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  4. Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation - [2024] QCAT 365

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Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation[2024] QCAT 365

Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation[2024] QCAT 365

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation [2024] QCAT 365

PARTIES:

BLAGOJA TRPESKI

(applicant)

v

LUCAS ADRIANO VIEIRA DE SILVA T/A ZERO21 HOME AND KITCHEN RENOVATION

(respondent)

APPLICATION NO:

BDL139-23

MATTER TYPE:

Building matters

DELIVERED ON:

4 September 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

  1. 1.
    Mr Vieira De Silva must pay Mr Trpeski damages of $13,356.43 plus interest on that amount at the rate of 10% per annum as and from the date of this decision within 28 days of this decision.
  1. 2.
    Mr Vieira De Silva must pay Mr Trpeski $15,550.00 within 28 days of this decision.
  1. 3.
    Mr Vieira De Silva must pay Mr Trpeski’s costs fixed at $7,004.18 within 28 days of this decision.

CATCHWORDS:

JURISDICTION – DOMESTIC BUILDING DISPUTE – REVIEWABLE DOMESTIC BUILDING WORK – where domestic building work includes the renovation, alteration, extension, improvement or repair of a home

PROCEDURE – CIVIL PROCEEDINGS IN STATE TRIBUNAL – ENDING PROCEEDINGS EARLY – where respondent failed to respond to the application within the stated period – where the requirements for decision by default for unliquidated damages under s 50A of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) have been met

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – PERFORMANCE OF WORK – where domestic building contract does not comply with Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where work performed defective and incomplete – whether breach of contract can be established – where breach of duty of care established – where claim for damages in negligence available – where interest payable on damages award at 10% as and from date of decision

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DAMAGES – MEASURES OF – where contract entered into for the performance of building work and consideration paid – where builder is unlicensed – where builder performs unlicensed building work – where builder not entitled to consideration for performing building work – where builder must repay consideration paid by owner

COSTS – BUILDING DISPUTES – ENDING PROCEEDINGS EARLY – where s 77(3)(h) of the QBCC Act confers a power to award costs – where legal costs were reasonable and necessary to enable applicant to pursue legal entitlements – where the interests of justice served in awarding costs – where s 50A of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) application for decision by default for unliquidated damages allows a claim for legal costs and application fee

Queensland Building and Construction Commission Act 1991 (Qld), s 4, s 42(1), s 42(3), s 42(4), s 77; Sch 1B s 13(2), s 13(5); Sch 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 45, s 54

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 50A(1), s 50A(2), s 50A(3), s 107(1)

Queensland Civil and Administrative Tribunal Act Rules 2009 (Qld), r 44

Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613

Bryan v Maloney (1995) 182 CLR 609, 11

Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248

Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75

Corporation of the City of Adelaide v Jennings Industries Ltd [1985] HCA 7; (1985) 156 CLR 274

Harrison v Meehan [2017] QCA 315

Lyons v Dreamstarter Pty Ltd [2012] QCATA 497

Mair Renovations v Miller [2016] QCAT 317

Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62

Nazzari & Anor v Gray (No 2) [2023] QCAT 327

Robinson v Harman [1848] EngR 135; (1848) 1 Ex 850; 154 ER 363

Ventura v Svirac (1961) WAR 63

Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; [1996] FCA

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

APPEARANCES & REPRESENTATION:

Applicant:

CJM Lawyers

Respondent:

No appearance

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

  1. REASONSFOR DECISION
  1. [1]
    Mr Vieira De Silva contracted with Mr Trpeski to complete renovation work at Mr Trpeski’s apartment. Mr Trpeski made four payments in part payment of the contract amount. Mr Vieira De Silva failed to complete all the work under the contract. Mr Trpeski was not satisfied with the standard of the completed work.
  1. [2]
    Mr Trpeski filed in the Tribunal an application for a domestic building dispute. Mr Vieira De Silva did not file a response to the application and has not complied with any Tribunal directions. Mr Trpeski subsequently filed a request for decision by default for unliquidated damages.
  1. Background
  1. Mr Trpeski’s evidence
  1. [3]
    Mr Trpeski’s evidence is summarised as follows:
  1. (a)
    On or around 1 May 2022, Mr Trpeski and Mr Vieira De Silva entered into a contract for renovation work to be completed at Mr Trpeski’s apartment at 4640/9 Hamilton Avenue (known as ‘Q1 Resort & Spa’), Surfers Paradise, Queensland.
  1. (b)
    The contract was part oral and part written.
  1. (c)
    On 20 May 2022, Mr Vieira De Silva sent Mr Trpeski an email with the subject line: ‘Quote Final Floor – Quote Additional Joinery’. The sender email address appearing after Mr Vieira De Silva’s name is [email protected]. The email is copied to [email protected]. In particular, the body of the email refers to attached quotes for the floor and joinery; notes an additional $500 for a timber mat to the Rangehood cabinet and laundry cabinets (mirror not supplied); no more floor hybrid planks supply; Kitchen paid $5,250, balance $5,750 when kitchen done; start kitchen installation 25/05/2022; Floor balance total $7,897 (no GST), to be paid $5,098.77 (material $2,300 + 50% of labour $2,798.77), $2798.77 due when floor done. I consider the handwritten notes and figures on the face of the email are indecipherable or not capable of being understood.
  1. (d)
    The oral aspect of the contract involved Mr Trpeski specifying to Mr Vieira De Silva the addition of a timber mat to the Rangehood cabinet in the kitchen, the installation of laundry cabinets, and use of hybrid planks for the flooring.
  1. (e)
    Mr Trpeski transferred to Craw Joinery and Services via Commonwealth Bank NetBank the following amounts: $5,250, $5,100, $3,200, and $2,000 as evidenced by transfer records/receipts dated 25 April 2022, 23 May 2022, 8 June 2022, and 25 June 2022 respectively noting the description: kitchen Q1. I consider the handwritten notes and figures on the face of the transfer record/receipt dated 25 April 2022 are indecipherable or not capable of being understood.
  1. (f)
    Mr Trpeski paid Mr Vieira De Silva (or his trading entity/ies) a total of $15,550.
  1. (g)
    Mr Vieira De Silva did not complete the renovation work, and Mr Trpeski was not satisfied with the standard of the completed work. Sixteen (16) photographs produced by Mr Trpeski are captioned as follows:
  1. Photo 1 showing incomplete kitchen fit out;
  1. Photo 2 showing incomplete kitchen fit out of kitchen cabinetry;
  1. Photo 3 showing incomplete integration of dishwasher in kitchen fit out;
  1. Photo 4 showing incomplete fit out of pantry cupboard in kitchen;
  1. Photo 5 showing incomplete kitchen fit out;
  1. Photo 6 showing incomplete works to sink and pipes;
  1. Photo 7 showing incomplete fit out of cabinetry in air conditioning space;
  1. Photo 8 showing incomplete fit out of laundry cabinet;
  1. Photo 9 showing large gap in cabinetry in bathroom;
  1. Photo 10 showing incomplete fit out of cabinetry in ensuite bathroom;
  1. Photo 11 showing damage made by builder to flooring during building works;
  1. Photos 12, 13, and 14 showing drilled holes into flooring in an attempt to fix squeaky flooring;
  1. Photo 15 showing metal used by builder to fix large gap he made by cutting door too short;
  1. Photo 16 showing metal placed on front entry door by builder to fix gap he made by cutting door too short.
  1. (h)
    On 9 September 2022, Mr Trpeski’s lawyers (then, Parker Simmonds) wrote to Zero21 Home and Kitchen Renovation at the email addresses [email protected] and [email protected] claiming: Mr Trpeski had paid $15,550 up front for renovation work; despite Mr Trpeski’s complaints, the renovation work was not completed and was defective; Mr Trpeski had sold items of furniture to the value of $4,250; indebtedness to Mr Trpeski of: $4,250 (items of furniture); $3,487.50 (rectification of flooring, including labour and supply); $2,029 (rectification of kitchen including labour and supply); and $600 (rectification of six damaged doors including painting cost) (‘the Parker Simmonds letter’).
  1. (i)
    Mr Vieira De Silva did not respond to the Parker Simmonds letter.
  1. (j)
    Mr Trpeski did not know whether Mr Vieira De Silva was licensed.
  1. Mr Trpeski’s application
  1. [4]
    On 17 May 2023, Parker Simmonds (on behalf of Mr Trpeski) filed an application for a domestic building dispute applying for orders that Mr Vieira De Silva pay an amount of $10,366.15 for damages and interest plus costs.
  1. [5]
    Mr Trpeski attached to his application a letter from QBCC addressed to Parker Simmonds and dated 9 January 2023 (‘the QBCC letter’) advising that his complaint had been reviewed and a final decision had been made that QBCC would not be directing Mr Vieira De Silva to rectify the complaint items and the Queensland Home Warranty Scheme was unable to provide cover for any of the complaint items, and citing the reason as ‘not defective building work’: ‘unfortunately, the above item/s are not considered to be defective building work as the alleged defects have been rectified’.
  1. [6]
    On 30 May 2023, Parker Simmonds served a copy of the application on Mr Vieira De Silva.[1]
  1. [7]
    Mr Trpeski was directed to file a copy of the contract relating to the building work.[2] The Tribunal subsequently directed that if Mr Trpeski failed to do so, the proceeding may be dismissed.[3]
  1. [8]
    Mr Trpeski was granted leave to file an amended application for a domestic building dispute.[4]
  1. [9]
    On 14 December 2023, CJM Lawyers (on behalf of Mr Trpeski) filed an amended application for a domestic building dispute applying for orders that Mr Vieira De Silva pay an amount of $18,456.43 for damages and interest plus costs. The application was served on Mr Vieira De Silva by email dated 14 December 2023.
  1. [10]
    On 13 February 2024, CJM Lawyers (on behalf of Mr Trpeski) filed a request for decision by default for unliquidated damages claiming: damages of $18,456.43; interest of $2,149.59; and costs including filing fees of $6,076.68; a total of $27,049.70 or, if only filing fees recoverable of costs, $20,973.02.
  1. [11]
    Mr Trpeski was directed to file a detailed statement of evidence addressing, inter alia, details of the following: the agreement entered into with Mr Vieira De Silva; the building work carried out; the alleged defective and incomplete building work and cost of rectification and completion; any breach of duty of care by Mr Vieira De Silva in carrying out the building work and the cost of rectification; and whether Mr Vieira De Silva was licensed to carry out the work.[5]
  1. [12]
    On 23 April 2024, CJM Lawyers (on behalf of Mr Trpeski) filed a Statement of Damages exhibiting various documents previously filed and other documents including invoices and quotes in support of the unliquidated damages claim (‘Statement of Damages’).
  1. [13]
    Mr Vieira De Silva did not file any material in response to various directions made by the Tribunal.
  1. [14]
    The Tribunal directed that if Mr Trpeski is entitled to a final decision as a result of Mr Vieira De Silva’s failure to comply, the matter will be determined on the papers without an oral hearing and on the basis of the documents forming the Tribunal record.[6]
  1. Considerationandfindings
  1. Tribunal’s jurisdiction
  1. [15]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  1. [16]
    The Tribunal has jurisdiction to hear and decide building disputes.[7] A building dispute includes a domestic building dispute.[8] A domestic building dispute includes a dispute between a building owner and building contractor relating to the performance of reviewable domestic work.[9] Both ‘building contractor’ and ‘building owner’ are defined in the QBCC Act.[10] Reviewable domestic work means domestic building work under s 4 of Schedule 1B of the QBCC Act. Domestic building work includes the renovation, alteration, extension, improvement or repair of a home.[11]
  1. [17]
    A person involved in a building dispute may apply to the Tribunal to decide the dispute provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.[12]
  1. [18]
    I am satisfied and find that:
  1. (a)
    Mr Trpeski is a building owner and Mr Vieira De Silva is a building contractor.
  1. (b)
    The work Mr Vieira De Silva contracted to carry out, and in part carried out, was domestic building work.
  1. (c)
    The dispute between the parties is a domestic building dispute.
  1. (d)
    Mr Trpeski complied with the QBCC pre-proceeding dispute resolution processes.
  1. (e)
    The Tribunal has jurisdiction to hear and decide the dispute.
  1. Decision by default for unliquidated damages
  1. [19]
    Where an applicant has applied to the Tribunal to recover unliquidated damages from a respondent, and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or Queensland Civil and Administrative Tribunal Rules 2009 (‘QCAT Rules’) state that the respondent must respond to the application within a stated period, and where the respondent has not so responded, the applicant may apply to the Tribunal for a decision by default conditional on the assessment by the Tribunal of the unliquidated damages.[13] The application may also include a claim for any liquidated amount and interest, the application fee, and legal costs.[14]
  1. [20]
    A respondent must file a response to an application for a building dispute within 14 days of being given the copy of the application.[15]
  1. [21]
    I am satisfied and find that:
  1. (a)
    Service of the application and amended application for a domestic building dispute have been properly effected upon Mr Vieira De Silva.
  1. (b)
    Mr Vieira De Silva has failed to file a response to the application.
  1. (c)
    Mr Vieira De Silva has paid no monies to Mr Trpeski in respect of the amounts claimed.
  1. (d)
    As a result of Mr Vieira De Silva’s failure to file a response, the requirements relating to the granting of a decision by default under s 50A of the QCAT Act have been met.
  1. Contract and breach
  1. [22]
    Mr Trpeski says that Mr Vieira De Silva partially completed the contracted work, and the standard of the completed work was unsatisfactory and defective. Mr Trpeski claims damages and interest plus costs.
  1. [23]
    Ordinarily the failure by a building contractor to complete works without reasonable excuse and/or the performance of defective work by a building contractor is a substantial breach of contract, constituting repudiatory conduct, and giving rise to an entitlement by the building owner to terminate the contract. In such event, the building owner is entitled to claim damages for the builder’s breach. Where a building owner sustains a loss by reason of a breach of contract by a builder, the building owner is, as far as money can do it, entitled to be placed in the same situation, with respect to damages, as if the contract had been performed.[16] The measure of damages recoverable by a building owner for breach of a building contract is the difference between the contract price for the work and the cost of making the work conform to the contract, subject to undertaking the work necessary to achieve conformity being a reasonable course to adopt.[17] In assessing the building owner’s damages, the builder must be given credit for any unpaid part of the contract sum.[18]
  1. [24]
    The QBCC Act provides that a domestic building contract for an amount between $3,300 and $19,999 is a level 1 regulated contract.[19] A level 1 regulated contract, inter alia, must be in writing, dated and signed by or on behalf of each of the parties, and only has effect if these requirements are complied with.[20]
  1. [25]
    I find that the contract between the parties was part oral and part written. I am therefore not satisfied that it meets the requirements for a level 1 regulated contract. A contract that has no effect is void and cannot be enforced. Mr Trpeski cannot rely on the part oral and part written contract to make a claim for breach of contract against Mr Vieira De Silva.
  1. Negligence and breach of duty
  1. [26]
    A domestic building dispute may include a claim or dispute in negligence relating to the performance of reviewable domestic work.[21] A building owner, in order to establish negligence by a builder, must prove that: the builder owed to the owner a duty of care; the builder breached the duty; and as a result of the breach of duty, the owner has suffered loss.
  1. [27]
    Generally speaking, a builder owes to an owner a duty to perform building works with reasonable care and skill, and therefore a builder may be liable to an owner for any negligence arising from defective work.[22]
  1. [28]
    There was no reference in the QBCC letter to an inspection of the complaint items having been conducted by QBCC or any document attached to the letter explaining or supporting the reasons for QBCC’s decision that there was no defective work because the alleged defects had been rectified. I therefore find that the QBCC letter can be given no weight and cannot be relied on to substantiate a finding that there was no defective work because the defects had been rectified.
  1. [29]
    Paragraphs 7 to 10 of the Statement of Damages and exhibited photographs seek to particularise and demonstrate that Mr Vieira De Silva breached his duty to perform the building works with reasonable care and skill. Having given no weight to the QBCC letter, and in the absence of any evidence before me from Mr Vieira De Silva or otherwise to the contrary, I find that Mr Vieira De Silva owed Mr Trpeski a duty of care and a breach of that duty by Mr Vieira De Silva has been established.
  1. [30]
    The question next to be addressed is what loss has Mr Trpeski suffered as a result of the breach of duty and what evidence is available to demonstrate that loss?
  1. [31]
    Paragraph 11 of the Statement of Damages states that Mr Trpeski has obtained quotes for the anticipated costs of the rectification of the items Mr Vieira De Silva has failed to rectify, and that the total costs of rectification amount to $18,456.43.
  1. [32]
    The exhibits to paragraph 12 of the Statement of Damages are described as screenshots of invoices issued to Mr Trpeski outlining the costs to rectify the defective works. Details of the exhibits are as follows:
  1. (a)
    Harvey Norman quotation number 01-026-1314839 (current for the period 10/11/2023 to 24/11/2023) for Hybrid Oak XL 100 Pearled at $6,077.43 (‘the timber quote’).
  1. (b)
    TA Master Timber Flooring Service quotation number 007 dated 8 November 2023 for: removing the old floorboards (hybrid timbers) $500; adjusting the creaking of the floorboards and relevelling underneath the floors with more screws needed to be firmed $2,000; and replacing and installing new hybrid boards as required $3,000; total $5,500 plus tax 10%, the owner responsible for supplying the floorboards (‘the flooring quote’).
  1. (c)
    TOSM Pty Ltd invoice dated 26 July 2022 for fixing, replacing, and painting six (6) damaged doors: $600 (‘the door invoice’).
  1. (d)
    K&N Kitchens tax invoice number 514 dated and payable 26 July 2022 for fix up at Q1 apartment: handles $240; soft close hinges $110; soft close for drawers $77; glass for doors and shelves $60; 500 x 85 drawer under oven $16; 350 x 150 drawer for vanity $22; labour $704; total (including GST) $1,229 (‘the kitchen invoice’).
  1. (e)
    Commonwealth Bank NetBank transfer record/receipt dated 4 August 2022 showing a transfer of $800 to ‘Gholam’ stating the description ‘painting kitchen’ (‘the $800 transfer’).
  1. [33]
    The exhibit to paragraph 13 of the Statement of Damages is the Parker Simmonds letter, described as breaking down the costs of the repairs based on the quotation obtained. The Parker Simmonds letter claims indebtedness owing to Mr Trpeski of the following: $4,250 for items of furniture sold; $3,487.50 for rectification of flooring, including labour and supply; $2,029 for rectification of kitchen including labour and supply; and $600 for rectification of six damaged doors including painting cost.
  1. [34]
    The amounts claimed in the Parker Simmonds letter correlate with the amounts of the quotations and invoices exhibited in paragraph 12 of the Statement of Damages only to the extent of the door invoice. There is otherwise no correlation. No quotations or invoices have been produced in relation to the rectification amounts listed in the letter and no description or evidence has been produced in relation to the alleged sale of furniture. I find that the claims in the Parker Simmonds letter have been superseded by the claims in the Statement of Damages.
  1. [35]
    No quotation or invoice has been produced in relation to the $800 transfer. On that basis, I disallow the $800 amount from Mr Trpeski’s claim.
  1. [36]
    The amounts for the timber quote, the flooring quote, the door invoice and the kitchen invoice total $13,356.43. Having disallowed the $800 amount, there remains an amount of $4,300.00 in respect of which no quotations or invoices have been produced. On that basis, I disallow the $4,300 amount from Mr Trpeski’s claim.
  1. [37]
    I therefore assess damages for breach of duty at $13,356.43.
  1. [38]
    Paragraph 14 of the Statement of Damages claims interest on the damages amount calculated in accordance with QCAT Practice Direction No 9 of 2013. The Practice Direction is stated to apply to minor civil dispute applications which involve a claim to recover a debt or a liquidated demand of money where a decision by default is made under s 50 of the QCAT Act. In this proceeding however, I have found that the requirements relating to the granting of a decision by default under s 50A of the QCAT Act have been met. Accordingly, QCAT Practice Direction No 9 of 2013 does not apply.
  1. [39]
    By s 77(3)(c) of the QBCC Act, the Tribunal’s powers to resolve a building dispute include the power to award damages and interest on the damages at the rate, and calculated in the way, prescribed under a regulation. The relevant regulation provides that where not otherwise agreed between the parties, interest is payable on the amount of damages awarded at the rate of 10% on and from the day after the day the amount became payable until and including the day the amount is paid.[23]In the circumstances of a claim for unliquidated damages, until a decision to award damages is made, no amount is payable.[24]
  1. [40]
    I find there should be an award of damages in Mr Trpeski’s favour against Mr Vieira De Silva in the amount of $13,356.43 plus interest at 10% per annum on that amount as and from the date of this decision.
  1. Unlicensed building work
  1. [41]
    A person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class.[25] A person who carries out unlicensed building work is not entitled to any monetary or other consideration for doing so.[26] Any monetary or other consideration paid to an unlicensed builder must be repaid.[27]
  1. [42]
    An unlicensed builder may claim reasonable remuneration for carrying out building work. However, it is limited to an amount that complies with the statutory requirements.[28]
  1. [43]
    Exhibited to the Statement of Damages is a QBCC licence search recording Zero21 Home and Kitchen Renovation Pty Ltd as the holder under 15400959 of licences of seven (7) different classes.
  1. [44]
    A QBCC licence search conducted by the Tribunal on 30 August 2024 records the following:
  1. (a)
    Zero21 Home and Kitchen Renovation Pty Ltd as the holder under 15400959 of licences of seven (7) different classes, each commencing on 15 April 2024; one (1) direction to rectify non-structural work issued in 2024 and associated demerit points for failure to comply; and one (1) infringement notice issued in respect of an offence dated 28 March 2024.
  1. (b)
    Vieira De Silva, Lucas Adriano as the holder under Licence number 15437999 of licences of seven (7) different classes, each commencing on 10 April 2024.
  1. [45]
    I am satisfied and find that:
  1. (a)
    Mr Trpeski contracted with Mr Vieira De Silva T/A Zero21 Home and Kitchen Renovation, not Zero21 Home and Kitchen Renovation Pty Ltd.
  1. (b)
    Mr Trpeski paid Mr Vieira De Silva (or his trading entity/ies) a total of $15,550.
  1. (c)
    At the time Mr Trpeski contracted with and paid Mr Vieira De Silva, and at the time Mr Vieira De Silva carried out the building work, Mr Vieira De Silva was not a licensed contractor.
  1. (d)
    Mr Vieira De Silva was not permitted to carry out the building work and is therefore in breach of s 42(1) of the QBCC Act.
  1. (e)
    Pursuant to s 42(3) of the QBCC Act, Mr Vieira De Silva was not entitled to the $15,550 he received from Mr Trpeski, and he has no entitlement to retain that money.
  1. [46]
    There is no application before the Tribunal by Mr Vieira De Silva pursuant to s 42(4) of the QBCC Act claiming reasonable remuneration.
  1. [47]
    I find that Mr Vieira De Silva must repay to Mr Trpeski the amount of $15,550.
  1. Costs
  1. [48]
    An application for a decision by default claiming unliquidated damages under s 50A of the QCAT Act may also include a claim for any liquidated amount claimed in the application starting the proceeding (plus interest), the fee paid for the application, and the legal costs based on a scale stated in the rules.
  1. [49]
    By s 77(3)(h) of the QBCC Act, the Tribunal’s powers to resolve a building dispute include the power to award costs. The discretion to award costs is a broad one which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the proceeding. The High Court has said there is no automatic rule that costs follow the event, but the discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them. Otherwise, the factors affecting the discretion will vary in each case.[29] Whether it was necessary for a successful party to reasonably incur the cost of legal representation to achieve a satisfactory outcome is a relevant consideration in exercising the broad discretion under s 77.[30] The Tribunal also considered that recent authority meant that the discretion afforded by section 77(3)(h) should be read in conjunction with s 102 of the QCAT Act, so that in a building dispute the question was not whether costs should follow the event, but whether the interests of justice dictated that costs should be awarded.[31]
  1. [50]
    Paragraph 16 of the Statement of Damages states that Mr Trpeski has incurred legal costs of $10,211.04. Exhibited to paragraph 17 is CJM Lawyers tax invoice number 27929 dated 22 April 2024 itemising the costs incurred for the period 26 October 2023 to 19 April 2024.
  1. [51]
    I am satisfied the legal costs incurred by Mr Trpeski were reasonable and necessary to enable him to pursue his legal entitlements as a result of Mr Vieira De Silva’s breach of duty and his subsequent failure to file a response to the applications or otherwise engage with the Tribunal in this proceeding. I am satisfied the interests of justice are served in awarding costs against Mr Vieira De Silva.
  1. [52]
    To permit recovery of the amount claimed would however be to award Mr Trpeski costs on an indemnity basis. The usual order is that costs are ordered to be paid on the standard basis. Departure from this practice should not be undertaken absent some special or unusual feature.[32] I am not satisfied there is such a feature present in this case and therefore costs will be allowed on the standard basis.
  1. [53]
    If the Tribunal makes an order for costs under the QCAT Act or an enabling Act, the Tribunal must fix the costs if possible.[33] The Tribunal has recently determined that a broad brush approach is permitted in these circumstances, taking into consideration that there is a global or usual view that standard costs generally or usually work out to be two thirds of the costs actually incurred.[34] I adopt that approach and apply a calculation of 65% of the amount claimed for CJM Lawyers’ fees. Mr Trpeski is also entitled to recover the filing fees on the application of $367.00. I fix the total costs payable by Mr Vieira De Silva to Mr Trpeski at $7,004.18.

Footnotes

[1]Affidavit of Service filed 2 November 2023.

[2]Direction dated 29 May 2023.

[3]Direction dated 27 October 2023.

[4]Direction dated 30 November 2023.

[5]Direction dated 27 February 2024.

[6]Direction dated 27 February 2024.

[7]QBCC Act, s 77.

[8]Ibid, Schedule 2 (definition of ‘domestic building dispute’).

[9]Ibid, (definition of ‘reviewable domestic work’)

[10]Ibid, (definition of ‘building contractor’; definition of ‘building owner’)

[11]Ibid, Schedule 1B, s 4(1)(b).

[12]Ibid, s 77(2).

[13]QCAT Act, ss 50A(1) and 50A(2).

[14]Ibid, s 50A(3).

[15]QCAT Rules, r 44.

[16]Robinson v Harman (1848) 1 Ex 850; 154 ER 363.

[17]Bellgrove v Eldridge (1954) 90 CLR 613.

[18]Ventura v Svirac (1961) WAR 63 cited with approval in Corporation of the City of Adelaide v Jennings Industries Ltd (1985) 156 CLR 613.

[19]QBCC Act, Schedule 1B, ss 1 (definition of ‘regulated amount’), 6, 7(2); Queensland Building andConstruction Commission Regulation 2018 (Qld), s 45.

[20]QBCC Act, Schedule 1B, s 13(2) and s 13(5).

[21]Ibid, Schedule 2 (definition of ‘domestic building dispute’).

[22]See Bryan v Maloney (1995) 182 CLR 609, 11.

[23]Queensland Building and Construction Commission Regulation 2018 (Qld), s 54.

[24]Worthington v Ryan; Ryan v Worthington [2021] QCATA 138, [73]; Harrison v Meehan [2017] QCA 315.

[25]QBCC Act, s 42(1).

[26]Ibid, s 42(3).

[27]Cook’s Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75 (3 April 2009).

[28]QBCC Act, s 42(4)(a) to (d).

[29]Lyons v Dreamstarter Pty Ltd [2012] QCATA 497 Justice Alan Wilson.

[30]Mair Renovations v Miller [2016] QCAT 317 Member Browne.

[31]Nazzari & Anor v Gray (No 2) [2023] QCAT 327, Member Taylor at [30].

[32]Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248; Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151; [1996] FCA.

[33]QCAT Act, s 107(1).

[34]Monsour & Anor v C & R Darvill Pty Ltd [2023] QCAT 62 at [47].

Close

Editorial Notes

  • Published Case Name:

    Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation

  • Shortened Case Name:

    Trpeski v Vieira De Silva t/as Zero21 Home and Kitchen Renovation

  • MNC:

    [2024] QCAT 365

  • Court:

    QCAT

  • Judge(s):

    Member Chapple

  • Date:

    04 Sep 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
Adelaide Corporation v Jennings Industries Ltd (1985) 156 CLR 274
1 citation
Jump To
Cite 1 - (1985) 156 CLR 274
Adelaide Corporation v Jennings Industries Ltd [1985] HCA 7
1 citation
Jump To
Cite 1 - [1985] HCA 7
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Bellgrove v Eldridge [1954] HCA 36
1 citation
Jump To
Cite 1 - [1954] HCA 36
Bryan v Maloney (1995) 182 CLR 609
2 citations
Jump To
Cite 1 - (1995) 182 CLR 609
Cite 2 - (1995) 182 CLR 609
Colgate-Palmolive v Cussons (1993) 118 ALR 248
2 citations
Jump To
Cite 1 - (1993) 118 ALR 248
Cite 2 - (1993) 118 ALR 248
Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75
2 citations
Jump To
Cite 1 - [2009] QCA 75
Cite 2 - [2009] QCA 75
Corporation of the City of Adelaide v Jennings Industries Ltd (1985) 156 CLR 613
1 citation
Jump To
Cite 1 - (1985) 156 CLR 613
Harrison v Meehan [2017] QCA 315
1 citation
Jump To
Cite 1 - [2017] QCA 315
Mair Renovations v Miller [2016] QCAT 317
2 citations
Jump To
Cite 1 - [2016] QCAT 317
Cite 2 - [2016] QCAT 317
Monsour v C & R Darvill Pty Ltd [2023] QCAT 62
2 citations
Jump To
Cite 1 - [2023] QCAT 62
Cite 2 - [2023] QCAT 62
Nazzari v Gray (No 2) [2023] QCAT 327
2 citations
Jump To
Cite 1 - [2023] QCAT 327
Cite 2 - [2023] QCAT 327
Re Wilcox; Ex parte Venture Industries Pty Ltd (No 2) (1996) 72 FCR 151
1 citation
Jump To
Cite 1 - (1996) 72 FCR 151
Robinson v Harman (1848) 1 Ex 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex 850
Cite 2 - (1848) 1 Ex 850
Robinson v Harman [1848] ER 135
1 citation
Jump To
Cite 1 - [1848] ER 135
Ventura v Svirac (1961) WAR 63
2 citations
Jump To
Cite 1 - (1961) WAR 63
Cite 2 - (1961) WAR 63
Worthington v Ryan [2021] QCATA 138
2 citations
Jump To
Cite 1 - [2021] QCATA 138
Cite 2 - [2021] QCATA 138

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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