Gillett v Swat Contracting Pty Ltd
[2024] QCAT 579
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- Unreported Judgment
- Gillett v Swat Contracting Pty Ltd[2024] QCAT 579
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Gillett v Swat Contracting Pty Ltd[2024] QCAT 579
Gillett v Swat Contracting Pty Ltd[2024] QCAT 579
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gillett v Swat Contracting Pty Ltd [2024] QCAT 579 |
PARTIES: | SANDY GILLETT (applicant) v SWAT CONTRACTING PTY LTD (respondent) |
APPLICATION NO/S: | BDL282-23 |
MATTER TYPE: | Building matters |
DELIVERED ON: | 12 December 2024 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Brown |
ORDERS: | Proceeding dismissed. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where parties are expected to act in their own best interests in conducting proceedings – where the applicant did not file statements of evidence CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where the applicant engaged the respondent to undertake domestic building work – where there was no written contract between the parties – questions as to standard of workmanship by the respondent – whether the relationship between the applicant and the respondent falls within one of the special categories of cases in which a duty of care is owed Civil Liability Act 2003 (Qld) s 4, s 9, s 11 Queensland Building and Construction Commission Act 1991 (Qld) s 42, s 77, sch 1B Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29, s 48 Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 Harrison & Anor v Meehan [2017] QCA 315 The Pot Man Pty Ltd v Reaoch [2011] QCATA 318 |
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
- [1]This proceeding involves a dispute about building work.
- [2]I make the following findings about jurisdiction:
- The applicant is a building owner;
- The respondent is a building contractor;
- The respondent undertook building work for the applicant;
- The building work is domestic building work;
- The dispute between the parties is a domestic building dispute;
- The requirements of s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) have been complied with;
- The Tribunal has jurisdiction to decide the dispute.
- [3]I am satisfied that service of the originating application has been effected upon the respondent. The respondent has not filed a response to the application despite directions by the Tribunal to do so. Directions were made by the Tribunal that if the respondent failed to file a response the applicant would be entitled to a final decision. That entitlement arises out of the operation of s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). If without reasonable excuse a respondent fails to comply with Tribunal orders or directions and thereby causes to the applicant unnecessary disadvantage the applicant is entitled to a final decision. Here, the respondent’s failure to file a response is unnecessarily disadvantaging the applicant who is entitled to have the proceeding progressed expeditiously to finalisation. I have considered the matters at s 48(3) of the QCAT Act. There is nothing before me to suggest that the matters referred to at s 48(3)(a) or s 48(3)(b) are relevant. The directions issued by the Tribunal are clear in their terms, readily comprehensible and not onerous to comply with. I am satisfied that the applicant is entitled to a final decision.
- [4]Before proceeding to deal with the applicant’s claim it is necessary to make a number of observations.
- [5]The Tribunal is a jurisdiction in which the procedural formalities of the Courts are eschewed. Parties in Tribunal proceedings are not expected to present their cases with the degree of sophistication that is expected, and required, in the Courts. Unlike the Courts, the Tribunal is required by statute to take all reasonable steps to ensure that parties understand the practices and procedures of the Tribunal[1] and the nature of assertions made in the proceeding and the legal implications of the assertions.[2] These statutory obligations are, in part, a recognition that many parties represent themselves in Tribunal proceedings. However, the obligation imposed upon the Tribunal does not extend to assisting parties to prove their respective cases or to giving advice to parties about how to conduct the proceedings.[3] The Tribunal must remain at all times impartial.
- [6]Directions were made by the Tribunal on 29 July 2024 requiring, inter alia, the filing of a statement of evidence by the applicant addressing a wide range of matters. These directions were made, not to improperly or unfairly assist the applicant to prove her case, but rather to enable the applicant to place before the Tribunal the evidence necessary for the Tribunal to decide the proceeding according to law.
- [7]Parties are expected to act in their own best interests in conducting proceedings or face the consequences of not so doing.[4]
- [8]The applicant failed to comply with the July 2024 directions. In September 2024 the applicant was given a further opportunity to file a statement of evidence. She did not do so. What follows is a direct consequence of that failure.
- [9]The material before the Tribunal is effectively limited to the originating application which attaches a direction to rectify issued by the Queensland Building and Construction Commission (‘QBCC’) to the respondent and a QBCC resolution services initial inspection report dated 25 November 2022.
- [10]The applicant does not present her claim in the originating application by reference to an identifiable cause of action. The relief she seeks is ‘orders as per QBCC recommendations’. The applicant says that the backyard is a health and safety risk and that the work performed by the respondent is defective. The applicant also says that the respondent was not qualified or licensed to undertake the work.
- [11]In the application the applicant says that there was no written contract entered into by the parties. She refers to an ‘email quote by a landscaper’. The quote is not before the Tribunal. In the originating application there is reference to a contract amount of $11,000. The applicant says that she paid an amount of $17,500 to the respondent. Suffice it to say, there is no evidence of such payment in the form of bank statements, receipts or the like.
- [12]Schedule 1B of the QBCC Act provides that a contract for the performance of domestic building work must be in writing, dated and signed by the parties.[5] Unless a contract meets these requirements, the contract is of no effect. This means that the contract cannot be enforced by either party. I find that no agreement was entered into by the applicant and the respondent satisfying the requirements of sch 1B of the QBCC Act.
- [13]The applicant’s rights cannot therefore be determined by reference to contractual principles as there is no enforceable contract between the parties. The applicant’s rights fall to be determined according to the principles applicable to a claim for breach of duty, otherwise referred to as a negligence claim.
- [14]In order to succeed in a claim for damages for breach of duty the applicant must be able to establish the following:
- that the respondent owed her a duty of care;
- that the respondent breached the duty owed; and
- that the applicant has suffered loss, not too remote, as a result of the respondent’s breach.
- [15]Elements (b) and (c) above must be determined by applying the relevant provisions of the Civil Liability Act 2003 (Qld) (‘CLA’).
- [16]The relationship between a building owner and a building contractor, where that relationship is a direct one, is generally recognised as being characterised by an assumption of responsibility by the building contractor and known reliance by the building owner. Notwithstanding the dearth of evidence, it is apparent that: the applicant engaged the respondent to undertake domestic building work; the applicant relied upon the skill, experience and expertise of the respondent to undertake the work in an appropriate and skilful way and with due care and skill; the respondent was aware, or ought to have been aware, of the applicant’s reliance. Consequently, I find that the relationship between the applicant and the respondent falls within one of the special categories of cases in which a duty of care is owed.[6] I find that the respondent owed to the applicant a duty to undertake the works in an appropriate and skilful way, with reasonable care and skill and free from defects.
- [17]As I have earlier noted, before the Tribunal is a copy of a direction to rectify given to the respondent by the QBCC dated 5 December 2022 and a QBCC inspection report dated 25 November 2022.
- [18]There is no evidence before the Tribunal about what the scope of the work undertaken by the respondent was. As best as may be ascertained from the QBCC report, the respondent undertook the construction of a retaining wall and a timber fence atop the wall. Relying upon the QBCC report, I find that the retaining wall and timber fence as constructed by the respondent do not comply with the manufacturer’s installation instructions or the building code. Again relying upon the QBCC report I find that the retaining wall was constructed without an appropriate engineering design, leaning forwards and not straight resulting in excessive deformation affecting the stability of the wall. I also find, relying on the QBCC inspection report that the respondent failed to install an appropriate drainage system which has contributed to the excessive deformation of the wall and weakened stabilisation of the wall.
- [19]The QBCC report identifies a number of other alleged defects. Some of these are, in my view, contractual matters rather than defective work and, as I have found, there is no enforceable contract between the parties. It is appropriate at this point to refer to the complaint item numbers in the QBCC report. Items 1, 2, 3, 4, 5 and 10 relate to the construction of the retaining wall and the fence to which I have referred and made findings. In relation to item 6, the QBCC report refers to the applicant’s complaints about the removal by the respondent of an excessive amount of dirt. The report author makes no reference to having identified any defective building practices. I am not satisfied that the applicant has established that item 6 constitutes defective building work. Similar considerations apply to item 7 regarding the construction of stairs. The report notes that the applicant told the inspector that the stairs were hazardous and impractical. There is no evidence about this. Item 8 is clearly a contractual item and no claim can be maintained by the applicant for this item in the absence of an enforceable contract. Item 9 is also a contractual item. The report notes that item 11 relates to item 6.
- [20]Accordingly, I find that the applicant has established that defective building work was undertaken by the respondent in respect of items 1, 2, 3, 4, 5 and 10 as referred to in the QBCC report.
- [21]In order to determine whether the respondent breached the duty of care owed to the applicant in respect of the identified items of defective building work the provisions of the CLA must be considered. The CLA applies to any civil claim for damages for harm.[7]
- [22]The relevant provisions of the CLA may be summarised thus:
- A person does not breach a duty to take precautions against a risk of harm unless: the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); the risk was not insignificant; in the circumstances, a reasonable person in the position of the person would have taken the precautions.[8]
- In deciding whether a reasonable person would have taken precautions against a risk of harm, the Tribunal is to consider the following (among other relevant things): the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; the social utility of the activity that creates the risk of harm.[9]
- [23]I am satisfied it was foreseeable that if the respondent failed to carry out the building work in an appropriate and skilful way and with reasonable care and skill, the work would be defective requiring rectification. I am satisfied that the risk was not insignificant.
- [24]I am also satisfied that if the respondent failed to take care in undertaking the building work the applicant would suffer loss in incurring cost in having the defective work rectified. There was no additional burden imposed upon the respondent to take precautions against the risk of defective work. Notwithstanding being unlicensed, the expectation was that the respondent would undertake the building work in an appropriate way, free from defects.
- [25]
- [26]I am therefore satisfied that the respondent breached the duty of care owed to the applicant in undertaking the building work in respect of items 1, 2, 3, 4, 5 and 10 referred to in the QBCC report.
- [27]It is at this point the applicant’s claim strikes an insurmountable obstacle. There is no evidence about:
- What rectification work is required; and
- The anticipated cost of the rectification work.
- [28]I referred earlier in these reasons to the obligation cast upon parties to act in their own best interests. The applicant has been given every opportunity to present her case and has failed to do so. I have referred to the three elements an applicant must establish to succeed in a claim for breach of duty. While I am prepared to accept, for the foregoing reasons, that the applicant has established the first two elements, she has failed to adduce any evidence in relation to the third element. In the absence of evidence regarding the nature and cost of rectification work, the applicant’s claim for breach of duty must fail.
- [29]That leaves the issue of unlicensed building work. I accept that the respondent was not the holder of a licence of the appropriate class issued by the QBCC to undertake building work. Section 42(1) of the QBCC Act provides that 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 under this Act. Section 42(3) provides that, subject to s 42(4), a person who carries out building work in contravention of the section is not entitled to any monetary or other consideration for doing so. By s 42(4) an unlicensed person may claim reasonable remuneration for carrying out building work which is not more than the amount paid by the person in supplying materials and labour for carrying out the building work. The person is not permitted to recover any amount for their own labour, any amount for profit or any amount for expenses not reasonably incurred. The corollary of the prohibition on the receipt of payment for unlicensed building work is that the unlicensed person must repay any amount they have received for undertaking the work.
- [30]In the originating application, the applicant says that she paid to the respondent $17,500. The directions, which the applicant failed to comply with, included a direction that the applicant file evidence of the payments made by the applicant to the respondent. There is no evidence before the Tribunal to support the assertion in the originating application that an amount of $17,500 was paid to the respondent. In the absence of any supportive evidence I am not prepared to find that such a payment (or payments) was made. It follows that I am not prepared to make any order for the repayment of any monies by the respondent to the applicant.
Conclusion
- [31]The unfortunate outcome in this case is the direct result of the applicant’s failure to act in her own best interests.
- [32]The proceeding is dismissed.
Footnotes
[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29(1)(a)(i).
[2] Ibid s 29(1)(a)(ii).
[3] Harrison & Anor v Meehan [2017] QCA 315.
[4] The Pot Man Pty Ltd v Reaoch [2011] QCATA 318.
[5] Queensland Building and Construction Commission Act 1991 (Qld) sch 1B pt 2 div 1 s 13(5).
[6] Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476.
[7] Civil Liability Act 2003 (Qld) s 4(1) – ‘harm’ is defined as including economic loss.
[8] Ibid s 9(1).
[9] Ibid s 9(2).
[10] Ibid s 11(1)(a).
[11] Ibid s 11(1)(b).