Cervantes v Hansen
[2024] QCAT 490
•31 October 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Cervantes v Hansen [2024] QCAT 490
PARTIES:
DONNA CERVANTES (applicant)
v
JEFFREY HANSEN (respondent)
APPLICATION NO/S:
BDL134-22
MATTER TYPE:
Building matters
DELIVERED ON:
31 October 2024
HEARING DATE:
29 August 2024
HEARD AT:
Brisbane
DECISION OF:
Member Howe
ORDERS:
1. The name of the respondent is corrected to read Jeffrey Hansen.
2. The respondent Jeffrey Hansen pay the applicant Donna Cervantes the sum of $6,900 within 14 days of order.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where a handyman performed domestic building work worth more than $3,300 but was an unlicensed contractor – where there was no written contract – where the work was poorly performed – where the owner could not claim pursuant to implied statutory warranties – where the handyman was not entitled to recover any remuneration for the unlicensed work – where a builder recommended the construction work done be demolished because it was poor – where it was held the owner was entitled to recover payments made evidenced by bank statements but not payments claimed to have been paid in cash without supporting evidence
Queensland Building and Construction Act 1991 (Qld), s 42(3), s 42(4), Schedule 1B s 11, s 13(5)
Queensland Building and Construction Regulation 2018 (Qld), s 5(1), Schedule 1 s 1
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
REASONS FOR DECISION
The applicant, Ms Cervantes, engaged the respondent, Mr Hansen, to replace an old timber deck at her house with a new one.
Mr Hansen dismantled much of the old deck and started work on the new but it was only half finished when Ms Cervantes told him to stop work.
The work involved was domestic building work and save for the failure to comply with statutory requirements, the agreement between the parties would have constituted a domestic building contract. Ms Cervantes says the agreed cost of the work was $8,000[1] and therefore, had the statutory requirements been complied with, the contract between them would have been a level 1 regulated contract.
[1]The parties were unclear on this in giving their evidence but the amount was certainly more than $3,300 and less than $20,000.
The agreement was not reduced to writing however and nothing was signed. The arrangement between them was therefore of no effect by virtue of s 13(5) of Schedule 1B of the Queensland Building and Construction Act 1991 (Qld) (‘the Act’) which provides:
13 Requirements for contract – level 1 regulated contract
(1)This section applies to a level 1 regulated contract.
(2)The contract must be in a written form, dated and signed by or on behalf of each of the parties to it.
…
(5)The contract has effect only if it complies with subsection (2).
Given there is no domestic building contract having effect, Ms Cervantes does not have the benefit of the warranties usually implied into regulated contracts by s 19 of Schedule 1B to fall back on with respect to her complaints to the Tribunal.
Mr Hansen is not a contractor. He is a handyman. He is permitted to do building work without a contractor’s licence but not if it has a value of more than $3,300. Ms Cervantes says they agreed she would pay Mr Hansen $8,000 for the job. Mr Hansen disputes that and says it was less than that and the parties had agreed the work would be done in stages of less than $3,300 each. Ms Cervantes disagreed there was any such discussion.
Building work
By s 42 of the Act:
Unlawful carrying out of building work
(1) Unless exempt under schedule 1A, 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 under this Act.
…
(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
(a)is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b)does not include allowance for any of the following—
(i)the supply of the person’s own labour;
(ii)the making of a profit by the person for carrying out the building work;
(iii)costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c)is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d)does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.
By s 5(1) taken with Schedule 1 s 2 of the Queensland Building and Construction Regulation 2018 (Qld), work valued under $3,300 is deemed not to be building work.
Mr Hansen’s claim that the work was to be done in stages attempts to avoid the work he did being labelled building work for which a contractor’s licence was required.
In Mr Hansen’s Response to the claim by Ms Cervantes dated 20 June 2023 he said:
I also indicated to her that because of the size of the job and the amount could possibly be in excess of $3300. 00, I will have to do the job in stages because that is the most I am allowed to charge for a job.
However, breaking up building work into stages, even if that had been agreed between the parties, does not assist Mr Hansen. By s 11 of Schedule 1B of the Act, multiple separate contracts that could be the subject of a single contract for carrying out domestic building work are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts.
The value of all the stages of the work of dismantling then rebuilding the deck exceeds $3,300 and the work involved is therefore building work for which Mr Hansen required the appropriate contractor’s licence.
Section 42
Mr Hansen has no contractor’s licence and therefore he has breached s 42 of the Act.
By s 42(3) he is not entitled to any monetary or other consideration for doing the work.
By s 42(4) Mr Hansen is entitled to recover for the cost of materials and labour he supplied other than his own labour. He is not entitled to recover any profit for carrying out the work, nor for any costs incurred if in the circumstances the costs were not reasonably incurred.
Another difficulty for Mr Hansen however is that a licensed contractor, Mr Bloomer, attended the site and inspected his work and provided a report which report concluded the work was of a very poor standard and what work had been done would have to go.
Mr Bloomer found there was no pest management barrier between deck and house. That might permit termite entry into the house and the entry not able to be detected.
The sub-floor framing was not in accordance with acceptable building practices or structural requirements. The outer floor bearer was undersized and not installed to required structural standard and had to be replaced. Floor bearers on the outer edge had been joined off-post. At multiple points the outer edge bearer was misaligned and inadequately attached and supported. Joist hangers and metal stirrups were missing fixings. Floor bearers had splits and some were deteriorated and decayed. The re-purposed original decking boards exhibited decay and mould and new should have been used. The nailing was poor and used mixed nails.
Generally the deck required demolishing and replacement. The work was not acceptable and did not comply with the Queensland Building and Construction Commission Standards and Tolerances Guide.
I note Mr Hansen had also failed to obtain the mandatory statutory home warranty insurance for the work.
Mr Hansen maintained at hearing that Ms Cervantes asked him to use the old timbers from the existing deck. Ms Cervantes agreed she said he could use some of the old timbers from the old deck, but she said she had made clear that the timbers should be in “good” condition. She disagreed that approximately half of the re-used timber was in good condition.
I accept the findings made by Mr Bloomer. Mr Bloomer gave evidence. He appeared to be well-skilled and knowledgeable in construction. Where his evidence conflicts with that of Mr Hansen I prefer the evidence of Mr Bloomer.
I accept Mr Bloomer’s assessment that the incomplete deck as constructed by Mr Hansen was of very poor construction and that it was necessary to demolish it and start again. As such it is not appropriate that Mr Hansen recover any amount for labour or materials because any such costs were not reasonably incurred and by s 42(4)(b)(iii) of the Act an allowance for such is not appropriate.
Ms Cervantes has had to engage a contractor to remove the half-built deck and add a new concrete deck which she states has cost her $8,500. Ms Cervantes has gained nothing from the interlude using Mr Hansen to attempt to build a timber deck.
No entitlement to monetary or other consideration
Ms Cervantes wants to recover the money she paid to Mr Hansen.
She lists the following payments as having been paid through bank transfer fast payment provider Osko:
(a)28 Oct 2021 re Jeffrey Hansen $3,000
(b)28 Oct 2021 re Jeffrey Hansen $1,500
(c)11 Dec 2021 re Jeffrey Hansen $1,400
(d)11 Dec 2021 re Jeffrey Hansen $1,000
$6,900
Ms Cervantes asks for other payments she says she made in cash, but there is no documentary evidence to support those additional payments.
Mr Hansen denies more than $2,400 was ever paid to him.
I accept Ms Cervantes’ evidence that she made the above listed payments to Mr Hansen. They are supported by the evidence of the Osko payments shown in her bank statements. In the absence of evidence to support her claim that additional cash payments were made by her, however, the claim for those is not allowed.
Nor do I allow her claim for the costs of the expert building report charged by Mr Bloomer. Ms Cervantes had no evidence about the cost. She could not say what the amount was. The Tribunal cannot make her case for her in the absence of any evidence as to amount.
Conclusion
Ms Cervantes is entitled to recover the $6,900 she paid to Mr Hansen.
Mr Hansen is not entitled to recover remuneration from Ms Cervantes for his work building the timber deck.
The name of the respondent is Jeffrey Hansen on his Response document. His name on file should be corrected accordingly.
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