Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. de Oliveira v Cyber Drafting Brisbane Pty Ltd - [2024] QCAT 588

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

de Oliveira v Cyber Drafting Brisbane Pty Ltd[2024] QCAT 588

de Oliveira v Cyber Drafting Brisbane Pty Ltd[2024] QCAT 588

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

de Oliveira v Cyber Drafting Brisbane Pty Ltd [2024] QCAT 588

PARTIES:

rui pedro torres figueira de oliveira

(applicant)

v

cyber drafting brisbane pty ltd

(respondent)

APPLICATION NO:

BDL044-23

MATTER TYPE:

Building matters

DELIVERED ON:

18 December 2024

HEARING DATE:

12 November 2024

HEARD AT:

Brisbane

DECISION OF:

Member Chapple

ORDERS:

Application dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – where written contract for drafting and design services – where respondent prepared concept plans and preliminary drawings – where applicant paid the respondent’s fees – where respondent made and acknowledged mistake in preliminary drawings and offered to amend for no charge – where applicant claimed repayment of fees – where dispute about the nature of preliminary drawings – whether total failure of consideration

Queensland Building and Construction Commission Act 1991 (Qld), s 77

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 10

DSGN Kartell Pty Ltd v Pathmaperuma & Anor [2020] QCAT 211

Fibrosa Spolka Akcyjna v Fairbairn Lawson Ltd [1943] AC 32

Guinness Mahon v Kensington LBC [1999] QB 215, CA

Richards & Anor v Building Buddy.Com Pty Ltd [2021] QCAT 120

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

  1. [1]
    In or around May 2021, the applicant (‘Mr de Oliveira’) was interested in purchasing a property at 9 Job Street, Chapel Hill in the State of Queensland (‘the property’) with a view to building a house on the property. He first engaged the respondent (‘Cyber’) to conduct searches of the property to ascertain any impediments to the proposed construction, and later, having purchased the property, to provide design and drafting services for the construction of a new four-bedroom house.
  2. [2]
    This is a dispute as to whether Mr de Oliveira is entitled to a refund of fees paid for concept plans and preliminary drawings prepared by Cyber.
  3. [3]
    On 17 February 2023, Mr de Oliveira filed in the Tribunal an Application for domestic building disputes (‘the application’) against Cyber claiming the repayment of fees of $4,290 on the grounds that Cyber had made errors in their advice and design work.
  4. [4]
    On 11 April 2023, Cyber filed in the Tribunal a Response and/or counter claim to the application (‘the response’) acknowledging that Cyber incorrectly drew a retaining wall resulting in an incorrect driveway gradient, and claiming that the drawings were only at the preliminary stage and that Cyber offered to fix the drawings for free. The response otherwise rejected Mr de Oliveira’s claims.
  5. [5]
    The parties were unable to resolve the dispute through mediation.
  6. [6]
    The matter was heard by the Tribunal on 12 November 2024.

Tribunal hearing

  1. [7]
    Mr de Oliveira appeared in person.
  2. [8]
    Mr Templeton appeared in person on behalf of Cyber, as an owner of the business.
  3. [9]
    Mr de Oliveira filed in the Tribunal his own statements of evidence/submissions dated 24 August 2023 and 5 October 2023, and a statement of evidence (titled ‘expert report’) dated 23 August 2023 from Frederico Fialho Leandro Alves Teixeira.
  4. [10]
    Mr Teixeira was not present at the hearing and did not make himself available for cross examination. Mr de Oliveira advised the Tribunal that Mr Teixeira was not available because he was lecturing at the time of the hearing.
  5. [11]
    Cyber filed in the Tribunal a statement of evidence/submissions dated 22 September 2023 from Ashton Genrich, described in his statement as principal designer of residential design at Cyber Services Group.
  6. [12]
    Cyber did not file a statement of evidence from Mr Templeton.
  1. [13]
    Among the annexures to Mr Genrich’s statement are emails between individuals not parties to this application regarding koala habitat and vegetation regulations potentially impacting the property and a letter to Mr Genrich from Anthony Cronau of Cyber Engineering (a business, it appears, related to Cyber) dated 19 September 2023 providing comment on the “buildability or otherwise” of the “Concept and Preliminary Building Design Plans”.
  2. [14]
    Mr Genrich was not present at the hearing and did not make himself available for cross examination. Mr Templeton advised the Tribunal that Mr Genrich no longer worked for Cyber and Mr Genrich had elected not to give oral evidence at the hearing.
  3. [15]
    Mr Cronau was not present at the hearing and did not make himself available for cross examination. Mr Templeton made no reference to Mr Cronau or his letter at the hearing.
  4. [16]
    I reminded the parties of my advice to them at the directions hearing conducted around two weeks prior to the hearing, and the subsequent directions that no party would be allowed to present any evidence at the hearing that is not contained in the statements of evidence already filed, without justification, and witnesses must appear in person at the hearing and give evidence under cross examination.
  5. [17]
    I explained to the parties that they were at liberty to apply for an adjournment of the hearing in order to arrange for their witnesses to be available for cross examination at a later date. Both parties indicated their wish to proceed with the hearing.
  6. [18]
    I explained to the parties that the Tribunal is not bound by the rules of evidence applicable in a court and has flexibility in dealing with and assessing the evidence before it. I further explained that, given the circumstances, in particular the unavailability of witnesses for cross examination on their statements of evidence, the hearing would be similar to a hearing on the papers with the caveat that I would allow Mr de Oliveira and Mr Templeton to ask questions of one another, and I would ask questions of both of them as I considered necessary. This is the basis on which the hearing proceeded.

Consideration

  1. [19]
    Section 10(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) establishes that the Tribunal’s original jurisdiction is conferred under an enabling Act to decide a matter in the first instance.
  2. [20]
    I am satisfied that this is a domestic building dispute, that Mr de Oliveira has complied with s 77(2) of the Queensland Building and Construction Commission Act 1991 (Qld), the relevant enabling Act, and that, accordingly, the Tribunal has jurisdiction to determine the matter.[1]
  3. [21]
    I consider that Mr Teixeira’s failure to make himself available for cross examination resulted in Cyber not having the opportunity to test the evidence contained in Mr Teixeira’s statement of evidence. Accordingly, I do not afford Mr Teixeira’s statement of evidence any weight.
  4. [22]
    I consider that Mr Templeton used his best efforts to assist the Tribunal, however given that he was not involved in Cyber’s dealings with Mr de Oliveira and did not provide a statement of evidence, I do not afford his oral evidence any weight.
  5. [23]
    I consider that, while Mr Genrich failed to make himself available for cross examination, resulting in Mr de Oliveira not having the opportunity to test the evidence contained in Mr Genrich’s statement of evidence, his statement of evidence is the only evidence in support of Cyber’s case available to the Tribunal for consideration.
  6. [24]
    I consider that Mr Cronou’s letter is not directly relevant to the matters in dispute and do not afford it any weight.
  7. [25]
    It is clear from the statements of evidence/submissions of Mr de Oliveira and Mr Genrich that the parties have a different perception of the nature and import of their dealings and the Contract, hence the dispute that has arisen between them.
  8. [26]
    Helpfully, however, Mr de Oliveira has annexed to his statement of evidence/submissions dated 24 August 2023 copies of his email correspondence with Mr Genrich and written agreement with Cyber, such documents not being in dispute between the parties. I have extracted/summarised these documents as follows, to the extent they are relevant to the dispute:
  1. (a)
    Emails dated 21 to 24 June 2021:[2] pre-contract exchanges dealing with questions about various site issues, such as ecological assessments, vegetation, bush fire overlay, and development approval requirements.
  1. (b)
    Emails dated 5 and 6 July 2021:[3] further pre-contract exchanges, including Mr Genrich’s responses to Mr de Oliveira’s various queries. In particular, I note Mr Genrich’s comments that: overall dimensions are shown on the concept plans, and full dimensions are shown on the working drawings; a basic electrical plan is shown on the working drawings; and up to three weeks is allowed for each design stage (concept, preliminaries, working drawings), with the concept plans being expedited in this case.
  1. (c)
    Emails dated 10 and 12 July 2021:[4] making arrangements for finalising the contract.
  1. (d)
    Cyber Drafting and Design Fee Proposal (‘the Contract’) signed by Mr de Oliveira and dated 15 July 2021.[5] In particular, I note the following:
  1. (i)
    Design & Drafting Fees:
  1. Concept Plans
    $1,320.00
  1. Preliminary Drawings
    $2,640.00
  1. Full Set of Working Drawings
    $2,640.00
  1. Total Design & Drafting Fees
    $6,600.00
  1. Allocated free revisions within scope of work: 2
  1. External Consultant Fees: …
  1. Structural Engineering (estimate) To be quoted at preliminary stage
  1. …
  1. Building Certification (estimate) To be quoted at preliminary stage
  1. (ii)
    Mr de Oliveira ticked boxes marked Concept Plans, Survey and Soil Report (below which it is noted – Deposit required: $550) by way of instruction to Cyber to proceed.
  1. (iii)
    Clause C.1: The client and the Designer shall work together in a spirit of mutual trust and cooperation. In relation to the Services, either party shall advise the other upon becoming aware of:
  1. –A need to vary the Services, the Project Schedule, the fees and/or any other part of this Agreement;
  1. –Any incompatibility with any of the Client’s requirements in the scope of work, any Client’s instructions, and/or the approved design or any need to vary any part thereof;
  1. –Any information or decisions required from the Client or others regarding the performance of the Services;
  1. –A need to appoint consultants or other persons to design or carry out any part of the Works or to provide specialist advice or additional inspection services regarding the Project, and the parties shall agree how to deal with the matter.
  1. (iv)
    Clause D.1: The Client shall supply the Designer with the Brief and shall advise the Designer of the relative priorities of the Brief, by way of meetings and written directions or communications as necessary to ensure complete understanding of such Project priorities by the Designer.
  1. (e)
    Emails dated 25 and 26 July 2021:[6] Mr de Oliveira providing house plans to Mr Genrich, including the proposed positioning of the house on the property.
  1. (f)
    Email dated 26 July 2021:[7] Mr Genrich confirming to Mr de Oliveira that he has plenty of information, another meeting is not necessary until preliminary plans are submitted, and concept plans would be through this week, along with advice about how the slabs will fit on the property. Mr de Oliveira also expresses his desire for the ecology and fire issues to be expedited, and his concern about whether the driveway gradient is compliant with regulations.
  1. (g)
    Email dated 26 July 2021:[8] Mr Genrich advising Mr de Oliveira that preliminary plans will follow the concept plans, and the facades can be discussed after the first set of documents (site plan and floor plans only). He reiterated that he had enough information to develop concept plans with no additional meetings and flagged that they are limited to how many meetings they can offer.
  1. (h)
    Email dated 27 July 2021:[9] Mr de Oliveira expressing to Mr Genrich his concerns about not having heard from the ecology assessor and the urgency given that he settles the purchase in two weeks.
  1. (i)
    Emails dated 27 to 29 July 2021:[10] Mr de Oliveira expressing to Mr Genrich his concerns about Cyber’s services relating to the need for vegetation protection, an ecological assessment and a slab under the deck and pergola. Mr Genrich responds, addressing the concerns/claims, making this comment in closing:
  1. I’m sorry you do not trust my judgment or advice (even though I share the same advice as a town planner) and you do not feel secure going forward. I would be quite happy to refund you the deposit and you can go elsewhere to have the plans drawn up. I stand by every bit of advice I have given you mate and quite honestly I do not trust your sources.
  1. In response, Mr de Oliveira appears to generally accept Mr Genrich’s comments, and raises some other questions about the ecology assessor and the subfloor clearance. Mr Genrich also asks Mr de Oliveira to confirm that he is happy with the proposed positioning of the house on the property so that they can proceed to prepare the concept plans. Mr Genrich also provided measurements for the driveway gradient and ceiling heights in the garage and upstairs.
  1. (j)
    Cyber plans titled “Preliminary Drawings – Not For Construction”:[11]

Issue A

Date 05/08/21

Concept issue

Issue B

Date 11/08/21

Concept amendment

Sheet 1 – Site Analysis

Sheet 2 – Existing Site Plan

Sheet 3 – Proposed Site Plan

Sheet 4 – Proposed Ground Floor

Sheet 5 – Proposed First Floor

  1. (k)
    Emails dated 18 August 2021:[12] Mr Genrich noting to Mr de Oliveira changes to the concept plans as a result of a recent meeting, that time has been exhausted on the concept amendments and the latest changes will be included in the preliminary plans, which will be sent tomorrow, and once the invoice for the preliminary plans is settled, Mr de Oliveira will have a final opportunity to make any amendments to the floor plans and façade before the working drawings are finalised. Mr de Oliveira responds positively.
  1. (l)
    Cyber plans titled “Preliminary Drawings – Not For Construction”:[13]

Issue A

Date 05/08/21

Concept issue

Issue B

Date 11/08/21

Concept amendment

Issue C

Date 19/08/21

Prelim issue

Sheet 1 – Site Analysis Plan

Sheet 2 – Existing Site Plan

Sheet 3 – Proposed Site Plan

Sheet 4 – Proposed Ground Floor

Sheet 5 – Proposed First Floor

Sheet 6 – West Elevation and North Elevation

Sheet 7 – East Elevation and South Elevation

Sheet 8 – Perspectives

  1. (m)
    Cyber plans titled “Preliminary Drawings – Not For Construction”:[14]

Issue A

Date 05/08/21

Concept issue

Issue B

Date 11/08/21

Concept amendment

Issue C

Date 19/08/21

Prelim issue

Issue D

Date 27/08/21

Prelim amendment

Sheet 1 – Site Analysis Plan

Sheet 2 – Existing Site Plan

Sheet 3 – Proposed Site Plan

Sheet 4 – Proposed Ground Floor

Sheet 5 – Proposed First Floor

Sheet 6 – West Elevation and North Elevation

Sheet 7 – East Elevation and South Elevation

Sheet 8 – Perspectives

  1. (n)
    There is no dispute between the parties that Mr de Oliveira paid for the concept plans ($1,320.00) and the preliminary drawings ($2,640.00), the latter payment made on 26 August 2021.
  1. (o)
    Emails dated 12 to 14 September 2021:[15] Mr de Oliveira querying whether the existing retaining wall had been taken into account when determining the dimensions of the garage and house and expressing his concerns. Mr Genrich responds with a new layout, noting consequential changes required to driveway, garage and stairs. Mr de Oliveira responds stating that Cyber’s solution does not make any sense, he has lost trust in Cyber due to too many mistakes, this one being critical and grave, and calling for a meeting to solve the contract amicably. Mr Genrich responds acknowledging the oversight, but pointing out the time pressures to meet deadlines for a site that warrants a unique design with proper planning. Mr Genrich outlines to Mr de Oliveira two options: work with Cyber to find a solution (providing an example) free of charge; or Cyber releases the CAD files to Mr de Oliveira, without refund, to have the plans finished elsewhere. Mr de Oliveira expresses his dissatisfaction stating that he will follow legal channels since Cyber is not willing to compromise a solution. Mr Genrich apologises again for overlooking the issue, thanks Mr de Oliveira for bringing it to their attention, and notes they are preliminary plans and Cyber is willing to find a solution for the garage free of charge. Mr de Oliveira responds stating that his request to meet with Cyber management was denied, he has completely lost trust in Cyber, and he will engage with his legal team.
  1. [27]
    I consider these documents the most reliable of the evidence before the Tribunal and on that basis afford them paramount weight.
  2. [28]
    I find that:
    1. Mr de Oliveira engaged and paid Cyber pursuant to the Contract to prepare concept plans.
    2. Cyber prepared and delivered to Mr de Oliveira concept plans referred to as Issue A dated 5 August 2021 (Concept issue) and Issue B dated 11 August 2021 (Concept amendment).
    3. Mr de Oliveira engaged and paid Cyber pursuant to the Contract to prepare preliminary drawings.
    4. Cyber prepared and delivered to Mr de Oliveira preliminary drawings referred to as Issue C dated 19 August 2021 (Prelim issue) and Issue D dated 27 August 2021 (Prelim amendment).
    5. Cyber mistakenly overlooked the retaining wall in the preparation of the concept plans and preliminary drawings and acknowledged its mistake to Mr de Oliveira.
    6. Mr de Oliveira terminated the Contract when he emailed Mr Genrich on 14 September 2021 stating that he had lost trust in Cyber and would engage with his legal team.
  3. [29]
    I consider that preliminary drawings are, as the name suggests, initial plans that provide a basis for communication between the designer and the client and, as such, are open for review and amendment as the client considers how the design options best meet their requirements before proceeding to the next stage, working drawings, which require structural engineering input and certification, and are used by the builder during construction. This interpretation is supported by the following:
    1. The inclusion of the words “Not For Construction” after “Preliminary Drawings” in the title for each of the three sets of Cyber plans.
    2. The inclusion in the Contract of the notation under Design & Drafting Fees: “Allocated free revisions within scope of work: 2”.
    3. The inclusion in the Contract of the notations under External Consultant Fees: “Structural Engineering (estimate) and Building Certification (estimate) – To be quoted at preliminary stage”.
    4. The preparation and delivery by Cyber to Mr de Oliveira of Issue C (Prelim issue) and Issue D (Prelim amendment) of the preliminary drawings on 19 August 2021 and again on 27 August 2021.
    5. Clause C.1 of the Contract, which mandates the parties working together in a spirit of mutual trust and cooperation, and anticipates variations to the services, schedule or fees if the need arises to meet the client’s requirements.
    6. Clause D.1 of the Contract, which anticipates that the client will communicate as necessary with Cyber to ensure Cyber’s understanding of their priorities.
    7. Mr Genrich’s confirmation in emails to Mr de Oliveira of the separate drafting stages (concept, preliminary and working) and his statement that once the preliminary drawings invoice is paid, Mr de Oliveira would have a final opportunity to make any amendments before going to the working drawings stage.
    8. Mr Genrich’s readiness to find a solution to the issue arising from the overlooked retaining wall, and to revise the preliminary drawings free of charge.
  1. [30]
    I consider it is reasonable for the designer and client to expect that as they prepare and review the initial plans and communicate through the preliminary drawings stage, design problems are likely to be identified and workshopped.
  2. [31]
    I consider Cyber’s oversight in relation to the retaining wall to be within the normal range of design problems that can arise through the preliminary drawings stage, and I consider Cyber’s response (offering to work with Mr de Oliveira to find a solution free of charge or giving him the option to take the plans elsewhere) to be reasonable and appropriate and consistent with the letter and spirit of the Contract.
  3. [32]
    Mr de Oliveira claims in the application the repayment of fees paid to Cyber in the amount of $4,290.00. The accepted evidence before the Tribunal is that Mr de Oliveira paid fees in the amount of $3,960.00. There is no evidence before the Tribunal pointing to Mr de Oliveira’s payment of an additional amount of $330.00 in fees.
  4. [33]
    Cyber has not made a monetary counter claim against Mr de Oliveira in relation to his termination of the Contract or otherwise pursuant to the Contract or at common law.
  5. [34]
    In claiming the repayment of fees, Mr de Oliveira is, in effect, contending that he did not receive the benefit of the work performed by Cyber under the Contract. For Mr de Oliveira to be entitled to the repayment of fees, he must establish a legal basis on which such a claim can succeed.
  6. [35]
    It is accepted that if a consumer pays money under a contract which a contractor fails to complete, the consumer can recover that money in an action for money had and received if there has been a total failure of consideration arising out of the contractual duties in respect of which the payment is due.[16] If the person has received any of the benefit bargained for from performance by the contractor, there has not been a total failure of consideration[17] and any payment is not normally recoverable even though it was made in advance of performance.[18]
  7. [36]
    Mr de Oliveira bears the onus of proving total failure of consideration, on the balance of probabilities. I consider that Mr de Oliveira has not discharged this onus, and that the evidence is to the contrary.
  1. [37]
    I consider that Mr de Oliveira received from Cyber concept plans and preliminary drawings, for which he paid a total amount in fees of $3,960.00 as agreed under the Contract, and that for no further outlay, if he had been prepared to engage with Cyber in the preliminary drawings stage to find a solution to the retaining wall issue consistent with the letter and spirit of the Contract, he would have received from Cyber a further set of amended preliminary drawings addressing such issue. Instead, Mr de Oliveira elected to terminate the Contract and take the preliminary drawings and any ongoing business away from Cyber.
  2. [38]
    I find that Mr de Oliveira has not established a basis on which he is entitled to the repayment of $3,960.00 paid in fees.
  3. [39]
    Accordingly, Mr de Oliveira’s claim is dismissed.

Footnotes

[1] Queensland Building and Construction Commission Act 1991 (Qld), s 77, Sch 2, Sch 1B; DSGN Kartell Pty Ltd v Pathmaperuma & Anor [2020] QCAT 211, [19]-[22].

[2]  Evidence A and B.

[3]  Evidence C.

[4]  Evidence D.

[5]  Evidence E.

[6]  Evidence F, G and H.

[7]  Evidence I.

[8]  Evidence J.

[9]  Evidence K.

[10]  Evidence M.

[11]  Evidence N.

[12]  Evidence O.

[13]  Evidence P.

[14]  Evidence Q.

[15]  Evidence R.

[16] Fibrosa Spolka Akcyjna v Fairbairn Lawson Ltd [1943] AC 32, HL; Guinness Mahon v Kensington LBC [1999] QB 215, CA, as cited in Richards & Anor v Building Buddy.Com Pty Ltd [2021] QCAT 120.

[17] Fibrosa Spolka Akcyjna v Fairbairn Lawson Ltd [1943] AC 32, HL, 48.

[18]  Ibid.

Close

Editorial Notes

  • Published Case Name:

    de Oliveira v Cyber Drafting Brisbane Pty Ltd

  • Shortened Case Name:

    de Oliveira v Cyber Drafting Brisbane Pty Ltd

  • MNC:

    [2024] QCAT 588

  • Court:

    QCAT

  • Judge(s):

    Member Chapple

  • Date:

    18 Dec 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
DSGN Kartell Pty Ltd v Pathmaperuma; DSGN Kartell Pty Ltd v Hennig Bros Construction Pty Ltd; DSGN Kartell Pty Ltd v Craig Russell Stranger [2020] QCAT 211
2 citations
Jump To
Cite 1 - [2020] QCAT 211
Cite 2 - [2020] QCAT 211
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd. (1943) AC 32
3 citations
Jump To
Cite 1 - (1943) AC 32
Cite 2 - (1943) AC 32
Cite 3 - (1943) AC 32
Guinness Mahon & Co Ltd v Kensington and Chelsea Royal London Borough Council [1999] QB 215
2 citations
Jump To
Cite 1 - [1999] QB 215
Cite 2 - [1999] QB 215
Richards v Building Buddy.Com Pty Ltd [2021] QCAT 120
2 citations
Jump To
Cite 1 - [2021] QCAT 120
Cite 2 - [2021] QCAT 120

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.