Lu v Emerson[2024] QCAT 249

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Overview

1. [1]
   The applicant wanted hard-landscaping done to his residential property, such which included amongst other things the construction of a substantial retaining wall to the front of his house, what I understand from the evidence to be a paved concrete area to the upper level of his back yard, and a set of timber stairs up to it. He requested a quote from the respondent to do that work. They agreed on a price of $27,000, for which he paid a deposit of $6,000. Whilst there was a document said to be the ‘quote’, albeit styled as an invoice, which described the work to be performed and the price of each aspect of that work, no written contract was signed. The contract was oral only.
2. [2]
   Despite the promises of effectively an immediate start to the work, after some delay the respondent started with construction, namely the excavation for the footing to the retaining wall, but only after requesting further payment beyond the deposit, such not agreed to by the applicant. Upon commencement of the work, problems immediately existed. When excavating, the contractor cut the phone line and damaged a water-pipe, both leading to the house. He did not rectify either. Subsequently, after another delay and requests for further payment, again not agreed to by the applicant, the respondent placed the concrete to the footing. Despite the terms of the quote, and thus the oral agreement, requiring the respondent to have obtained engineering certification of the footing, and the applicant’s requests for proof of same, the respondent did not provide evidence of any such certification.
3. [3]
   That was the entirety of the work carried out by the respondent. What then followed was the respondent’s continued requests for further payment, all of which the applicant did not agree to saying he would pay only in accordance with the agreement. Ultimately, the respondent refused to return to carry out any more the work.
4. [4]
   The applicant then sought assistance from the Queensland Building and Construction Commission (‘the QBCC’). What is said to be action taken on the QBCC’s recommendation, the applicant asserts he then terminated the contract with the respondent, and in turn made a claim under the Queensland Home Warranty Scheme to the QBCC for non-completion. The QBCC denied the claim on the basis that the work in issue was not primary building work and so not covered by the Scheme.
5. [5]
   The applicant thus sought relief in this Tribunal by way of action directly against the respondent seeking payment in damages for the cost to complete the works originally contracted, such being the cost extra-over that remaining to be paid to the respondent.
6. [6]
   As I discuss herein, he did not succeed in pressing that claim in this Tribunal. The challenge facing him was the absence of a written contract. This meant, because of a prevailing provision of the relevant legislation, the oral contract he had with the respondent was of no effect. This directly impacted his entitlement to press his claim as one for breach of contract. Rather, his entitlement to relief from this Tribunal in the circumstances he found himself in was one limited to restitution of money paid. That arose as a consequence of mistake and as a result of the total failure of consideration.
7. [7]
   Notwithstanding that challenge, the decision is favourable to the applicant albeit the outcome considerably less than he had presumably hoped for. It requires the respondent to pay him $6,367, and the applicant is relieved from the obligation to the respondent any part the remaining $21,000 of that which was agreed to be paid for the construction of the hard-landscaping works.

Relevant Facts and Circumstances

8. [8]
   The respondent did not file any response to the claim against him. Nor did he file any statement of evidence. This is despite directions being given requiring same. The entirety of his communication with this Tribunal is a single e-mail dated 4 April 2023 in response to Directions dated 30 March 2023 issued 3 April 2023. I extract in full here the content of that e-mail:^[1]

Hi, my name is Leigh Emerson, I’m unsure of what I have to do here and I don’t understand the reason why I’m being taken to qcat (sic) as I did more work than I was paid for and owner had refused to pay me anymore money so I stopped working on the project.

9. [9]
   As a consequence, the entirety of the remainder of the material before this Tribunal is that provided by the applicant, it effectively being unchallenged. What follows here is as I have understood as the relevant facts and circumstances in this proceeding.
10. [10]
    The applicant is a home-owner. The respondent is a trade contractor, at the relevant time licenced in the class of ‘Brick and Block laying’.^[2]
11. [11]
    On 21 May 2021, the parties reached an agreement under which the respondent would construct the requested hard-landscaping work to both the front and back yards of the applicant’s property on which he lives in a house. The scope of work was described in a document which the applicant refers to as the ‘quote’ as follows: ^[3]

To prepare and lay concrete to a finished stated on top back area$6,000

To install timber stairs with structural steel supports and handrail along top area$10,400

To get engineer certification and dig to install reinforcements steel and concrete footings$4,000

To supply and install concrete block wall to retain front yard$5,000

To render front wall$1,600

12. [12]
    The agreed price for the works was $27,000 including GST. It required a deposit of $6,000 to be paid before works would be commenced.
13. [13]
    No written contract document was signed by the parties. No such document was even prepared. The extent to which the agreement was evidenced in writing was that written quote document from the respondent dated 5 May 2021, a follow up communication on 10 May 2021,^[4] and what appears to be an acceptance of that quote by payment of the required deposit on 21 May 2021. That same day the respondent sent an e-mail to the applicant acknowledging receipt of the payment, and stating he would commence work on the following Monday 24 May 2021.^[5] However, he did not start work on the following Monday.
14. [14]
    On 30 May 2021, the respondent requested the applicant to pay for materials before beginning work on the back yard. The applicant did not agree to do so.
15. [15]
    On 11 June 2021, the respondent commenced work. It was to the front yard where he excavated for the footing to the retaining wall. In doing so he caused the phone line to the house to be cut, and damaged a water pipe leading to the house. No further work was performed beyond the initial excavation. The phone line and water pipe were not repaired.
16. [16]
    On 20 June 2021, and again on 22 June 2021, the respondent requested further payment, initially starting at $5,000, then $3,500, then $1,500. Once again the applicant did not agree to make any further payment.
17. [17]
    On 12 August 2021, the respondent constructed the footing for the retaining wall by placing reinforcing steel and concrete into the excavated area. The applicant asserts that at that time he queried the respondent as to whether the footing was ‘engineer designed’ given the retaining wall was intended to be up to 2 m in height, and requested proof of same. The applicant says the respondent’s response was that he had engaged an engineer, however the respondent did not provide the applicant with any documentation to show it was so designed. The applicant asserts he had since discovered it was not engineer designed.
18. [18]
    On 20 August 2021, the respondent once again requested a further payment, on that occasion $1,700. Once again the applicant did not agree to such payment.
19. [19]
    On 7 September 2021, following the applicant seeking assistance from the QBCC, the applicant asserts that the parties engaged in ‘early dispute resolution.^[6] The applicant also asserts, he was told by the QBCC at the end of the process it appeared the respondent had no intention to complete the work and that it recommended he terminate the contract and file a non-completion claim with the QBCC.
20. [20]
    On 14 September 2021, despite no further work having been performed since the construction of the footing, the respondent again requested a further payment, on this occasion $3,500. Once again the applicant did not agree to such payment.
21. [21]
    On 15 September 2021, despite no further work being performed, the respondent yet again requested a further payment, on this occasion $1,600, also stating words to the effect “If no payment is made by 10 pm I will not continue. I’m not going back and forth anymore.” Again, the applicant did not agree to make any further payment
22. [22]
    On 21 September 2021, the applicant sent, what he described in his material filed in this proceeding as a ‘notice of termination’, to the respondent giving him 14 days to return to site and fulfil the contractual obligation. The respondent did not do so, and thus, the applicant asserts that on 4 October 2021 he then terminated the contract and lodged a non-completion claim with the QBCC.^[7]
23. [23]
    On 12 October 2021, the applicant was informed by the QBCC that the work in issue is not covered under the Queensland Home Warranty Scheme and that he should thus seek assistance from this Tribunal.
24. [24]
    The applicant asserts that what then followed, up to and into April 2022, were further communications between him and the respondent wherein the respondent expressed a willingness to complete the work, however he failed to return to the site. Also, the Brisbane City Council directed the applicant to clean up the mess in his front yard, which he asserts was left by the respondent from the initial works performed.
25. [25]
    On 22 December 2021, the applicant commenced this proceeding by filing an ‘Application for a Domestic Building Dispute’ in this Tribunal. He sought orders that:

The builder to repair the damaged water pipe using a licenced plumber.

The builder to remove the unengineered (sic) concrete footing.

The builder to clean up the mess from the construction site.

The builder to pay the loss of the owner from engaging another builder to complete the contract.

26. [26]
    What then followed was a series of directions given by this Tribunal for the conduct of the proceeding, such including on numerous occasions directions extending time for compliance with earlier directions. The last of those directions was a detailed and comprehensive one on 16 November 2023 for the filing of all relevant material.
27. [27]
    By a direction given on 19 February 2024, the time for the applicant to comply with that earlier direction was extended and it was also directed that the matter was to be determined on the paper, such being permissible under s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).
28. [28]
    On 17 May 2024, in response to that direction, the applicant filed his statement dated 15 May 2024. Therein he limited the relief he sought from this Tribunal to a claim for monetary compensation of $82,735.41 calculated as being the cost to have the works performed by another contractor, said to total $103,368.41 incl the cost of a plumber which I infer was for fixing of the broken pipe, plus the QCAT application fee of $367, less the balance unpaid under the contract of $21,000. As noted earlier herein, the respondent did not file any material in response to that direction.
29. [29]
    It is against this background that the matter came before me for determination.

The Issues

30. [30]
    The issues at the core of this dispute are narrow. They are effectively three questions:

    1. Was the footing, as constructed, defective such that it requires demolition and reconstruction?
    2. Was the contract between the parties effectively terminated as a result of the respondent’s breach such that the applicant is entitled to damages?
    3. What is the relief, if any, the applicant is entitled to?
31. [31]
    Whilst narrow, and thus open to be perceived as a relatively straightforward one to be resolved, resolution is complicated by the fact that there was no written contract document executed by the parties in compliance with statutory requirements. As a consequence, by operation of legislation, the oral contract they entered into was of no effect. Thus, the relief open to the applicant is severely restricted, with it giving rise to a fourth question, such being - what is the cause of action the applicant has against the respondent if he is to be entitled to any relief at all?
32. [32]
    His claim is effectively a claim for damages to put him into the position he would have been in had the contract not been breached, as he alleges, by a defectively constructed footing such that it requires demolition and reconstruction, and the subsequent refusal by the respondent to perform further work and complete the contract, such as to lead to the applicant terminating the contract for breach.^[8] 
33. [33]
    But, in the absence of an effective contract, breach of contract, including breach of the warranties under the QBCC Act Schedule 1B^[9] which are imposed on any domestic building contract but only one which is of effect, is not a cause of action open to him. That being so, if the applicant is entitled to relief for a wrong committed by the respondent, it requires identification of an available cause of action. In the present matter that falls to be determined solely under the law of restitution.

The Relevant Law

A Domestic Building Contract

34. [34]
    The work in question is the construction of hard-landscaping works, to a house in which the applicant resides. Thus, it is ‘domestic building work’ as that term is used in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). This is because the work as described in the quote document to which I referred in paragraph [11] herein all fall within the definition of a ‘fixture’ ‘associated with the applicant’s home, further or alternatively associated with the improvement of the home.^[10]
35. [35]
    Accordingly, the applicants’ engagement of the respondent fell within the ambit of a ‘domestic building contract’ under that legislation.^[11] In turn it was a ‘regulated contract’,^[12] more specifically a ‘level 2 regulated contract’.^[13]
36. [36]
    As such, the contract was required to have been in written form, dated, and signed by or on behalf of each of the parties to it.^[14] In the absence of it being so, the contract is of no effect.^[15] The consequence is that the parties are unable to enforce any rights or obligations arising from the agreement for the works even though the parties could show a verbal contract had formed.^[16]
37. [37]
    There was one other issue arising on the material before me, albeit not raised by the applicant, which arises under the legislation. For completeness I discuss it briefly later in these reasons. It however is not a basis upon which I made the decision which is reflected in the orders I made.

Jurisdiction

38. [38]
    The jurisdiction of this Tribunal to consider and decide this proceeding arises under the QBCC Act Part 7. The hard-landscaping works as described are all fixed structures, and thus for the purposes of the QBCC Act is work which falls within the definition of a ‘building’,^[17] and in turn ‘tribunal work’ under the Act.^[18] Moreover, because the nature of the work is domestic building work, it is reviewable domestic building work and thus the substance of a building dispute that the Tribunal may decide, and in terms of which the applicant is entitled to seek relief in this Tribunal.^[19]
39. [39]
    There is however an impediment that must first be overcome for applicants seeking such relief. Under the QBCC Act s 77(2), the entitlement to apply to the Tribunal does not exist absent compliance with a process established by the Queensland Building and Construction Commission to attempt to resolve the dispute. Such process is the QBCC Early Dispute Resolution process (‘EDR Process’), which if completed without resolution the parties are provided a letter from the QBCC evidencing the fact that they have participated therein, and as such enabling either of them to proceed with action in this Tribunal having satisfied the requirements of s 77(2) of the QBCC Act, the letter being proof of same that may readily be given to the Tribunal.
40. [40]
    Two things must be said about that in this proceeding.
41. [41]
    Firstly, as I noted it earlier herein, the applicant asserts the parties engaged in the EDR Process, however he did not file a copy of the letter from the QBCC. Notwithstanding the absence of that letter, the assertion was clearly made to that effect in the applicant’s statement, and it was unchallenged. Thus I accept on face value the assertion made that the EDR Process had been engaged in, thus overcoming any such impediment if one was in place, although as I discuss it in the next paragraph in my view such impediment did not arise.
42. [42]
    Secondly, my opinion for the reasons I explain here, such an impediment was not actually in place. In the present circumstances s 77(2) of the QBCC Act does not give rise to an impediment because it is only engaged when the contract between the parties remains on foot. It does not have any application when the contract is completed or otherwise terminated, the latter being the position the applicant took in this proceeding, again unchallenged by the respondent notwithstanding the absence of documentary evidence to support the applicant’s assertion of that fact. But moreover, nor would it have any application in the circumstances that, as is the case here, the contract between the parties is of no effect. That is, the requisite contract never existed.
43. [43]
    For all these reasons, there was not any jurisdictional barrier to me considering the applicant’s Application that was before this Tribunal. I thus turn now to the relevant law under which the application has been determined.

The law as it applies to the proceeding

44. [44]
    In the absence of the contract being of effect, the applicant cannot proceed on a cause of action for breach of contract.^[20] The parties’ respective entitlements in respect of the work performed are therefore governed by common law principles, with the applicant left to pursue the relief he seeks within other areas of the law. As is relevant to the issue in this proceeding, one such area of law is the law of restitution.^[21]
45. [45]
    But, in cases such as these, there is also an overriding legal principle that applies, namely the question of cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons – Building and Engineering Contracts:

Where a builder has carried out work to a building which requires remediation, the issue that arises is whether the building Owner is entitled to the cost of repairing that defective work – the cost of cure – or is limited to the diminution in the value of their building as a consequence of the defective quality of the work undertaken.^[22]

46. [46]
    This is often referred to as the test in Bellgrove v Eldridge (1954) 90 CLR 369 wherein the Court adopted the following statement made in an earlier version of Hudsons, expressing it as a correct statement of the law:^[23]

… the measure of damages recoverable by the building owner for the breach of a building contract is … the difference between the contract price of the work or building contracted for and the cost of making the work or the building conform to the contract, with the addition, in most cases, of amount of profits or earnings lost by the breach.

47. [47]
    In that matter, Dixon CJ, Webb and Taylor JJ, expressed a qualification to that rule, it being:^[24]

The qualification, however, as to which this rule is subject is that, not only must the work undertaken by necessary to produce conformity, but it must be a reasonable course to adopt. ... Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of deal with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or material.

As to what remedial work is both “necessary” and “reasonable” in any particular case is a question of fact. …

48. [48]
    Whilst the observations made therein were cast in the language of a breach of contract, the same principles can be applied in cases of restitution. There is however a difference. When damages are assessed for breach of contract, it is the damages that would flow had the breach not occurred and the contract had been performed to completion, and so must be calculated relevant to the contract. When damages are being assessed under restitution, it is the amount which would flow had the wrong not occurred and so must be calculated relevant to the net position the applicant is left in after the work has been performed relative to what he should have paid for the work completed in the manner it was. That is, it takes into consideration the value of the work performed in contrast to that which he paid for it, and in so doing addresses the issue of diminished value. This then of course gives rise to the question of what is necessary and reasonable to remedy the alleged error made?
49. [49]
    In order to have dealt with those issues, it was necessary for me to first consider the evidence as it was placed before this Tribunal. As I discuss in the paragraphs that follow here, I was satisfied on that evidence that there was no value in the work the respondent performed because it was not only incomplete it could not be verified as being engineer designed and thus satisfactory to support a retaining wall of up to 2 m in height such that it required demolition and reconstruction. For that reason, I was satisfied that such is a necessary and reasonable course to adopt and accordingly the issue of diminished value vs cost-of-cure did not arise.

Discussion on the Evidence

Findings of Fact

50. [50]
    As I noted it earlier herein, the respondent effectively failed to respond to the claim against him. He did not present any evidence to show that the work he performed was properly engineer designed, nor of any value.
51. [51]
    In contrast, there was some evidence from the applicant as to what had occurred, albeit bare assertions unsubstantiated with certainty by supporting independent evidence.^[25] At its highest, the applicant’s evidence was a ‘quote’ from RBP Group which contains reference to an initial site visit to assess the conditions, to the development of engineering design drawing to enable retaining wall construction, and in turn a quotation for the cost of such construction including excavation, reinforcing steel, and concreting works. Whilst such is not direct evidence of the unsatisfactory nature of the work the respondent performed, in my opinion when it is read in conjunction with the unchallenged statement by the applicant that the work done was not engineer designed, an inference can be drawn therefrom that such was the opinion of the author of that quote and accordingly I proceed on the finding it was fact.
52. [52]
    Additionally, there is the unchallenged evidence from the applicant that the respondent did not continue and perform any more work, had left the site in a messy condition, and had not repaired the broken water pipe, but moreover refused to continue until further payment was made. Moreover, the latter is in effect the respondent’s stated position as he put it to this Tribunal as I referred to it in paragraph [8] herein.
53. [53]
    I accepted the applicant’s evidence as being accurate. On the basis of it I found as a fact that the work constructed by the respondent was not only defective and incomplete, but it also simply had no value, and the respondent otherwise abandoned his expressed obligation to perform all of the works asserted to have been contracted.
54. [54]
    That then leads to the question as to what relief the applicant was entitled to in this proceeding.

Application of the Relevant Law to the Evidence

The action in contract

55. [55]
    As noted earlier and merely repeated here for convenience and completeness, in the absence of an effective contract the applicant does not have a cause of action in contract. He can therefore not press a claim for damages for breach of contract, such being his claim for the costs to him of having the work performed by another contractor which exceeded that which he asserts he agreed under a contract to pay the respondent for to perform the works.
56. [56]
    At its highest his claim turned to be decided in restitution.

An entitlement to restitution

57. [57]
    I did not overlook the fact that the applicant did not present his claim as one being in restitution, but notwithstanding that fact, such should not mean he is not entitled to any relief in this proceeding when the evidence as presented to this Tribunal supports relief being given.
58. [58]
    As is the case with the vast majority of parties commencing a proceeding in this Tribunal, and in turn conducting their own advocacy in the proceeding, the applicant was self-represented and from what I infer on reading his material, he is not legally trained. For that reason he has not expressed his claim in a way that might otherwise be expected of a legally trained person such as to identify with clarity a claim in restitution.
59. [59]
    It is often difficult and challenging for any Member of this Tribunal in the conduct of a proceeding involving a litigant appearing in person to identify with clarity the claim the applicant is seeking relief for, the legal premise for such a claim, and the basis upon which a respondent is defending it. It is all the more challenging when ignorance, by a party, of procedural matters and the need for a degree of precision in an expression of the law is overlaid with emotional reaction, some of which appears to me to have crept in to the applicant’s case as he has expressed it.
60. [60]
    In Neil v Nott (1994) 68 ALJR 509¸ the High Court observed:^[26]

A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.

61. [61]
    That being said, in this proceeding the applicant’s lack of legal and procedural knowledge is undoubtedly a misfortune for him in his effort to conduct his case, but it should not be considered by him nor otherwise seen nor treated as a privilege which affords him some benefit over the respondent. However, notwithstanding that, nor should it afford the respondent a benefit over the claimant.
62. [62]
    The respondent was the licenced contractor and should have been aware of and known the statutory requirements for a written contract, such that if one had been provided consistent with the requirements of the legislation the parties would have found themselves in vastly different territory. This is particularly so given the respondent’s conduct in consistently seeking further payment without which he would not proceed further with the work and, as his own statement supports, his refusal to carry out any more work. Such is a clear repudiation of a contract such which would have entitled the applicant to accept the repudiation and terminate the contract. In turn that would have left the respondent exposed to the liability for damages, one which the applicant would have been successful on pressing, although in saying that I do not express any opinion as to the quantum of the damages that would be ordered as payable given that evidence about that would have to have been first heard and tested.
63. [63]
    In the absence of a contract being of effect, he has avoided that exposure in terms of a breach of contract, but has left himself open to a claim in restitution. The applicant has thus been disadvantaged to the extent he has incurred the extra-over cost which might otherwise have been his claim in damages. But, notwithstanding that, he should not be denied a claim in restitution. It is a right the applicant held, which I was able to readily ascertain as existing once I, as the Tribunal, assumed the burden of endeavouring to ascertain the rights of the parties on my consideration of the cases as presented and supported by the evidence, albeit such not as precise as would be expected from legally trained advocates.
64. [64]
    As I have noted it earlier herein, the contract between the parties was of no effect. However, to the extent there was an ‘agreement’ between the parties for the performance of work, it has been partially discharged by performance to the extent of some work having been performed by the respondent, and that the respondent did not challenging the asserted fact he was paid $6,000,^[27] and as I noted it in paragraph [8] herein, the respondent effectively arguing he did more work than he was paid for.
65. [65]
    Accordingly, a restitutionary claim had become available on performance of that work.^[28] Such would be a claim in restitution by the respondent as to an entitlement to retain that which was paid to him as well as whatever else he may have asserted was the value of the work he performed, alternatively a claim in restitution by the applicant to be repaid that which he paid effectively by mistake, that being his mistaken belief he was required to make payment under a contract, and so has a right to recover the payment made which if not recovered would effectively leave the respondent unjustly enriched.^[29] In each instance a relevant factor was the extent to which, if any, the applicant received and retained a benefit from the work performed. As I discuss in the paragraphs that follow here, there was no such benefit, and accordingly no value in the work performed by the respondent.
66. [66]
    In this regard, the most telling fact is that, as I have found it to be, the footing to the retaining wall was not engineer designed and thus could not be relied upon as having been properly constructed so as to support a retaining wall of up to 2 m in height. Thus, the only remedy was demolition and reconstruction. What that means in the language or a restitutionary claim is that the applicant has not received, nor accepted, any benefit at all from the respondent’s work performed. Given that finding, it could thus readily be said that there was a total failure of consideration such which would entitle the applicant to a claim in restitution of the $6,000 paid.

An entitlement to relief for the balance of the agreed price

67. [67]
    In my opinion, whilst not a restitutionary claim, for completeness it is also in order that the applicant be relieved from paying any part of the remaining $21,000 unpaid from the agreed amount. Such is so in the premise that the respondent asserted he actually did work to the value exceeding the $6,000 paid, although such an assertion being entirely devoid of any detail nor any claim being pressed for what is asserted to be owing.
68. [68]
    For these reasons, the applicant was entitled to relief, with orders made to the effect that:

    1. The respondent pay him $6,000; and
    2. He be relieved from payment of any part of the $21,000 unpaid of the amount agreed for the performance of the works.

The applicant’s claim as presented

69. [69]
    As I noted it earlier in these reasons, the applicant sought orders that the respondent pays him:^[30]

    1. damages of $82,368.41; and
    2. the QCAT fees he paid of $367;
70. [70]
    I address each of these briefly in turn because it should readily be apparent that the relief I found the applicant to be entitled to is far less than what he sought.

Compensation for Damages

71. [71]
    There is no basis in restitution for recovery of the extra over cost of having the works performed. Such would ordinarily be a claim in damages for breach of contract if there was an enforceable contract between the parties. But, for the reasons I have discussed herein, such a claim was not open to the applicant to make given the absence of a contract which had effect. Accordingly he could not succeed in the claim as made.
72. [72]
    Should the applicant consider that such is an adverse outcome for him because he was merely a home-owner, and it should have been a responsibility cast upon the respondent as a contractor to have provided him with a written contract, he should not the following comments.
73. [73]
    As the Appeal division of this Tribunal observed in Cerda v Jacob in reference to both Level 1 and Level 2 regulated contracts: ^[31]

In our view the s 13(5) and s 14(10) of Schedule 1B are clear on their face. A regulated contract that is not in writing, signed by the parties and dated is of no effect, with the consequence that the contract is void and unenforceable by either party. These minimum mandatory requirements are neither difficult for builders and building owners to comply with nor onerous in circumstances where persons contract for the performance of domestic building work. If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.

74. [74]
    A similar observation, but one with a more expansive point being covered, was made in this Tribunal at first instance in Clarke v Queensland Building and Construction Commission:^[32]

More to the point, level 2 regulated contracts are significant contracts. The statutory requirement for them to be in writing, dated and signed by or on behalf of both parties is there for a self-evident reason – to minimise disputes, of which the current matter is an example, about the terms of such contracts. There is obviously a consumer protection element to the evident policy of the legislation, but there is also a broader public interest in the minimisation of disputes the resolution of which, through publicly-funded mechanisms such as the Commission’s and Tribunal’s review processes, comes at a cost to the general public. It is prudent for owners entering into significant arrangements with builders to ensure they have a written contract signed by both parties and dated. Parliament’s plain intention is that owners or builders who fail to observe that requirement do so at their peril.

75. [75]
    For this reason, an order was made dismissing the applicant’s claim to the extent it was pressed in damages, thereby effectively dismissing the balance of the monetary relief he sought from this Tribunal save only for his claim for the QCAT Fees.

Claim for QCAT Fees

76. [76]
    Under s 77(3)(h) of the QBCC Act, read in conjunction with s 102 of the QCAT Act, this Tribunal is seized of jurisdiction to award costs of a proceeding, notwithstanding the provisions of s 100 of the QCAT Act which is often cited as the basis for an argument that the usual order is each party bears their own costs.
77. [77]
    The applicant has achieved some success in this proceeding. In contrast, the respondent took a stance which effectively was to ignore this proceeding. His apparent choice not to provide any detailed response to the allegations and claim against him, nor evidence, was telling of his conduct in this proceeding being ignorant of the seriousness of that which was being alleged against him. For these reasons, the interests of justice here dictate that the applicant should be paid this $367 by the respondent. Accordingly an order was made to that effect.

The other issue arising on the material

78. [78]
    As I foreshadowed earlier in these reasons, there was one other issue that arose as I saw it on the material that formed the Tribunal Record, which for completeness I said I would briefly comment on. I do so here
79. [79]
    In paragraph [10] herein, I noted that the respondent held a QBCC licence at the relevant time in the class of 'Brick and block laying’. That licence entitled the respondent to perform the following scope of works:^[33]

1. Brick or block construction, including surface preparation.

2. Build straight masonry steps and stairs with or without landings.

3. Lay segmental or unit paving.

4. Lay glass blocks.

5. Construct battered masonry surfaces.

6. Install prefabricated window or door frames.

7. Concreting to simple forms, including installation of formwork, reinforcement and concrete.

8. Incidental work of another class.

80. [80]
    However, the works as they are described in the quote as I have listed it in paragraph [11] herein, and thus said to be the scope of works agreed to be carried out by the respondent as contractor, exceed this authorised scope, namely (‘the Unlicenced Work’):

    1. prepare and lay concrete to a finished stated on top back area,
    2. install timber stairs with structural steel supports and handrail along top area; and
    3. render front wall.
81. [81]
    No part of the Unlicenced Work would fall within the ambit of ‘incidental work of another class’ which the respondent’s licence did cover, because as described each are substantial aspects of the work to have been performed and not a small component incidental with the performance of the remaining work, which was the construction of the retaining wall together with its footing such which was within the ambit of the respondent’s licence.^[34]
82. [82]
    Nor is there anything contained in the material before me to suggest, or from which I could readily draw an inference, that when the respondent entered into the agreement with the applicant to perform these works it was his intention to subcontract the Unlicenced Work to others who were properly licenced to do the work, and thus consider that he would fall within the head contractor exemption under Schedule 1A s 8 of the QBCC Act.^[35]
83. [83]
    Thus, under s 42 of the QBCC Act, the respondent was not only prohibited from carrying out the work he was prohibited from undertaking to carry out the work. Whilst, on the evidence as presented to this Tribunal, the only work the respondent did perform was within the class of the licence he held and accordingly he did not contravene the second limb of s 42, by entering into the agreement to perform the Unlicenced Work, which he did by virtue of the purported contract, he undertook to perform such work thus contravening the first limb of s 42 of the QBCC Act.
84. [84]
    The consequences for the respondent of such conduct are:

    1. On the premise that, given he obtained his licence only shortly before he entered into the agreement with the applicant and as such I inferred this would be his first offence against s 42, he is liable to a penalty of 250 penalty units^[36] or 1 year of imprisonment and he has committed a crime;^[37]
    2. To the extent a part of the $6,000 he was paid by the applicant could be shown to be attributable to the Unlicenced Work, which in my opinion it could be given that the payment was described as being a ‘deposit’ and accordingly should be considered as being applicable pro-rata across all items of work, that equating to $4,000 of the $6,000, the respondent was not entitled to be paid for the work other than on a limited basis but only after the work had been carried out.^[38]
85. [85]
    For these reasons, if the applicant had raised this issue, I would have found it to be as I have described it herein, such which would also have been a premise upon which the applicant was entitled to restitution of at least part of that which he paid, that being the $4,000 which the respondent was statutorily disentitled to have received.

Conclusion

86. [86]
    The applicant has been subjected to circumstances which I have, regrettably, seen too often. The respondent at the least failed to understand or was ignorant, or at worst simply disregarded, the legislative provisions under which he was required to conduct himself in business as a licenced trade contractor. Moreover, the respondent also seemingly did not understand, or again was ignorant, or at worst disregarded, his contractual obligations to the extent he purported to have entered into a contract. His conduct, as the applicant described it and for which the respondent had the opportunity to respond to and defend himself which he simply chose not to, was deplorable. His contraventions of the QBCC Act were numerous. I trust that the QBCC has, or will, take the appropriate action to hold the respondent accountable for such.
87. [87]
    Sadly, it is not for this Tribunal in a proceeding such as this provide relief to the applicant for what he has suffered as a result of that deplorable conduct. Moreover, much of the relief he seeks in this proceeding is, as I have explained, not open to him given his own failure to have ensured he had a written contract that complied with the provisions of the legislation. Whilst I expect he would say he simply did not know about the need for such and relied on the respondent to have informed him of such, as I have discussed already in these reasons, whilst it might be a reason, such is not an excuse.
88. [88]
    At best all this Tribunal can do in such circumstances is, as I have done here, apply the principle laid down in the High Court decision of Neil v Nott as I discussed it earlier in these reasons and ascertain the rights of the parties which may have been obfuscated by their own advocacy. In doing so I was able to reach a conclusion that favours the applicant with some relief. To the extent he failed in terms of relief in the quantum he sought such is directly as a result of his failure to have ensured he had a written contract with the respondent that complied with the requirements of the prevailing legislation. All homeowners should be aware of the need for same. Once homeowners finally understand that message, then many of these sorts of disputes may either be avoided or result in better outcomes for homeowners.