Bogdanic v Rossiter t/as RNK Concreting
[2024] QCAT 173
•22 April 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Bogdanic v Rossiter t/as RNK Concreting [2024] QCAT 173
PARTIES:
ANNA BOGDANIC (applicant)
v
RHYS ROSSITER T/AS RNK CONCRETING (respondent)
APPLICATION NO/S:
BDL334-22
MATTER TYPE:
Building matters
DELIVERED ON:
22 April 2024
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Deane
ORDERS:
1. Rhys Rossiter t/as RNK Concreting is to pay Anna Bogdanic the amount of $2,310 (incl GST) by 4.00pm on 24 May 2024.
2. Rhys Rossiter t/as RNK Concreting is to pay Anna Bogdanic costs fixed in the amount of $367 by 4.00pm on 24 May 2024.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where informal contract not a regulated contract
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – whether works defective in breach of contract – assessment of damages
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – whether costs should be awarded – where non-compliance with directions
Human Rights Act (Qld) 2019, s 8, s 9, s 11, s 13, s 24, s 25, s 31, s 48
Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 77, Schedule 1B s 1, s 4, s 5, s 13, s 14, Schedule 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 48, s 100, s 102, s 107
Bellgrove v Eldridge (1954) 90 CLR 613
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
Mrs Bogdanic, a homeowner, engaged Mr Rossiter, a licensed concreting contractor, to perform concreting work. Mrs Bogdanic says there are multiple cracks in the driveway and that the driveway has not been rectified by him despite request.
Mrs Bogdanic initially sought orders that Mr Rossiter rectify the defective driveway or refund the amount paid of $2,310 to enable her to have the driveway removed and the work performed by another contractor and for costs in the amount of $367.[1] More recently she sought orders that Mr Rossiter pay $2,677 including costs.
[1]Application for domestic building disputes on 18 November 2022 (Application).
A person involved in a building dispute may apply to the Tribunal to decide the dispute[2] provided the person has complied with a process established by the Queensland Building and Construction Commission (QBCC) to attempt to resolve the dispute.[3] Mrs Bogdanic attached to the Application evidence of complying with QBCC pre-proceeding dispute resolution processes enlivening the Tribunal’s jurisdiction.[4]
[2]Queensland Building and Construction Commission Act 1991 (Qld), s 77(1) (QBCC Act).
[3]Ibid, s 77(2).
[4]Letter dated 15 November 2022.
A building dispute is defined to include a domestic building dispute.[5] Domestic building dispute is defined to include 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.[6]
[5]QBCC Act, Schedule 2.
[6]Ibid.
Reviewable domestic work[7] is defined to mean domestic building work under Schedule 1B section 4 of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act), which includes work associated with the renovation, alteration, extension, improvement or repair of a home.[8] This includes the erection or construction of a building or fixture associated with the detached dwelling or home. Examples set out include driveways.[9] The undisputed evidence is that the works were works to install a concrete driveway to Mrs Bogdanic’s home. I am satisfied that the dispute is a domestic building dispute between a building owner and a building contractor relating to the performance of domestic building work or a contract for such work.
[7]Ibid.
[8]Ibid, Schedule 1B s 4(3)(b).
[9]Ibid, s 4(4)(c).
Mr Rossiter has not participated in these proceedings. He was directed three times to file a Response to the Application.[10] By directions made 25 August 2023 the Tribunal directed that if he did not comply that Mrs Bogdanic will be entitled to a final decision and that the matter will be determined without an oral hearing on the basis of the documents forming the Tribunal record after 6 October 2023. Having regard to the Tribunal record, he did not comply.
[10]Directions made 29 November 2022, 30 March 2023 and 25 August 2023.
I am satisfied that Mrs Bogdanic has served a copy of the Application on him[11] and has served other documents as directed on him.[12] I am satisfied that Mrs Bogdanic is entitled to a final decision. I am satisfied that Mr Rossiter’s failure to comply with the directions of the Tribunal is an appropriate basis for granting Mrs Bogdanic final relief under the QCAT Act.[13]
[11]Affidavit of service by posting to the business address for Mr Rossiter as appearing in the QBCC Licence search, filed 28 November 2022.
[12]Affidavit of service by posting to the business address for Mr Rossiter as appearing in the QBCC Licence search, filed 12 April 2023.
[13]QCAT Act, s 48(2)(b)(i).
The delay in allocating this matter for determination is regrettable and is due to resourcing issues.
Even though Mr Rossiter has not formally disputed the claims made against him, Mrs Bogdanic is the applicant and is required to establish on the balance of probabilities that she is entitled to the orders sought.
Mrs Bogdanic’s evidence is, and I accept, that:
(a)She sought a quote from Mr Rossiter for the installation of a concrete driveway at her home.
(b)On or about 26 April 2022 Mr Rossiter attended at the premises to provide a quote.
(c)On 9 May 2022, by SMS, she confirmed acceptance of the quote by booking in a time for the work to be performed on 23 May 2022.
(d)On 23 May 2022 concreting work commenced. Later that day she raised concerns about the work and informed Mr Rossiter that the driveway had been damaged by rain and sought that the work be rectified.
(e)On 6 June 2022, she informed Mr Rossiter that the work was not satisfactory because the entrance needed to be widened and that the surface had been damaged by rain. She pointed out that a crack in the top left-hand corner had appeared.
(f)On 10 June 2022 Mr Rossiter returned to complete the works. At that time, he performed top coating works.
(g)On 25 July 2022 Mr Rossiter attended to attempt to rectify the works.
(h)On 25 July 2022 Mrs Bogdanic paid Mr Rossiter’s invoice in the amount of $2,310.
(i)On 28 September 2022 Mr Rossiter was notified that the driveway had two large cracks and was requested to rectify the works.
(j)Mr Rossiter did not return to rectify the works.
(k)Mr Rossiter held a QBCC concreting contractor’s licence at the time the contract was entered into and at the time the works were performed.
The Tribunal may order the payment of an amount found to be owing by one party to another,[14] and costs.[15]
[14]QBCC Act, s 77(3)(a).
[15]Ibid, s 77(3)(h).
Is Mrs Bogdanic entitled to claim damages for breach of contract?
I find that there is an enforceable informal contract between Mrs Bogdanic and Mr Rossiter. She is entitled to enforce the contract and therefore is entitled to pursue Mr Rossiter for damages for breach of contract.
The QBCC Act prescribes minimum documentary requirements for regulated contracts.[16] To be enforceable a regulated contract must be in written form, dated and signed by or on behalf of each of the parties.[17] If it does not meet those requirements, it does not have effect.[18] A domestic building contract with a contract price of more than the regulated amount is a regulated contract.[19] The regulated amount is $3,300.[20]
[16]Ibid, Schedule 1B s 13, s 14.
[17]Ibid, s 13(2), s 14(2).
[18]Ibid, s 13(5), s 14(10).
[19]Ibid, s 5.
[20]Ibid, s 1 (definition regulated amount).
The evidence is that there is no formal written contract. However, I find that the contract is not a regulated contract and therefore is not required to comply with the minimum documentary requirements. The contract price is below the regulated amount.
Did Mr Rossiter breach the contract?
I find that Mr Rossiter breached the informal contract.
Was the work defective in breach of the contract?
I find that the concrete driveway work was defective in breach of the informal contract.
As I understand it, Mrs Bogdanic contends that Mr Rossiter was obliged to carry out the work with reasonable care and to the standard of a reasonably competent licensed concreting contractor and in a way which ensured that the driveway was of good quality and fit for use. She says that as a professional concreter he failed to perform the work to the standard of a reasonably competent licensed concreting contractor as he performed the work in heavy rain and failed to cover or secure the concrete. She says the heavy rain caused the top layer of concrete to run off, which weakened the concrete. She says that cracks on the edges appeared immediately.
There is evidence before me, in the form of SMS messages, in which Mr Rossiter’s assistant effectively concedes that it is not appropriate to perform concreting works in the rain.
There are copies of photographs showing at least one crack in the order of 5mm wide, which runs across the corner of a slab, essentially showing that it has broken off from the balance of the slab. Mr Rossiter’s assistant suggests that the cracks are only hairline cracks. I am not satisfied that a crack in the order of 5mm wide is a hairline crack. There is evidence before me, and I accept, that there are also other cracks in the concrete. The evidence is, and I accept, that the cracks appeared within a short time of the work being performed. I am not satisfied that such cracks would appear so soon after the performance of the work if the works had been performed with reasonable care and to the standard of a reasonably competent licensed concreting contractor.
On balance, I am satisfied that the work was not performed with reasonable care and to the standard of a reasonably competent licensed concreting contractor.
What is the measure of damages?
I find that Mr Rossiter is to pay Mrs Bogdanic damages in the amount of $2,310 (incl GST).
The measure of the damages recoverable by a building owner for the breach of a building contract is generally described as the difference between the contract price of the work contracted for and the cost of making the work conform to the contract provided that work is both reasonable and necessary.[21]
[21]Bellgrove v Eldridge (1954) 90 CLR 613.
There is limited evidence of the reasonable and necessary method of rectification. Mrs Bogdanic contends that there is no way to rectify the work without completely removing the existing driveway. Mr Rossiter’s assistant, in an SMS message, contended that ‘there’s not much we can do about it.’
On balance, on the evidence before me, I am satisfied that it is reasonable and necessary to remove and replace the driveway, in order for the works to be brought into conformity with what would have been the result had the works been carried out with reasonable care and to the standard of a reasonably competent licensed concreting contractor.
Doing the best that I can on the limited evidence I find that the reasonable and necessary costs to rectify the defective work is at least the cost paid by Mrs Bogdanic to have the concrete driveway installed.
Costs
I find that Mr Rossiter is to pay Mrs Bogdanic costs fixed in the sum of $367.[22]
[22]QCAT Act, s 107.
Mrs Bogdanic claims costs in respect of the filing fee paid. She says, and I accept, that she attempted to resolve the dispute but was required to bring these proceedings against Mr Rossiter because he failed to agree to resolve the matter. There is evidence before me that she sought Mr Rossiter to return to rectify the works. There is also evidence before me that she sought the assistance of the QBCC to attempt to resolve the dispute.
It is a well-established principle that the Tribunal’s discretion to award costs in a building dispute[23] is a broader and more general discretion than the one conferred by the QCAT Act.[24]
[23]QBCC Act, s 77(3)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.
[24]QCAT Act, s 100, s 102.
The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in section 102(3) of the QCAT Act.
I am satisfied that Mr Rossiter’s failure to participate in these proceedings and to comply with the directions made is a factor in favour of an award of costs.[25] His failure to comply caused delay in the progress of the matter as three opportunities were given to him to comply.
[25]Ibid, s 102(3)(a).
Human Rights Act (HR Act)
The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.[26] A human right may only be subjected to reasonable limitations.[27] Mrs Bogdanic did not make any submissions in relation to the operation of the HR Act.
[26]Human Rights Act (Qld) 2019, s 11 (HR Act).
[27]Ibid, s 13.
In deciding this application:
(a)I am not acting as a public entity because I am not acting in an administrative capacity.[28]
(b)I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[29]
[28]Ibid, s 9(4)(b).
[29]Ibid, s 48.
I accept that this application and the on the papers hearing potentially impacts both parties’ rights to a fair hearing and I considered them in conducting the on the papers hearing. Both parties were directed to file documents. In coming to my decision, I considered the documents filed, which included correspondence from Mr Rossiter and his assistant.[30] I considered the matters raised by Mrs Bogdanic and considered the matters raised by or on behalf of Mr Rossiter.
[30]Ibid, s 31.
I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[31] and the right to privacy and reputation.[32] I have considered the parties’ human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[33] Any limitation of the parties’ human rights is consistent with the objects of the QBCC Act[34] and the objects of the QCAT Act.[35]
[31]Ibid, s 24.
[32]Ibid, s 25.
[33]Ibid, s 8, s 13, s 31, s 48.
[34]QBCC Act, s 3.
[35]QCAT Act, s 3.
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