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  4. Willis v Stone Galleria Pty Ltd - [2025] QCAT 11

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Willis v Stone Galleria Pty Ltd[2025] QCAT 11

Willis v Stone Galleria Pty Ltd[2025] QCAT 11

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Willis v Stone Galleria Pty Ltd [2025] QCAT 11

PARTIES:

Leonard willis

(applicant)

v

stone galleria pty ltd

(respondent)

APPLICATION NO/S:

BDL097-21

MATTER TYPE:

Building matters

DELIVERED ON:

7 January 2025

HEARING DATE:

22 April 2024

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

  1. Stone Galleria Pty Ltd must pay Leonard Willis the amount of $12,844.07 within twenty-eight (28) days.
  2. Stone Galleria Pty Ltd must pay Leonard Willis costs fixed at $352 within twenty-eight (28) days.
  3. The respondent’s counterapplication is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where applicant engaged respondent to conduct building work – where parties entered into a written contract which was not signed – where the parties failed to comply with the requirements of sch 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where contract was of no effect due to said noncompliance.

TORTS – NEGLIGENCE – DUTY OF CARE – where applicant engaged respondent to conduct building work – where work was defective and incongruent with plans and specifications – where tribunal found respondent breached duty of care owed to the applicant.

Civil Liability Act 2003 (Qld), s 4, s 9, s 11

Queensland Building and Construction Commission Act 1991 (Qld), s 1B

Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476

Judd v McPhail [2022] QCAT 125

Vaiao v Sharkie [2019] QCAT 264

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Overview

  1. [1]
    The respondent is a building contractor carrying on the business of supplying and installing natural stone products.
  2. [2]
    It has two directors. They are:
    1. Indu Kant Sharma; and
    2. Rekha Kumari Sharma.
  3. [3]
    The respondent supplied, cut, and installed granite benchtops in the applicant’s kitchen and laundry (‘the work’).
  4. [4]
    The applicant contends the work is defective. Specifically, he submits:
    1. the hole the respondent cut into a benchtop it supplied to accommodate the applicant’s sink does not match the profile of the sink.
    2. the hole that the respondent cut into a benchtop it supplied is too small to flush mount the applicant’s preferred brand of cooktop.

Uncontested chronology of events

  1. [5]
    On 15 October 2018, the applicant, in the company of Mrs Sharma, attended the respondent’s industrial yard to choose a stone slab for his kitchen benchtops. Mrs Sharma suggested that he should return on a day that Mr Sharma was available to shift the slabs. She explained that it was best to inspect the different slabs individually, and choose the one the applicant wanted, as no two were the same.
  2. [6]
    On 18 October 2018, the applicant sent Mrs Sharma an email containing the dimensions for his benchtops.
  3. [7]
    On 22 October 2018, the applicant returned to the respondent’s industrial yard and choose a granite slab (‘the slab’) which he professes “had a great amount of detail in it”. Mr Sharma was present and expressed to the applicant his opinion that the applicant had chosen the best piece.
  4. [8]
    After choosing the slab, the applicant phoned Mrs Sharma who asked him to send her a drawing of his preferred kitchen benches. Notably, she asked the applicant to note the make and model of his preferred cooktop because she needed to look it up to confirm installation requirements before providing him with a quote.
  5. [9]
    Also on 22 October 2018, the applicant sent Mrs Sharma email titled ‘bench top plan’. Attached to that plan was a drawing of the dimensions for the kitchen benchtops. The plan also contained dimensions for the cooktop cut out and a note in the applicant’s handwriting stating the brand model of the of the cooktop that he wanted, namely a “MIELE FLUSH MOUNT COOK TOP – KM6367-1” (‘Miele cooktop’). 
  6. [10]
    On 25 October 2018, Mrs Sharma emailed the applicant a quotation. The amount of the quote was $3,850 plus GST for manufacturing, cutting, polishing, and measuring the granite slab. The quote inter alia stated: “As per your drawing,[1] please find the quote for: Kitchen”. Additionally, under the heading Note, the quotation stated: “Cut out for drop in cook top”. Lastly, the quotation contained a disclaimer sating: “Please note: This quote is based upon information given on drawings provided.[2] Price will be subject to revision, if measurements originally provided greatly differ to template measurements taken on site”.
  7. [11]
    On or about early November 2018, the parties came to an agreement that if there was enough material remaining after cutting the two kitchen benches, the applicant would also engage the respondent to install two further vanity benchtops in his laundry. 
  8. [12]
    On 14 November 2018, the respondent provided the applicant with a tax invoice #00001566 in the amount of $4,950.
  9. [13]
    On 15 November 2018, the applicant paid the respondent $2,475, which amounted to 50 percent of the above invoice.
  10. [14]
    On 20 November 2018, the applicant emailed Mrs Sharma plans prepared by joinery company Sea West Cabinets who he had engaged to install cabinetry in his kitchen.
  11. [15]
    On 26 November 2018, Sea West Cabinets completed the installation of cabinetry in the applicant’s home.
  12. [16]
    On or about the last week of November 2018, Mr Sharma attended the applicant’s home to conduct an inspection and take measurements before cutting the slab. Relevantly, during the inspection, the applicant did the following:
    1. he gave Mr Sharma the sink he had purchased and wanted installed.
    2. he removed the cooktop from its packaging and showed it to Mr Sharma. He asked if Mr Sharma wished to take the cooktop back to his workshop, but Mr Sharma declined because it was too expensive to risk damaging. 
    3. he showed Mr Sharma the Miele cooktop installation guide and provided him with pages 52 and 53 of the guide, which were the specification and technical drawings for the Miele cooktop.
  13. [17]
    On 6 December 2018, Mr Sharma and two assistants attended the applicant’s property to install the benchtops. When the benchtop was placed on the kitchen sink it became apparent that the corners of the mental sink were not flush with the hole the respondent had cut in the slab. Mr Sharma confirmed that the benchtop had not been cut correctly and required fixing. Going forward I will refer to the stone benchtop on the sink side of the kitchen as the ‘sink benchtop’.
  14. [18]
    After Mr Sharma placed the cut slab onto the applicant’s cabinetry an electrician installed the Miele cooktop by dropping it into the cut out in the other benchtop. Going forward, I will refer to the stone benchtop on the cooktop side of the kitchen as the ‘cooktop benchtop’.
  15. [19]
    The electrician asked the applicant for the rubber seal to be placed under the cooktop which he was unable to locate in the product packaging. When the applicant telephoned Miele to inquire about the absence of the seal, a technical representative told him the model of cooktop he had purchased did not come with a seal because it was designed to be flush mounted into a stone benchtop.
  16. [20]
    The applicant observed that rather than flush mounting the cooktop, the respondent had installed it as a top mount. This meant that the cooktop was sitting proud of the kitchen bench rather than level with its surface.
  17. [21]
    The applicant raised his concerns with Mr Sharma who told him that there had never been any mention of a flush mount cooktop, so he had not provided for it.
  18. [22]
    Mr Sharma offered to take the benchtops away and fix them but told the applicant that he would not be able to complete the work until February 2019 because he was so busy. The applicant rejected Mr Sharma’s offer because his wife’s family was visiting from overseas to spend Christmas at his house. The applicant did not wish to be left without a working kitchen during that period of time.
  19. [23]
    Mr Sharma acknowledged that he was obliged to fix the kitchen benchtop but indicated that he would charge approximately $400 extra to fix the cut out on the cooktop bench. Both parties agreed that the applicant would withhold $200 from the final invoice payment until the respondent rectified its work.
  20. [24]
    On 6 December 2018, the respondent sent the applicant invoice #0001566 with a total amount of $5,555 and a balance owing of $2,887. The amount owing included an additional $350 for the benchtops the respondent installed in the applicant’s laundry. The applicant paid that invoice, less $200 subject to the agreement he reached with Mr Sharma.

Respondent’s contentions

  1. [25]
    The respondent contends that the cooktop can be installed as both a top mount and flush mount. It argues the cut out for the kitchen bench was never quoted as a flush mount. The respondent points to the words “drop in cook top” on its quotation, which it contends means a cooktop suitable for top mounting, rather than flush mounting. 
  2. [26]
    Additionally, the respondent submits that there was no mention of a flush mounted cook top on the cabinet maker’s drawings that the applicant sent it. Rather the plans refer to an ‘induction cooktop’ which they contend in industry speak means a ‘top mounted cooktop’.
  3. [27]
    The respondent submits that the applicant did not provide it with an opportunity to rectify the sink benchtop within a reasonable time.
  4. [28]
    The respondent claims that on or about 7 December 2018, Mr Sharma set aside an extra slab taken from the same stone used in the original installation. The respondent is willing to use that stone to rectify the defective sink benchtop. The respondent contends that a skilled trade person can melt out the Megapoxy that bonds the benchtops to the cabinetry without causing damage. 
  5. [29]
    Lastly, the respondent brings a counterapplication seeking that the applicant pay them for storage of the stone slab at their workshop for a period of two and a half years.

Oral Hearing

  1. [30]
    The dispute proceeded to a hearing on 18 August 2023 and 22 April 2024. The viva voce evidence of both parties roughly conformed to the written material they filed in the Tribunal.
  2. [31]
    Initially, the respondent accepted responsibility for incorrectly cutting the kitchen benchtop but contended that its work did not amount to a defect. Rather, it was a “contractual issue”. Later in the hearing, the respondent argued that the words ‘induction cooktop’ on the cabinet maker’s drawing caused it to believe the applicant wanted a top mounted cooktop. The respondent maintained its position that the applicant prevented it from rectifying its work.

Expert Report

  1. [32]
    The respondents called Dr H.D Hensel as an expert witness. Dr Hensel is a stone scientist and stone specialist. In a report dated 10 July 2023, Dr Hensel states that he works as a consultant domestically and internally providing geoscientific advice. His work involves stone selection and testing stone for construction including documentation of stone characteristics.
  2. [33]
    Dr Hensel examined the stone benchtops at the applicant’s house and the remaining slab at the respondent’s industrial yard.
  3. [34]
    The respondent briefed Dr Hensel to answer three questions in his report, namely:
    1. Question 1: Whether there is some variation in natural stone, even stone from the same slab;
    2. Question 2: Whether the remaining slab kept since the dispute arose would be the best substitute for the stone used in the kitchen;
    3. Question 3: Whether it is necessary for the entire kitchen to be changed.
  4. [35]
    In response to question 1, Dr Hensel relevantly stated that the stone slabs at the applicant’s residence (in all six locations) display considerable textural variation by way of streaks, patches, and clouds of dark minerals. Technically it is regarded that the stone has a degree of “movement”.
  5. [36]
    In response to question 2, Dr Hensel stated:
    1. he viewed the remaining slab at the respondent’s fabrication facility and in his professional opinion ‘it is obviously a close match to the slabs at the (applicant’s) residence in terms of colour, minerology and texture having been sawn from the same original block’;
    2. it is clearly the best and only substitute;
    3. no other stone in the world could be used as a substitute because no stones are identical.
  6. [37]
    In response to question 3, Dr Hensel stated:
    1. from his inspection of the kitchen, it is clear that the stone is functioning perfectly. It is ‘performing remarkably well’;
    2. he sees absolutely no reasons why the entire kitchen at the applicant’s residence needs to be changed because ‘there is nothing wrong with the stone’;
    3. remodelling an entire kitchen based on some aesthetic issue is a major and totally unnecessary task. He sees it as a totally unreasonable demand, especially as the granite has been in service for five years already.
  7. [38]
    Dr Hensel’s viva voce evidence conformed to the answers in his written report.

Consideration

  1. [39]
    The contract price for the work was $4,950 pursuant to invoice #00001566. Therefore, the contract between the applicant and the respondent is a ‘Level 1 Regulated Contract’.
  2. [40]
    Pursuant to Schedule 1B, s 13(5) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), a Level 1 contract must be in a written form, dated and signed by or on behalf of each of the parties, otherwise it has ‘no effect’ and cannot be enforced by the parties.
  3. [41]
    In this case, I find that the bench top plan, written quotation and tax invoice #00001566 cumulatively amount to a written contract. However, the contract has no effect because neither the applicant nor the respondent signed it. 
  4. [42]
    Further, I do not consider the Electronic Transactions (Queensland) Act 2001 (Qld) (‘ETQ Act’) overcomes the absence of signatures. Section 14 of the ETQ Act provides:
  1. 14
    Requirement for signature
  1. (1)
    If, under a State law, a person’s signature is required, the requirement is taken to have been met for an electronic communication if—
  1. (a)
    a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
  1. (b)
    the method used was either—
  1. (i)
    as reliable as appropriate for the purposes for which the electronic communication was generated or communicated, having regard to all the circumstances, including any relevant agreement; or
  1. (ii)
    proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
  1. (c)
    the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in paragraph (a).
  1. (2)
    The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
  1. [43]
    Here, there is no electronic acceptance of the contract.  Although it is obvious that the applicant, by putting down a deposit for invoice #00001566, was agreeable to the terms of the contract, there is no explicit acceptance of it by him in any electronic correspondence between the parties.
  2. [44]
    The contract does not comply with Schedule 1B, s 14(2) of the QBCC Act. Therefore it has no effect and the implied warranties under the QBCC Act are not available to the applicant.

Claim in Negligence

  1. [45]
    It is appropriate to consider whether the applicant is entitled to bring a claim in negligence against the respondent. Any such claim in negligence is subject to the provisions of the Civil Liability Act 2003 (Qld) (‘CLA’).                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     
  2. [46]
    To recover in negligence, the applicant must prove:[3]
    1. The respondent owed him a duty to avoid a foreseeable and not insignificant risk of harm;[4]
    2. The respondent breached its duty; and
    3. He suffered harm because of the respondent’s breach of its duty.

Did the respondent owe the applicant a duty of care?

  1. [47]
    In Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam,[5] Senior Member Brown relevantly said:
  1. [44]
    In domestic building cases involving the original parties to the building work, as recognised in Bryan v Maloney, there is an assumption of responsibility on the part of the building contractor. Accordingly, consideration of the vulnerability of the building owner in determining the existence of the duty of care is not required…
  1. [48]
    In this case, I am satisfied that there was an assumption of responsibility by the respondent as a building contractor and known reliance by the applicant as a building owner. Therefore, the relationship falls within one of the special categories of cases in which it is acknowledged that a duty of care is owed.
  2. [49]
    Accordingly, I find that respondent owed the applicant a duty to undertake the work in an appropriate and skilful way, with reasonable care and free from defects. I also consider the respondent had a duty to ensure its work was carried out in accordance with the plans and specifications agreed under the contract. Those duties are analogous to the implied warranties contained in the QBCC Act.
  3. [50]
    Further, I consider that the risk of harm to the applicant, caused by a failure to perform its work with due care and skill, and in conformance with the plans and specifications in the contract, was both foreseeable and not insignificant.

Did the respondent breach the duty of care it owed to the applicant?

  1. [51]
    The respondent concedes that that the work it performed on the stone benchtop on the sink side of kitchen was defective and requires rectification. Accordingly, I find that the respondent breached its duty to undertake that work in an appropriate and skilful way, with reasonable care and free from defects.
  2. [52]
    Further, I find that the respondent’s failure to cut the cooktop stone in way that accommodated flush mounting of the Miele Cooktop constitutes a breach of its duty to ensure the work was carried out in accordance with the plans and specifications agreed to under the contract. My reasons for reaching that conclusion are:
    1. In the kitchen benchtop drawings the applicant sent Mrs Sharma on 22 November 2018, he made clear, beyond any shadow of a doubt, that the cooktop he intended to install was a ‘Miele flush mount cooktop – KM63671’.
    2. The applicant was entitled to rely on Mrs Sharma’s oral representation to him that she would look up the model of cooktop to confirm installation requirements.
    3. The applicant was entitled to rely on Mrs Sharma’s written representations that the quotation she provided him on 25 October 2018 was ‘as per his drawing’ and that the ‘quote is based on information given on drawings provided’ (the said drawing refers to a flush mounted cooktop).
    4. The pages of the cooktop installation guide the applicant showed Mr Sharma in the last week of November 2018 contained specifications and technical drawings for a flush fitted cooktop. It should have been obvious to the respondent, at that point, that the applicant desired a flush mount cooktop.
    5. The respondent has presented no evidence to support its contention that that KM6367 can be installed as either a flush mount or a top mount. Rather, the installation guide and the applicant’s conversation with the Miele technical representative suggest it must be installed as a flush mount.
    6. There is no evidence to support the respondent’s contention that the words ‘drop in cook top’ stated on its quotation, is known in industry circles to mean a cook top suitable for top mounting rather than flush mounting. I find that the words are more likely a reference to the method by which the cooktop is installed i.e., that it is ‘dropped in” to a precut hole in the stone. The terminology could equally apply to a flush mounted cook top which is also “dropped in”. Even if the term ‘drop in cooktop’ has the same meaning as ‘top mount cook top’, the applicant could not have known that to be the case.  
    7. The respondent was not entitled to unilaterally decide to cut the stone to accommodate a drop in cooktop in circumstances where the applicant explicitly stated he wanted a flush mount cooktop.
    8. The respondent was not entitled to presume that the applicant no longer wanted a flush mount cooktop because it was not mentioned in the plans Sea West Cabinets prepared.

Did the respondent’s breach of duty harm the applicant?

  1. [53]
    To a person with refined aesthetic sensibilities, a cooktop that sits proud of the benchtop would be intolerable. Additionally, I accept the applicant’s evidence at the hearing that a Miele representative told him that a Miele would not service a warranty claim on the cooktop because it had not been installed in accordance with Miele’s instructions.
  2. [54]
    I am satisfied that the respondent’s breach of duty was a necessary condition of the occurrence of harm occasioned to the applicant. It is trite to observe that, if the respondent cut the sink stone and the cooktop stone correctly and consistently with the plans in the contract, there would be no need for the applicant to expend money to rectify the work. 
  3. [55]
    I consider it appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability). The CLA provides that for the purpose of deciding the scope of liability, the Court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the party who was in breach of their duty.[6] For the reasons explained above, I consider the respondent’s protestations that it did not know the applicant desired a flush mount cooktop until the day of the install to be risible. Its subsequent denial of responsibility for its mistake is egregious. I consider it entirely appropriate that the respondent ought to be held to account for their defective work and their failure to conform with specifications stated in the contract. 

What is the appropriate remedy?

  1. [56]
    Relevantly, the Tribunal may exercise one or more of the following powers to resolve a building dispute:[7]
    1. order relief from payment of an amount claimed by one party from another;
    2. award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;
    3. order rectification or completion of defective or incomplete tribunal work;
    4. award costs.
  2. [57]
    The respondent offers to rectify its work by replacing the sink benchtop with the spare stone slab in its industrial yard. It is willing to do the same for the cooktop benchtop, albeit only if the applicant pays the outstanding amount it claims he owes under the invoice. The relationship between the parties has irretrievably broken down. Therefore, I do not consider that an order requiring the respondent to rectify its defective work is an appropriate resolution to this building dispute. Rather, I consider the respondent should pay the applicant damages.
  3. [58]
    The object of an award of damages in a claim for negligence is to restore the claimant to the position the claimant would have been in had the wrongful act not been committed.[8] It will cost the applicant $12,844.07 to rectify the damage caused by the respondent’s breach of duty.[9] The applicant proposes to engage various contractors to perform the rectification work. He has particularised the rectification costs in his statement dated 29 July 2022. I consider those costs are reasonable and appropriate. I find that when performing the rectification work, it will be necessary to replace all stone benchtops supplied by the respondent because cutting stone in situ has been banned under recent health and safety laws. I also consider it appropriate for the respondent to pay all costs ancillary to replacing the benchtop, namely:
    1. disconnection and reconnection of the cooktop;
    2. plumbing costs;
    3. A new sink.
  4. [59]
    Lastly, is appropriate for the respondent to pay the applicant’s costs of filing his application in the Tribunal, which is an amount of $352.
  5. [60]
    Concerning the respondent’s submission that the applicant did not afford it the opportunity to rectify the sink stone, I find that it was unreasonable to expect the applicant to wait three months before the rectification was completed.
  6. [61]
    I propose the following orders:
    1. Stone Galleria Pty Ltd must pay Leonard Willis the amount of $12,844.07 within twenty-eight (28) days.
    2. Stone Galleria Pty Ltd must pay Leonard Willis costs fixed at $352 within twenty-eight (28) days.
    3. The respondent’s counterapplication is dismissed.

Footnotes

[1]  Emphasis added.

[2]  Emphasis added.

[3] Vaiao v Sharkie [2019] QCAT 264 [29], citing Chad Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd [1993] ABT BC9302692; Sablewell Pty Ltd v Kirstborough Pty Ltd and Ors OBT BC9505897.

[4]  CLA, s 9.

[5]  [2024] QCAT 476.

[6]  CLA, s 11(4).

[7]  QBCC Act, s 77(3).

[8] Judd v McPhail [2022] QCAT 125 (Senior Member Brown citing Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) BCL 63).

[9]  Statement of Leonard Willis, 29.07.2022, para 5.

Close

Editorial Notes

  • Published Case Name:

    Willis v Stone Galleria Pty Ltd

  • Shortened Case Name:

    Willis v Stone Galleria Pty Ltd

  • MNC:

    [2025] QCAT 11

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    07 Jan 2025

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
Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476
2 citations
Jump To
Cite 1 - [2024] QCAT 476
Cite 2 - [2024] QCAT 476
Judd v McPhail [2022] QCAT 125
2 citations
Jump To
Cite 1 - [2022] QCAT 125
Cite 2 - [2022] QCAT 125
Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd [1993] ABT BC93 2692
1 citation
Jump To
Cite 1 - [1993] ABT BC93 2692
Vaiao v James Sharkie Constructions [2019] QCAT 264
2 citations
Jump To
Cite 1 - [2019] QCAT 264
Cite 2 - [2019] QCAT 264

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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