Harding v Raymond[2024] QCAT 407

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   The Applicant, Ms Harding, seeks an order from the Tribunal for payment of compensation by the Respondent, Mr Raymond, concerning some concreting work that he carried out at Ms Harding’s new home. She contends that the concreting work was defective and negligent. Mr Raymond has not provided any response to Ms Harding’s claim, despite being the given the opportunity, and directed, to do so by the Tribunal.
2. [2]
   Ms Harding’s application to the Tribunal is based on the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). I will analyse the basis of the application of that Act below.

Chronology of facts

3. [3]
   A summary of the key facts can be set out by way of chronology:

   1. 30 March 2022. Mr Raymond provided Ms Harding with a quote for the concreting work to be done at her new home in the amount of $17,400. Ms Harding accepted the quote, which created a contract under the common law. However, as Senior Member Brown found in an early interlocutory decision^[1] in this matter, the evidence as it then was (and as it now is) tended to indicate that the agreement did not meet the requirements of schedule 1B of the QBCC Act and was therefore of no effect.^[2]

Following a direction given to her by the Tribunal to provide a copy of the contract for the concreting work, under cover of an email dated 20 July 2023, Ms Harding provided a copy of the quote, and said that Mr Raymond only provided her with a quote.

2. 27-29 April 2022. Mr Raymond carried out the concreting wok at Ms Harding’s home.
3. 28 April 2022. Mr Raymond demanded full payment of the amount quoted for the work, although that work was not then completed. Ms Harding declined to do so, and paid Mr Raymond only $6,600 at that time.
4. 29 April 2022. By this time, Ms Harding could see what she now claims to be defective concreting work carried out at her home by Mr Raymond. In her application to the Tribunal, this is the date that Ms Harding claims the debt the subject of this application to the Tribunal arose.
5. 12 May 2022, Ms Harding made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about the work done by Mr Raymond, and a claim against the Queensland Home Warranty Scheme under the QBCC Act.^[3]
6. 27 June 2022. Ms Harding obtained a quote to repair the concreting work in the amount of $41,091.60.
7. 16 November 2022. This is the date of a QBCC inspection report provided to Ms Harding on the concreting work. The report found all items complained about by Ms Harding for the concreting work to be defective.
8. 7 December 2022. In her statement filed in the Tribunal,^[4] Ms Harding says on this date, the QBCC ruled in her favour on the complaint against Mr Raymond, and her claim under the Warranty Scheme. However, that was only in respect of two items she had claimed out of an apparent 20 separate items. The two items allowed were item 12 on concreting work done for the family patio, and item 13 on expansion joints for the concreting work for the family patio.
9. 12 May 2023. Mr Raymond became bankrupt.^[5]
10. 23 June 2023. Ms Harding filed her ‘Application for domestic building disputes [QBCC Act]’ with the Tribunal.
11. 4 December 2023. Ms Harding completed a form to add, as a debt to Mr Raymond’s bankruptcy, what Ms Harding contended was a debt owing to her by Mr Raymond in the amount of $46,913.75 because of the concreting work. On the same date, she received information from the Australian Financial Security Authority that it did not expect that any dividends would be paid from Mr Raymond’s bankruptcy at that stage.
12. 8 January 2024. In correspondence to the Tribunal, Ms Harding confirmed that her claim was for unliquidated damages against Mr Raymond.
13. 9 April 2024. The Tribunal made a direction that the proceeding in the Tribunal continue as a claim by Ms Harding for damages for breach of duty of care. In the interlocutory decision accompanying those directions, the Tribunal noted that Ms Harding would be required to establish the elements of a claim in negligence.

The effect of Mr Raymond’s bankruptcy

4. [4]
   A person becoming bankrupt under the Bankruptcy Act 1966 (Cth) (‘Bankruptcy Act’) has a profound effect on their legal and financial affairs, and on claims made by other persons, for allegations of legal liability against the bankrupt. One of the effects, under s 58(3), is that except as provided by that Act, after a debtor has become bankrupt, a creditor is not able, except with the leave of a court with relevant jurisdiction, to commence any legal proceeding in respect of a ‘provable debt’.
5. [5]
   There is therefore a threshold question in this matter, whether the claim made by Ms Harding is in respect of a ‘provable debt’. The meaning of that term is contained in s 82 of the Bankruptcy Act, and s 82(1) is as follows:

1.  Subject to this Division, all debts and liabilities, present or future, certain or contingent, to which a bankrupt was subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in his or her bankruptcy.

6. [6]
   There is an exception to what is a ‘provable debt’ in s 82(2) which is as follows:

2.  Demands in the nature of unliquidated damages arising otherwise than by reason of a contract, promise or breach of trust are not provable in bankruptcy.

7. [7]
   The term ‘contract’ is not defined in s 5 of the Act, for example to mean a contract as described in an Act such as the QBCC Act, with the effect of s 13(5) of schedule 1B that a contract has effect only if it complies with the requirements of that provision. In that case, a reference to a contract in s 82(2) of the Bankruptcy Act includes a common law contract such as the contract between Ms Harding and Mr Raymond.
8. [8]
   This case is analogous to the decision of the Tribunal in Benson v Legg^[6] where the Tribunal considered the effect of s 82(2) on a claim by a homeowner for negligent building work.
9. [9]
   In that case the homeowner, Mr Benson, made a claim for unliquidated damages against an unlicensed builder, Mr Legg. The claim arose out of a deck constructed at Mr Benson’s home by Mr Legg, which Mr Benson claimed was negligently built. There was a contract in place for the work, albeit an ‘informal’ contract that was outside the scope of the QBCC Act, because Mr Legg was not a registered builder. The contract was also ‘informal’ in the sense that the contract was based on a quote provided by Mr Legg, there was no signed contract,^[7] and Mr Benson paid the full quoted price.^[8] There was clearly no contract of the kind described in s 13 of schedule 1B of the QBCC Act.
10. [10]
    Member Kanowski’s decision in Benson on the point presently relevant is succinctly contained in paragraph [14]^[9] as follows:

Mr Legg’s claim for damages is a demand for unliquidated damages: unlike liquidated damages, which would arise if there was an agreed amount for damages in a contract. Although there would have been a contract, albeit an informal one, between Mr Benson and Mr Legg for the construction work, the demand made by Mr Benson is not one made by reason of the contract. Nor is it one made by reason of a promise or a breach of trust. Accordingly, Mr Benson’s claim for damages is a demand that is not provable in the bankruptcy. There is no ‘provable debt’. Mr Benson is able to pursue the claim against Mr Legg despite Mr Legg’s bankruptcy.

11. [11]
    As Senior Member Brown acknowledged in the interlocutory decision made on 9 April 2024 in the current proceeding, Ms Harding says that her claim against Mr Raymond is for unliquidated damages for breach of duty. Given the current proceeding is analogous to that of Benson, in my opinion, the same relevant outcome applies, which is that the claim by Ms Harding is not for a provable debt under the Bankruptcy Act. 
12. [12]
    I would add only a little further to that reasoning. The High Court reviewed the effect of s 82(2) in Coventry v Charter Pacific Corp Ltd,^[10] in particular, on cases where the relevant claim for unliquidated damages arises ‘otherwise than by reason of a contract’. The authors of Australian Bankruptcy Law and Practice^[11] state that the effect of that decision is that the focus should be on the substance, rather than the form of the claim being made; that is to examine the underlying basis of the claim, rather than the manner in which the cause of action is pleaded or formulated.
13. [13]
    Here, Ms Harding bases her claim on the defective or negligent work which was done by Mr Raymond. That is the substance of the claim, rather than, by contrast, that an item of work contracted to be done was not done by Mr Raymond, or the contracted work not being done at all. Her claim is for the cost of overcoming the effect of the work claimed to be defective, rather than for liquidated damages for return of the price paid under the contract. As matters transpired, Ms Harding paid Mr Raymond $13,900, instead of the total of $17,400 as the quoted price for the work.^[12]
14. [14]
    The High Court said in Coventry that the effect of a liability not being a provable debt is that the bankrupt is not discharged from liability for such a debt. The claim may be pursued by the claimant during the bankruptcy and after discharge from bankruptcy.^[13]
15. [15]
    Any order for payment of money by Mr Raymond to Ms Harding is something for which Mr Raymond will be liable, not only during his bankruptcy but after he is discharged from bankruptcy. The order is enforceable by Ms Harding for up to 12 years after the date of the order, under s 10(4) of the Limitation of Actions Act 1974 (Qld).^[14] Of course, any success that Ms Harding may have in recovering the amount ordered by this decision will be dependent on the extent to which Mr Raymond has the money or assets to satisfy the order.

Jurisdiction of the Tribunal in a building dispute

16. [16]
    The Tribunal has the jurisdiction to decide a ‘building dispute’. That term is relevantly defined in the Dictionary (schedule 2) of the QBCC Act to include a ‘domestic building dispute’. That term is also defined in the Dictionary to the QBCC Act, relevantly to mean a dispute between a building owner^[15] and a building contractor,^[16] and also a claim in negligence, in each case related to the performance of ‘reviewable domestic work’. That term is defined in the Dictionary to the Act, relevantly to mean domestic building work under schedule 1B, s 4. Section 4(1)(b) includes the alteration or improvement of a home. The concreting work done by Mr Raymond will fall within the meaning of domestic building work.
17. [17]
    The term ‘building contractor’ is defined in s 1 of schedule 1B, relevantly to mean a person who carries out domestic building work. Mr Raymond will fall within the meaning of that term.
18. [18]
    Section 77(2) of the QBCC Act provides that a person involved in a building dispute may not apply to the Tribunal unless that person has complied with a process established by the QBCC to attempt to resolve the dispute. In her application to the Tribunal, Ms Harding states that a complaint about the dispute had been made to the QBCC and she had participated in the QBCC dispute resolution process. I find that the Tribunal has jurisdiction to determine this dispute.
19. [19]
    The orders that the Tribunal may make in determining a dispute are contained in  s 77(3) which include the power to order the payment of an amount found to be owing by one party to another,^[17] to award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation made for the QCAT Act,^[18] and to award costs.^[19]
20. [20]
    Ms Harding sought an award for damages of $6,000 and interest on those damages, and ‘restitution’ in the amount of $40,913.75, although as she explained in Part C of the application filed with the Tribunal, that latter amount represents the costs to rectify the defective works.

Claim in negligence

21. [21]
    In Benson,^[20] Member Kanowski referred to previous decisions of the Tribunal which had considered the elements of a negligence claim in the context of a claim by a homeowner against a builder. I need not analyse those cases in detail, but the elements of a negligence claim in that context are that the applicant to the Tribunal must prove, on the balance of probabilities, that:

    1. a duty of care is owed by the builder to the homeowner;
    2. breach of that duty;
    3. damage which is not too remote having been suffered by the homeowner as a consequence; and
    4. the rebuttal of any defence to the claim.

Existence of a duty of care

22. [22]
    As for the first element, again in Benson,^[21] Member Kanowski adopted with approval, reasoning of the Tribunal in a previous decision in a passage that is worth repeating for application to this case:

The relationship of professional licensed builder to a homeowner client is an established category of relationship where a duty of care is owed. That is because it is reasonably foreseeable that if care is not taken by the builder the client is likely to suffer loss and damage. The owner of a house, in the absence of evidence to the contrary, may be assumed to rely on a professional builder to carry out the work with care and skill and the builder generally accepts the responsibility arising from that reliance.

23. [23]
    On 24 November 2023, Ms Harding provided to the Tribunal a licence search of the QBCC register, which showed that as of the date of the work in question being done, Mr Raymond held a trade contractor licence. I find that Mr Raymond owed a duty of care to Ms Harding to exercise reasonable care in carrying out the work.

Breach of the duty of care

24. [24]
    As to the second element, of breach of the duty of care, Ms Harding provided to the Tribunal, with the originating application to the Tribunal, the QBCC report dated 16 November 2022, which was a report on inspection of the concreting work at Ms Harding's home.
25. [25]
    The report stated that Mr Raymond had not complied with a Direction to Rectify and/or Complete work issued to him by the QBCC on 7 October 2022. The report went on to state that a list of 13 items the subject to the direction given to Mr Raymond had not been completed satisfactorily. The report describes inspection of 13 ‘Direction items’ and correlates each of those 13 items with an item number of the ‘QBCC complaint form’, which appears to be the complaint made by Ms Harding to the QBCC about the work carried out by Mr Raymond. For the purposes of my decision on the second and third elements of liability in negligence, I base my findings on the QBCC report issued on 7 November 2022.
26. [26]
    The QBCC report states that there was defective work in each of the 13 items. In some instances, the QBCC inspector found that the work did not comply with an Australian Standard in a particular respect. In other instances, the inspector found that the work did not comply with the ‘QBCC Standards & Tolerances Guide’, or the National Construction Code 2019 of Australia. In all but three items, the inspector found that the work did not comply with the documents listed in this paragraph.
27. [27]
    For the other three items,^[22] the inspector found that the work was unsatisfactory, because of an unsightly finished appearance.^[23] For the other item, item 10, the inspector found that the installation of the concrete paths and slabs around the property has resulted in consequential damage to the Colourbond fence in numerous locations.
28. [28]
    The QBCC letter dated 12 December 2022 stated that there was no defect evident for Ms Harding’s complaint items 1, 8, 9 and 16. Consistently with my reasoning on the second element of a claim in negligence, I find that there has been no breach of the duty of care in respect of those items.
29. [29]
    In the same letter, for Ms Harding's complaint item 10, the QBCC refused to accept that claim on the basis that the item had been identified as a ‘contractual issue’. The letter referred to s 72 of the QBCC Act which empowers the QBCC to direct the building contractor concerned to rectify building work that is defective or incomplete. It does not confer a power on the QBCC to direct rectification of what is simply in breach of a contract where the work is not defective or incomplete. Again, consistently with my reasoning on this second element of a claim in negligence, if the complaint was on the basis that work by Mr Raymond did not comply with a contractual obligation only, which was not defective, I find that there has been no breach of the duty of care in respect of this item.
30. [30]
    I do not think I need to analyse the content of the inspection report in detail, especially given the lack of response by Mr Raymond contesting any of the findings by the inspector. I find that Mr Raymond breached the duty of care he owed to Ms Harding to carry out the concreting work at her home to take reasonable care to do so, for the 13 items described in the QBCC inspector’s report. Given the lack of response by Mr Raymond, I give considerable weight to the report of the QBCC inspector, who was independent of both Ms Harding and Mr Raymond.

Damages

31. [31]
    This is the most complex aspect of this matter.

Rectification work

32. [32]
    In the letter dated 12 December 2022, the QBCC decided to approve rectification of two items under the Warranty Scheme. They were items 12 and 13 of the QBCC inspector’s report, concerning the concreting for the family patio, and expansion joints for the family patio. Because that work was rectified by a QBCC contractor, Ms Harding has not sustained any loss or damage for those two items. I make no order for damages or compensation for those two items.
33. [33]
    The QBCC letter dated 12 December 2022 stated that there was no defect evident for Ms Harding’s complaint items 1, 8, 9, 10 and 16. I have already found that there was no breach of the duty of care owed by Mr Raymond in respect of those items. It follows that I make no award of damages or compensation for those items.
34. [34]
    The QBCC letter dated 12 December 2022 stated that Ms Harding's complaint item 11 had been rectified by Mr Raymond. There may have been a breach of the duty of care owed by Mr Raymond for this item in that the work was initially defective, but if it has been rectified by him, then Ms Harding has suffered no loss. I make no award of damages or compensation for this item.
35. [35]
    Finally, the QBCC letter dated 12 December 2022 informed Ms Harding that her claims for items 2-7 (inclusive), 14, 15 and 17-20 (inclusive) were not covered by the Warranty Scheme. The stated reason was that the work in those items did not fall within the meaning of ‘primary insurable work’ as contained in the QBCC Act.^[24]
36. [36]
    However, because those claims lay outside the scope of the statutory insurance scheme under the QBCC Act does not mean that Ms Harding has not suffered damage or loss under the third element of a claim in negligence. It simply means that the QBCC decided that she did not have a claim under the statutory insurance scheme.
37. [37]
    Ms Harding provided to the Tribunal, attached to her statement filed on 7 May 2024, a document headed ‘QCAT Application - Rectification of Defects - Cost Recovery’, which I will refer to as her ‘Claim Details Document’. This specifies the individual components of her claim against Mr Raymond, totalling $46,913.75.
38. [38]
    First, under the heading ‘Costs’, she describes what she refers to as the 'Rectification Costs' for a total of $27,539, then a series of what I will describe as ‘consequential claims’, the reasons for which she describes in her statement, as claims arising from the defective concreting work. Then, under a heading ‘Unliquidated Damages’ she describes a number of items for which she attributes the amount of $6,000, not broken up individually amongst the items, under the heading, but in a global sense.
39. [39]
    Starting with the ‘Rectification costs’, Ms Harding provided to the Tribunal a quote, dated 27 June 2022, by BC Decorative Concrete Pty Ltd to rectify the defective work. The quote is in the amount of $41,091.60, including GST. Perusal of the quote indicates that is for work to remove the defective concreting and to dump the same, including dumping fees. The quote included work to carry out the work that had been defectively done by Mr Raymond. There is no item there for the items which the QBCC had agreed to rectify under the statutory insurance scheme, namely items 12 and 13 in the QBCC letter dated 12 December 2022.
40. [40]
    In the absence of any submission or evidence provided to the Tribunal by Mr Raymond, the quote from BC Decorative Concrete is the best evidence available to the Tribunal on the cost to rectify the defective work done by Mr Raymond. I find as a starting position that Ms Harding is entitled to damages or compensation in the amount of $41,091.60 rounded to $41,092.00, as done in Ms Harding’s Claim Details Document.
41. [41]
    In the Claim Details Document, Ms Harding then deducted the amount of $13,553, which she attributed to ‘Less QBCC insurable covered - Deed of Settlement of items’. I make the same deduction, leaving an amount of $27,539, which I find is payable as damages to Ms Harding to rectify the defective concreting work.

‘Consequential claims’, listed in the Claim Details Document

42. [42]
    Turning to the ‘consequential claims’, they are listed in the Claim Details Document as follows, using Ms Harding’s descriptions,^[25] and to which I have added item numbers and headings over the columns for ease of understanding:

43. [43]
    By way of explanation, Ms Harding describes in her statement filed in the Tribunal on 7 May 2024, the reasons why she incurred each of those costs. The attachments are documents which Ms Harding relies upon to verify those consequential claims, as attached to either her statement, or her originating application filed in the Tribunal. The ‘Total’ represents my calculation of the addition of each of those claimed items.
44. [44]
    Item 1 is explained in paragraph 18 of Ms Harding’s statement. Before that part of the statement, she explains the work done by Mr Raymond, and her inspection of it which revealed obvious defects. The seeds of conflict were sown, in that although Mr Raymond indicated he would rectify the defects, he did little work to do so. Ms Harding therefore arranged a qualified building warranty inspection report to be conducted on the 12th of May. Attachment 1 to her statement is an invoice from  Australian Property & Building Inspections, dated 6 May 2022 in the amount of $418 (including GST).
45. [45]
    In my opinion, given the then apparent reluctance of Mr Raymond to seriously undertake rectification of the concreting work, it was reasonable for Ms Harding to arrange for an inspection and report on the work. She did so as a direct consequence of the defective concreting work. The cost incurred in obtaining the report was as a direct result of the defective concreting work and not remote from the breach of the duty of care by Mr Raymond. I allow this item.
46. [46]
    Item 2 is for the cost of obtaining a further certificate of approval for the swimming pool installed at Ms Harding’s home. She explains the need for this in paragraph 34 of her statement. On 28 October 2022, she had to advise the pool certifier that she could not proceed within the required time frame of pool certification due to the defects in the concreting. Attachment 2 to her statement is an email from the pool approval firm which notes that the pool permit issued on 9 March 2022 had expired. The approval firm stated that it would be necessary to renew the permit before the approval could be finalised, at a cost of $550.
47. [47]
    In my opinion, the need for Ms Harding to spend the amount of $550 on obtaining a further permit for the pool arose as a direct consequence of the defective concreting work. My reasoning concerning item 1 applies to item 2. I allow the cost for item 2 in the damages payable to Ms Harding.
48. [48]
    Item 3 is for the cost of additional temporary fence hire by Ms Harding for a period of more than 12 months. Ms Harding explained the need to do so in the original application filed with the Tribunal and in paragraph 32 of her statement. She said that given that she has young children and pets, in order to ensure safe pool surroundings, it was necessary for her to have temporary fencing installed for the more than 12 month period until the QBCC could assess her claim and, I infer, for other rectification work to be carried out. In paragraph 22 of her statement, she says the QBCC advised her not to construct fencing on the defective concreting, which I take to mean permanent fencing, and not the temporary hire fence.
49. [49]
    An invoice from the fencing hire firm is attached to her statement as attachment 3. It invoices for temporary fence hire from 10 May 2022 to 30 June 2023, a total of 13 months at $330 per month. This gives a total of $4,290.00, including GST.
50. [50]
    I find that it was a reasonable consequence of the defective concreting work that Ms Harding incur the cost of the temporary fencing around the pool area. I allow this item for the same reasons as my decision concerning item 1.
51. [51]
    Item 4 is for additional plumbing costs concerning work done to the gas and hot water systems, and a pool pump at Ms Harding’s home arising out of the defective concreting work. Ms Harding explains the need to do so in paragraph 23 of her statement. She says that in May 2022, her pool pump and heater were already scheduled to be installed. Part of the concreting was for the location of the pool pump and heater. She says that she had to proceed with the installation of those matters knowing that they would have to be ‘ripped up and potentially damaged’ as the pool pipes were under concrete. At paragraph 41 of her statement, she describes the need for a plumber to remove and reinstall gas bottles and the hot water system.
52. [52]
    The relevant invoice from the plumbing and gas firm is attached to Ms Harding’s statement as attachment 4, dated 22 May 2023. The amount claimed of $360.00 (including GST) is stated to be for a ‘first visit service call’ to disconnect a gas bottle and hot water tank prior to a slab being removed. The second item of work claimed is for a third visit to raise three drainage pipes, reconnect gas and re-install the hot water system. Other work covered by the invoice is not claimed by Ms Harding and appears to be work not related to the defective concreting.
53. [53]
    I find that the costs incurred by Ms Harding for item 4 were a consequence of the defective plumbing. For the same reasons in me allowing item 1, I also allow the costs claimed in item 4.
54. [54]
    Item 5 is for the cost of Ms Harding purchasing a product ‘Cement off', to remove concrete splatter caused by Mr Raymond to fences and garage doors and so on, as explained by Ms Harding in paragraph 35 of her statement. She says that the product was recommended by the QBCC for which she estimates the cost at $200. She does not provide an invoice or receipt for this item, but I accept her statement as the best evidence of the cost which in any event, appears reasonable.
55. [55]
    In my opinion, this cost arises as a direct consequence of the defective concreting work. I allow the item for the same reasons as I allowed item 1 above.
56. [56]
    Item 6 represents a quote for replacement of a Colourbond fence at Ms Harding’s home. She describes the need to do so in paragraph 41 of her statement, that the fences could not be cleaned and she would need to replace ‘both sides’. The relevant invoice from the fencing firm ‘Angel Fencing’ is attached to her statement as attachment 5. The quote is stated to be to supply and install 1.8 metre Colourbond fencing to the right boundary, a total of 26 metres in length including aluminium sleepers to the bottom of the fence. The quote is for $3,458, including GST.
57. [57]
    In the absence of any response by Mr Raymond, I accept Ms Harding's statement on this item and that she would incur the cost to replace the fence as a consequence of the defective concreting work. I allow the claim for item 6.
58. [58]
    Item 7 is for the cost to disassemble and reassemble an outdoor blind due to the rectification works for the concreting. She refers to the need to do so in paragraph 33 of her statement. She said she had delayed installation of the automated alfresco blinds as long as contractually possible, from May 2022. She says she was forced to install the blinds in October 2022 or forfeit the agreed price. However, the blinds would need to be removed at a later date for any concrete rectification works or they would be damaged. She says in paragraph 40 that she was advised by other repairers that the automated alfresco blinds needed to be removed and reinstalled after the concrete rectification.
59. [59]
    The relevant tax invoice dated 8 June 2023 is attached to her statement as attachment 6, in the amount of $495, including GST. The invoice verifies the work to remove the tracks to the blinds and to reinstall the track and trim and reset the blinds.
60. [60]
    I accept that it was necessary to remove and reinstall the alfresco blinds as a consequence of the defective concreting work and the need to rectify it. I accept the claim for item 7 for the same reasons as described for item 1 above.
61. [61]
    Item 8 is for the cost of repairs invoiced by ‘Hidden Fence’, a firm which supplies pet-proofing fences. The invoice is dated 12 June 2023 in the amount of $305.75 and is attached to Ms Harding's statement as attachment 7. She explains the need for the work in paragraph 41 of her statement, as being to reinstall an electric dog fence around the gardens due to the gardens near the concrete being destroyed in the repair work and access to the property for the purposes of same.
62. [62]
    I find that Ms Harding reasonably incurred the cost of the reinstallation of the fence as being a consequence of the defective concreting, for the same reasons set out above concerning item 1. I allow the claim in the amount of $303.75.
63. [63]
    The claim for item 9 is best explained by the description in the table above, and the invoice for the work which is attachment 8 to Ms Harding’s statement. Attachment 8 is an invoice from ‘Suburban Pest Management’ dated 17 May 2023 where the description of the work is ‘Installation of Reticulation (incl Termidor)’, for the amount of $1,800, including GST.
64. [64]
    The claim appears to be for reinstatement of a pest control system, which I accept is a reasonable consequence of the need to dig up concreting, for example for the driveway and other concreting around the home. I accept the claim for item 9, for the same reasons I set out above concerning item 1.
65. [65]
    Item 10 is a claim for landscaping repairs for $1,500. Ms Harding does not attach an invoice to her statement and her description of this item appears to be that the claim is an estimate for those costs.
66. [66]
    Ms Harding explains the need to incur these costs in paragraph 22 of her statement. There, she states that her husband had to arrange installation of a side fence gate and for cheap grass to the whole yard, to be able to house her family dogs securely and have grass for their children, not having them in grey sand all day and night or in rain. She said that she installed a gate of the cheapest outdoor fencing at a cost of approximately $400, which appears to be included in the landscaping claim of $1,500. She states that she planned to lay Empire Zoyzier grass. However, instead the family laid the cheapest cooch grass, knowing that it would being destroyed with any concrete repairs by machinery.
67. [67]
    I accept that it would be a reasonable consequence that whatever grass was laid at the home would likely be destroyed during the rectification work for the concrete.  Ms Harding appropriately mitigated her loss by laying a cheaper grass than the finally proposed product. In the absence of any response by Mr Raymond, I find that Ms Harding’s evidence is the best evidence of her loss, and I accept her claim for this item for the same reasons as in item 1 above.
68. [68]
    In summary, on the ‘consequential claims’, as listed in the Claim Details Document, I find each of them to be established, and I allow those items in the total of  $13,374.75.

‘Unliquidated Damages’ in the Claim Details Document

69. [69]
    Under the heading ‘Unliquidated Damages’ in the Claim Details Document, Ms Harding lists components against which she makes a global claim of $6,000 as the totality of the components, with no specific amount attributed to a particular component.
70. [70]
    The components are as follows as described by Ms Harding:

Pain and Suffering: Impact to enjoyment

Add Repaint house render due to damage

Tiling contractor foregone - price increase 12mths later

Render Damage/Glass sliding doors - unrepairable

QBCC 12 month process

QCAT now > 12mths process/fees

Review/Reassess contractors license [sic] to practice.

71. [71]
    Ms Harding’s use of the term ‘unliquidated’ to describe the damages she seeks for these components is a misnomer, if she means the claims in this category to be distinguished from the other claims she makes for damages for breach of duty, as ‘liquidated damages’. In point of legal fact, all the damages she claims are unliquidated, given that a simple definition of liquidated damages is that they are damages that have been agreed upon in advance by contracting parties in the event of a breach.^[26] The damages she claims are not of that kind.
72. [72]
    The first component in this category of claims, of ‘Pain and Suffering’ is well recognised in the law of negligence relating to personal injury claims. The pain and suffering that an injured plaintiff may claim is compensable by an award of money damages. However, Ms Harding’s claim is not of that kind.
73. [73]
    Ms Harding elaborates on this first component in her statement. She first describes the unfolding scene as Mr Raymond was carrying out the concreting work over three days between 27-29 April 2022. She witnessed Mr Raymond have a ‘massive verbal disagreement’ with one labourer, which led to the labourer leaving the site, not to return.
74. [74]
    On the evening of 28 April, Mr Raymond demanded full payment for the work, and proceeded to ‘become a little aggressive’. She raised concerns with Mr Raymond on 28 April about the workmanship of him working under car headlights. Ms Harding says that on 29 April, she ‘barely slept a wink’, afraid of what she would find in the morning light. On 29 April 2022, she says that she saw Mr Raymond ‘wandering aimlessly around our property barely addressing any concerns’.
75. [75]
    Ms Harding describes the stress she then experienced in the following way:^[27]

I spent the next few days/week in tears inside my brand new home, watching my home and landscaping dreams/plans get destroyed, not being able to stop the horrible repair work.

76. [76]
    She also describes an incident on 15 July 2022 when Mr Raymond returned to her home in order to break up and remove the carport slab. She witnessed him hit the neighbour’s rendered garage side wall with a machine and then proceeded to attempt to repair it, very poorly. She says she was:

... crying inside, just waiting for more damage to be caused to either the neighbours or our garage wall or our gate.^[28]

77. [77]
    Finally, in her statement, Ms Harding says:^[29]

The total pain and suffering, not to mention the above additional costs suffered is nearly immeasurable. The time off work to attend to contractors needs including [Mr Raymond]. The stress caused with worry and at times fear of retribution by [Mr Raymond], as he is a volatile character and he had definitely displayed his anger and aggression towards fellow workmates openly and disrespect to myself, husband, kids and my family home and that of my neighbours home.

78. [78]
    There is no doubt that Ms Harding sustained considerable stress and anxiety as a result of the work done by Mr Raymond. However, the law of negligence does not recognise a claim for general anxiety or stress which does not manifest itself as some recognised psychiatric injury, in the form of a disease.^[30] Ms Harding does not state that she suffered from, or was treated for, a recognised psychiatric injury, in the form of a disease. I reject this component of her claim.
79. [79]
    Next, there are some components for this head of the claim which appear to represent a claim for Ms Harding’s time to respond and deal with the defective concreting. These appear to be the items for repainting at least part of the house, the QBCC process, QCAT process and reviewing and reassessing Mr Raymond's licence.
80. [80]
    The law of negligence does generally allow for compensation for a claimant’s time in responding to a negligent act. Further, there is no particularisation by Ms Harding for this component of the claim, either by reference to the hours spent by her for the items, or the rate per hour which she claims. She does not say that her loss is by reference to hours when she could have engaged in paid employment, which she has lost. I reject this item of her claim.
81. [81]
    The next two components in the ‘Unliquidated Damages’ section in the Claim Details Document I will consider seem to be related, and they are the claims for ‘Repaint house render due to damage’ and ‘Render Damage/Glass sliding doors-unrepairable’.
82. [82]
    Ms Harding explains this component in paragraph 42(a) of her statement, as being part of the loss of enjoyment and excitement of ‘building our dream home’ and was for:

Manual labour to fix and repaint render around whole home. Clean Garage door. Damage to glass and rattan outdoor furniture which were used by [Mr Raymond] and crew mix cement on.

83. [83]
    The claim for this component therefore seems to be time spent by Ms Harding and her husband repairing render around their home caused by the defective concreting done by Mr Raymond. Whilst I accept that the need to do so was caused by, and was reasonably related to, the defective concreting, again this claim is for compensation for the time of Ms Harding and her husband which is not generally compensable under the law of negligence. Furthermore, there are no particulars given of the amount of time involved, or the rate proposed for each hour of time spent on this work.
84. [84]
    The second aspect of this claim is for apparent damage to glass sliding doors which Ms Harding contends is unrepairable, and therefore appears to be a claim for the loss of value, or in appearance of, the glass sliding doors. Although I also accept that this aspect was caused by, and reasonably relates to, the defective concreting work, Ms Harding has offered no specific amount of money in respect of this aspect.
85. [85]
    I reject this component of Ms Harding’s claim. It is too speculative for me to attribute an amount of compensation to this component.
86. [86]
    The next component for me to consider is a claim for ‘Tiling contractor foregone - price increase 12mths later.’ No further explanation is given by Ms Harding for this component. I infer from other parts of her statement and other documents filed by Ms Harding that the claim is for an increase in the cost of Ms Harding engaging a tiling contractor to lay tiles, perhaps around the swimming pool or on the alfresco patio, because the tiling contractor could not be engaged until after the concreting was satisfactorily carried out. The other evidence seems clear that there was a 12 month delay between the concreting work carried out by Mr Raymond and when it was replaced. In the meantime, and in the current economic climate for trades contractors in Queensland, it is not surprising that the cost of engaging a tiling contractor would have risen.
87. [87]
    However, Ms Harding has not supplied a copy of the original quote, and the quote for a tiling contractor 12 months later. It is generally claimed under the heading ‘Liquidated Damages’ for $6,000 in the Claim Details Document. It is too speculative for me to attribute a dollar amount to this component and accordingly, I do not allow the component.
88. [88]
    The final component for me to consider is the ‘fees’ aspect contained in the component ‘QCAT now > 12mths process/fees’. I infer this is for the filing fees for Ms Harding to file her originating application in the Tribunal. Those fees paid are marked on the application in the amount of $367.
89. [89]
    This is a claim for costs, which is allowable under s 77(3)(h) of the QBCC Act.^[31] Ms Harding has been successful in her claim against Mr Raymond. He did not file any material in response to Ms Harding’s claim. I allow this component of Ms Harding’s claim under the heading ‘Liquidated Damages’ in the Claim Details Document.
90. [90]
    In conclusion under the components of Ms Harding’s claim under the heading ‘Liquidated Damages’ in the Claim Details Document, I allow only the claim for filing fees in the amount of $367.

Total claim allowed

91. [91]
    The addition of all the claims by Ms Harding I allow is as follows:

    1. rectification of concreting work - $25,539.00
    2. ‘consequential claims’ - $13,374.75
    3. filing fees - $367.00

Total:$39,280.75

92. [92]
    I will order Mr Raymond to pay that amount to Ms Harding within 60 days of this decision to allow him time to pay that amount. It may be, given Mr Raymond's present state of bankruptcy that he does not have the funds to pay that amount even within the 60 days. After that, it is a matter for Ms Harding how she enforces the order against Mr Raymond.

Order

Brett Michael Raymond must pay Kimberly Harding the amount of $39,280.75 by 19 November 2024.