Rosman v Toth[2025] QCAT 304

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   In these proceedings Nick Rosman (‘the Applicant’) claims damages of $76,400.00 from Laszlo Toth (‘the Respondent’).
2. [2]
   The Applicant says that the Respondent was hired to complete renovations to the bathroom, build sliding door wardrobes in the bedrooms, renovate the kitchen, construct new footings, paint and build an extension at the property.

Background Facts

3. [3]
   The Applicant is the owner of domestic residence in the central coast area in Queensland.
4. [4]
   The Respondent is a licenced builder.
5. [5]
   On 19 March 2023 the Applicant and the Respondent signed a written contract^[1] to complete renovations to the Applicant’s residence. The contract contains a description on the building work to be completed on a labour rate basis as set out below:

   1. the Respondent’s hourly rate is $67.50;
   2. the hammer hand hourly rate is $45.00;
   3. for a 40 hour week the rate is $4,500.00 including GST;
   4. the Respondent is not providing any materials; and
   5. the Respondent’s cost excluded all electrician or plumber costs or any materials. 
6. [6]
   The written contract also specified in respect of the Respondent:

For my labore cost I’m offering the high standard quality on all part of my workmanship. What I undertaken, will provide you with not 7 years and 3 months as QBCC standard, but total 10 years, for all bathroom, addition, kitchen anything I touched and my damages what my negligent were caused, carpentry damages. Excluding of warranty, damage caused by flooding or any other damage out of my hand fault

7. [7]
   The Applicant says the contract price was $49,000.00 of which total payments of $19,496.00 has been paid by the Applicant. The building work to be completed under that contract required a complete renovation of the residence, including bathroom renovation, building sliding door wardrobes in the bedrooms, kitchen renovation, new floorings, painting and building in an extension under the existing dwelling.
8. [8]
   The Respondent says:

weeks before we start the job I asking update of building permit to Nick when we have a meeting and he will say that he lodged it already and waiting for details to pay. In our agreement we are only provide BUILDING LABORE meaning we are paid on how many days and hrs we work.

9. [9]
   The commencement date of the works under the contract was specified as 3 April 2023. The Respondent commenced work on the Applicant’s renovations on that date.
10. [10]
    The Applicant had obtained an Asbestos Clearance Certificate in a Report dated 2 May 2023. That Report said a visual inspection had been made that day of all internal elevations to the bathroom and external elevations to the carport of the Applicant’s premises and found that:

No visibly identifiable asbestos containing debris was identified in the areas inspected at the time of inspection following removal activities. Please see photographic evidence on the page below.

11. [11]
    On 11 May 2023 the Respondent removed cabinets in the kitchen and found that underneath the cabinets there was a bare concrete floor as the kitchen tile floor ended at the edge of the kicking board of the cabinets.^[2]  The Responded says:

When we remove the pantry divider underneath it had a piece of lino flooring 90 x 400^[3] which we did not remove at all and is still visible in the Asbestos Report

12. [12]
    The Respondent says on 12 May 2023 he commenced to remove kitchen tiles using a “hammer drill with a flat head and a jackhammer with flat head also” as most of the tiles were tough to remove on concrete floor and said: 

there is no ACTUAL LINO FLOORING. UNDERNEATH THE TILES, using jackhammer doesn’t make sense if there is Lino flooring present underneath the tiles as what Rosman claiming, because it’s easier to just left the LINO to remove the tiles and supposed to be no tile glue visible on the concrete floor.^[4] Please note that this is part of the agreed the kitchen renovation 

13. [13]
    A week later on 19 May 2023 the Applicant inspected the work being undertaken and found that the Respondent, with his workmen on site, used a jackhammer to remove old tiles from the kitchen floor in preparation for new floorboards to be installed and that:

it was noticed by us, the owners, that there are bits of old lino remaining on the floor where the tiles were removed. We knew this was a potential asbestos containing material, we contacted an asbestos company to conduct sampling immediately… 

14. [14]
    The Applicant advised the Respondent that no one was allowed access to the residence until the lino samples removed were tested and the results were obtained. The Applicant says that the Respondent, nevertheless, accessed the residence the following day to collect all his tools and equipment so he could continue working on other sites. They also say that the Respondent did this in the knowledge that all his tools and equipment could be contaminated with fibrous asbestos. The Respondent replied in these terms:

I asked them how long it would take to get a result, as we already waste lots of time on permit issues, load bearing issues, soil testing, beam issues etc. and not even my job but I’m helping to sort paper jobs already on my own time. But I have bills and 4 kids to feed so I can’t sit home and wait any more, and more than that I have scheduled next job that I’m in trouble already because of the delay. But it doesn’t mean I disregarded the asbestos issue, before I go to other job, I clean up my tools^[5] and I don’t know how it happen, but my Makita drop saw was negative on asbestos even though it was right on the open kitchen and to think that it was fibrous as asbestos.

15. [15]
    The Applicant contacted asbestos professionals. The Respondent refers to this in his evidence in these terms:

They hired asbestos professionals to remove and conduct a check but base on the clearance certificate been issue; there is no testing for contamination and in my understanding in that clearance there is still possible asbestos fibre anywhere inside the house, they only conduct visual inspection after removal as the owner is on a budget of time and money

16. [16]
    The Applicant says that building works performed by the Respondent ceased on 26 May 2023.^[6]
17. [17]
    On 27 May 2023 the Applicant contacted the Respondent and advised that the Applicant wanted to cancel the contract and did not want him continuing work on their property. The Applicant says that the agreement was terminated on 27 May 2023 by the Applicant’s wife, Jessica Rosman, through text message sent to the Respondent on that day stating:

Unfortunately, further testing is required and possibly more asbestos work.

This delay, caused by you exposing asbestos, has been a nightmare. You exposed our children and other workers to very toxic dust, it has cost us thousands, and has been a massive amount of stress on us. You should have stopped as soon as you noticed potential asbestos underneath the tiles.

We are not happy with your disregard. It is a very serious matter.

With the whole situation I think it would be best if we just parted ways and be left with the work you have completed. We don’t feel safe continuing this project and we don’t believe it is safe your tools and equipment to come back to our house after the massive decontamination process we have just been through.

18. [18]
    The Respondent says that the Applicant and his family were not:

living in the property after the removal and while doing the renovation, me and my hammer hand are the ones put at risk because they wanted to save money. So, who disregarded asbestos? They didn’t worry about my tools…

19. [19]
    The Respondent says that on 28 May 2023 he called the Applicant about damage to a vanity mirror and asked for an invoice as he would make a claim on his insurance. The Respondent says the next day the Applicant’s wife called him and asked him:

Laszlo, is it okay if you make a claim for asbestos sampling?

20. [20]
    On 29 May 2023 the Respondent apparently made an insurance claim stating that he first became aware of the claim and provided these details to the insurance company:

I remove tiles without the knowledge of what is under need (neath).

In response to a question in the claim form whether he has admitted responsibility/liability for the damage or injury the Respondent replied “No” as he say:

I didn’t remove any asbestos.

21. [21]
    The results from the lino samples were available on 1 June 2023 in a “Makesafe and Asbestos Inspection Report” by Asbestos Response Pty Ltd, which stated, in part, as follows:

Builder has disturbed asbestos containing linoleum to kitchen floor by removing the non-asbestos tiles that have been laid over the asbestos linoleum. A jackhammer was used to remove the tiles resulting in delamination of asbestos linoleum and the release of asbestos fibres. There has been extensive foot traffic since the event

The Report proceeded to specify the works to make this site safe from asbestos.

22. [22]
    The Applicant advised the Respondent of the findings and recommended he make a claim through his builder’s insurance. The Respondent says that this statement is misleading as:

They don’t know that I have liability insurance, they are already sorting out the asbestos issues until, on 28 May 2023 I called up Nick Rosman about the vanity mirror that I accidentally chipped the corner when I unboxed it. So, I asked for the invoice^[7] as I will try to claim it on my insurance and the next day Jessica Rosman called me up and asked me “Laszlo, is it ok if you make a claim for asbestos sampling?” I don’t know what to answer knowing that I didn’t remove any asbestos.

23. [23]
    On 2 June 2023 the Respondent made an insurance claim. The Applicant says they were contacted by the insurance assessor and advised that the claim was approved and they could receive reimbursement for the asbestos contamination to be made safe through decontamination work of all household items deemed contaminated and disposed of including the Applicant’s accommodation expenses while the house was deemed unliveable. The Respondent also states that:

so I’m thinking that the insurance will do the investigation on the matter, but I don’t think so, not even a month it was approved and when I asked regarding insurance claim, it takes four months or more before get result of the claim.

24. [24]
    On 5 June 2023, Asbestos Response Pty Ltd sent an invoice to the Applicant’s wife, Jessica Rosman, for a “Major Makesafe Friable Asbestos Contamination Sampling and AIR” in the amount of $1,903.00. The invoice stated:

Builder has disturbed asbestos containing linoleum to kitchen floor by removing the non-asbestos tiles that have been laid over the asbestos linoleum. A jackhammer was used to remove the tiles resulting in delamination of asbestos linoleum and the potential release of asbestos fibres. 

The invoice provided for a licensed asbestos assessor/competent person to perform appropriate asbestos sampling and including half an hour travel and first sample.

25. [25]
    The Respondent says that he asked for a copy of the clearance certificate from the owners but they didn’t send it to him until after he cancelled the insurance
26. [26]
    On 14 June 2023 Elite Asbestos Services provided an invoice to the Applicant’s wife, Jessica Rossman, to undertake decontamination and removal of the various contents in the amount of $31,592.00.
27. [27]
    From 10 June 2023 to 27 June 2023 the Applicant obtained alternative accommodation at Discovery Parks, Torquay, and was invoiced amount of $3,056.60 for that accommodation.
28. [28]
    From 27 June 2023 the Applicant obtained further alternative accommodation and a receipt^[8] for that accommodation was provided in the amount of $6,161.19.
29. [29]
    On about 20 June 2023 the works to make the site safe from asbestos was performed and Asbestos Response Pty Ltd provided a Clearance Certificate.
30. [30]
    On 23 June 2023 the Applicant was invoiced from Harvey Norman for a fan with a light in the amount of $1,347.00.
31. [31]
    On 30 June 2023 the Applicant’s wife, Jessica Rosman, received a quote from Anderson’s of Hervey Bay to provide new carpet to three bedrooms including robes in the amount of $3,639.00,
32. [32]
    The Applicant says that on 7 July 2023 the Respondent cancelled the insurance claim. The Respondent stated:

Cancelling the claim was the best decision we made it, because from here we slowly found out the false allegation, misleading and lies that they made for insurance.  Jessica Rosman did try to change that assume allegation when they know we check their property and find out that the kitchen tiles were newly laid in 2011 before putting on the market.

33. [33]
    The Respondent says that the Applicant did not react well to this notification and threat to cancel his insurance claim in retaliation.
34. [34]
    On 8 July 2023 the Applicant wife, Jessica Rosman, sent a text message to the Respondent stating:

Just wanted to clarify a few things with you as we really don’t want this to end in a bad way.

We don’t believe you intentionally disturbed any asbestos. I was unaware that there was no actual any Lino underneath the tiles, just the remnants of the Lino backing from what I hear. Unfortunately, this is actually the part of Lino that contains the friable asbestos. This could not have been identified by asbestos crew earlier as they couldn’t use destructive sampling methods.

It may have been difficult for you to distinguish this and we understand that. However, it has happened now and the asbestos was disturbed and it did contaminate a lot of the house which required a massive decontamination work.

Thankfully, you have insurance that can cover this for you which is very good news for you. This being the case, we are happy to end on good terms. We are very happy with your efforts and work this far and I’m very thankful for all your work.……

However, if you do cancel this claim, things can get very difficult for both of us.….  

35. [35]
    On 14 July 2023 and on 18 July 2023 Asbestos Response Pty Ltd provided a “Disposed Items Catalogue” of personal belongings taken from the Applicant’s property. There is documentary evidence^[9] before the tribunal containing a description of items in a “disposed Item Court catalogue 2” providing four amounts of $2,167.50 and $31,501.00.
36. [36]
    On 21 July 2023 the Applicant’s Solicitors, Melissa Guilfoyle, of the Firm on the Avenue, sent a letter the Respondent:

    1. alleging that the Respondent’s construction work had been undertaken negligently and had disturbed and caused a removal of asbestos from the Applicant’s property; and
    2. the Applicant wishes to terminate the contract due to the Respondent’s alleged negligence and unsafe work practices; and
    3. as an offer of compromise, the Applicant is willing to consider a payment of liquidated damages in the amount of $50,000.00 to finalise the decontamination invoice, pay for their accommodation until their home is liveable and to pay for other expenses.
37. [37]
    On 25 July 2023 the Applicant received an invoice from Sallustio Electrical Services to disconnect and remove asbestos identified electrical components and to reinstall ceiling fans. The invoice cost was $797.50.
38. [38]
    On 10 August 2023 the Applicant lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’).
39. [39]
    On 10 August 2023 QBCC replied to the Applicant advising that the complaint had been reviewed and a final decision has been made as follows:

    1. QBCC will not be directing Laszlo Toth to rectify your complaint items;
    2. The Queensland Home Warranty Scheme is unable to provide cover for any of your complaint items;
    3. Your complaint is a contractual matter and is outside QBCC jurisdiction. QBCC does not have power to make decisions about contractual matters; and
    4. The complaint has now been finalised.
40. [40]
    On 14 September 2023 the Applicant filed in the Tribunal an Application for domestic building disputes seeking an award of damages of $76,400 from the Respondent, or through his building insurance for damages and resulting costs caused by the asbestos he disturbed while completing work on the Applicant’s residence. The Applicant is seeking damages under the following heads of damage:

    1. asbestos made safe: $1,900.00
    2. asbestos decontamination: $32,000.00
    3. reimbursement of disposed items: $33,000.00 approximately
    4. accommodation expenses: $9,500.00
    5. all costs in legal action to obtain reimbursement 
    6. reimbursement of fees for Application for domestic Building dispute 
41. [41]
    On 24 January 2024 the Respondent filed in the Tribunal a Response and/or counter application disputing the Applicant’s allegations in the Application for a building dispute. 
42. [42]
    On 2 February 2024 the Tribunal made Directions for the Applicant to file a Scott Schedule for these proceedings. The Applicant complied but it appears that the Respondent was non-compliant with those Directions.

Tribunal’s Jurisdiction

43. [43]
    The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an “enabling Act”. ^[10]
44. [44]
    The Application for a domestic building dispute filed by the Applicant on 14 September 2023 relied upon the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
45. [45]
    The QBCC Act provides that a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.^[11] The issue therefore is whether or not the Application filed by the Applicant is for a “building dispute”.
46. [46]
    A “building dispute” is defined to mean a domestic building dispute which is described as:^[12]

a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.

47. [47]
    The term “reviewable domestic work” includes the renovation, alteration, extension, improvement or repair of a home and can include work associated with the renovation, alteration, extension, improvement or repair of a home. That can include landscaping, paving and the erection or construction of a fixture associated with a detached dwelling or home. It can also include provision of services or facilities to the dwelling or the property on which the dwelling is situated.^[13]  
48. [48]
    The building work to be undertaken in accordance with the written contract between the Applicant and Respondent comes within the meaning of the term “domestic building work” and also “reviewable domestic work” referred to in the QBCC Act. Accordingly, the dispute between the Applicant and Respondent is a “building dispute” and the Tribunal has jurisdiction to hear and determine these proceedings.
49. [49]
    For the purposes of these proceedings, the QBCC Act is the “enabling Act”.

What was the extent of Linoleum Disturbed by the Respondent

50. [50]
    The Applicant says that there were “bits of old Lino remaining on the floor” where tiles were removed from the kitchen floor in preparation for new floorboards to be installed.^[14] The Applicant states that it is his belief that:

defective works were carried out by the respondent. As per the agreement, the respondent was responsible for the removal of old kitchen floor tiles in preparation for new flooring to be installed. The materials underneath the kitchen floor tiles were unknown to the respondent and the applicant prior to the removal process

51. [51]
    The Respondent seems to contradict the Applicant’s version relating to the old Lino. The Respondent admits that there was a piece of Lino flooring under the pantry divider but says that he did not remove that lino and it is “still visible in the Asbestos Report”. The Respondent also says that there was no actual lino flooring underneath the tiles and then states:^[15]

using jackhammer doesn’t make sense if there is Lino flooring present underneath the tiles as what Rosman claiming, because it’s easier to just lift the LINO to remove the tiles and supposed to be no tile glue visible on the concrete floor (PLS SEE E 4 FOR REF)

52. [52]
    The photograph at “E4” appears to show kitchen concrete floor with light and dark areas but with no adequate description whether each of those areas demonstrates the existence of bare concrete or the existence of residual lino glued to the concrete floor. 
53. [53]
    The Tribunal observes that in the Respondent’s photograph at “E3” of the concrete floor there are also the light and dark areas (in addition to the Lino flooring highlighted in the photo) but with no description as to whether those areas represent bare concrete floor or residual lino glued to the concrete floor. 
54. [54]
    The Applicant in subsequent correspondence on 8 July 2023 says that there was no actual lino underneath the tiles but states it was:

just the remnants of the Lino backing from what I hear. Unfortunately, this is actually the part of Lino that contains the friable asbestos. This could not have been identified by asbestos crew earlier as they couldn’t use destructive sampling methods

55. [55]
    On 25 May 2023 the Applicant’s wife, Jessica Rosman, sent a message to the Respondent stating in part:

I was worried about the vinyl flooring underneath the kitchen tiles being asbestos. I sent a photo to this asbestos and he said it most definitely is asbestos, he will be up tomorrow to assess the place and make a plan ASAP because it is unsafe at this time for anyone to enter.

56. [56]
    The Respondent replied to the Applicant’s wife by message on 25 May 2023 which is referred to details in an invoice and proceeded to state:

we will be working tomorrow, have a great night. 

57. [57]
    On 1 June 2023 Asbestos Response Pty Ltd completed an Inspection Report^[16] which certified that samples of fibrous material in vinyl remnants taken from the kitchen floor contained asbestos. That Report also certified that asbestos had been identified in dust located in the dining room floor, front entry floor, bedroom 2 floor and bedroom 3 furniture. The Inspection Report went on to state:

Builder has disturbed asbestos containing linoleum to kitchen floor by removing the non-asbestos tiles that had been laid over the asbestos linoleum. A jackhammer was used to remove the tiles resulting in delamination of asbestos linoleum and the release of asbestos fibres. This has been there has been extensive foot traffic since the event.

All bedding and lounges were covered with plastic prior to event however, initial dust samplings has identified asbestos fibres throughout the dwelling including the carpets in two of the three bedrooms.

The waste has been transferred from the house to a skip bag at front of property resulting in contamination or skip bag contents, and contamination of lawn waste corridor.

58. [58]
    The Inspection Report contains a series of photographs showing the location of asbestos contamination to various interior and exterior parts of the Applicant’s residence. Further remediation works were specified for decontamination of the Applicant’s property. 
59. [59]
    On 27 June 2023 Asbestos Response Pty Ltd provided a “Clearance Certificate” for the Applicant property relating to:

Friable decontamination of the interior throughout. Decontamination of hard surface contents. Removal and disposal of carpet and soft furnishings. Friable removal of vinyl floor remnants. Removal of contamination soils. Removal of waste skip bag and contaminated contents.

60. [60]
    In an email dated 20 January from Michael Holcroft, a Plumber on site at the time of the Respondent’s building works, he states that:

From what I saw on site, Laszlo was using a hammer drill to pull up the tiles in the kitchen so I offered him to use my jackhammer. Laszlo and his offsider used the jackhammer while I was in the roof space running water lines. I was only notified from Nick a few weeks after that day but there was more asbestos in the house from this event

61. [61]
    This evidence establishes that:

    1. Neither the Applicant nor the Respondent knew that there was lino or lino remnants under the kitchen tiles prior to the removal of any of those tiles;
    2. Both the Applicant and the Respondent share common ground that there was no lino flooring under the kitchen tiles. The Respondent says that there was lino flooring under the pantry which was not removed;
    3. The Respondent removed tiles on the kitchen floor using a jackhammer;
    4. There is a dispute between the parties as to whether there were lino remnants under the kitchen tiles;
    5. The independent evidence from Asbestos Response Pty Ltd in the Inspection Report dated 1 June 2023 establishes that there was vinyl remnants on the kitchen floor and that they contained asbestos; and
    6. That the Respondent’s removal of the kitchen tiles and in particular with the use of a jackhammer has disturbed the asbestos containing linoleum on the kitchen floor resulting in the release of asbestos fibres to various rooms identified in the Inspection Report. 
62. [62]
    The Tribunal is satisfied that the dispute between the Applicant and the Respondent as to whether there was lino remnants under the kitchen tiles can be resolved on the basis of the Tribunal’s acceptance of the independent evidence from Asbestos Response Pty Ltd in its Inspection Report of 1 June 2023. The Tribunal accepts on the basis of that evidence and the balance of the evidence referred to in the preceding paragraph that the Respondent in the course of removing kitchen tiles with a jackhammer has encountered lino remnants containing asbestos which were released into the rooms identified in that Report.

Tribunal’s Consideration of the Issues in these Proceedings

63. [63]
    The Applicant’s case is that he:

believes that defective works were carried out by the Respondent. As per the agreement, the Respondent was responsible for removal of the old kitchen floor tiles in preparation for new flooring to be installed. The materials underneath the kitchen floor tiles were unknown to both the respondent and the application prior to the removal process.

64. [64]
    The Respondent does not dispute that in removing the kitchen tiles a jackhammer was used.
65. [65]
    The independent Inspection Report has identified that the Respondent’s removal of the kitchen tiles resulted in the release of asbestos fibres to various rooms in the Applicant’s property.
66. [66]
    The evidence establishes that it is common ground between the Applicant and the Respondent that neither of them knew of the existence of lino or lino remnants containing asbestos fibres under the kitchen tiles. This raises the issue whether the existence of the lino remnants is a latent defect. In Nissen & Anor v Jarotech Pty Ltd the learned member, Member Favell, referred to what amounts to a latent defect in a building contract in these terms:^[17]

Relevant to any question of whether the alleged defects were latent defects and whether the defects particularised as “latent defects in the construction of the slab comprising part of the concourse around the pool” were latent is any knowledge of the extent of the defect.^[18]

A latent defect is a defect which could not have been discovered with reasonable care or one which was not manifest or discoverable by reasonable inspection (Pullen v Guttridge Haskins and Davey Pty Ltd (1993) VR 27; Owners of Strata Plan 50946 v Multiplex Constructions (NSW) Pty Ltd (2006) NSWSC 377; Eko Investments Pty Limited v Austruc Construction Limited (2009) NSWSC 208.) 

67. [67]
    The evidence establishes that:

    1. there was no knowledge of the extent of the defect at any time from the parties entering into the contract until the Respondent commenced removal of the kitchen tiles using a jackhammer;
    2. the defect beneath the kitchen tiles could not have been discovered with reasonable care at any time up to the commencement of the removal of the tiles by the Respondent using a jackhammer; and
    3. the defect beneath the kitchen tiles was not manifest or discoverable by reasonable inspection of the kitchen floor at any time prior to the removal of the tiles by the Respondent using a jackhammer.
68. [68]
    On the basis of this evidence, which the Tribunal accepts, at the time of entering into the contract the condition of the kitchen floor beneath the tiled area was a latent defect.
69. [69]
    However, the issue becomes whether, because of the latent defect the Respondent is not liable for the damage or is there evidence available to suggest that notwithstanding the latent defect, whether on removing the tiles and exposing the lino remnants the Respondent should have, or ought to have, stopped removing tiles to ascertain and investigate what was the nature of the material that had now been exposed. In other words, is there evidence that upon commencement of the removal of the tiles and ascertaining that there was lino remnants exposed, should the Respondent have suspended works in the kitchen to make enquiries about what was exposed or could he continue on removing tiles without any enquiry or understanding of the lino remnants that when our exposed.
70. [70]
    The written contract between the parties is a labour only contract.  The terms of the contract specify a labour rate and other associated terms and conditions. Implied into the contract would be a warranty that the Respondent would undertake the building work:^[19]

    1. in an appropriate and skilful way; and
    2. with reasonable care and skill.
71. [71]
    The evidence before the Tribunal is that the Applicant made an inspection of the progress of the building works on 26 May 2023 which was approximately a week after the removal of the kitchen floor tiles. As a result of that inspection the evidence from the Applicant is:^[20]

The applicant notified the respondent immediately of the potential asbestos material and he was told it was unsafe to enter the property. Please see attachment (6) for message evidence of this conversation.

72. [72]
    In a response to the messages dated 25 May 2023 referring to the vinyl flooring containing asbestos the Respondent messaged the Applicant in these terms:

We still working tomorrow, have a great night 

73. [73]
    The evidence before the Tribunal demonstrates that the Respondent in removing the kitchen tiles encountered the lino remnants without stopping to enquire and to investigate what was the nature of and consequences of using a jackhammer to remove those remnants. If the Respondent did not know what he was encountering on the concrete kitchen floor after removing the tiles, a prudent builder acting in an appropriate and skilful way would have made enquiries or investigation to ascertain what had been encountered. Similarly, a builder exercising reasonable care and skill would not have proceeded removing tiles without knowing what had been exposed beneath those tiles on the concrete floor. The failure of the Respondent in those circumstances to immediately cease work and carry out the enquiries or investigations was acting in a way that was in breach of the implied warranties.
74. [74]
    If, on the other hand, the Respondent knew that these lino remnants contained asbestos material and continued removal of tiles, then there is a clear breach of the implied warranties.
75. [75]
    The evidence from the Respondent was that he was behind in his work schedule and had other work commitments with clients and was anxious to complete this contract so that he could commence other projects with those clients. 
76. [76]
    The Respondent’s attitude on exposing the lino remnants under the kitchen tiles is to be contrasted with that of the Applicant’s attitude. The evidence from the Applicant and from his wife is that they immediately were suspicious whether the lino remnants contained asbestos and sought immediate clarification of their suspicion with the appropriate professionals. That enquiry ascertained that the lino remnants contained asbestos. Had the Respondent acted in this way he would not have exposed, or would not have exposed to the same level, the interior and exterior parts of the Applicant’s property as identified by the professionals. There is no evidence that the Applicant or his wife were builders or in any way had any trade or special knowledge about the existence of asbestos. Yet they were able to make an immediate inquiry whereas the Respondent continued removing kitchen tiles regardless of the nature or consequences of the building work he was undertaking in the kitchen.
77. [77]
    The Tribunal accepts the evidence of the Applicant and in particular the evidence in the Inspection Report referred to above. The Tribunal is satisfied that on the evidence the Respondent undertook building work in breach of the warranties to undertake building work in an appropriate and skilful way and also in breach of the requirement to exercise reasonable care and skill in removing the tiles in the kitchen. The Tribunal finds that the Respondent is in breach of the contract with the Applicant and is liable to pay to the Applicant such damages as are assessed.

Assessment of Damages

78. [78]
    In the Application for domestic building dispute filed by the Applicant on 14 September 2023 the claim is made for damages and resulting costs caused by the asbestos being disturbed by the Respondent while completing work on his property. The Applicant is seeking damages under the following heads of damage:

    1. asbestos made safe: $1,900.00
    2. asbestos decontamination: $32,000.00
    3. reimbursement of disposed items: $33,000.00 approximately
    4. accommodation expenses: $9,500.00
    5. all costs in legal action to obtain reimbursement 
    6. reimbursement of fees for Application for domestic Building dispute 
79. [79]
    The Tribunal has broad powers in relation to compensation including the following:^[21]

    1. order the payment of an amount found to be owing by one party to another;
    2. award damages, and interest on damages at the rate, and calculated in the way, prescribed under a regulation;
    3. order restitution;
    4. award costs.  
80. [80]
    In Tabcorp Holdings Ltd v Bowen Investments Pty Ltd^[22] the High Court confirmed that the “ruling principle” with respect to damages at common-law for breach-of-contract was stated in Robinson v Harman by Parke B^[23] who said:^[24]

where a party sustains a loss by reason of a breach of contract he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.

81. [81]
    The Applicant has provided evidence in support of its claim for compensation and for damages as a result of the Respondent’s building work in removing the kitchen tiles. That evidence is as follows:

    1. asbestos made safe: $1,900.00^[25]
    2. asbestos decontamination $29,592.00^[26]
    3. reimbursement of disposed items:
       1. clothes and household items $2,167.50^[27]
       2. electrical & household items $31,501.00^[28]
       3. carpets $3,639.00^[29]
       4.   ceiling fans installation $797.50^[30]
       5. sky fan light $1,347.00^[31]
    4. accommodation expenses:
       1. Discovery Parks $3,056.60^[32]
       2. 14 x nights at Urraween $6,161.19^[33]
    5. legal costs NIL
    6. reimbursement of Application filing fees $379.50
    7. Total claim $80,541.29 
82. [82]
    The Tribunal accepts the evidence relating to each of the heads of damages. The Tribunal also finds that each head of damage was as a consequence of the breach of contract by the Respondent and that the Applicant has suffered those losses as claimed. The Tribunal finds that the Applicant is entitled to an award of damages of $80,541.29.
83. [83]
    In respect of the above claim for “asbestos contamination” there is evidence that this cost was invoiced at $31,592.00. However, there is evidence that the Applicant paid $29,592.00 after an amount of $1,999.90 was credited to them. There is no evidence from the Applicant why that credit was made. The Tribunal has adopted the amount of $29,592.00 being the amount paid by the Applicant.
84. [84]
    In respect of the “legal costs” claim there is evidence before Tribunal of a letter dated 21 July 2023 written on behalf of the Applicant by his lawyers to the Respondent. There is no evidence of the invoiced cost of that letter or a cost agreement or any other basis upon which the Tribunal can identify and ascertain for itself the amount of legal fees for that service. Accordingly, the Tribunal has not allowed any damages under this head of damage. 
85. [85]
    In respect of the claim for “reimbursement of Application filing fees” the Tribunal took into account that the parties are required to bear their own costs of the proceedings except in so far as the interests of justice require the exercise of a discretion to allow a party to have its cost, or part of those costs. In these proceedings, the Tribunal concluded that it is in the interests of justice taking into account the relevant matters in the QCAT Act^[34] and has allowed the claim for reimbursement of the Tribunal’s fees for the filing of the Application for domestic building dispute on 14 September 2023.
86. [86]
    For these reasons, the Tribunal will make orders are that the Respondent will pay to the Applicant the amount of $80,541.29 within the specified time set out in those Orders.

Orders

87. [87]
    The Tribunal orders that Laszlo Toth must pay Nick Rosman the amount of $80,541.29 on or before 4.00 pm on Monday, 25 August 2025.