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  4. Mikita v Kontek Constructions Pty Ltd - [2024] QCAT 315

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Mikita v Kontek Constructions Pty Ltd[2024] QCAT 315

Mikita v Kontek Constructions Pty Ltd[2024] QCAT 315

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315

PARTIES:

DAVID MIKITA

(applicant)

v

KONTEK CONSTRUCTIONS PTY LTD

(respondent)

APPLICATION NO/S:

BDL273-21

MATTER TYPE:

Building matters

DELIVERED ON:

7 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. The Respondent must pay to the Applicant the amount of $77,442.23 within twenty-eight (28) days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – domestic building dispute – where respondent/building contractor performed concreting work for applicant/homeowner – where homeowner paid contract price – where homeowner claimed work was defective – where no signed and dated contract between the parties – whether regulated contract under the Queensland Building and Construction Commission Act 1991 (Qld) – whether claim in contract available – whether claim in negligence available – where claim is for pure economic loss – whether duty of care owed by contractor to homeowner – whether contractor breached duty of care in carrying out, and attempting to rectify, the concreting work – assessment of damages

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, s 1, s 4, s 5, s 6, s 7, s 14, s 30, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 45

Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43

Astley v Austrust Ltd (1999) 197 CLR 1

Batterham v Makeig [2010] NSWCA 86

Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665

Bryan v Maloney (1995) 182 CLR 609

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor (2014) 254 CLR 185

Burnell v Jarvis [2024] QCAT 126

Cerda v Jacob [2020] QCATA 57

Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498

Gnych v  Polish Club Ltd (2015) 255 CLR 414

Mousa v Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49

Perre v Apand Pty Ltd (1999) 198 CLR 180

Townsend and Anor v Roussety and Co (WA) Pty Ltd and Anor (2007) 33 WAR 321

Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205

Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] QCA 24

McSwan v Weaver [2023] QCAT 148

Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor (2004) 216 CLR 515

Prestia v Aknar (1996) 40 NSWLR 165

Zhang v Hardas (No 2) [2018] NSWSC 432

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

Introduction

  1. [1]
    By an application for domestic building disputes filed on 26 October 2021 (‘the Application’), the Applicant claims damages and restitution from the Respondent as a result of concreting work performed by the Respondent at the Applicant’s property in Brisbane in the State of Queensland (‘the Property’). The Applicant alleges that the concreting work as originally performed, and after attempted rectification, was defective.
  2. [2]
    In considering the Application, it is first necessary to give consideration to the issue of jurisdiction.

Jurisdiction

  1. [3]
    Subsection 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides that a person involved in a ‘building dispute’ may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), to have the Tribunal decide the dispute.
  2. [4]
    At the time of the filing of the Application, Schedule 2 to the QBCC Act provided, relevantly:
    1. that a ‘building dispute’ included a ‘domestic building dispute’;
    2. ‘domestic building dispute’ means, relevantly, a claim or dispute arising 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;
    3. ‘reviewable domestic work’ means domestic building work under schedule 1B, section 4, except that for applying schedule 1B, section 4(8), the definition excluded building work under this schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition.
  3. [5]
    I find that:
    1. the work performed by the Respondent was ‘associated work’, being work associated with the renovation, alteration, extension, improvement or repair of a home (see Schedule 1B, s 4(3)(b), s 4(4)(c), s 9) and, consequently, was ‘domestic building work’;
    2. the Work was not ‘excluded building work’ (see Schedule 1B, s 4(8));
    3. by reason of subparagraphs (a) and (b) above, the work was ‘reviewable domestic work’;
    4. the Applicant was a ‘building owner’ being, relevantly, a person for whom domestic building work has been carried out (see Schedule 1B, s 1, definition of ‘building owner’);
    5. the Respondent was a ‘building contractor’ being, relevantly, a person who then carried out domestic building work (see the definition of ‘building contractor’ in Schedule 2, which references, relevantly, the definition in Schedule 1B, s 1);
    6. the present dispute is a dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work and comprises a ‘domestic building dispute’;
    7. by reason of subparagraphs (a) to (f) above, the dispute the subject of the Application is a ‘building dispute’ for the purposes of s 77(1) of the QBCC Act.
  4. [6]
    A person may not apply to the Tribunal unless the person has complied with a process established by ‘the commission’ (the Queensland Building and Construction Commission (‘the QBCC’)) to attempt to resolve the dispute (see s 77(2) of the QBCC Act).[1] The Applicant made a complaint to the QBCC in relation to the work performed by the Respondent. This work resulted in a Direction to Rectify issued by the QBCC to the Respondent dated 20 April 2021. By correspondence from the QBCC to the Applicant dated 17 June 2021, the QBCC advised that it could not assist the Applicant further with his complaint and that his options included, relevantly, pursuing a building dispute case against the Respondent in the Tribunal. It was also stated that: ‘This correspondence serves as notification you have participated in the QBCC’s dispute resolution as prescribed by legislation and your case has now been finalised.’ I am satisfied that s 77(2) of the QBCC Act has been complied with.
  5. [7]
    I find that the Tribunal has jurisdiction to hear and determine the Application.
  6. [8]
    I now turn to the merits of the Applicant’s claim.

Basis of the Applicant’s claim

  1. [9]
    The Applicant’s material does not, on my reading of it, identify the legal basis upon which the claim is brought.
  2. [10]
    I consider that the potential claims to be considered are claims in:
    1. contract;
    2. negligence.

Contractual remedy available?

  1. [11]
    There was no formal contract document signed by the parties.[2]
  2. [12]
    The Respondent provided a quotation dated 18 September 2020 for a price of $16,681.50 (inclusive of GST) for work described as the supply and installation of plastic, doweling, L72 mesh and expansion joints; placing and finishing of exposed aggregate to backyard, including glow stones to pool area; front yard: placing and finishing of plain grey concrete (including excavator dig out).
  3. [13]
    The Applicant’s evidence indicates that the Applicant paid to the Respondent the total amount of $20,680.50 comprising:
    1. two payments each in the amount of $8,340.75 (the total of which equates to the quotation price);
    2. two additional payments on 1 December 2020 ($2,932.00) and 14 December 2020 ($1,067.00). The basis for the extra payments is unclear to me from the material, although one of the payments may be the cost of an extra load of concrete paid for by the Applicant.
  4. [14]
    Based on the material before the Tribunal, I find that the Respondent performed the concreting work the subject of the quotation and the Respondent was paid the whole of the contract price due to it.
  5. [15]
    In my view, the evidence establishes that there was a concluded agreement at common law which was partly in writing (comprising the quotation) and partly inferred from conduct (comprising the performance of work and the payment for it by the Applicant). However, the QBCC Act requires certain contractual formalities to be complied with. I am satisfied that the contract between the parties was a ‘level 2 regulated contract’ within the meaning of the QBCC Act,[3] being a domestic building contract with a contract price of greater than $20,000.00.[4] As a result, s 14 of  Schedule 1B of the QBCC Act (‘Section 14’) required certain formalities to be satisfied, most relevantly, that the contract be in a written form, dated and signed by or on behalf of each of the parties to it.[5] Those formalities were not satisfied in the present case. The consequence is that the contract does not have effect.[6] This means that a contractual claim is not available to the Applicant against the Respondent. For completeness, I note that the same result would follow even if the agreement between the parties was determined to be a ‘level 1 regulated contract’ being a domestic building contract with a contract price of greater than $3,300.00 but less than $20,000.00.[7]
  6. [16]
    Can the Applicant bring a claim in negligence?

Claim in negligence?

  1. [17]
    The definition of ‘domestic building dispute’ in the QBCC Act includes, relevantly, a claim or dispute in negligence related to the performance of reviewable domestic work other than a claim for personal injuries.[8]
  2. [18]
    There is presently a difference of opinion in the Tribunal as to whether a duty of care may be owed by a building contractor to a homeowner in circumstances where there is no effective contract between the parties by virtue of the operation of the QBCC Act as discussed above. This difference of opinion appears to turn on the issue of ‘vulnerability’ in the context of a claim for pure economic loss.[9]
  3. [19]
    In McSwan v Weaver (‘McSwan’),[10] Member Taylor extensively analysed various authorities and concluded that no duty of care was owed to the homeowner in that case because the homeowners could have protected themselves by ensuring that the regulated contract requirements were satisfied thereby gaining the protection of the statutory warranties.[11] 
  4. [20]
    The authorities considered by Member Taylor included the following:
    1. Bryan v Maloney (1995) 182 CLR 609 (‘Bryan’);
    2. Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor (2004) 216 CLR 515 (‘Woolcock’).
    3. Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor (2014) 254 CLR 185 (‘Brookfield’);
    4. Mousa v Anor v Vukobratich Enterprises Pty Ltd & Anor [2019] QSC 49 (‘Mousa’);
    5. Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2023] QCA 24 (‘Mallonland’).[12]
  5. [21]
    I consider that the essence of Member Taylor’s reasoning is encapsulated in the following observations:[13]

What this extensive judicial reasoning shows us is that ‘it is not what the applicants did that matters, it is what they could have done’. To put it in terms of the facts – it is not the fact that they entered into a contract that was of no effect that left them vulnerable, it is the fact that they could have, and moreover were required by legislation to have, entered into a contract reduced to writing that complied with the requirements of Schedule 1B of the QBCC Act that would have provided them with the benefit of the statutorily imposed warranties under that legislation, thus affording them protection against failure by the respondent to have done that which they say they assumed he would do, thus they were not vulnerable.

  1. [22]
    Member Taylor’s view as to the current state of the law was put as follows:[14]

As I understand it, the current state of the law is that a builder does not owe a duty of care to an original owner of a building which the builder has constructed for the owner. This is because the owner is not vulnerable to loss occasioned by any wrong that might be committed in construction of that building in terms of defective work. The reason being that the home owner is not vulnerable in the sense of loss because the owner is able to protect itself from such loss by the means of a building contract.

  1. [23]
    Member Taylor, whilst acknowledging the doctrine of precedent, declined to follow the Appeal Tribunal decision in Cerda v Jacob [2020] QCATA 57 (‘Cerda’) on the basis that he was bound to follow higher authorities as addressed in the reasons.[15] In Cerda, the Appeal Tribunal proceeded on the basis that a claim in negligence was available to the homeowner in circumstances where the statutory contract requirements had not been satisfied.[16] However, as I read the Reasons for Decision, there was no challenge to the availability of an alternative remedy in negligence, and the Appeal Tribunal was not required to consider an argument of the type considered by Member Taylor in McSwan.
  2. [24]
    In Burnell v Jarvis (‘Burnell’),[17] Member Deane considered a case involving similar facts to McSwan. Member Deane concluded, on the facts of that case, that the homeowner was vulnerable, and that the building contractor owed to the homeowner a duty of care. Without repeating the detailed analysis conducted by Member Deane, I consider that the ultimate conclusion reached by Member Deane turned on the following propositions:
    1. that ‘… the capacity of a person to protect him or herself from damage by means of contractual obligations is merely one – although often a decisive – reason for rejecting the existence of a duty of care in tort in cases of pure economic loss’, citing McHugh J in Woolcock at [94];[18]
    2. that in neither Woolcock nor Brookfield was there any suggestion that a duty of care in the circumstances of Bryan was not owed by the builder to the original homeowner;[19]
    3. that a common law duty of care can coexist with a duty in contract and that a duty of care can be to avoid economic loss, citing Gageler J (as his Honour then was) in Brookfield at [175];[20]
    4. where a contract exists, the concepts of assumption of responsibility and reliance may create a duty of care in tort as well as obligations in contract, citing McHugh J in Woolcock at [112];[21]
    5. a duty to exercise reasonable care and skill in undertaking building work is co-extensive with implied contractual terms, which would have applied if the contract had complied with the minimum QBCC Act requirements, citing the Appeal Tribunal in Cerda at [76].[22]
  3. [25]
    On the facts of the case, Member Deane concluded that homeowners with no legal or construction expertise are less likely to be aware that contracts for the work performed in that case were required to comply with the minimum requirements in Schedule 1B of the QBCC Act; that the homeowner, who had no particular experience or expertise in construction matters, relied upon the contractor to carry out the works to an appropriate standard; that the contractor assumed such a responsibility; that the homeowner was not capable of protecting herself from the consequences of the contractor’s lack of reasonable care in undertaking the building works, and that the homeowner was ‘vulnerable’.[23] Member Deane also noted that the QBCC Act imposed an obligation on a building contractor that, for a level 2 regulated contract, they must not start to provide the contracted services before the contract complies with the Section 14 requirements, and a maximum penalty on building contractors of 100 penalty units was imposed for a failure to do so.[24]
  4. [26]
    For the following reasons, it is my respectful view that:
    1. there is no ratio decidendi of any decision of the High Court or the Queensland Court of Appeal which justifies a conclusion the Appeal Tribunal’s reasoning in Cerda is not good law;
    2. a duty of care may, in particular cases, arise between a building contractor and a homeowner despite a failure to comply with the statutory requirements of a regulated contract (and the consequential loss of the benefit of the statutory warranties under the QBCC Act), as is consistent with the approach adopted by Member Deane in Burnell.
  5. [27]
    First, none of Bryan, Woolcock, Brookfield, Mousa and Mallonland concerned a case in which the plaintiff and the defendant were in a contractual relationship or where, as here, the parties would been in an enforceable contractual relationship save for statutory intervention.
  6. [28]
    Second, the law recognises concurrent duties in contract and in tort in circumstances involving the performance of professional work.[25] In my view, in the present context, the concept of a professional would encompass not only a professional builder (as in Bryan) but also a professional specialist trade contractor.[26]
  7. [29]
    Third, a duty of care may exist in the absence of a contractual relationship.[27] In my view, subject to any policy considerations (as addressed below), there is no reason in principle why the position would not be likewise in circumstances where the dealings between the parties would have given rise to a binding contract save for non-compliance with the requirements of the QBCC Act in relation to regulated contracts. 
  8. [30]
    Fourth, I consider that it remains good law that the existence of an assumption of responsibility by a builder (or building contractor) and known reliance or dependence by the homeowner is capable of giving rise to a duty of care in tort (at least in cases involving a claim by an owner of residential premises and the absence of a detailed building contract between the parties governing the quality of work (including  warranties)).[28] I have used the phrase ‘is capable of’ to reflect the position that the existence of those elements may not necessarily establish vulnerability.[29]
  1. [31]
    Fifth, to the extent that policy considerations are material to the question of whether a duty of care should be imposed in circumstances where the legislature has made provision for statutory warranties:[30]
  1. (a)
    the QBCC Act makes express provision that both a ‘domestic building dispute’ and a ‘commercial building dispute’ under the Act include, relevantly, ‘a claim or dispute in negligence’ (other than a claim for personal injuries) which may be the subject of a ‘building dispute’ to be decided by the Tribunal.[31] This indicates that it was not the intention of the legislature that a party would be confined to a contractual claim involving the implied statutory warranties. I consider the fact that the QBCC Act contemplates that a claim may be brought in negligence (other than for personal injuries) is a ‘salient feature’ to be considered in determining whether a duty of care should be imposed in the present case;
  1. (b)
    s 30 of Schedule 1B to the QBCC Act (‘Section 30’) provides that the building contractor for a level 1 or level 2 regulated contract must not start to provide the contracted services before the contract complies with the relevant requirements of that contract, and a failure to do so attracts a maximum penalty of 100 penalty units. There is no corresponding obligation or penalty imposed upon the other contracting party, here, the homeowner;
  1. (c)
    in my view, the operation of Section 14 must be considered in conjunction with the operation of Section 30. Having regard to s 3, s 4, the definition of ‘detached dwelling’ in s 1, and s 9 of Schedule 1B, I consider that Section 30 is intended to operate as a consumer protection provision for the benefit of homeowners by imposing upon a building contractor a statutory obligation not to start to provide the contracted services before the contract complies with the relevant statutory requirements. A regulated contract will only be denied effect by operation of the QBCC Act in circumstances where the building contractor carries out domestic building work in the absence of a compliant regulated contract (and in contravention of the contractor’s statutory obligation);
  1. (d)
    the QBCC Act provides that a regulated contract has effect only if the requirements are satisfied. I respectfully agree with Member Taylor that the consequence of this is that ‘the parties are unable to enforce any rights or obligations arising from the agreement for the works …’.[32]  However, I consider it relevant that, adopting and adapting the language of McHugh and Gummow JJ in Fitzgerald v FJ Leonhardt Pty Ltd:[33]
  1. (i)
    the contract did not call for the commission of any illegality;
  1. (ii)
    the QBCC Act did not prohibit some particular act that was essential for carrying out the contract.
  1. [32]
    Having regard to the above matters, I consider that no ‘policy choice’[34] can be discerned as would necessarily deny a homeowner a claim in negligence in circumstances where the relevant statutory requirements of a regulated contract have not been complied with.
  2. [33]
    As was observed by Morrison JA in Mallonland: ‘it must be recognised that the salient features identified in the various authorities are not an exhaustive list, nor will every feature apply in each case.’[35] In my view, whilst the operation of Section 14 is relevant to the issue of vulnerability, the following matters are also salient features to be taken into account in this context:
    1. the building contractor’s statutory obligation under Section 30;
    2. whether or not the homeowner was aware of the statutory requirements of Section 14;
    3. any evidence of an assumption of responsibility and reasonable reliance.
  3. [34]
    With respect to paragraph [33](b) above, I note the following observations of McHugh J in Woolcock:[36]

Whether or not the plaintiff was vulnerable to the risk of injury from the defendant’s conduct is a key issue in determining whether the defendant owed a duty of care to the plaintiff. Indeed, the issue of the purchaser’s vulnerability to economic loss is the critical issue in determining whether those involved in the construction of commercial premises owe a duty of care to the purchaser. In this context, vulnerability to risk means not that the plaintiff was exposed to risk but that by reason of ignorance or social, political or economic constraints, the plaintiff was not able to protect him or herself from the risk of injury.

(emphasis added)

  1. [35]
    Regardless of the fact that a regulated contract is of no effect due to a failure to comply with the relevant statutory requirements, I consider that a homeowner would be relevantly ‘vulnerable’ in circumstances where, for example:
    1. the homeowner is unaware of the statutory requirements of Section 14;
    2. the contractor assumes responsibility to perform the agreed work to the standard expected of a reasonably competent professional building contractor undertaking work of that kind; and
    3. the homeowner relies on the contractor’s skill or expertise.
  2. [36]
    Further, in a case such as the present, I consider that:
    1. given that the parties are in a direct relationship, no question of ‘indeterminacy of liability’ arises;
    2. it is reasonably foreseeable that the homeowner may suffer economic loss in the form of the cost of remedying defective work in the event that the agreed work is not carried out with reasonable care and skill;
    3. the imposition of a duty of care will not unreasonably interfere in the ‘commercial freedom’ of the building contractor.
  3. [37]
    Did the Respondent owe the Applicant a duty of care in the present case?

Was a duty of care owed?

  1. [38]
    The Respondent’s representative and the person who performed the concreting work on behalf of the Respondent was Kurt Michelutti (‘Mr Michelutti’ or ‘Kurt’).
  2. [39]
    The Applicant’s evidence includes the following:
  1. (a)
    that

‘[w]e engaged [the Respondent] to complete a large area of concrete for our outside entertainment area and swimming pool as part of our complete outside renovation that we were doing on our property. No contracts were signed about our job or works being conducted by Kurt from [the Respondent], this was never mentioned to us by [the Respondent] and we didn’t know that it was needed.’[37];

  1. (b)
    that the Applicant explained to Kurt ‘how important it was to get this right being that it’s our home and we have spent a lot of money on renovating the whole outside of our property’;[38]
  1. (c)
    Kurt kept saying to saying to ‘us’ ‘that you only get one chance in concreting and it has to be done right’;[39]
  1. (d)
    Kurt assured ‘us’ that he could perform our job to the highest level.[40]
  1. [40]
    Based on the above evidence, I find that:[41]
  1. (a)
    Mr Michelutti’s statements conveyed that the Respondent had the expertise to perform the agreed concreting work to (at least)[42] the standard expected of a reasonably competent professional concreter;
  1. (b)
    the Applicant relied upon Mr Michelutti’s statements;
  1. (c)
    such reliance was:
  1. (i)
    known to the Respondent, by Mr Michelutti; and
  1. (ii)
    reasonable;
  1. (d)
    the Respondent assumed responsibility to perform the agreed concreting work to (at least) the standard expected of a reasonably competent professional concreter;
  1. (e)
    the Applicant was not told by the Respondent that a signed contract was required, and the Applicant did not know that one was needed.
  1. [41]
    I also find that the Respondent was licensed under the QBCC Act to carry out concreting work in light of the following statement which appears in the report of the QBCC dated 12 April 2021:

If it is established defective work exists, QBCC will determine whether to direct or not direct the licensee to rectify the defective building work in accordance with the Queensland Building and Construction Commission Act and Regulations and the Queensland Building and Construction Board Rectification of Building Work Policy.

 (underlining added)

  1. [42]
    I find that the Respondent contravened s 30 of Schedule 1B to the QBCC Act by starting (and completing) the agreed concreting work in the absence of a contract which complied with the requirements of s 14(2) of Schedule 1B to the QBCC Act.
  2. [43]
    Having regard to the above circumstances, I am satisfied that the Applicant was relevantly vulnerable to the risk of economic loss arising out of defective building work performed by the Respondent. I find that the Respondent owed to the Applicant a duty to exercise reasonable care in carrying out the agreed concreting work to avoid economic loss to the Applicant (‘the Duty of Care’). I consider that the discharge of the Duty of Care required the Respondent to carry out the work with reasonable care and skill and in an appropriate and skilful way (or in a proper and workmanlike manner).
  3. [44]
    In dealing with the question of breach of duty, the Applicant’s claim includes claims for damages or compensation not only in relation to the removal and re-concreting of the concrete work but also consequential damage from the original contract work, damage consequential upon the rectification work attempted by the Respondent, and an additional cost incurred by the Applicant in awaiting the rectification to be performed.
  4. [45]
    I consider it convenient to deal with the issue of breach of duty in the context of the respective claimed items of loss. These are set out below.

The claimed items of loss

  1. [46]
    The Applicant claims the following:
    1. the cost of removing and replacing all of the concrete ($63,800.00) together with ancillary costs of removing and reinstalling the glass pool fence around the pool ($3,256.00) and the removal and reinstallation of the swimming pool equipment ($695.00);
    2. the cost of installing temporary pool fencing in lieu of the glass pool fence pending the attempted rectification work ($440.00);
    3. the cost of rectifying a blocked stormwater drain which resulted from concrete slurry being washed down the drain and forming a blockage (comprising the cost of investigation of $295.00 plus quoted repair costs of $6,195.00);
    4. the cost of resurfacing the interior of the pool and replacing pool coping tiles as a result of concrete falling into the pool and coping tiles being broken during the attempted rectification work ($21,163.40);
    5. the cost of rectifying a section of grass on the nature strip in front of the property as result of damage caused by concrete rubble being placed on top of it during the attempted rectification work ($1,650.00);
    6. the cost of repainting the Applicant’s motor vehicle allegedly scratched as a result of the Respondent’s tradesperson wiping cement dust off the vehicle during the attempted rectification work ($1,532.84).

Claim for rectification of the concreting work

  1. [47]
    The concreting work involved the installation of an exposed aggregate concrete pavement slab around an existing pool at the Applicant’s property which concrete slab extended from the existing boundary retaining wall at the rear and to the left of the property to the dwelling and existing concrete driveway (in the front of the property). The evidence indicates that the area of concrete was approximately 150m2.
  2. [48]
    As noted above, the work was the subject of a complaint by the Applicant to the QBCC.
  3. [49]
    The QBCC issued a direction to rectify to the Respondent in relation to the following items:
    1. the exposure of the aggregate in the concrete to the left-hand side of the driveway and dwelling has not been completed in accordance with the ‘Cement Concrete and Aggregates Australia (‘CCAA’) – Exposed aggregate finishes for flatwork 2007 nor CCAA Guide to concrete for Housing’ in that the exposed stone is not consistent, leaving some stone which has been over exposed and some stone that has not been exposed resulting in an unsightly finish;
    2. the installation of the concrete within the patio area, behind the patio area, and under the hose cock on the left-hand side of the dwelling has not been installed in accordance with ‘AS3727.1: 2016 Pavements Part 1 – Residential’ in that materials have been lost from the concrete base resulting in an unsightly finish;
    3. the installation of the concrete behind the patio between the dwelling and the pool has not been installed in accordance with ‘Cement Concrete and Aggregate Australia – Residential driveways and paths 2017’ in that a cold joint has been formed resulting in an unsightly finish;
    4. the installation of the concrete between the strip drain and the dwelling at the rear of the patio has not been installed in accordance with ‘AS3727.1: 2016 Pavements Part 1 – Residential’ in that cracking of the slab has occurred in excess of the allowable tolerance resulting in an unsightly finish;
    5. the installation of the concrete at the rear of the pool has not been installed in accordance with ‘AS3727.1: 2016 Pavements Part 1 – Residential’ in that materials have been lost from the concrete base resulting in an unsightly finish;
    6. the installation of the concrete besides the trench grates, the pool and the dwelling where sections of concrete are missing has not been installed to the standard expected of a contractor who holds the licence of the relevant class resulting in an unsightly finish;
    7. the installation of the concrete behind the pools waterfall has not been installed in accordance with the ‘Cement Concrete and Aggregate Australia – Residential driveways and paths 2017’ in that a cold joint has been formed resulting in an unsightly finish;
    8. the installation of the concrete at the rear of the garage has not been installed in accordance with ‘AS3727.1: 2016 Pavements Part 1 – Residential’ in that the payment is not graded away from the dwelling allowing water to enter the dwelling resulting in damage to building elements.
  4. [50]
    In its report dated 16 April 2021, the QBCC provided colour photographs of the respective areas in respect of which it found the concreting work to be defective.
  5. [51]
    The QBCC also investigated other complaints but ruled they were contractual issues:
    1. a claimed insufficient number of glow stones included in the concrete;
    2. a failure to install a level area between the pool and the dwelling which was meant to house a spa.
  6. [52]
    The Respondent went back to site to rectify the various items of defective work. The Commission carried out a further inspection, and by a report dated 16 June 2021 (‘the reinspection report’) concluded that the items in subparagraphs [49](d) and (g), and the items in subparagraph [49](b) (but only in relation to the patio area), had been rectified. However, the other items were deemed to be ‘unsatisfactory’. It is also evident that, in some cases, the Respondent had rectified the item previously identified but had created additional issues.
  7. [53]
    In relation to the items in subparagraph [49](a), the QBCC reinspection report states that:

The claimant confirmed that they had agreed that the respondent could hone the concrete to rectify the under exposed stone

The exposure of the stone was consistent and uniform throughout therefore rectifying the direction item, however the honing of the concrete did not provide a flat and uniform surface finish, leaving numerous hollows bedside [sic] the aggregate from where the original exposing technique was completed and a section of exposed aggregate that hadn’t been honed around the pool pump equipment

The hollows found within the honed concrete is [sic] not to a standard expected of a licensed contractor who holds a licence of the relevant class and as such the honing has been determined by the QBCC as defective

The section of exposed aggregate that wasn’t honed is not consistent and uniform in finish and has been determined by the QBCC as defective

QBCC Standards & Tolerances Guide 2019, 1.5 Responsibility to Rectify, states that Contractors will be liable to repair any consequential damage caused by, or as a consequence of carrying out building work on a residential building site or to a residential building on an adjacent site.

  1. [54]
    In relation to the items in subparagraph [49](c), the QBCC report states that:

The respondent had removed a portion of concrete and had installed a new section which no longer had a cold joint, therefore rectifying the direction item, however in completing the rectification works the respondent damaged numerous coping tiles to the pool and had them replaced, the newly laid tiles completed as part of this repair had larger grout joints than the rest of the pool coping (existing – 3 mm, new – 6 mm)

The inconsistent grout widths in the coping tiles has [sic] been determined by the QBCC as defective

The honing of the new section of concrete was not created flush with the surrounding concrete at the rear leaving a 3mm lip approximately 8mm onto the new slab. The honing at this junction is not to a standard expected of a licensed contractor who holds a licence of the relevant class and as such the honing has been determined by the QBCC as defective

QBCC Standards & Tolerances Guide 2019, 1.5 Responsibility to Rectify, states that Contractors will be liable to repair any consequential damage caused by, or as a consequence of carrying out building work on a residential building site or to a residential building on an adjacent site.

  1. [55]
    In relation to the items in subparagraph [49](h), the QBCC report states that:

The respondent installed additional trench drains to the left and right-hand sides of the existing trench drains to prevent water entering the dwelling, this rectified the direction item, however in doing so the trench drain on the left-hand side was 6mm short of the cut out section of concrete and on the righthand side was sitting up to 8mm higher than the concrete surround

The installation of the additional strip drains has not been completed to a standard expected of a licensed contractor who holds the licence of the relevant class and the QBCC has determined that these works are defective

QBCC Standards & Tolerances Guide 2019, 1.5 Responsibility to Rectify, states that Contractors will be liable to repair any consequential damage caused by, or as a consequence of carrying out building work on a residential building site or to a residential building on an adjacent site.

  1. [56]
    The Applicant’s material included a signed letter or statement from Kerry Harris of Nucon Concrete (the supplier of the concrete used by the Respondent at the Applicant’s property) (Evidence 8a). This stated:
  1. (a)
    that an investigation of their product had concluded that the outcome of the finished product was a result of the ‘placer’ and not a product issue;
  1. (b)
    ‘feedback’ suggested that the correct practices on the day were not followed as per Nucon’s ‘tips for placing white contract’ including the following:
  1. (i)
    the area was not kept to a manageable size and should have been done over two pours;
  1. (ii)
    the customer’s quantities were incorrect, resulting in an increase of concrete ordered and resulting in delays in concrete getting to site;
  1. (iii)
    ‘Exposed jobs require extra time and labour compared to standard jobs’;
  1. (c)
    placing exposed concrete starting at 11am in the midst of summer is not recommended;
  1. (d)
    there are areas that are over exposed and under exposed resulting in an uneven finish;
  1. (e)
    an independent contractor has been consulted regarding possible rectification however they have indicated that honing is not an option due to the inconsistency of the finish in the highly variable levels.
  1. [57]
    The Applicant has also provided a letter from the director of PR Concrete Constructions dated 24 October 2022 (Evidence 5) (I cannot read the name on the letter). The letter states that on 8 January 2021 the director received a call from Nucon to inspect the job at the Property. The director went to the Property and inspected the job. In the director’s opinion, the final finish was a ‘poor finish’ and it was suggested that there may have been a ‘lack of experience’ in doing decorative concrete, or possibly pouring too late in the afternoon on an extra hot day, or labour shortage. It was also noted that there was a puddle by the back door: instead of it being flat it had a dip which would create ponding.
  2. [58]
    The Applicant has also provided a variety of photographs showing the areas of alleged defective work (including Evidence 2a to 2w). With respect to the attempted rectification by the Respondent in relation to [49](g) above, the Applicant has provided three photographs and the Applicant states that where the cold joints were repaired there are large sections of different coloured concrete that are dark and yellow, and they stand out and are very noticeable especially the section where the very large cold joint was repaired. It is stated that this has happened in three areas around the job (Evidence 34a to 34c). I accept that the photographic evidence supports the Applicant’s contention; the difference between the adjoining sections of concrete is  obvious.
  3. [59]
    Having regard to all of the above material, in particular the reports of the QBCC, I find that:
    1. the original work performed by the Respondent fell short of the exercise of reasonable care and skill on the part of a reasonably competent professional concreter;
    2. the work was not carried out with reasonable care and skill or in an appropriate or skilful way;
    3. the Respondent breached the Duty of Care in this regard.
  4. [60]
    With respect to the attempted rectification by the Respondent, in submissions filed on 19 July 2022, the Respondent stated, relevantly:

As for the concrete, we had a contractor doing a polished finish that was agreed between the owner and myself, unfortunately the contractor was not able to finish the job as directed by owner. The contractor hired to perform the polished finish has written a statement explaining what he underwent while at the applicant’s property.

  1. [61]
    The Respondent provided a statement from Mr Zachary Pye of On Coast Polished Concrete Pty Ltd (which is undated) relating to the rectification work performed by Mr Pye. Whilst the statement does not identify the date on which the work was performed, I infer from the content of the statement that it was performed between the date of the first inspection by the QBCC on 12 April 2021 and the subsequent inspection on 16 June 2021.  Mr Pye states, relevantly:

On Coast Polished Concrete were hired by [the Respondent] to commence a grind and seal job of 30/60 grit with a sealer to meet the P and R slip rating at [the Applicant’s property].Exposed concrete is achieved by hosing the top slurry surface off the concrete while still curing and by doing this you are left with exposed aggregate which I was asked to grind. Hosing off the top surface while curing effects the flat consistent level of concrete, so when grinded you are always going to have consistently inconsistent exposure of stone and cement. I performed 30 grit pass over the floor to achieve a honed concrete finish and the client was happy with the work done and instructed me to continue moving forward with this job. I offered to patch any holes and imperfections on the surface explaining that the patches will always slightly stand out but we will match it to the best of my ability. I did a patch of concrete out the front to give the client the option of patching or as I recommended to leave it as is. The client requested that I do not patch the job and to leave as is. Once I completed our 60 grit pass, I offered to put a test patch of sealer down using 2 different sealers that would meet the slip rating requirements and the client agreed to do so. After I did the test patch, we discussed what sealer he would like to use and he instructed me to not seal the job and to leave as is and QBCC was coming back to assess. The client made it clear that he was unhappy with the colour he chose …

As a professional in the polished concrete industry, I believe the job was at industry standard if it was able to be sealed. All falls on the concrete slab work correctly, water falling to correct drains, the concrete is formed correctly, reinforced correctly and layed [sic] correctly other than exposure levels of aggregate that are always consistently inconsistent at best. [The Respondent] then hired On Coast Polished Concrete to bring out more exposure of stone which was achieved …

  1. [62]
    The QBCC inspected the property after Mr Pye’s work. Given the views expressed by the QBCC in the reinspection report (which I accept), coupled with the evidence adduced by the Applicant, I find that the Respondent’s work was not satisfactorily rectified, and would not have been satisfactorily rectified even if subsequently sealed by Mr Pye. My conclusions in paragraph [59] above also apply to the concreting work after the attempted rectification.
  2. [63]
    Pursuant to s 77(3) of the QBCC Act, without limiting the Tribunal’s powers to resolve the dispute, the Tribunal may exercise various specified powers, including an award of damages (s 77(3)(c)).
  3. [64]
    As to the appropriate measure of damages in negligence, in Cerda, the Appeal Tribunal said:[43]
  1. In an action in negligence, the claimant is entitled to damages to put the claimant into the position which the claimant would have enjoyed but for the commission of the negligent act. The measure of damages is the cost of the work necessary to remedy the defects. In Kirkby v Coote (‘Kirkby’) it was stated:
  1. [46]
    In Bellgrove v Eldridge, the High Court affirmed the following statement of principle:
  1. “The measure of the 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 building conform to the contract.”
  1. [47]
    One may pause here to observe that this is a case where the building owner claims in negligence rather than breach of contract, but neither party suggested that a different approach should be adopted to the measure of damages where the negligent breach of duty has produced a result which falls short of the result which reasonable skill and diligence would have produced.
  1. [48]
    The High Court, having referred to authority for the proposition cited above, went on to say:
  1. “In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace only a small part, or a substantial part, or, indeed, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner's loss. The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.
  1. …
  1. As to what remedial work is both ‘necessary’ and ‘reasonable’ in any particular case is a question of fact. But the question whether demolition and re-erection is a reasonable method of remedying defects does not arise when defective foundations seriously threaten the stability of a house and when the threat can be removed only by such a course. That work, in such circumstances, is obviously reasonable and in our opinion, may be undertaken at the expense of the builder.”
  1. (citations omitted)
  1. [65]
    The Applicant investigated remedying the pool surround concrete using an acid wash and seal. The Applicant has provided a letter from Mr Grant Lues, the business owner of Wally’s Master Blaster high-pressure water cleaning dated 21 October 2022 (Evidence 3a). Mr Lues concluded:

In my opinion, therefore, because your concrete is either fully cured or close to full strength with a fairly uneven/inconsistent surface, the chances of achieving an acceptable exposed aggregate finish would be close to zero using our method to acid edge the surface.

  1. [66]
    The Applicant also investigated the option of rectifying the defective work by a honing process. The Applicant stated that he spoke with Peter from ‘Concretis’, a firm that specialises in concrete finishes and honing. The Applicant stated that after Peter inspected the job, he said that they could not fix the job because they would have to go down at least 5 mm and this would still result in an unsatisfactory finish and would create more potential tripping hazards from where drains are, and that all the imperfections in the concrete (craters and holes) would still be visible. The Applicant requested a quotation in any event (Evidence 35). The quoted price for carrying out the honing of the concrete (including removal of waste) was $11,220 (inclusive of GST). The quotation contained the following note:

This process will not remove all staining and pitting in the concrete. Due to concrete placement some inconsistencies cannot be repaired by the grinding process

There will be a lip in the concrete at the pool coping and at the drain.

  1. [67]
    Having regard to the nature and extent of the defective work performed by the Respondent (in breach of the Duty of Care) and the absence of a satisfactory alternative means of rectification, I find that the removal of the existing concrete and the replacement of the concrete is necessary to produce conformity with the standard expected of a reasonably competent professional (in this case licensed) concreter exercising reasonable care and skill, and that it is a reasonable course to adopt. I find that it was reasonably foreseeable by the Respondent that a failure to carry out the concreting work with reasonable care and skill and in an appropriate and skilful way would result in a claim for the cost of rectification (including the removal and replacement of the concrete).
  2. [68]
    The Applicant originally obtained a quotation from PR Concrete Constructions dated 22 June 2021, to remove and replace the existing concrete (including replacement of drains, removal of rubbish in concrete, and supply and installation of glow stones) at a cost of $36,520.00 inclusive of GST.
  3. [69]
    The Applicant obtained a further quotation from PR Concrete Constructions dated 24 October 2022 to carry out the same rectification work. The price had increased to $63,800.00 (inclusive of GST) (Quote B). The Respondent has not adduced any evidence as to quantum. I consider that the items allowed for in the quotation by PR Concrete Constructions appear appropriate in order to replace the existing concrete and, in the absence of any evidence to the contrary, I am satisfied that the sum of $63,800.00 is a reasonable amount for such work. Further, in circumstances where there was an attempt to rectify the work, and where the Respondent does not allege a failure to mitigate on the part of the Applicant in relation to any delay in rectifying the work, I am satisfied that it is appropriate to adopt the later (higher) quotation.[44]
  4. [70]
    Having regard to the nature of the rectification work, I also consider that it is necessary and reasonable that the existing glass pool fence (and gate) be removed and reinstalled as part of the rectification work and similarly with respect to the pool filter. The Applicant has provided quotations in relation to each of those items of work being $3,256.00 in relation to the glass pool fence (Quote G) and $695.00 in relation to the pool filter (Quote H). I allow those additional amounts by way of damages.
  5. [71]
    For this item of loss, I allow the total amount of $67,751.00.

Temporary pool fencing

  1. [72]
    The Applicant states that due to all the rectification work that needed to be done by the Respondent, the glass pool fence had to be delayed and it was necessary to pay for a temporary pool fence to ensure that the pool was compliant. The Applicant states that the temporary fence was there for a period of five months whilst rectification works were taking place.
  2. [73]
    The Respondent’s response (written submissions filed 19 July 2022) is that on the last QBCC inspection in June (presumably 2021), the pool was not fenced.
  3. [74]
    The Applicant has provided a number of tax invoices (Evidence 41 – Invoices C) from Aus Fence Hire which refer to temporary fence hire relating to the period from 29 March 2021 to 19 August 2021.
  4. [75]
    Given that the QBCC was notified of the Applicant’s complaints on 13 January 2021, that it first inspected the Property on 12 April 2021, and carried out a further inspection on 16 June 2021 (and provided a report on that same day), I find that it was a reasonable course for the Applicant to delay the installation of glass pool fencing until 16 June 2021. By my calculation, the amount of the invoices provided totals $676.50 rather than $440.00. Allowing the full amount of the initial invoice of $220.00, the full amount of the second invoice of $121.00 and a pro rata allowance of the third invoice to 16 June 2021 (which I calculate to be $70.25) results in a total amount of $411.25.
  5. [76]
    For this item of loss, I allow the amount of $411.25.

Blocked stormwater drain

  1. [77]
    The Applicant states that the garage at the property flooded on ‘big rainy days’ as he put it. The Applicant arranged for an inspection to be conducted by Oceanside Services Pty Ltd (‘Oceanside Services’), which provided a quotation dated 31 October 2022 (Quote A). This sets out the details of the inspection and the work required to rectify the situation. It was stated that the drains were inspected with CCTV pipe cameras, and it was found that there was concrete in the pipe near strip drain outlets at the left-hand side rear of property with both strip drains affected. It was noted that the drain near the pool runs past the strip drain near the garage door and tees into it, and that the camera could not get further than where the pool filter was situated. It was noted that the pipe is half full of concrete, and water will not get away fast enough in a heavy downfall. The Applicant has provided photographic evidence of the blockage (Evidence 39b and 39c). The Applicant also stated that when ‘Kurt’ was washing away the slurry for the exposed aggregate finish ‘we’ noticed that he was washing it away and ‘[it] was going down our drains and was not being collected and picked up and disposed of’. In my view, it was plainly foreseeable that slurry entering a drain may result in a blockage.
  2. [78]
    The Respondent’s brief response to this issue is as follows (submissions filed on 19 July 2022):

When [the Respondent does] any job involving strip drains we always cover the drains with duct tape this prevents any damage being cause [sic] to the top of drain, videos provided by [the Applicant] shows [sic] that once the duct tape was removed that workers were using containers to scoop the water out of drain as there was able flex covering the whole.

  1. [79]
    The manner in which the first part of the statement is framed suggests that it is referring to the Respondent’s general practice rather than what in fact occurred on the day of the pour. Further, the Applicant has provided a large number of video clips taken from security cameras at the Property on the day of the pour. The Respondent has not identified which particular footage depicts what the Respondent asserts in the second part of the above statement. I have not been able to identify the footage which is referred to. In any event, on the face of the statement it does not contradict the Applicant’s direct evidence of what occurred. The Respondent has failed to provide any evidence to contradict the evidence of Oceanside Services.
  2. [80]
    I find that:
    1. based on the Applicant’s evidence and that of Oceanside Services, the concrete in the drain was a result of slurry entering the drain during the course of the original work performed by the Respondent;
    2. the exercise of reasonable care and skill on the part of a reasonably competent professional concreter would have prevented slurry entering the drain;
    3. the blockage was a result of a failure on the part of the Respondent to perform the concreting work with reasonable care and skill or in an appropriate or skilful way;
    4. the Respondent breached the Duty of Care;
    5. it was reasonably foreseeable by the Respondent that a failure to exercise reasonable care and skill to prevent slurry entering the drain could result in a blockage and consequential rectification work.
  3. [81]
    The Applicant has provided quotes in relation to each of those items of work being the cost of investigation $295.00 (Quote I) and the cost of rectification of $6,195.00 (essentially involving the removal and replacement of approximately 6 metres of horizontal pipe and fittings, together with ancillary work to enable the removal and replacement) (Quote A). I note that Quote A excludes the replacement of concrete which is to be done by others.
  4. [82]
    I find that the cost of investigation and the cost of rectification is necessary and reasonable.
  5. [83]
    For this item of loss, I allow the amount of $6,490.00.

Resurfacing the interior of the pool and replacing pool coping tiles

  1. [84]
    At page 9 of 9 of the Applicant’s material filed on 4 December 2022, the Applicant states:

Our swimming pool renovation to be redone again being that we have cement in our swimming pool and when the concrete will be ripped up and redone our pool coping tiles will more than likely be getting damaged again from the Jack Hammering as it showed in my statement of evidence …

  1. [85]
    The amount claimed by way of damages is $21,163.40 based the cost of the original work on the pool supported by tax invoices (Quote D) and uplifted by 25% because of the cost of materials with inflation. The Applicant has not provided any updated quotation.
  2. [86]
    The Respondent’s brief response to this issue is as follows (submissions filed on 19 July 2022):

Swimming pool quote that [the Applicant] attached was explained to me to be a worst-case scenario. I offered to jump in the pool and remove the tile adhesive myself but had no response from owner. As for the coping tiles, there were only four replaced but the applicant has doubled that for his claim.

  1. [87]
    As best I can glean from the material, the Respondent is referring to a quotation from BrizyPool Solutions dated 29 June 2021 which formed part of the Applicant’s original material. The quotation included a price for removing damaged coping tiles and supplying and laying new coping tiles to replace damaged sections being approximately seven tiles in total. The quoted price was $2,200.00 including GST.
  2. [88]
    I find that, based on all the evidence including the photographs provided by the Applicant of the coping tiles:
    1. the rectification work in so far as it involved the coping tiles fell short of the exercise of reasonable care and skill on the part of a reasonably competent professional concreter;
    2. such rectification work was not carried out with reasonable care and skill or in an appropriate or skilful way;
    3. the Respondent breached the Duty of Care in this regard;
    4. it was reasonably foreseeable by the Respondent that a failure to exercise reasonable care and skill in carrying out the rectification work may result in the need to rectify the coping tiles;
    5. the recoverable damages should be limited to four coping tiles not seven coping tiles.
  3. [89]
    On the material provided, I assess damages for rectification of the coping tiles at $1,257.14 based on four sevenths of the amount in the quotation. I am not satisfied on the Applicant’s evidence that any uplift is justified.
  4. [90]
    As to the interior of the pool, the Applicant has provided photographs of various sections of cement residue on the interior of the pool (including on the steps of the pool) generally near to the side walls (Evidence 30d-30k). I find that the Applicant has failed to establish that it is necessary, much less reasonable, for the interior of the pool to be resurfaced, and I make no allowance for this item of claimed loss, having regard to the following matters:
    1. the sporadic areas in which the concrete (or adhesive) was located;
    2. the absence of evidence as to whether the residue remains on the interior of the pool or has subsequently dissipated or been removed;
    3. the absence of evidence that, if the residue remains, it cannot be removed without resurfacing the interior of the pool; that is, there is no simpler and more cost-effective means of removing it.

Replacement of grass

  1. [91]
    The Applicant claims the sum of $1,650.00 for damage done to the nature strip at the front of the Applicant’s property that was said to be damaged by the Respondent leaving concrete rubble on the grass instead of using a skip bin. This is corroborated by the photographic evidence provided by the Applicant (Evidence 15a-15h).
  2. [92]
    The Respondent’s response is that whether a skip bin was used for waste material or not, there would still have been damage to the lawn, and the photographs provided by the Applicant show that the grass was growing back to its original state over time.
  3. [93]
    In circumstances where there is no evidence that the grass was ever replaced, and no evidence of the current state of the grass, I find that the Applicant has failed to establish that it is necessary and reasonable to replace the grass.
  4. [94]
    I make no allowance for this claimed item of loss.

Repair of motor vehicle

  1. [95]
    The Applicant states that when the rectification work was being done as part of the QBCC direction, there was concrete dust on the Applicant’s Nissan Navara vehicle as a result of the use of a grinder to cut out the cold joints, and that one of Kurt’s tradesmen or workers ‘Izzy’ wiped down the vehicle with a rag as a result of which there were scratches down the whole side of the vehicle (because concrete dust is abrasive).
  2. [96]
    The Applicant has provided video evidence showing a tradesperson wiping down part of the vehicle with a rag.
  3. [97]
    The Applicant’s case in this regard is corroborated by a series of text messages sent between the Applicant and Mr Michelutti (Evidence 19a-19c).
  4. [98]
    The Respondent’s response is as follows:

The Nissan Navara was pressure washed before being whipped over and on closer inspection the entire vehicle was covered in scratchers [sic] which the applicant openly admits to via text message that I have attached

  1. [99]
    The text message in question does acknowledge that there were other scratches on the vehicle but, in my view, reading the text messages as a whole, it is clear that the Applicant was maintaining that the scratches in question were caused by the tradesperson and were confined to one side of the vehicle.
  2. [100]
    I find that the exercise of reasonable care and skill on the part of a reasonably competent professional concreter would have entailed either a request made to the owner to move the vehicle away from the area of the rectification work or, alternatively, to cover the vehicle to protect it from concrete dust. Further, having performed the rectification work in a manner that caused concrete dust to fall on the vehicle, I consider that there was a lack of reasonable care and skill in attempting to undertake the removal of the dust in a manner which had a foreseeable risk of, and did lead to, scratching of the paintwork on the vehicle.
  3. [101]
    The Applicant obtained a quotation from Sommerville Smash Repairs dated 3 August 2021 (Evidence 20) which quoted a repair cost of $1,532.84. As I read that quotation, the quoted work relates to the left-hand side of the vehicle. Other than pointing to other scratches that were on the vehicle, the Respondent has not challenged the quantum of the claim.
  4. [102]
    On the face of the quotation, the work appears reasonable, and I allow the sum of $1,532.84 as damages.

Summary of damages awarded

  1. [103]
    Pursuant to s 77 of the QBCC Act, I award to the Applicant damages in negligence in the amount of $77,442.23 comprising the following amounts:
    1. rectification of the concreting work: $67,751.00;
    2. the cost of installing temporary pool fencing: $411.25;
    3. rectification of the blocked stormwater drain: $6,490.00;
    4. rectification of the pool coping tiles: $1,257.14;
    5. rectification of paint damage to the Applicant’s motor vehicle: $1,532.84.

Costs

  1. [104]
    The Applicant has made no claim for costs, and I note that the Applicant appears to have been self-represented at all times.

Orders

  1. [105]
    For the reasons set out above, I order that the Respondent must pay to the Applicant the amount of $77,442.23 within twenty-eight (28) days of the date of this decision.

Footnotes

[1] Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43 (Judge Allen QC, Deputy President, Member Traves (as Senior Member Traves then was).

[2]  Applicant’s Statement of Evidence filed on 28 November 2023 (first paragraph).

[3]  QBCC Act, Schedule 2 , definition of ‘level 2 regulated contract, and Schedule 1B s 7.

[4]  QBCC Act, Schedule 1B s 1, s 5, s 7; Queensland Building and Construction Commission Regulation 2018 (Qld), s 45.

[5]  QBCC Act, Schedule 1B s 14(2).

[6]  QBCC Act, Schedule 1B s 14(10).

[7]  QBCC Act, Schedule 1B s 1, s 5, s 6, s 7.

[8]  QBCC Act, Schedule 2, definition of ‘domestic building dispute’ subparagraph (c).

[9]  There appears to be no question that a claim for damages for defective work is one for pure economic loss.

[10]  [2023] QCAT 148.

[11]  At [29]-[115].

[12] Mallonland was not a building case but involved defective products in which the negligence claim brought by the plaintiffs would have enabled them ‘to leapfrog up the contractual chain to look to the product manufacturer for a remedy rather than to the distributor’: see [299] (Bond JA).

[13]  At [108]. See also [115].

[14]  At [61].

[15]  See [31]-[33].

[16]  See [73]-[76].

[17]  [2024] QCAT 126.

[18] Burnell, [38].

[19] Burnell, [46].

[20] Burnell, [49].

[21] Burnell, [50].

[22] Burnell, [51].

[23] Burnell, [58]-[60].

[24] Burnell, [56].

[25] Bryan, 620-621; Astley v Austrust Ltd (1999) 197 CLR 1, [44]; Woolcock, [92]; Brookfield, [59], [175].

[26]  See Bryan, 620-621; Prestia v Aknar (1996) 40 NSWLR 165, 184; Batterham v Makeig [2010] NSWCA 86, [104]. The position may be otherwise for the purposes of ss 20-22 of the Civil Liability Act 2003 (NSW): Zhang v Hardas (No 2) [2018] NSWSC 432, [138]-[144], [169].

[27] Bryan, 619-620; Brookfield, [59]; Mousa [341]. In different contexts, see Townsend and Anor v Roussety and Co (WA) Pty Ltd and Anor (2007) 33 WAR 321, [117]; Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205, [281]-[287].

[28] Bryan, 624; Woolcock, [24], [26], [112]; Brookfield, [22]-[23], [27]-[28], [50], [135]-[137].

[29]  See the observations of McHugh J in Perre v Apand Pty Ltd (1999) 198 CLR 180, [124]-[125]. See also the observations of the plurality in Woolcock, [24].

[30] McSwan, [83]-[86], [113], citing Mallonland, [297]-[304] (Bond JA).

[31]  See s 77 of the QBCC Act.

[32] McSwan, [22]. In the present context, I do not consider it is material that the Appeal Tribunal in Cerda adopted the term ‘void’ to describe a non-compliant regulated contract: see Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665, [358].

[33]  (1997) 189 CLR 215, 226. See also Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd (2012) 246 CLR 498, [23]; Gnych v  Polish Club Ltd (2015) 255 CLR 414, [35].

[34] Multiplex, [134].

[35]  At [197] (Williams J agreeing, [333]).

[36]  At [80].

[37]  Applicant's statement of evidence filed on 28 November 2023 (page 1 of 9).

[38]  Part C, page 2 to the attachment to the Application.

[39]  Part C, page 2 to the attachment to the Application.

[40]  Part C, page 2 to the attachment to the Application.

[41]  Given my factual findings, it is unnecessary to determine whether the mere undertaking of building work pursuant to an agreement between a homeowner and a builder or specialist trade contractor is sufficient to establish at least an assumption of responsibility, if not also reliance by the homeowner.

[42]  I note the reference to doing the job to the ‘highest level’.

[43]  At [57].

[44]  Cf Renown Corporation Pty Ltd v SEMF Pty Ltd (2022) 110 NSWLR 246, [20] (although the observations were made in the context of a breach of contract case, I consider that they are also apposite to a negligence claim in which the cost of rectification is sought by way damages).

Close

Editorial Notes

  • Published Case Name:

    Mikita v Kontek Constructions Pty Ltd

  • Shortened Case Name:

    Mikita v Kontek Constructions Pty Ltd

  • MNC:

    [2024] QCAT 315

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    07 Aug 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allen v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43
2 citations
Jump To
Cite 1 - [2021] QCATA 43
Cite 2 - [2021] QCATA 43
Astley v Austrust Ltd (1999) 197 CLR 1
2 citations
Jump To
Cite 1 - (1999) 197 CLR 1
Cite 2 - (1999) 197 CLR 1
Batterham v Makeig [2010] NSWCA 86
2 citations
Jump To
Cite 1 - [2010] NSWCA 86
Cite 2 - [2010] NSWCA 86
Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665
2 citations
Jump To
Cite 1 - (2011) 82 NSWLR 665
Cite 2 - (2011) 82 NSWLR 665
Brookfield Multiplex Ltd v Owners Corporation Strata Plan (2014) 254 CLR 185
2 citations
Jump To
Cite 1 - (2014) 254 CLR 185
Cite 2 - (2014) 254 CLR 185
Bryan v Maloney (1995) 182 CLR 609
2 citations
Jump To
Cite 1 - (1995) 182 CLR 609
Cite 2 - (1995) 182 CLR 609
Burnell v Jarvis [2024] QCAT 126
2 citations
Jump To
Cite 1 - [2024] QCAT 126
Cite 2 - [2024] QCAT 126
Cerda v Jacob [2020] QCATA 57
2 citations
Jump To
Cite 1 - [2020] QCATA 57
Cite 2 - [2020] QCATA 57
Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498
2 citations
Jump To
Cite 1 - (2012) 246 CLR 498
Cite 2 - (2012) 246 CLR 498
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215
1 citation
Jump To
Cite 1 - (1997) 189 CLR 215
Gynch v Polish Club Ltd (2015) 255 CLR 414
2 citations
Jump To
Cite 1 - (2015) 255 CLR 414
Cite 2 - (2015) 255 CLR 414
Kowalczuk v Accom Finance Pty Ltd (2008) 77 NSWLR 205
2 citations
Jump To
Cite 1 - (2008) 77 NSWLR 205
Cite 2 - (2008) 77 NSWLR 205
Mallonland Pty Ltd v Advanta Seeds Pty Ltd(2023) 13 QR 492; [2023] QCA 24
2 citations
Jump To
Cite 1 - [2023] QCA 24
Cite 2 - [2023] QCA 24
McSwan v Weaver [2023] QCAT 148
2 citations
Jump To
Cite 1 - [2023] QCAT 148
Cite 2 - [2023] QCAT 148
Mousa v Vukobratich Enterprises Pty Ltd [2019] QSC 49
2 citations
Jump To
Cite 1 - [2019] QSC 49
Cite 2 - [2019] QSC 49
Perre v Apand Pty Ltd (1999) 198 CLR 180
2 citations
Jump To
Cite 1 - (1999) 198 CLR 180
Cite 2 - (1999) 198 CLR 180
Prestia v Aknar (1996) 40 NSW LR 165
2 citations
Jump To
Cite 1 - (1996) 40 NSW LR 165
Cite 2 - (1996) 40 NSW LR 165
Renown Corporation Pty Ltd v SEMF Pty Ltd (2022) 110 NSWLR 246
1 citation
Jump To
Cite 1 - (2022) 110 NSWLR 246
Townsend v Roussety & Co (WA) Pty Ltd (2007) 33 WAR 321
2 citations
Jump To
Cite 1 - (2007) 33 WAR 321
Cite 2 - (2007) 33 WAR 321
Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515
2 citations
Jump To
Cite 1 - (2004) 216 CLR 515
Cite 2 - (2004) 216 CLR 515

Cases Citing

Case NameFull CitationFrequency
Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 4762 citations
Dvorak v Jensen [2025] QCAT 1102 citations
1

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