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Samjam Investments Pty Ltd v Chapman[2022] QCATA 86

Samjam Investments Pty Ltd v Chapman[2022] QCATA 86

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Samjam Investments Pty Ltd v Chapman [2022] QCATA 86

PARTIES:

SAMJAM INVESTMENTS PTY LTD

(applicant/appellant)

v

FRASER CHAPMAN

(respondent)

APPLICATION NO/S:

APL045-20

ORIGINATING APPLICATION NO/S:

BDL048-19

MATTER TYPE:

Appeals

DELIVERED ON:

22 June 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Senior Member Traves

ORDERS:

  1. Leave to appeal is refused.
  2. The appeal is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE – PROCEDURE – QUEENSLAND – HEARING OF APPEAL – NON-APPEARANCE OF PARTIES – where applicant asserted denial of procedural fairness on the basis that the proceedings were determined in the absence of the applicant’s appearance at the hearing – where grounds of appeal raise questions of fact and questions of mixed law and fact – consideration of whether to grant leave to appeal

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – where tribunal found that building work was defective – whether evidence capable of supporting findings

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – consideration of ‘building work’ – whether construction of a cabin, in part at applicant’s premises and in part on site was building work – whether applicant was required to be licensed – where tribunal found applicant was not licensed and not entitled to undertake to perform building work or perform building work or receive remuneration for the performance of building work

Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), s 42(3), s 42(4), s 42B, s 67WA, s 67WB(1)(b), s 67WC(1)(a), s 67WD(1)(a), s 67WE(1)(a), s 67WE(3), s 67WE(5)(b), s 75, Schedule 1A, s 8, s 8(1), s 8(2), Schedule 1B, s 1, s 4(1)(a), s 4(1)(c), s 4(2), s 4(8), s 4(10), s 7(1)(a), s 20(1)(a), s 21, s 22, s 23, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), Sch 1, s 27

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 28, s 138, s 142(1), s 142(3)(b), s 146, s 147(1), s 147(2), s 147(3)

Bellgrove v Eldridge (1954) 90 CLR 613

Cachia v Grech [2009] NSWCA 232

Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75

Ericson v Queensland Building Services Authority [2013] QCA 391

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Harrison & Anor v Meehan [2017] QCA 315

Marshall & Anor v Marshall [1999] 1 Qd R 173

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330

Morton Engineering Co P/L v Stork Wescon Aust P/L & Santos Ltd (1999) 15 BCL 192

Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd [2000] 2 Qd R 148

Robinson v Harman (1848) 1 Ex 850

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

APPEARANCES &

REPRESENTATION:

 

Applicant:

James Lapham

Samantha Savidge

Respondent:

Fraser Chapman

REASONS FOR DECISION

What is this appeal about?

  1. [1]
    Samjam Investments Pty Ltd (‘Samjam’) undertook the construction of a cabin for Mr Chapman at Samjam’s premises. The cabin was then transported and fixed to Mr Chapman’s land and services connected to the cabin. The parties fell into dispute. Mr Chapman commenced proceedings in the Tribunal for a domestic building dispute claiming that the building work undertaken by Samjam was defective. Samjam filed a counter-application claiming $15,156.77 for ‘extras carried out on the Cabin’. The hearing was conducted on 5 February 2020. Mr Chapman attended the hearing. Samjam did not. The Tribunal ordered Samjam to pay Mr Chapman $15,865.72 and dismissed Samjam’s counter-application.
  2. [2]
    Samjam appeals the decision in respect of Mr Chapman’s claim. Samjam does not appeal the decision dismissing the counter-application.

The decision below

  1. [3]
    The learned member found as follows:
    1. (a)
      Mr Chapman and Samjam entered into a contract for the construction and delivery of a transportable, self-contained cabin;
    2. (b)
      The contract price was $170,000.00;
    3. (c)
      The contract related to the performance of building work within s 75 of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act’);
    4. (d)
      Samjam performed unlicensed building work in contravention of the QBCC Act and as a result was not entitled to payment for the building work it carried out;
    5. (e)
      While Samjam may have been entitled to claim reasonable remuneration for performing the building work the onus was upon Samjam to make such a claim;
    6. (f)
      The evidence did not support a claim by Samjam for any amount of reasonable remuneration pursuant to s 42(4) of the QBCC Act;
    7. (g)
      Mr Chapman was entitled to recover from Samjam $2,500.00 paid by Mr Chapman to Samjam whether as an overpayment of the sale price of $170,000.00 or a payment for cabin upgrades;
    8. (h)
      In the absence of a specified completion date in the contract, it was necessary to imply a term that the building work would be supplied within a reasonable period;
    9. (i)
      The cabin was supplied by Samjam to Mr Chapman within a reasonable period;
    10. (j)
      It was not a term of the contract that the cabin, as delivered by Samjam, would be fit for habitation;
    11. (k)
      Mr Chapman was not entitled to recover any amount for rent paid by him during the period the cabin was not habitable;
    12. (l)
      Mr Chapman was entitled to recover the costs associated with rectification and completion work totalling $13,027.52 comprising:
      1. Replacement of non-compliant glass - $4,950.00
      2. Rectification of painting and staining - $4,928.00
      3. Rectification of carpentry work - $1,428.52
      4. Electrical works - $1,721.00
    13. (m)
      Mr Chapman was entitled to recover the filing fees paid in respect of the originating application.

The grounds of appeal

  1. [4]
    The single ground of appeal in the application for leave to appeal, or appeal, is expressed in somewhat diffuse terms and is essentially a recitation of the circumstances surrounding Samjam’s failure to attend the original Tribunal hearing. Samjam states: ‘We simply ask for the chance we would have had.’  The ground of appeal asserts no specific error by the learned member in the decision below.
  2. [5]
    Samjam expands upon the ground of appeal in its appeal submissions, asserting the following errors by the Tribunal at first instance:
    1. (a)
      Samjam was not afforded procedural fairness as a result of not being provided with correct details about the date of the hearing;
    2. (b)
      In the absence of expert opinion in support of Mr Chapman’s claim for defective and incomplete building work the Tribunal should not have awarded damages;
    3. (c)
      The evidence otherwise did not support the award of damages for defective and incomplete work;
    4. (d)
      The Tribunal erred in attributing weight to the evidence of Leanne Justice;
    5. (e)
      The Tribunal erred in allowing Mr Chapman to recover $2,500.00 on the basis that Samjam performed unlicensed building work. Samjam says that it did not undertake building work and was therefore not required to be licensed.
  3. [6]
    The matters raised in the appeal submissions go well beyond the single ground of appeal. Samjam has not applied to amend its grounds of appeal. Having said this, a self-represented party in Tribunal proceedings cannot be expected to conduct a case with the same degree of skill as would a legal practitioner. The Tribunal must deal with matters in a way that is accessible, fair, just, economical and quick, and must act in a way that is informal and minimises costs to the parties.[1] The Tribunal must also act with as little formality or technicality and with as much speed as the requirements of the QCAT Act or an enabling Act and a proper consideration of the matters before the Tribunal permit.[2] Mr Chapman has raised no objection to Samjam’s expanded grounds of appeal and has had the opportunity to respond to Samjam’s submissions. We perceive no disadvantage to Mr Chapman in the Appeal Tribunal proceeding to consider all the matters raised in Samjam’s submissions.

Appeals – the statutory framework

  1. [7]
    An appeal to the Appeal Tribunal on a question of law is as of right.[3] An appeal on a question of fact or mixed law and fact requires the leave of the Appeal Tribunal.[4]
  2. [8]
    In deciding an appeal on a question of law, only the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.[5]
  3. [9]
    Subject to leave to an appeal being granted, if an appeal is against a decision on a question of fact only, or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[6] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision, or set aside the decision and return the matter to the Tribunal (either as originally constituted or differently constituted) for reconsideration.[7]
  4. [10]
    The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[8] is there a reasonable prospect that the applicant will obtain substantive relief?;[9] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[10] is there a question of general importance upon which further argument, and a decision of the appellate court or Tribunal, would be to the public advantage?[11]
  5. [11]
    If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the Tribunal for reconsideration.[12]
  6. [12]
    If different grounds of appeal raise questions of law and questions of fact or mixed law and fact, it is appropriate to address first those grounds involving questions of fact or mixed law and fact. If leave to appeal is granted, then the appeal must be decided by way of rehearing and all of the matters which are the subject of the grounds of appeal should be dealt with in the rehearing although the Appeal Tribunal is not required to address distinctly each question raised by an appellant.[13] It is sufficient that the reasons of the Appeal Tribunal explain how its conclusion is reached.[14]

Discussion

Ground of appeal – failure to afford procedural fairness

  1. [13]
    Samjam says that the Tribunal Registry erred in providing Samjam with an incorrect hearing date. The hearing took place on the 5th of February 2020. Samjam says that, presumably by one of its officers or another authorised person, it contacted the Tribunal Registry on the morning of the 5th of February 2020 and sought to confirm whether the hearing would be proceeding. According to Samjam, the Registry Officer advised that the hearing was listed for the following day, the 6th of February 2020. The result, says Samjam, was that it did not attend the hearing.
  2. [14]
    Procedural fairness requires that a person whose interests will be affected by a decision receive a fair and unbiased hearing. One of the basic principles of procedural fairness is the hearing rule which requires a decision-maker to inform a person of the case against them or their interests and give them an opportunity to be heard. A person should be given notice in sufficient time for the person to adequately prepare for a hearing.
  3. [15]
    On 28 November 2019, over two months prior to the hearing, the tribunal registry sent to the parties by email a ‘Notice of hearing’. The Notice stated that the matter would be heard on 5 February 2019 commencing at 9.30am. On 6 January 2020, one month before the hearing, the Tribunal made directions that Samjam advise the Tribunal and Mr Chapman by 15 January 2020 whether certain witnesses were required to attend at the hearing for cross-examination. The directions provided, in part:
  1.  Samjam Investments Pty Ltd is to advise the Tribunal and Fraser Chapman in writing:
  1. (a)
     Whether it requires the following witnesses, proposed by Fraser Chapman, to attend for cross examination at the hearing to be conducted at 9:30 am on 5 February 2020, ….. (emphasis added).
  1. [16]
    On 13 January 2020 Samjam filed a document ‘Response to tribunal for witness attendance’ in which Samjam identified the witnesses required for cross examination ‘… at the hearing to be conducted at 9.30am on 5 February 2020.’ (emphasis added)
  2. [17]
    It is clear therefore that on three separate occasions the date of hearing was referred to in the documents identified above, including in a document prepared and filed by Samjam. Against this background is the assertion by Samjam that it was advised by a registry officer that the hearing was listed to proceed on the 6th February 2020. The explanation by Samjam is, in our view, unconvincing. It seems strange that Samjam would contact the tribunal registry on the day of the hearing to confirm when the hearing was to proceed particularly when Samjam had received the notice of hearing and had itself referred to the hearing date in its response to the Tribunal directions. Samjam has not sought leave to adduce any new evidence that might support its version of events on the day of the hearing. In any event, it was open to Samjam to apply to re-open the proceedings on the basis of a reopening ground.[15] Instead, Samjam elected to pursue the present appeal.
  3. [18]
    It follows from the foregoing that we are not persuaded there is any substance in the submission by Samjam that it was given an incorrect hearing date by the tribunal registry. Samjam’s failure to attend the hearing was the result of its own failure to act to protect its interests. There was no failure by the Tribunal to afford procedural fairness. The ground of appeal is not made out.

The remaining grounds of appeal

  1. [19]
    Before considering the remaining grounds, it is necessary to say something about the background to the dispute in order to contextualise the matters raised in the appeal.
  2. [20]
    The parties entered into a contract on 28 February 2018 for the purchase by Mr Chapman of a cabin to be constructed of steel and wood, 12 metres long and 4.5 metres wide, with a verandah 2.4 metres wide running along the length of the cabin. The cabin was to be constructed at Samjam’s premises and then transported to Mr Chapman’s property where it was to be affixed to the land. While the contract was in writing, it is not immediately apparent that it was signed by the parties. However, neither party raises this as an issue in the appeal nor was it contentious below and we therefore do not propose to deal with this aspect of the matter any further.
  3. [21]
    The contract specified certain standard inclusions and non-standard inclusions. The total contract price was $170,000.00 which included delivery and installation to site. The contract provided for four progress payments, each in the amount of $42,500.00, at the following stages: (1) deposit; (2) frame (described in the contract as ‘base and frame complete ready for roof and external cladding’); (3) lock up (described in the contract as ‘roof sheeting, windows and external cladding installed’); (4) completion (described in the contract as ‘ready for transport’). It appears from the contract that the final stage payment was required before the cabin was transported and fixed to the land. It may be observed that the provision for staged payments is not unlike similar provisions found in standard domestic building contracts.
  4. [22]
    The cabin was built at Samjam’s premises and upon completion it was transported and fixed to Mr Chapman’s land where various services were connected to the cabin. Further building work was also carried out after the cabin was fixed to the land including the construction of a verandah.
  5. [23]
    Mr Chapman paid a total of $172,500.00 to Samjam. In dispute below was the state the works had reached at the time the cabin was transported and fixed to Mr Chapman’s land. Mr Chapman said that he was not able to inspect the cabin before it was delivered and that when he did undertake an inspection, he discovered that the building works were incomplete and defective. Samjam said that the incomplete state of the works was the result of special orders and deliveries relating to variation works agreed to by Mr Chapman not arriving prior to the delivery of the cabin.
  6. [24]
    It was not contentious that during the construction of the cabin the parties agreed to vary the scope of works by deleting some items of work and including others.
  7. [25]
    In the originating application Mr Chapman claimed the following amounts as damages for Samjam’s breach of contract:
    1. (a)
      $2,500.00 being an overpayment by Mr Chapman of the contract price;
    2. (b)
      $9,600.00 being rent paid by Mr Chapman during the period he could not live in the cabin;
    3. (c)
      $13,027.52 being the costs of rectifying defective and incomplete building work;
    4. (d)
      Costs totalling $974.05.
  8. [26]
    Mr Chapman also sought an order that Samjam supply an engineer’s structural report which was identified in the contract as a non-standard inclusion.
  9. [27]
    In the proceedings below Samjam filed a statement by Mr James Lapham[16], a director of Samjam, in which he stated that Samjam was ‘a light manufacturer who builds self-contained cabins.’ Mr Lapham further stated: ‘I had sub-contracted to Ray Blakey (“Ray”), a licensed builder, for the transportation and installation of the cabin.’ Mr Lapham said Mr Chapman had requested ‘various variations to the cabin, which we had agreed to do ….’. 
  10. [28]
    Mr Lapham’s statement of evidence referred to ‘the builder’. Mr Lapham does not identify who ‘the builder’ was. Presumably it was someone different to Mr Blakey who is referred to in Mr Lapham’s evidence as ‘Ray’.  It should be noted that no statement by Mr Blakey was filed by Samjam.
  11. [29]
    Samjam filed a statement by Mr Edan Adams who said that he contracted to undertake the construction of the cabin. It is unclear whether Mr Adams was ‘the builder’ referred to by Mr Lapham in his evidence although it seems apparent from the evidence of Mr Adams that he was. Mr Adams states that he was a contractor undertaking the construction of cabins for Mr Lapham. He says that he provided a quote for the construction of Mr Chapman’s cabin which Mr Lapham accepted. The quote referred to by Mr Adams was not in evidence. It is clear however that Mr Adams had no contractual relationship with Mr Chapman. It should also be noted that there was no evidence before the Tribunal below that Mr Adams held a building licence issued by the QBCC.
  12. [30]
    The evidence of Mr Adams was that most of the work associated with the construction of the cabin was completed before delivery ‘except for the benchtops as they had not arrived.’ This is somewhat at odds with other parts of the evidence of Mr Adams relating to the construction of a verandah on the cabin. Mr Adams stated:

We were due to complete our contract at Ninderry on site where we were to build and fit a full 12 metre verandah with a full roof, posts and guttering. This was to be our final payment on the cabin once done and we were told we could not begin work as the client had been issued a letter from Sunshine Coast Council to stop work and clear the site.

… we were told by Ray Blakey that we could return to the site. Within approximately one week we had finished the verandah, roof over the verandah, insisted the client make a decision on the kitchen bench and John installed the pivot shower screen. The client did decide they wanted a hardwood bench and as this would be unscheduled work, I contacted James. James agreed to my variation in costs and I invoiced Gypsy Cabins for the difference.[17]

  1. [31]
    It appears from the evidence of Mr Adams that not insubstantial building work was to be undertaken in respect of the cabin after it had been delivered to Mr Chapman’s land.
  2. [32]
    It is against this factual background that we turn to the remaining grounds of appeal.  

Ground of appeal – Samjam was not required to be licensed

  1. [33]
    The issue of whether Samjam had performed unlicensed building work first arose in the proceedings below in Mr Chapman’s response to Samjam’s statements of evidence.  Mr Chapman referred to advice he had received from the QBCC that infringement notices had been issued to Samjam that it had, inter alia, unlawfully carried out building work in breach of s 42(1) of the QBCC Act. The infringement notices issued by the QBCC were not in evidence. In his further statements of evidence, Mr Chapman said that any past and future building works performed by Samjam were illegal. Beyond this, Mr Chapman did not assert any direct consequence or seek any specific orders as a result of Samjam’s building licence status.  There was no evidence below about the particulars of the alleged unlicensed building work, whether Samjam contested the infringement notices issued by the QBCC, or any consequences for Samjam arising out of the notices.
  2. [34]
    The learned member found that Samjam had undertaken unlicensed building work and that Mr Chapman was entitled to recover the amount of $2,500.00 being the amount Mr Chapman claimed he had overpaid to Samjam. This was ostensibly on the basis that Samjam was not entitled to any remuneration for carrying out the building work.
  3. [35]
    In its appeal submissions Samjam says:

As for the $2,500.00 Mr Chapman says he overpaid we would strongly argue the monies were fully due with all the additional extras we supplied in a 12 metre bespoke timber cabin with full 12 metre verandah for $172,500.00.

…

We are not licensed or registered builders and do not need to be as we build unique, portable buildings that are constructed off site and transported to properties as products… When there is on site work to do we cannot and do not do it ourselves. We engage licensed contractors as we have for 10+ years.

  1. [36]
    The obvious comment to make in respect of this submission is that the evidence makes clear the cabin was not wholly constructed off site. Substantial building works were required to be undertaken on the cabin after it had been transported to Mr Chapman’s land.
  2. [37]
    The essence of Samjam’s submission is that the Tribunal erred in awarding the amount of $2,500.00 to Mr Chapman. Before considering further Samjam’s assertion that it did not undertake building work and was therefore not required to be licensed it is necessary to examine the relevant provisions of the QBCC Act.
  3. [38]
    Unless exempt under Schedule 1A of the QBCC Act, a person must not carry out, or undertake to carry out building work unless the person holds a contractor’s licence of the appropriate class.[18] By s 42(3) of the QBCC Act, a person who carries out unlicensed building work is not entitled to any monetary or other consideration for doing so.[19] This prohibition is subject to the operation of s 42(4) which permits a person to claim reasonable remuneration for carrying out unlicensed building work.
  4. [39]
    The effect of s 42(1) and s 42(3) of the QBCC Act is to prohibit an unlicensed person from:
    1. (a)
      undertaking (in other words, agreeing) to carry out building work;
    2. (b)
      carrying out building work;
    3. (c)
      receiving any monetary or other consideration for carrying out building work.
  5. [40]
    The definition of ‘building work’ is found in schedule 2 of the QBCC Act and includes the erection or construction of a ‘building’ and any related site work. ‘Building work’ does not include work of a kind excluded by the Queensland Building and Construction Commission Regulation 2018 (Qld). Work that is not building work is found in Schedule 1 of the regulation. None of the excluded work contained in the regulation is relevant for present purposes.
  6. [41]
    ‘Building’ is defined in schedule 2 of the QBCC Act as, inter alia, ‘generally, includes any fixed structure.’[20] The definition in schedule 2 provides examples of a fixed structure which include a fence other than a temporary fence, a water tank connected to the storm water system of a building, and an in-ground swimming pool or an above ground swimming pool fixed to the ground. No part of the definitions of ‘building work’ and ‘building’ specifically describes the construction of a structure such as in the present case, that is, a cabin partially built at one location, transported to another location, and there affixed to the land where further building work is carried out including the connection of services to the structure.
  7. [42]
    In determining whether Samjam contracted to perform and/or performed unlicensed building work it is necessary to resolve the question of whether the cabin was a ‘building’.
  8. [43]
    Morton Engineering Co P/L v Stork Wescon Aust P/L & Santos Ltd[21] involved a dispute between a contractor and sub-contractor regarding the sub-contractor’s entitlement to payment for construction work. The sub-contractor manufactured, delivered to site, and erected a steel structure supporting a gas pipeline. The contractor argued that the work undertaken by the sub-contractor was ‘building work’, that the sub-contractor was unlicensed and that the sub-contractor was therefore not entitled to be paid for the work. The sub-contractor argued, inter alia, that the work was not building work and that, if it was, the work was excluded from the ambit of the definition of ‘building work’ by the (then) Building Services Authority Regulation.[22] The relevant exclusion related to ‘the installation of manufacturing equipment or equipment for … conveying … materials or products …’ (the installation exclusion). The sub-contractor also argued that the structure was not a ‘fixed structure’ as it was merely attached by bolts and therefore demountable.
  9. [44]
    Derrington J considered that ‘building work’ should be given a liberal meaning since it was unlikely to have been intended that an unlicensed builder would be permitted to build a large structure for which a licence would usually be required simply because the structure was demountable. Ultimately, Derrington J found that the work undertaken by the sub-contractor fell within the installation exclusion however, His Honour went on to consider a number of other arguments raised by the parties.  The sub-contractor argued that even if it had performed ‘building work’ this would not extend to the offsite fabrication of the structure and its transport to the site. The sub-contractor sought to distinguish its activities as a manufacturer of building materials from its activities as a builder. Derrington J rejected that submission:

That the respondent is a manufacturer which can also engage in building contracts as a builder within the meaning of the BSA Act should be plain and is part of this hypothesis. That it may manufacture products for general sale to others so that it is not involved in the building work in which those other parties may be engaged is also true. However, if it enters into a contract to erect a building and pre-fabricates the material expressly designed and measured for the building work which it is performing, then there is no reason why that manufacturing work should not also be classified as part of that building work. It is immaterial whether for convenience that work is done at its factory rather than at the site of erection of the structure. For example a house builder who cuts out and fabricates roof trusses on the site or at his own builder's yard for a house which he is building at the time is no less engaged in building work while doing it by reason of his engaging in a sideline of building trusses of standard size for others; or in the alternative by reason of his ability to have the special trusses manufactured for him by another party. This proposition of the respondent is not supportable.

  1. [45]
    The contractor appealed.  The Court of Appeal in Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd[23] dismissed the contractor’s appeal. The principal focus of the Court was upon whether the work fell within the installation exclusion however the Court also considered the relevance of the offsite fabrication of the structure. The Court stated:

The learned primary judge gave the word "installation" a meaning wide enough to encompass all the necessary work to produce the installation; his Honour held that the work the respondent did "in manufacturing and installing the structure that supported [the pipeline] in its elevated position was an essential part of the installation of that equipment". Adopting the broad meaning of the word "installation" which is available, we agree. And even if "installation" refers only to the on-site work, still the appellant's contention fails; the exemption of the on-site work, required by the Regulation, leaves only the off-site work to be considered and that is not the "erection or construction" of any "fixed structure", to use the words of the Act.[24] (emphasis added)

  1. [46]
    The Court of Appeal did not expressly refer to that part of Derrington J’s judgment to which we have referred relating to the hypothetical builder constructing roofing trusses and whether such work would fall within the definition of ‘building work’. 
  2. [47]
    In Monadelphous Engineering Pty Ltd & Anor v Wiggins Island Coal Export Terminal Pty Ltd [25] the Court of Appeal considered the meaning of the expressions ‘building work’ and ‘fixed structure’. The Court stated:

Consistently with the ordinary meaning of “fixed structure” and with what one would expect in an Act regulating the building industry, the examples suggest that the product of construction work is not within paragraph (a) of the definition of “building work” if it is not fixed to the soil in such a way as to require it to be treated as part of the land rather than as a chattel. The requisite degree of fixation must depend upon the circumstances revealed by the evidence, but the expression “fixed structure” in this context may not comprehend works to facilitate and to endure only during the construction of a building, which are designed and constructed in such a way as to be readily removed upon completion of the building, and which a building contract requires the contractor to remove upon completion of the building.[26]

  1. [48]
    In Monadelphousthe focus was upon whether the works were maritime structures of a temporary nature.
  2. [49]
    Both Morton Engineering and Monadelphous Engineering involved large scale commercial building works. In each of these cases, central to the issues in dispute was whether the relevant building work was of a kind excluded by regulation from the ambit of the definition of ‘building work’ in schedule 2 of the QBCC Act. In the present case none of the exclusions contained in schedule 2 are applicable.  The decisions are nevertheless instructive and of relevance for present purposes.
  3. [50]
    It is necessary to consider the passage we have highlighted from Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd, in the context of the particular facts of the case. The Court of Appeal did not accept the proposition that ‘installation’ should be given a narrow meaning thereby effectively separating out some of the work as ‘building work’ (that is, the prefabrication of the structures) and some of the work as ‘installation’ work (that is the installation of the pre-fabricated structures at the site) and even if such a narrow meaning was adopted, the prefabrication work did not involve the erection or construction of a fixed structure.
  4. [51]
    In the present case, the notion of ‘installation’ is not relevant nor was the cabin wholly prefabricated off site. To the contrary, a substantial amount of building work was required to be undertaken after the cabin was fixed to the land. And as the court clearly articulated in Monadelphous, whether a structure is ‘fixed’ depends upon the circumstances revealed by the evidence. Certainly, in the present case there was no evidence to suggest that the cabin was designed and constructed in such a way as to be readily removed.
  5. [52]
    In our view, the approach of Derrington J, which was neither criticised nor overruled on appeal, is to be preferred. In the present case, the construction of the cabin clearly contemplated that some building work would be undertaken at Samjam’s premises and some of the building work would be undertaken once the cabin was fixed to Mr Chapman’s land. It was also clearly contemplated that the building work to be undertaken once the cabin was fixed to Mr Chapman’s land was not simply confined to what might be described as ‘installation’ work. The evidence is that a number of significant steps were taken before and after the cabin was transported to Mr Chapman’s land. First, site work was undertaken including the preparation of footings and installation of steel posts to which the cabin was to be affixed. Second, the partially completed cabin was fixed to the land after being transported to the site. Third, a substantial verandah, attached to the cabin, was constructed. Fourth, services in the form of electricity and water were connected to the cabin which included the installation of a 22,000 litre rainwater tank and two holding tanks for grey and black water. These latter steps all fall within the definition of ‘building work’: the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connected with a building.[27] The preparatory work on site prior to the installation of the footings would fall within the meaning of site work: any site work (including the construction of retaining structures) related to the erection or construction of a building.[28] The fixing of the cabin to the land, the construction of the verandah, and the various items of internal building work referred to earlier in these reasons was all ‘building  work’ within the meaning of that term in schedule 2 of the QBCC Act. 
  6. [53]
    In our view, it is necessary to consider the totality of the building works undertaken by Samjam in determining whether there is any distinction to be drawn between the work conducted off site and the work conducted on site. While the contract required some building work to be undertaken off site, the building work also included site work, the fixing of the cabin to Mr Chapman’s land, and further substantial building work after the cabin was fixed to the site. Each of these aspects of the work should be viewed as part of the entirety of the building works Samjam was required to undertake. The contracted work was therefore ‘building work’ for the purposes of the definition of that term in schedule 2 of the QBCC Act.
  7. [54]
    Having concluded that the relevant work was ‘building work’ it is necessary to consider schedule 1A of the QBCC Act. 
  8. [55]
    Schedule 1A sets out who is exempted from the requirement to hold a building contractor’s licence. Of relevance for present purposes is s 8 of Schedule 1A which provides as follows:

8 Head contracts to carry out building work

  1. (1)
    An unlicensed person who enters into a contract to carry out building work does not contravene section 42(1) merely because the person entered into the contract if the building work—

 (a) is not residential construction work or domestic building work; and

 (b) is to be carried out by a person (an appropriately licensed contractor) who is licensed to carry out building work of the relevant class.

  1. (2)
    Also, the unlicensed person does not contravene section 42(1) merely because the person—

 (a) directly or indirectly causes the building work to be carried out by an appropriately licensed contractor; or

 (b) enters into another contract, with an appropriately licensed contractor, to carry out the work.

  1. (3)
    However, subsection (1) ceases to apply to the unlicensed person if the person causes or allows any of the building work to be carried out by a person who is not licensed to carry out building work of the relevant class.
  1. [56]
    Whether s 8(1) applies in the present case turns on whether the building works were ‘residential construction work’ or ‘domestic building work’. If the building work was either, s 8(1) does not apply.
  2. [57]
    ‘Domestic building work’ is defined in schedule 1B of the QBCC Act as including the erection or construction of a detached dwelling and removal or resiting work for a detached dwelling.[29] A ‘detached dwelling’ means a single detached dwelling or a duplex.[30] ‘Dwelling’ is not defined in the QBCC Act or Regulation. The term should therefore be given its ordinary meaning: a house, flat etc where a person lives.[31] Removal and resiting work is domestic building work only if the dwelling is intended to be used as a residence.[32] ‘Residence’ is not defined however the word should be given its ordinary meaning: a building for people to live in.[33] ‘Domestic building work’ does not include excluded building work.[34] ‘Excluded building work’ is defined and includes transporting a building or kit home.[35]
  3. [58]
    ‘Removal work’ and ‘resiting work’ have particular meanings. ‘Removal work’ means work relating to the dwelling carried out at the place at which the dwelling is located for relocating the dwelling to another place. ‘Resiting work’ means work relating to the dwelling carried out at a place for resiting the dwelling at the place following its removal from another place.[36]
  4. [59]
    Section 8(1) of schedule 1A of the QBCC Act provides that an unlicensed person does not breach s 42(1) if they merely enter into a contract (other than for residential construction work or domestic building work) if the work is to be carried out by a licensed contractor. Section 8(1) is therefore directed at the entering into of building contracts by an unlicensed person.
  5. [60]
    It seems clear that the cabin was a ‘detached dwelling’. It also seems clear that the placement of the cabin on Mr Chapman’s land was ‘resiting work’. As we have noted, substantial building work was undertaken after the cabin was fixed to Mr Chapman’s land. This work, which included the construction of the verandah and stairs and the connection of services, could be said to involve the erection or construction of a detached dwelling. The connection of services to the cabin was site work and therefore, domestic building work. The installation of the rainwater tank and holding tanks was ‘associated work’ and therefore, domestic building work. Finally, and for the reasons set out by Derrington J in Morton Engineering Co P/L[37], the construction of part of the cabin off site was also domestic building work being part of the entirety of the works Samjam contracted to undertake. It follows from the foregoing that the contracted work was ‘domestic building work’ and that s 8(1) of schedule 1A of the QBCC Act does not apply. In light of this conclusion it is unnecessary for us to consider whether the work undertaken by Samjam was residential construction work.
  6. [61]
    Section 8(2) of schedule 1A is directed at the performance of building work. An unlicensed person does not contravene s 42(1) if the person causes (either directly or indirectly) building work to be carried out by a licensed contractor or the person enters into a contract with a licensed contractor to carry out the work.
  7. [62]
    There was no evidence before the Tribunal below that either of the individuals Samjam says undertook the building work, Ray Blakey or Edan Adams, was the holder of a building license when the works were undertaken. Accordingly, s 8(2) of schedule 1A has no application.
  8. [63]
    The learned member found:

Because Samjam agreed to perform building work, it was required to be a licensed builder or have a nominee who is a licensed builder, and that’s pursuant to section 42, subsection (1), and 42B, subsection (1) of the QBCC Act.[38]

  1. [64]
    The learned member referred to s 42B of the QBCC Act. This section applies where a company holds a building licence but does not have a nominee who is the holder of a contractor’s licence or nominee’s licence. The section is not relevant in the present case however nothing turns on this.
  2. [65]
    It follows from the foregoing analysis that there was no error by the learned member in finding that Samjam entered into a contract for the performance of building work, and undertook building work, when it was not licensed to do so.
  3. [66]
    The consequences of a person contravening s 42(1) of the QBCC Act are significant and were explained by Keane JA (as His Honour then was) in the following terms:

Section 42(1) renders illegal the making and performance of a contract for building work by an unlicensed builder. It is the conduct of the builder which is struck at. The provision is plainly intended to operate for the benefit of the other party to the building contract.

It is clear from the terms of s 42(3) and s 42(4) that neither provision purports to create a right of action to recover money in any person. Rather, each subsection is concerned to regulate a cause of action for payment which is assumed to have arisen, either under contract or under the principles of the common law which permit claims for payment for work done at the request of another. These common law claims have been variously described as claims for quantum meruit or in quasi-contract or to prevent unjust enrichment.

Section 42(3) is, in terms, concerned to sterilise any claim which might otherwise be made under a contract or under the common law by an unregistered builder. Section 42(4) is concerned to impose limitations upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without s 42(4), the entitlement of an unregistered builder to payment which would, apart from the Act, arise upon the performance of work by the builder, would be defeated by s 42(1) and s 42(3).[39]

  1. [67]
    In Marshall & Anor v Marshall[40] McPherson JA had the following to say about the entitlement of an unlicensed person retaining monies received for undertaking building work:

In my opinion, the effect of s. 42(3) is to prevent an unlicensed builder, in proceedings of any kind, from recovering the price or any part if it payable under a contract for building work carried out in contravention of the section. Taken by itself, that might perhaps not prevent a builder from receiving money voluntarily paid by the other party. The terms of s. 42(3) are, however, very wide. A person who carries out work in contravention of s. 42 is “not entitled” to any “monetary consideration” for doing so. According to the ordinary meaning of those words, a person receives a “monetary consideration” for carrying out work if he is paid for doing it. The sum of $51,000 paid by the plaintiff to the defendant satisfies that description. Counsel were unable to refer the Court to authority bearing in any relevant way on the meaning of “entitled” in a context like this. But s. 42(3) expressly declares it to be money to which the recipient is “not entitled”, which can only mean that it is money to which he has in law no right or title. If that is so, there is no identifiable basis on which he can, as against the person who paid it, claim to keep or retain it or its equivalent.[41] (emphasis added)

  1. [68]
    It was not in dispute below that Mr Chapman paid to Samjam a total of $172,500.00. The learned member found that Mr Chapman was entitled to recover $2,500.00 of this sum. Mr Chapman confined this part of his claim to the amount of $2,500.00. There is no cross appeal by Mr Chapman. There was no error by the learned member in finding that Samjam was required to repay to Mr Chapman the amount of $2,500.00 as a consequence of Samjam’s breach of s 42(1) of the QBCC Act. This ground of appeal is not made out.

Ground of appeal – the evidence did not support the award of damages for defective or incomplete building work

  1. [69]
    Before addressing this ground of appeal, it is necessary to say something about the basis upon which the learned member approached the assessment of damages.
  2. [70]
    The learned member found that there was an enforceable contract between the parties. The learned member found that Samjam had not performed the works it was contractually required to undertake with due care and skill, had failed to ensure the work was completed to a proper standard, or at all, and had supplied and used materials not in accordance with the specifications or otherwise fit for purpose.[42]
  3. [71]
    The learned member found that when the cabin was delivered it was required to be supplied in accordance with the specifications, be fit for purpose, the works performed with due care and skill, and to a proper standard.[43] The learned member made a number of findings about defective building work:
    1. (a)
      The glass installed in the cabin did not comply with the relevant Australian Standard and the cost of replacement of the glass was $4,950.00;
    2. (b)
      The painting and staining work was incomplete or defective and the cost of completion and rectification was $4,928.00;
    3. (c)
      Carpentry work was incomplete and defective, and the cost of completion and rectification was $1,428.52;
    4. (d)
      Electrical work was incomplete and defective and, the cost of completion and rectification was $1,721.00.
  4. [72]
    The learned member found that the contract required the materials supplied to be in accordance with their specifications, be fit for purpose, and the work undertaken by Samjam be performed with due care and attention and to a proper standard.[44] The contract did not contain such conditions. It is implicit in the reasons that the learned member found that such conditions were to be implied. Although the learned member made no specific finding that the building work undertaken by Samjam was domestic building work, it is clear for the reasons above, that it was. It follows that the contract between the parties was a level 2 regulated building contract being a contract for the performance of domestic building work where the contract price was $20,000 or more.[45] The warranties found in Division 2 of schedule 1B of the QBCC Act are implied into every regulated building contract. These warranties include that all materials supplied will be good and suitable for the purpose for which they are used;[46] the building works will be carried out in accordance with all relevant laws and legal requirements;[47] that the building work will be carried out in an appropriate and skilful way and with reasonable care and skill;[48] and that building work will be carried out in accordance with plans and specifications forming part of a contract.[49] Although the reasons might have been expressed with greater clarity, the learned member’s findings are consistent with his having found that the contract was a regulated contract and therefore subject to the implied statutory warranties.
  5. [73]
    The learned member accepted the evidence of Mr Chapman’s witnesses in respect of the claim for defective and incomplete works. The learned member found that the costs claimed by Mr Chapman for rectification and completion works were attributable to Samjam:
    1. (a)
      Failing to ensure that the work was performed with due care and skill;
    2. (b)
      Failing to ensure that the work was completed to a proper standard, or at all;
    3. (c)
      Supplying and using materials not in accordance with the specifications or otherwise fit for their purpose.[50]
  6. [74]
    The learned member assessed Mr Chapman’s entitlement to damages in respect of these items in the amount of $13,027.52.
  7. [75]
    The jurisdiction of the tribunal to hear and decide building disputes is conferred by the QBCC Act.  A ‘domestic building dispute’ means 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.[51]
  8. [76]
    It cannot be contentious that Mr Chapman was a building owner[52] or that Samjam was a ‘building contractor’.[53] We have found that the building work undertaken by Samjam was domestic building work. Accordingly, the dispute between the parties was a domestic building dispute. The Tribunal below approached the determination of the matter on this basis and was correct to do so.
  9. [77]
    The relevant principles relating to the recovery of damages by a building owner when the building contractor is in breach are well established. The building owner is entitled to be placed in the same position they would have been in had the building works been undertaken in conformity with the terms of the contract between the parties.[54] This is subject to the cost of rectification and/or completion works being both necessary and reasonable.[55]
  10. [78]
    Samjam says:
    1. (a)
      In the absence of expert opinion in support of Mr Chapman’s claim for defective and incomplete building work the Tribunal should not have awarded damages;
    2. (b)
      The evidence otherwise did not support the award of damages for defective and incomplete work;
    3. (c)
      The Tribunal erred in attributing weight to the evidence of Leanne Justice;
  11. [79]
    Much of what Samjam says in its appeal submissions is an attempt to adduce fresh evidence. In the absence of an application by Samjam to adduce fresh evidence, we do not take into consideration the submissions to the extent that they seek to address matters which should have been the subject of evidence in the proceedings below.  
  12. [80]
    Samjam refers to the absence of expert evidence adduced by Mr Chapman to support his claim for rectification and completion work. The term ‘expert evidence’ is one often misunderstood, in Tribunal proceedings. It is correct to observe that the evidence relied upon by Mr Chapman in support of his various claims was not expert evidence in accordance with QCAT Practice Direction 4 of 2009. Ultimately however, the issue is one of the relevance of evidence and the weight to be given to evidence. As we shall now explain, the evidence relied upon by Mr Chapman was directly relevant to the issues in dispute and there was no error by the learned member in relying upon such evidence.

Non-compliant glass

  1. [81]
    The learned member found that Samjam was contractually obliged to comply with ‘all current building standards’ in undertaking the building works. This finding is not contested by Samjam.
  2. [82]
    Before the Tribunal was a statement by Brett Goatham. Mr Goatham was the holder of a glazing licence issued by the QBCC. Mr Goatham had provided a quote to Mr Chapman to supply and install glass panels. The quote refers to 40 panels with dimensions of 340mm high and 440mm width, and the application of safety film to 8 of the glass panels. The amount of the quote was $4,950.00. The evidence of Mr Goatham was that the glass panels installed in the cabin did not meet the relevant Australian Standard AS1288:2006. Mr Goatham’s evidence was unchallenged apart from the broad assertion in Mr Lapham’s statement of evidence denying that Samjam had breached the contract.
  3. [83]
    The evidence of Mr Goatham was directly relevant to the issue of whether the glass panels as installed were defective. Samjam does not submit that there was error by the learned member in accepting that the contract required the window panels to comply with the relevant Australian Standard. The learned member was entitled to accept the evidence of Mr Goatham. Samjam could have attended the hearing and cross-examined Mr Goatham. It cannot now complain that the Tribunal accepted Mr Goatham’s uncontested evidence. There was no error by the learned member.

Incomplete and defective painting

  1. [84]
    Before the Tribunal was a statement of evidence by Mr Scott Murchie. Mr Murchie was the holder of a Painting and Decorating Licence issued by the QBCC. 
  2. [85]
    Mr Murchie’s evidence was that he inspected the cabin and provided a quote to Mr Chapman for the painting works necessary to bring the ‘items up to a professional standard’. Mr Murchie stated that the painting work undertaken by Samjam was of an unprofessional nature ‘and probably performed by unqualified persons.’ The quote prepared by Mr Murchie was also before the Tribunal. The quote set out a detailed scope of works, the total cost of which was $4,928.00.
  3. [86]
    The uncontested evidence of Mr Murchie was directly relevant to the issue of whether the painting work to the exterior and interior of the cabin was defective. The learned member was entitled to accept the evidence of Mr Murchie. There was no error by the learned member.

Incomplete and defective carpentry

  1. [87]
    Before the Tribunal was a statement by Michael Williams. Mr Williams was the principal of Jim’s Handyman (Buderim). Mr Williams’s evidence was that he inspected the cabin after it had been erected on Mr Chapman’s land. Mr Williams identified a number of items of defective work:
    1. (a)
      Tradesman rubbish from the build which was required to be removed;
    2. (b)
      Only one chimney stay was attached to the roof of the cabin leaving the chimney unstable with the consequent risk of damage to the roof;
    3. (c)
      The contract required three coats of polyurethane stain to be applied to the floors of the cabin. The laundry and bedroom had only one coat of stain applied and the kitchen and living area had one to two coats of stain applied which was of a patchy nature and unprofessionally undertaken;
    4. (d)
      The laundry door handle was not in working order and required replacement;
    5. (e)
      Of the front entrance doors only two doors would slide with the other two doors being fixed. Barn door assemblies were required to slide all four doors;
    6. (f)
      Sash windows did not stay up. The window spirals and feet were extremely old and non-functional and required replacement.
  2. [88]
    The evidence of Mr Williams was that the identified items of work were incomplete and of an unprofessional nature, probably performed by unqualified persons.
  3. [89]
    The ‘standard inclusions’ in the contract between Mr Chapman and Samjam included ‘3 coat of polyurethane stain to floor.’ The plans for the cabin identify two sets of sliding doors, one in the dining area and one in the bedroom area. These appear to be the doors to which Mr Williams was referring.
  4. [90]
    Before the Tribunal was a quote from Jim’s Handyman (Buderim) identifying the total cost of remediating the items of work referred to by Mr Williams in his statement of evidence. The total amount of the quote was $1,428.52.
  5. [91]
    The uncontested evidence of Mr Williams was directly relevant to the issue of whether the items of work identified in Mr Williams’s statement of evidence were defective and required rectification. The learned member was entitled to accept the evidence of Mr Williams. There was no error by the learned member.

 Incomplete and defective electrical work

  1. [92]
    Mr Chapman gave evidence below that the cabin was delivered to his land on 10 May 2018.  Mr Chapman’s evidence was the electrical works were not completed until November 2018. The evidence of Mr Lapham was that ‘(T)he cabins were never intended to be delivered absolutely complete and liveable condition, as it was to be installed, connected to electricity, gas and/or water, which is done by the builder.’
  2. [93]
    The standard inclusions in the contract included ‘Electrical: Standard light and power points’.  The contract required Samjam to deliver and install the cabin. 
  3. [94]
    Before the Tribunal was a statement of evidence by Mr Brett Neale. Mr Neale was a licensed electrical contractor.  Mr Neale’s evidence was that he completed incomplete electrical works ‘after an unreasonable amount of time from the contract start date and after an unreasonably high number of requests by both myself and Mr Chapman to Mr Lapham to complete these works.’
  4. [95]
    Mr Chapman’s evidence was that the amounts paid to Mr Neale to complete the electrical works related to four invoices totalling $1,721.00. The works undertaken by Mr Neale identified in the invoices included: supplying light fittings with cover plates and replacing fittings not supplied; installation of a new cable for an air conditioner as the previously installed cable was faulty; installation of power outlets in the kitchen; supply and installation of a smoke alarm; fit off the cabin.
  5. [96]
    Samjam adduced no evidence in the proceedings below that the electrical works undertaken by Mr Neale were other than reasonable and necessary. Samjam does not assert that it was not contractually obliged to complete the electrical works to enable the mains electricity to be connected to the cabin once it was fixed to the site. Samjam says that part of the amount awarded to Mr Chapman for electrical works includes an amount Samjam had previously paid to Mr Neale. There was no evidence of this in the proceedings below and Samjam cannot now seek to adduce further evidence to substantiate this assertion in the absence of leave being granted. No such leave has been given. Samjam also says that the electrical works required to be undertaken in respect of the air conditioner did not form part of the contractual scope of works. Even if this be so, and there was error by the learned member, the amount awarded of $209.00 would not warrant granting leave to appeal.
  6. [97]
    The learned member was entitled to accept the evidence of Mr Neale which was directly relevant to the issue of whether the electrical works had been completed as required by the contract. There was no error by the learned member.

Ground of appeal – the evidence of Leanne Justice

  1. [98]
    Leanne Justice was employed by Samjam as Sales Representative and Customer Liaison Officer. At the time of the hearing below, Ms Justice had ceased such employment.  Before the Tribunal was a statement of evidence by Ms Justice.
  2. [99]
    The submission by Samjam is, essentially, that Ms Justice’s evidence was unreliable.
  3. [100]
    The learned member made no reference to the evidence of Ms Justice in the reasons for decision. There is nothing in the reasons to suggest that the learned member relied upon the evidence of Ms Justice in making any relevant findings.
  4. [101]
    This ground of appeal is not made out.

Conclusion

  1. [102]
    Samjam has not substantiated any of the appeal grounds. Insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed.

Footnotes

[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 3(b), s 4(c),

[2]QCAT Act, s 28(3).

[3]QCAT Act, s 142(1).

[4]Ibid, s 142(3)(b).

[5]Ibid, s 146.

[6]Ibid, s 147(1), (2).

[7]Ibid, s 147(3).

[8]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 (‘QUYD v Marvass’)

[9]Cachia v Grech [2009] NSWCA 232, [13].

[10]QUYD v Marvass.

[11]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[12] Ericson v Queensland Building Services Authority [2013] QCA 391.

[13]Harrison & Anor v Meehan [2017] QCA 315.

[14]Ibid, per McMurdo JA at [50].

[15]QCAT Act, s 138.

[16]Statement of James Lapham dated 26 November 2019.

[17]Statement of Edan Adams dated 26 November 2019.

[18]QBCC Act, s 42(1).

[19]Ibid, s 42(3).

[20]QBCC Act, Schedule 2.

[21](1999) 15 BCL 192.

[22]The exemption is now found, subject to minor amendment, in schedule 1, s 27 of the QBCC Regulation.

[23][2000] 2 Qd R 148 (‘Morton Engineering’).

[24]Ibid, at [11].

[25][2014] QCA 330 (‘Monadelphous’).

[26]Ibid, per Fraser J at [30].

[27]QBCC Act, schedule 2, sub paragraph (c).

[28]Ibid, schedule 2, sub-paragraph (e).

[29]Ibid, schedule 1B, s 4(1)(a), s 4(1)(c).

[30]Ibid, schedule 1B, s 1.

[31]Oxford Dictionary (online).

[32]QBCC Act, schedule 1B, s 4(2).

[33]Oxford Dictionary, (online).

[34]QBCC Act, schedule 1B, s 4(8).

[35]Ibid, schedule 1B, s 1.

[36]Ibid, schedule 1B s 4(10).

[37](n 23).

[38]T1-9, lines 38-41.

[39]Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly t/as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75.

[40][1999] 1 Qd R 173.

[41]Ibid, at 176.

[42]T1-12, lines 41-44.

[43]T1-11, T1-12

[44]T1-11, line 46 to T1-12, line 2.

[45]QBCC Act, schedule 1B, s 7(1)(a).

[46]Ibid, schedule 1B, s 20(1)(a).

[47]Ibid, schedule 1B, s 21.

[48]Ibid, schedule 1B, s 22.

[49]Ibid, schedule 1B, s 23.

[50]T1-12, lines 40-44.

[51]QBCC Act, schedule 2, sub-paragraph (a).

[52]Ibid, schedule 1B, s 1.

[53]Ibid, schedule 1B.

[54]Robinson v Harman (1848) 1 Ex 850.

[55]Bellgrove v Eldridge (1954) 90 CLR 613.

Close

Editorial Notes

  • Published Case Name:

    Samjam Investments Pty Ltd v Chapman

  • Shortened Case Name:

    Samjam Investments Pty Ltd v Chapman

  • MNC:

    [2022] QCATA 86

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Senior Member Traves

  • Date:

    22 Jun 2022

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) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75
2 citations
Jump To
Cite 1 - [2009] QCA 75
Cite 2 - [2009] QCA 75
Ericson v Queensland Building Services Authority [2013] QCA 391
2 citations
Jump To
Cite 1 - [2013] QCA 391
Cite 2 - [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Harrison v Meehan [2017] QCA 315
3 citations
Jump To
Cite 1 - [2017] QCA 315
Cite 2 - [2017] QCA 315
Cite 3 - [2017] QCA 315
Marshall v Marshall[1999] 1 Qd R 173; [1997] QCA 382
3 citations
Jump To
Cite 1 - [1999] 1 Qd R 173
Cite 2 - [1999] 1 Qd R 173
Cite 3 - [1999] 1 Qd R 173
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Monadelphous Engineering Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2014] QCA 330
3 citations
Jump To
Cite 1 - [2014] QCA 330
Cite 2 - [2014] QCA 330
Cite 3 - [2014] QCA 330
Morton Engineering Co Pty Ltd v Stork Wescon Australia Pty Ltd (1999) 15 BCL 192
2 citations
Jump To
Cite 1 - (1999) 15 BCL 192
Cite 2 - (1999) 15 BCL 192
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
1 citation
Jump To
Cite 1 - [2009] 1 Qd R 41
Robinson v Harman (1848) 1 Ex 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex 850
Cite 2 - (1848) 1 Ex 850
Stork Wescon Australia Pty Ltd v Morton Engineering Co Pty Ltd[2000] 2 Qd R 148; [1999] QCA 61
3 citations
Jump To
Cite 1 - [2000] 2 Qd R 148
Cite 2 - [2000] 2 Qd R 148
Cite 3 - [2000] 2 Qd R 148

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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