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Walsh v Stokes t/as Chevron Landscapes[2025] QCAT 274

Walsh v Stokes t/as Chevron Landscapes[2025] QCAT 274

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Walsh v Stokes t/as Chevron Landscapes [2025] QCAT 274

PARTIES:

Cecilia anne walsh

(applicant)

v

robert charles stokes t/as chevron landscapes

(respondent)

APPLICATION NO/S:

BDL086-23

MATTER TYPE:

Building matters

DELIVERED ON:

8 July 2025

HEARING DATE:

12 February 2025

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

Robert Charles Stokes t/as Chevron Landscapes must pay Cecilia Anne Walsh the amount of $142,142 within 28 days of the date of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DEFECTIVE WORK – where the applicant engaged the respondent to build a deck – where there was no written contract – whether building work was defective – whether an action in tort arose – whether respondent was entitled to damages – whether cost of rectification reasonable

Civil Liability Act 2003 (Qld)

Limitation of Actions Act 1974 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Bellgrove v Eldridge [1954] HCA 36

Chad Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd [1993] ABT BC9302692

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

Hawkins v Clayton (1988) 164 CLR 539

Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313

Judd v McPhail [2022] QCAT 125

Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) BCL 63

Sablewell Pty Ltd v Kirstborough Pty Ltd and Ors QBT BC9505897

Vaiao v Sharkie [2019] QCAT 264

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

  1. [1]
    Cecilia Walsh (‘applicant’) is a homeowner, who seeks damages against Robert Charles Stokes (‘respondent’) for purportedly defective building work he performed for her. The respondent is a building contractor who trades under the business name Chevron Landscapes.
  2. [2]
    Toward the end of 2012, the applicant engaged the respondent to replace a timber deck at her home (‘the deck’).  The deck was originally constructed in 1989. The applicant told the respondent that she wanted the deck “built the same as her original deck”.[1]
  3. [3]
    After measuring the existing deck, the respondent provided the applicant with a verbal quotation in the amount of $38,000. The parties did not enter a written contract. The applicant paid the respondent the full amount of the quotation in cash.
  4. [4]
    The respondent dismantled the deck. He removed its hardwood joists and bearers, tread boards and railings but did not remove bearers that were not damaged. Rather, he used those bearers in situ to rebuild the deck. He added upright posts to support the new structure, purportedly to ensure compliance with current building standards.
  5. [5]
    Around September 2018,[2] the applicant noticed that the deck “felt unstable” and the top decking wood was coming loose from the timber bearers and joists underneath”. She raised her concerns with the respondent, who allegedly told her that the wood that he used was a from a “bad batch” which was not “cured properly”.
  6. [6]
    In 2019, the applicant paid the respondent $6,550 to reinforce rotting bearers. However, on 30 August 2021, the applicant noticed that the repaired sections of the deck were themselves also rotting.[3] There were other parts of the deck the applicant wanted the respondent to fix but he failed to return to her property to complete that work. She paid a contractor named Kevin Keating to repair the deck in 2022 and 2023. The cost of those repairs, including the cost of materials, amounted to $9,275.28. 
  7. [7]
    On 2 February 2022, the applicant complained to the Queensland Building Construction Commission (‘QBCC’) about the respondent’s work.
  8. [8]
    On 3 November 2022, QBCC inspector Adam Clarke inspected the deck and documented his findings in a report (‘Clarke’s report’). In the report Mr Clarke stated:
    1. The deck was springy in isolated sections.
    2. The respondent used a rough sawn H3 plantation grown radiate pine softwood fence rail as the main deck joists for construction.
    3. A high percentage of the joists displayed wet and dry rot.
    4. He observed that the respondent had reused dilapidated timber members from the 1989 deck to construct the new deck.
    5. The respondent repaired the deck in 2019 using H3 TP 70 x 35 mm MGP10 timber which he laminated to existing deck members.
    6. The repair work was unsatisfactory in that when combined with the existing dilapidated materials the deck was structurally unsafe.
    7. The expected design life of the deck ought to have been 15 years.
  9. [9]
    On 8 November 2022, QBCC issued the respondent with a Direction to Rectify. It found that the workmanship on the repairs to the deck on the northern end, approximately 50m2, did not meet a reasonable standard of construction or finish expected of a competent holder of a contractor’s license. Further, QBCC found the respondent’s work adversely affected the health and safety of the persons residing at the applicant’s residence.
  10. [10]
    The respondent did not comply with QBCC’s Direction to Rectify.
  11. [11]
    On 28 June 2023, Sam Doyle of Jeffery Hills and Associates (‘JHA’) inspected the deck. JHA provides consulting engineering services. Mr Doyle produced a report of his findings on 5 July 2023 (‘JHA report’). Relevantly, his report states:
    1. Some parts of the structure are up to 35 years old, while other areas are 4 years old.
    2. Some of the decking boards were visibly deflecting and some could be easily displaced vertically by applying pressure with fingers. This was mostly due to lack of support from the superstructure (bearers and joists).
    3. The joists displayed various levels of degradation; some were at immediate risk of failing. The treatment level, grade and hence natural durability of the timber could not be verified due to a lack of stamps and records.
    4. There were examples of splices mid span of joist, which are not considered fit for purpose. Some of the lamination into older members did not have full capacity due to the significant level of degradation in the timber.
    5. Some timber members could be easily broken with fingers and thumbs due to the extent of the degradation.
    6. Some of the packing under existing bearers did not have sufficient surface area in some locations. In other areas the packing did not appear to be appropriately installed.
    7. Some of the posts were not plumb.
    8. The general configuration, detailing and condition of the subject structure is unsafe and not fit for purpose.
  12. [12]
    Annexed to the JHA report were various photographs which purported to show the following:
    1. Vertically displaced decking.
    2. Heavily degraded members.
    3. Splicing of joists using unconventional methods.
    4. Degraded timber joists.
    5. Unsuitable and insufficient packing, unconventional supports with no fixity.
    6. A heavily degraded pole plate.
    7. Non-standard construction practices.
  13. [13]
    It is convenient to refer to the problems with the deck identified in the Clarke report and the JHA report collectively as ‘the defects’.
  14. [14]
    Importantly, the JHA report concluded that due to the defects, it would be uneconomical (and unsatisfactory on a risk basis) to rectify individual elements and a complete deck replacement is considered necessary. The author of the report opined that the deck in its current state is unsafe and should not be used.

Response

  1. [15]
    The respondent filed a response in the Tribunal on 27 April 2023. In his response he contends:
    1. That the applicant failed to maintain the deck by oiling it twice per year.
    2. That the $81,730 for construction of a new deck in the scope of works supplied by the applicant bears no resemblance to the original deck that he constructed.
    3. That he always used correct timber, namely H4 or H3 treated pine 100x100 or 100x75 posts and 90x45 treated pine rails.
    4. He denies using fencing pine or telling the applicant that he used a bad batch of wood. 

Hearing

  1. [16]
    The dispute proceeded to a hearing on 12 February 2025.  The applicant appeared in person, but the respondent did not appear.
  2. [17]
    The applicant’s viva voce evidence was generally consistent with the evidence contained in the sworn affidavits she filed in the Tribunal. The applicant tendered into evidence a rotten piece of timber which she contended fell off the deck.[4] The Tribunal observed that that the piece was indeed rotten and soft to the touch. 
  3. [18]
    The applicant called Mr Clarke to give evidence at the hearing. Mr Clarke confirmed that at the relevant time he was a building inspector employed by the QBCC. Relevantly, he said:              
    1. He observed that the timber joists used in the deck were rough sawn H3 plantation grown radiata pine softwood. The letter H, and the numeral proceeding it, indicates that chemicals have been applied to the timber to protect it from water and elements.
    2. The respondent ought to have used timber with a H4 to H5 rating, which is suitable for applications where the timber is in contact with, or close to, the ground.
    3. Timber with a H4 or H5 rating does not have a “dry rot effect”.
    4. The H3 pine the respondent used was a “cheap option off the shelf”.
    5. When shown Exhibit 1 he opined that the timber had degraded due to humidity under the deck and H4 or H5 timber would not have degraded to the same extent.
    6. If H4 or H5 timber was used to construct the deck, its lifespan would have been 25 years.
    7. When the respondent constructed the deck in 2012, he should have used entirely new bearers and posts instead of reusing timber from the old deck.
    8. He read the JHA report and agrees with the conclusions raised in it.
    9. The deck cannot be repaired. Rectification of the deck requires it to be “ripped out” and rebuilt. 

Consideration

  1. [19]
    The contract price for the initial work was $38,000. The contract price for the repair work was $6,550. Both were ‘regulated contracts’ under Schedule 1B, Part 2, Division 1 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). Accordingly, both contracts were required to be in written form,[5] otherwise they have ‘no effect’ and cannot be enforced by the parties.[6]
  2. [20]
    Here, neither the initial contract, nor the repair contract, were in writing. Any agreement between the parties was entirely oral. Therefore, the applicant cannot claim against the respondent for breach of contract.
  3. [21]
    However, it is appropriate to consider whether she has a claim against the respondent in negligence. Any such claim is subject to the provisions of the Civil Liability Act 2003 (Qld) (‘CLA’).
  4. [22]
    To recover in negligence, the applicant must prove:[7]
    1. The respondent owed her a duty to avoid a foreseeable and not insignificant risk of harm;[8]
    2. The respondent breached its duty; and
    3. The applicant suffered harm because of the respondents’ breach of its duty (which is not too remote).

Did the respondent owe the applicant a duty of care?

  1. [23]
    In Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam,[9] Senior Member Brown relevantly said:

[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. [24]
    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, their relationship falls within one of the special categories of cases in which it is acknowledged that a duty of care is owed.
  2. [25]
    Accordingly, I find that the respondent owed the applicant a duty to undertake the work in an appropriate and skilful way, with reasonable care and free from defects. That duty is analogous to a cognate warranty contained in the QBCC Act.
  3. [26]
    Further, I consider that any risk of harm to the applicant, caused by a failure to perform its work with due care and skill, was both foreseeable and not insignificant.

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

  1. [27]
    The uncontested opinions contained in the Clarke and JHA reports, and Clarke’s oral evidence at hearing, indicates that deck has a multitude of problems, caused by the respondent’s defective construction methods and failure to use an appropriate grade of timber. I find that the respondent failed to construct the deck with reasonable care, in a way that was free of defects.  I consider there are three aspects to the respondent’s negligence:
    1. He inappropriately retained hardwood bearers, posts and other structural components from the original deck.
    2. He employed unconventional and unsatisfactory construction methods to build the deck.
    3. He inappropriately used H3 rated timber, instead of H4 and H5 timber.
  2. [28]
    There is no evidence to support the respondent’s contention that the applicant’s failure to oil the deck caused it to degrade prematurely. I find that the failure of the deck is attributable entirely to the respondent.
  3. [29]
    The respondent ought to have foreseen that his failure to construct the deck with reasonable care, in a way that was free of defects, would cause harm to the respondent in the form of economic loss. That risk of harm was not insignificant, and I am satisfied a reasonable builder would have taken precautions to ensure that their work was performed with reasonable care. It would not have been an onerous obligation for the respondent to use appropriate materials and take reasonable care when constructing the deck.

Did the applicant suffer harm because of the respondent’s breach? 

  1. [30]
    The JHA report concluded that the deck is unsafe and must be rebuilt. Consequently, the applicant must now expend money that she would not otherwise have needed to expend if the respondent constructed the deck without defects. Plainly then, the applicant would not have suffered harm but for the respondent’s breach.
  2. [31]
    Further, I consider it appropriate for the scope of liability of the respondent to extend to the harm they caused to the applicant. 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.[10]  It is appropriate, in my view, that builders ought to be held to account for the financial detriment their defective work causes homeowners. That view is consistent with the object of the QBCC Act to ‘ensure the maintenance of proper standards in the industry’.[11]

What is the appropriate remedy in this case?

  1. [32]
    Relevantly, the Tribunal may exercise one or more of the following powers to resolve a building dispute:[12]
    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. [33]
    In this case, rectification of the defective work is not an appropriate remedy. The respondent’s reluctance to attend the hearing and engage in the proceeding suggests he would be unlikely to attend to rectification work if the Tribunal made such an order. Instead, I consider it appropriate for the respondent to pay the applicant damages.
  3. [34]
    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.[13] In this case, the loss the applicant incurred is not limited to monetary amounts she paid the respondent. The respondent’s negligence has exposed her to inflationary construction costs caused by the effluxion of time and presumably the reduced the value of her property due to the absence of a functional deck. The only way to return the applicant to the position she would have been in but for the respondent’s negligence, is to award her sufficient monetary damages to rebuild the deck.
  4. [35]
    The applicant relies on several quotations, to support her claim for damages, namely:
    1. A quotation by Advanced Decking and Patios dated 13 September 2023 in the amount of $141,790.
    2. A quotation by Decks’n’Pergolas QLD, dated 17 September 2023 in the amount of $81,730.
    3. A quotation by Red-Tailed Projects dated 23 September 2023 in the amount of 113,9787.
    4. A quotation by A T Constructions dated 28 September 2023 in the amount of $79,000.
  5. [36]
    In the absence of any contradicting evidence by the respondent, I am compelled to accept that the above quotations were an accurate reflection of the cost of replacing the deck at the time they were obtained in 2023. It could safely be assumed that cost of replacing the applicant’s deck would now likely be higher.
  6. [37]
    Notably, both the Advanced Decking Quotation and the Red-Tailed Projects quotations include the cost of removing the deck and other associated costs such as obtaining council certification, soil and engineering reports. The quotation by Decks’n’Pergolas QLD includes rubbish removal but does not include Council feels, or an engineering report.
  7. [38]
    In my view, the quotation from Advanced Decking is the most comprehensive quotation put forward by the applicant and best reflects the amount of money she would need to spend to return to the position she would otherwise have been in if not for the respondent’s negligence. 
  8. [39]
    I have considered whether granting the applicant the full costs of replacing the deck confers on her a benefit or windfall. I think not. Demolition and rebuilding are permissible where it is reasonable and necessary to provide a building in conformity.[14] Here, if not for the respondent’s negligence, the applicant would have a usable and durable deck. Presently, she does not. That unfortunate situation can only be alleviated by rebuilding the deck because it cannot be repaired (according to Inspector Clarke and the JHA report).
  9. [40]
    Consistently with the approach taken in Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313, I consider it inappropriate to reduce damages for betterment because there is no reasonable alternative remedy available to the applicant other than to replace the property damaged by the respondent’s negligence. Merely awarding the applicant the money she paid the respondent would not confirm to her bargain with him or return her property to its original state. 
  10. [41]
    Further, it is appropriate for the respondent to pay the applicant’s costs of filing his application in the Tribunal, which is an amount of $352.

Is the applicant’s claim time barred?

  1. [42]
    Although not raised by the respondent, I have considered whether the applicant’s claim is statute barred under the Limitations of Actions Act 1974 (Qld) (‘LOA’). Section 10(1)(a) of the LOA provides that an action founded on tort shall not be brought after the expiration of 6 years after the date on which the cause of action arose.
  2. [43]
    In Hawkins v Clayton,[15] it was held that damage by way of pure economic loss is suffered when the latent “defect was actually discovered or became manifest, in the sense of being discoverable by reasonable diligence”. A similar approach to determining when a cause of action arose was taken in Wardley Australia Ltd v Western Australia,[16] Bryan v Maloney[17]and Sheldon v McBeath,[18] albeit without the additional qualification of discoverability through reasonable diligence.

Here, the respondent constructed the deck in 2012. However, the defects only manifested in September 2018. The rotting portions of wood were secreted away in the under structure of the deck and therefore I do not consider that a reasonably diligent homeowner would have discovered their existence any earlier than the applicant did. Accordingly, I find that the cause of action in the present matter arose in September 2018. The applicant’s claim is not statute barred. 

Footnotes

[1]  Affidavit of C Walsh dated 02.10.23, para 1d.

[2]  Application, Alleged defective work/incomplete work schedule p 2.

[3]  Ibid.

[4]  Exhibit 1.

[5]  QBCC Act sch 1B ss 13(2), 14(2).

[6]  Ibid sch 1B ss 13(5), 14(10)

[7] 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 QBT BC9505897.

[8]  CLA s 9.

[9]  [2024] QCAT 476.

[10]  CLA s 11(4).

[11]  QBCC Act s 3(a)(i).

[12]  Ibid s 77(3).

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

[14] Bellgrove v Eldridge [1954] HCA 36.

[15]  (1988) 164 CLR 539.

[16]  (1992) 175 CLR 514, 541.

[17]  (1995) 182 CLR 609.

[18]  [1993] Aust Tort Reports 81-209.

Close

Editorial Notes

  • Published Case Name:

    Walsh v Stokes t/as Chevron Landscapes

  • Shortened Case Name:

    Walsh v Stokes t/as Chevron Landscapes

  • MNC:

    [2025] QCAT 274

  • Court:

    QCAT

  • Judge(s):

    Member Munasinghe

  • Date:

    08 Jul 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
Bellgrove v Eldridge [1954] HCA 36
2 citations
Jump To
Cite 1 - [1954] HCA 36
Cite 2 - [1954] HCA 36
Bryan v Maloney (1995) 182 CLR 609
1 citation
Jump To
Cite 1 - (1995) 182 CLR 609
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
Hawkins v Clayton (1988) 164 CLR 539
2 citations
Jump To
Cite 1 - (1988) 164 CLR 539
Cite 2 - (1988) 164 CLR 539
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd & Anor [2001] NSWCA 313
2 citations
Jump To
Cite 1 - [2001] NSWCA 313
Cite 2 - [2001] NSWCA 313
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
2 citations
Jump To
Cite 1 - [1993] ABT BC93 2692
Cite 2 - [1993] ABT BC93 2692
Sheldon v McBeath (1993) Aust Torts Reports 81
1 citation
Jump To
Cite 1 - (1993) Aust Torts Reports 81
Vaiao v James Sharkie Constructions [2019] QCAT 264
2 citations
Jump To
Cite 1 - [2019] QCAT 264
Cite 2 - [2019] QCAT 264
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
1 citation
Jump To
Cite 1 - (1992) 175 CLR 514

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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