McGeoch & Anor v Harrison[2024] QCAT 314

REASONS FOR DECISION

Background

1. [1]
   The respondent, Mr Harrison, carried out painting of the roof, gutters, garage door and facias of the applicants’, Mr McGeoch and Ms Lishman, house. The handwritten pro forma Quotation numbered 98, dated 8 June 2022 and signed by the respondent, indicated that the roof would also have ‘prep’ work included and ‘pressure cleaning’ performed.^[1] The contract price for the work was $3,280 and the commencement date was noted as 11 July 2022. A deposit of $580 was to be paid and the respondent included his bank details on the Quotation to allow for the deposit to be deposited directly.
2. [2]
   The applicants’ evidence is that the painting work was never fully completed, and that the work that was done was inferior and not of a suitable standard. The applicants also allege that there was significant overspray onto the eaves, downpipes, solar panels and other building structures.
3. [3]
   No formal contract was entered into apart from the Quotation dated 8 June 2022 previously referred to, and the contract is limited to oral conversations and text messages between the parties.
4. [4]
   The applicants’ claim is for defective work as they assert that the roof was not primed, is rough to touch and roof paint was not used such that it will peel and looks unsightly. The applicants’ additional claim for damages is that they assert that the over spraying should be cleaned, and the surfaces rectified. The applicants claim for damages for delay is that they have been prevented from commencing further renovation works.
5. [5]
   There is evidence provided by the applicants that there was contact with the respondent on numerous occasions to commence the contracted work. The applicants assert in their submission dated 17 March 2024 and filed on the 18 March 2024, that they received many calls from the respondent postponing the start date. It appears from a printout of the call log of the applicant, Mr McGeoch, that such calls were received by the applicants on 9 July 2022, 8 August 2022, 17 August 2022, 1 October 2022 and 18 October 2022.
6. [6]
   There is further evidence provided by the applicants of SMS text messages, again from the call log of applicant Mr McGeoch, that span a period of time from 18 October 2022 until 3 April 2023. Unfortunately, the full context of the messages is unknown, however they appear to relate to the commencement and or completion of the work.
7. [7]
   The start and completion dated of the work are set out in the Application and appear as, start date 21 September 2022, and completion on 23 November 2022.
8. [8]
   The applicants lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’). On 30 January 2023 QBCC refused to direct the respondent to rectify the complaint on the basis the work was not building work under the legislation.
9. [9]
   On 14 April 2023 the applicants commenced these proceedings. The Application does not clearly identify the claim; however, it is clear the claim is based upon breach of contract or negligence. The applicants clearly claim that the building work, being the roof painting performed by the respondent, was defective.
10. [10]
    In the application, the applicants seek that the respondent return to finish and/or rectify the work, however the applicants have now produced a quote for the completion and rectification of the work from a painter of their choice. It appears this is based upon the assertion by the applicants that the respondent has failed or refused to return to complete the work or rectify it. The quote is for $11,825.00. To pressure wash, prime, two coats of roof paint and unknow work to the facia and gutters.

Statutory framework – Building Disputes.

11. [11]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
12. [12]
    The Tribunal has jurisdiction to hear and decide building disputes;^[2] however, s 77(2) of the QBCC Act qualifies QCAT’s jurisdiction by first requiring an applicant to comply ‘with a process established by the commission to attempt to resolve the dispute’.
13. [13]
    I am satisfied that these obligations have been complied with, based on the letter from the QBCC dated 6 June 2022 attached to the application.
14. [14]
    The QBCC refused to deal with the matter on the basis that it was not building work. This does not prohibit the Tribunal dealing with this matter. The QBCC retains its jurisdiction of supervising and disciplining contractors performing ‘building work’. ‘Building work’ is defined in Schedule 2 of the QBCC Act. It is similar to, but not as extensive as the Tribunal’s ‘tribunal work’. Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Qld) (‘QBCC Reg’) contains a list of exclusions of work that are not ‘building work’ for the purpose of the QBCC regulatory/supervisory role, which includes work of a value under $3,300,^[3] which would exclude this work from the definition of ‘building work’.
15. [15]
    For the purpose of the Tribunal, a building dispute includes a domestic building dispute, which is defined to include a dispute between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.^[4] For the Tribunal’s purpose, a building dispute is still a building dispute even where the contract is for $3,300 or less as the monetary threshold has no application to building disputes before the Tribunal.^[5]
16. [16]
    The terms ‘building owner’ and ‘building contractor’ are also defined in the QBCC Act.^[6]
17. [17]
    Reviewable domestic work means domestic building work under Schedule 1B, s 4 of the QBCC Act. Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home.^[7] A home is a building or portion of a building that is designed, constructed or adapted for use as a residence.^[8]
18. [18]
    Roof restoration work and painting work are domestic building work, and as such, this claim relates to a contract for the performance of ‘reviewable domestic work’ within the Tribunal’s building dispute jurisdiction.^[9]
19. [19]
    I am satisfied that at all material times, the applicants were the owners of the residential property where building work was to be completed, and that the respondent was a building contractor who carried on a business that consisted of or included carrying out building work, namely painting. As such I am satisfied with the jurisdictional issues that this is a building dispute, and the Tribunal has the jurisdiction to hear this matter.
20. [20]
    Pursuant to Schedule 2 of the QBCC Act, a domestic building dispute also includes a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work, other than a claim for personal injuries.
21. [21]
    Pursuant to s 77(3) of the QBCC Act, in deciding a building dispute the Tribunal may award damages, interest, restitution, rectification or completion of defective or incomplete work, and costs.

Claims for breach of contract.

22. [22]
    A homeowner who enters into an agreement with a building contractor for the performance of building work and who sustains loss arising from the performance of the work in a defective manner may make a claim against the building contractor for breach of contract.^[10] Where the breach of contract is established, the homeowner is, as far as money can do so, entitled to be placed in the same situation with respect to damages as if the contract had been performed.^[11]
23. [23]
    I am satisfied that the parties had an informal agreement for the respondent to perform domestic building work for the applicants, on the basis of the quote provided by the respondent in June 2022 which the applicants accepted and made part payment.
24. [24]
    The QBCC Act sets out the requirements for domestic building contracts which are regulated contracts. A domestic building contract includes a contract to carry out domestic building work.
25. [25]
    A regulated contract includes a domestic building contract for which the contract price is more than the regulated amount. A regulated contract must be in a written form, dated and signed by or on behalf of each of the parties to it.^[12] A regulated contract only has effect if it complies with these requirements.^[13]
26. [26]
    A domestic building contract, where the contract price is more than $3,300 and less than $20,000 is a level 1 regulated contract.^[14]
27. [27]
    Given the stated cost of the contract this was not a level 1 regulated contract, and as such there was no requirement for it to be in writing, dated and signed.
28. [28]
    While this was not a signed contract the work to be performed and remuneration were clear as per the handwritten quote. A part payment was made, ostensibly for the cost of paint. The work was commenced eventually, albeit allegedly not completed.
29. [29]
    As there are no clear warranties in the contract, the applicants would need to rely upon an implied warranty or on statutory warranty.
30. [30]
    Sections 19-29 in Part 3 Schedule 1B of the QBCC Act set out the implied statutory warranties, which include that the material used is suitable for the proposed use and the standard of work will be carried out with the reasonable skill and care.
31. [31]
    The statutory warranties apply to regulated contracts. As this contract is not a regulated contract, as it is under $3,300, ss 19 to 29 do not strictly apply in this matter.
32. [32]
    However, the relationship between a homeowner and building contractor is a professional relationship which relies on a level of trust. There is consequently an expectation that the building contractor will have a level of skill to complete the building work and a duty of care is owed to ensure the building works are completed to an appropriate standard. This is an established category of relationship where a duty of care is owed. The duty is owed because it is reasonably foreseeable that if care is not taken by a building contractor in performing building work, the building owner/homeowner is likely to suffer loss and damage.
33. [33]
    Accordingly, it would be reasonable to consider the implied statutory warranties set out in ss 19 to 29 in Part 3 Schedule 1B of the QBCC Act as implied terms in all contracts for building work, and I find that these are implied terms in this contract between the applicants and the respondent.
34. [34]
    It is clear that in this matter, the applicants relied upon the respondent to perform the building work with appropriate care and skill.
35. [35]
    It is clear from the photographs provided by the applicants that the paint on his roof has a rough finish, and that there has been overspray onto facia, gutters and solar panels. Unfortunately, there is only one quote provided by Gio’s Professional Painting for $11,825.00 to complete or rectify the work.
36. [36]
    There is no material filed by the respondent in this matter despite the opportunities provided to the respondent by the Tribunal to do so, and accordingly there is no contravening evidence, or submissions proffered by the respondents in relation to the claim nor the compensation sought.
37. [37]
    There is no evidence from the painter who quotes for the rectification work as to the quality of the work. The applicants submit that the painter told them the paint used was not roof paint and that the roof was not primed before painting. The finding is therefore open, in the absence of contrary evidence, that the work was not to a standard required by the implied statutory warranties. The warranties include that the material used is suitable for the proposed use and the standard of work will be carried out with the reasonable skill and care and is therefore defective. I make those findings.
38. [38]
    The above findings do not amount to a breach of contract unless the respondent was given a reasonable opportunity to rectify the defects^[15] but he repudiates the contract by refusing to do so.^[16]
39. [39]
    The submission of SMS text by the applicant between the parties appears to indicate that the applicants were prepared to allow and in fact requested the respondent to return to site to finish and/or rectify the painting of the roof. Numerous attempts were made to contact the respondent to achieve this, and the application requests that the respondent return to finish and/or rectify the work.
40. [40]
    There is one email from the respondent to the applicant, Ms Lishman, dated 3 April 2023 that in summary, appears to claim that the job was ‘completed’ by ‘Laughlan’. There is no material submitted by the respondent to controvert the applicant's assertion that the work was unfinished and or defective and accordingly I find that the respondent was given a reasonable opportunity to address the applicants’ concerns and rectify or finish the work.
41. [41]
    As such I find that there is a breach of contract in this matter.

A Claim in Negligence

42. [42]
    Even if implied warranties could not be inferred into the contract in this matter, as referred to above, a domestic building dispute may include a claim or dispute in negligence relating to the performance of reviewable domestic work.^[17]
43. [43]
    The Tribunal has recognised in previous decisions that it may still consider an informal agreement in any claim for negligence,^[18] finding that in agreeing to perform the work and performing the work, the building contractor owed the homeowner a duty to take reasonable care in performing the work.^[19]
44. [44]
    To establish a claim in negligence, the applicants must prove that the respondent owed him a duty of care, that the respondent breached the duty, and as a result of the breach, the applicants have suffered loss.^[20]
45. [45]
    As noted above, a relationship between a homeowner and building contractor is an established category of relationship where a duty of care is owed. I find that the respondent owed a duty of care to the applicants to avoid harm^[21] to them by performing the agreed work in compliance with all relevant laws and legal requirements and with all reasonable care and skill, supplying and using materials which were suitable for the purpose for the painting work contracted. These are in line with the warranties implied into the contract between the parties in Schedule 1B of the QBCC Act, which provide the scope of the duty of care owed by the respondent to the applicants.
46. [46]
    I find that it was reasonably foreseeable that if the respondent failed to exercise appropriate care and skill in performing the building work that the applicants may suffer loss. I further find that the respondent owed to the applicants a duty of care to perform the building work in an appropriately skilled and competent manner.
47. [47]
    In line with the submissions by the applicants in relation to the opinion provided by  Gio’s Professional Painting Pty Ltd that there was no use of appropriate primer or membrane paint, and the photos and evidence provided by the applicant of the rough finish paint on the roof, overspray of the facia and eaves, and overspray of the solar panels,  I find that the respondent has failed to perform the building work in a proper and workmanlike manner in breach of the duty owed to the applicants, and that the respondent is liable to the applicants for damages as a result of this breach of duty.
48. [48]
    Accordingly, I am satisfied that the elements are made out for a claim in both contract and a claim for negligence.

Damages

49. [49]
    The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, or for a breach of duty in tort, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. Damages may include the cost of rectification work.^[22]
50. [50]
    The applicants are the only party who provided any quote on the costs to rectify the roof. The respondent, apart from an email response to the applicants dated 4 March 2023 of cryptic meaning, did not attend the property to address the complaints of the applicants, rectify the work or provide any quote to rectify the work from another contractor.
51. [51]
    I am satisfied on the uncontested evidence that the scope of the work outlined in the quote of Gio Professional Painting Pty Ltd is reasonable. I am satisfied on the uncontested evidence that the cost of the work is most likely reasonable, given the limited detail. I allow the amount of $10,750 plus GST of $1,075, being a total of $11,825.

Costs

52. [52]
    The Tribunal may award costs in a building dispute.^[23]
53. [53]
    It is clear from the applicants’ application that they seek costs, having ticked the appropriate box in the application. A filing fee of $367 was paid to QCAT as a filing fee. There are no other costs apparent from the material filed by the applicants.
54. [54]
    The amount of the filing fee is reasonable and was necessarily incurred by the applicants in pursuing this claim. I therefore consider it is in the interests of justice to award the filing fee, and I fix the total costs payable in the amount of $367.

Orders

55. [55]
    The Tribunal orders that the respondent, Billy Jack William Robert Harrison, pay to the applicants, Bryan McGeoch and Nicola Lishman, the sum of $11,825.00 plus costs of $367.00, a total of $12,192.00, within 60 days of the date of delivery of this decision.