Barden v Abitbol

[2025] QCAT 294

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Barden v Abitbol [2025] QCAT 294

PARTIES:

KELLY BARDEN

(applicant)

v

BRANDON ABITBOL

(respondent)

APPLICATION NO/S:

BDL204-24

MATTER TYPE:

Building matters

DELIVERED ON:

24 July 2025

HEARING DATE:

23 July 2025

HEARD AT:

Brisbane

DECISION OF:

Member Wilson

ORDERS:

1.     The respondent pay to the applicant the sum of $28,933 within 14 days.

2. The respondent pay interest from the date of this decision until payment at the rate of 10%, pursuant to section 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld);

3.     The respondent pay the applicant’s costs of filing the application in amount $379.50.

CATCHWORDS:

BUILDING CONTRACTS – performance – breach of contract – damages – unlicenced builder – unsatisfactory work – amount of damages

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Parties and directions

1. The applicant is Kelly Barden. The respondent is Branden Abitbol.

2. The respondent did not file a response as originally directed, and on 1 October 2024 the respondent was directed to file a response by 15 October 2024, failing which it was directed that the applicant would be entitled to a final decision. The respondent failed to comply with that direction.

3. The applicant filed a written statement and annexures on 19 November 2024. The applicant’s statement, together with the application and annexures, comprise the evidence before the tribunal in this matter.

Factual Background

1. The applicant obtained quotes from the respondent in April 2023, for the construction of a retaining wall, steps and fencing at the applicant’s property (jointly owned with her spouse) in Bellbowrie. On 12 April 2023, the applicant entered into a contract, partly in writing (written quotes) and partly oral, pursuant to which the respondent’s quote number 1585 in amount $25,137.68 was accepted for the construction of a retaining wall at the rear of the property.

2. On 12 April 2023 the applicant paid the respondent one half of the quoted price in advance, being $12,568. The respondent commenced work on 19 July 2023. By 31 August 2023, the applicant had paid the entire amount of the sum quoted to construct the retaining wall, however the work was incomplete. On that day, according to the applicant’s statement, the respondent advised (in response to an enquiry by the applicant’s husband) that the respondent was “not sure” how much it would cost to complete the works. The respondent ceased work on the retaining wall and associated works on 5 September 2023 at the applicant’s direction.

3. The applicant’s application was accompanied (as required) by a copy of the alleged defective works/incomplete work schedule. That schedule has attached a copy of an inspection report of the allegedly unsatisfactory work, dated 24 January 2024, prepared by Queensland Building and Construction Commission (‘QBCC’) inspector Andy Beck. The respondent did not attend the inspection of the work.

4. The inspection report:

   (a)Noted that records indicate that the respondent was not licensed with the QBCC;

   (b)Noted that the retaining wall “revealed obvious inward and outward deviations”, the wall being approximately 1.2 metres high and constructed of concrete sleepers retained by fixed retaining wall posts.

5. The inspection report also states that the retaining wall:

   ...has not met the standards expected of a competent holder of a contractor’s license in the relevant class or an expected industry standard, which is not in accordance with AS4678-2002 earth-retaining structures…resulting in excessive deformation affecting the structural performance of the retaining wall and an unsightly finish. Further, the ‘outward deviation’ identified in the rear retaining wall is outside the acceptable tolerance stated in AS4678-2002.

6. The inspector noted that QBCC has determined to issue a Direction to Rectify for the identified structural defective building work.

7. Rectification works have not been performed by the respondent.

8. I am satisfied that the poor workmanship of the respondent, evidenced in the finished retaining wall and the inspection report, constitutes a breach of contract. Further, the respondent’s failure to comply with the cited Australian Standard also constitutes a breach of contract i.e., an implied term that the works would be carried out in a workmanlike manner and in compliance with relevant building codes.

9. The applicant obtained a quote to remove and reconstruct the retaining wall from Peter Weier Landscape & Sprinklers Pty Ltd dated 6 May 2024. The total of the quote to remove and reconstruct the retaining wall is $28,933.

Decision

1. The appropriate remedy for the respondent’s breach of contract is an award of an amount sufficient to place the applicant in the same situation, with respect to damages, as if the contract had been performed. In the present case, I am satisfied that the amount required is the amount of the quote provided by Peter Weier Landscape & Sprinklers Pty Ltd i.e., $28,933.

2. I order that:

   (a)The respondent pay to the applicant the sum of $28,933 within 14 days.

   (b)The respondent pay interest from the date of this decision until payment at the rate of 10%, pursuant to section 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld).

   (c)The respondent pay the applicant’s costs of filing the application in amount $379.50