Jungs work Walls plumbing waterproofing was removed and replaced at a cost to me’.^[16]
80. [80]
    Mr Jung did not call any evidence, apart from his own evidence, to dispute the allegation that his work was defective and had to be wholly removed and replaced.
81. [81]
    There was considerable discussion in the course of the hearing as to the use by Mr Jung of flexi-lines for plumbing internally behind the wall sheeting. The Australian Standard AS/NZS 3500.1, clause 2.4.1(c) provides as follows:^[17]

3. 2.4
   Limitations on use of pipes and fittings

3. 2.4.1
   General limitations

3. the following limitations shall apply to the use of pipes and fittings for water services:

3. (a)
   Pipes and fittings –

3. (i)
   up to and including DN 100, shall have a maximum allowable operating pressure (MAOP) of at least 1.2MPa at 20*C; and

3. (ii)
   where larger than DN 100, shall be selected to satisfy design criteria for the system.

3. (b)
   Bends in pipes shall be free from wrinkling and flattening.

3. (c)
   Semi-flexible connectors and braided flexible hoses shall be used only above surface level and in accessible locations.

82. [82]
    I am satisfied that the use by Mr Jung of flexible hoses was in contravention of Clause 2.4.1(c) of the applicable Australian Standard and constituted a defect.
83. [83]
    Mr Martin produced evidence supporting his allegation that the work was removed and replaced:

3. (a)
   A tax invoice from Remedial Building Solutions and Waterproofing  dated 30 August 2019, naming Mr Martin as the client, provides for payment of $4,034.00 for a scope of works as ‘progressive payment 01’ as follows:

• remove existing FC lining from bathroom walls
• Supply and install new FC lining
• Supply and install new plasterboard ceiling lining
• Supply and install recessed puddle flange
• Supply and install door architraves
• Supply and install aluminium angle
• supply and install shower floor waste
• Supply and install sealants
• Supply and install waterproofing membrane

$3,240.00

3. GST
   $324.00

3. Subtotal
   $3,564.00

3. shower grate
   $195.00 (GST inc)

3. toilet ceiling
   $275.00 (GST inc)

3. Total
   $4,034.00

3. (b)
   A tax invoice from Stewart Plumbing and Gas was given to Mr Martin dated 23 August 2019 for $770 including GST ‘to repair faulty plumbing and elevated pipework’.^[18]

3. (c)
   A tax invoice from Stewart plumbing and gas was given to Mr Martin 2019 for $178.42 including GST for ‘trade plumbing labour for fit off and material including: brass extenders and sealant’.^[19]

84. [84]
    The work that Mr Jung performed was of a clearly unsatisfactory standard, did not comply with the Australian Standard as to the use of flexible pipework, and was wholly defective to the point of being unusable and requiring to be demolished.
85. [85]
    I am satisfied that the work performed by Mr Jung was wholly defective, was required to be removed and replaced, and that Mr Martin obtained no benefit from it.
86. [86]
    The defective work constitutes a breach of contract to perform the work in a proper and workmanlike way, and Mr Martin is entitled to recover damages for the breaches.

Damages

87. [87]
    Mr Martin has suffered loss by having to demolish the work for which he paid $5,500.00 at the direction of Mr. Jung. He is entitled to recover that amount.
88. [88]
    Mr Martin did not make any further claim in relation to breach of contract, and as Mr Jung conducted the proceeding without notice of any further claim, I make no further order as to remedial works.
89. [89]
    Mr Martin also claimed for a building report in the amount of $330.00. The report by Twinspectors dated 22 August 2019 was in relation to the defects in the work conducted by Mr Jung. The report was admitted as an exhibit at the hearing, and was not challenged by Mr. Jung.
90. [90]
    The tribunal may award costs under section 77(3)(h) of the QBCC Act. I consider that the building report was a reasonable step to take, and there being no challenge to the cost of the report, that the cost is reasonable, and that Mr Martin is entitled to recover the cost of $330.00.
91. [91]
    Mr Martin also claimed damages of $4,000.00 for personal injury. Mr Martin did not provide any particulars of this claim other than to say it was in relation to stress caused by dealing with Mr Jung, and did not provide any supporting medical or other evidence. In the absence of any substantiation, I do not allow this claim.
92. [92]
    Mr Martin also claims for interest on a home loan in the amount of $1,176.00. He did not provide significant evidence in support of this claim. The claim was based upon the home being an investment property, and that six weeks delay was caused in being able to rent it due to Mr Jung’s work having to be redone and completed.
93. [93]
    The only material in relation to the claim for interest is an email from Bendigo Adelaide, community bank Springwood to Five Star Kennels which reads as follows:^[20]

Please find below the interest paid calculation for the period specified. If the date range happens being correct, let me know and I will amend the calculations.

Interest paid

01/08t/19 - 05/09/19: $1,013.53 + $162.56 = $1,176.08

94. [94]
    There is no evidence as to who took the loan out, whether it was by Mr Martin personally, or by a business entity he was associated with.
95. [95]
    There was no evidence given that Mr Jung was advised that the works were of a business nature, such that time was of the essence, at the time of giving the quote, and that such a provision formed part of the contract.
96. [96]
    I consider that the claim for interest on the home loan is not substantiated, and is not shown as not being too remote, and do not allow this claim.
97. [97]
    Mr Martin also claimed the QCAT fee of $345.80. As he has been wholly successful in his claim as to the building work, I allow this fee as costs.

Conclusion

98. [98]
    I allow the following claims in the total amount of $6,175.80:

    1. (a)
       Refund of moneys paid - $5,500.00
    2. (b)
       Building report – $330.00
    3. (c)
       QCAT fee – $345.80
99. [99]
    I order that Danny (Won Kyo) Jung pay to Paul Martin the amount of $6,175.80.