Dodd v Croft - [2025] QCAT 418

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dodd & Anor v Croft [2025] QCAT 418

PARTIES:

MEAGHAN DODD

(applicant)

COURTNEY BOLTON

(applicant)

v

BENJAMIN JOEL CROFT

(RESPONDENT)

APPLICATION NO/S:

BDL395-24

MATTER TYPE:

Domestic Dispute

DELIVERED ON:

27 October 2025

HEARING DATE:

12 September 2025

HEARD AT:

Brisbane

DECISION OF:

Member S M Burke

ORDERS:

The Respondent is to make payment to the Applicant the sum of $32,109.00 on or before 11 December 2025.

CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – MEASURE OF DAMAGES – where builder performed unlicensed building work – where builder did not complete the works – where defective works – where home owner entitled to recover damages to rectify and complete works – failure of party to comply with directions – failure of party to deliver any evidence before the Tribunal

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77

Bellgrove v Eldridge (1954) 90 CLR 613

Robinson v Harman [1848] Eng R 135

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

The Applicants, Meaghan Dodd and Courtney Bolton, are the owners of adjoining properties at 15 Lynd Road, Maclean and 13 Lynd Road, Maclean, Queensland respectively (“the adjoining properties”).
The Respondent is a landscaping contractor trading under the registered name, Neighbours Envy Landscaping Services.
On 6 February 2022, Ms Dodd entered into an agreement with the Respondent , partly oral and partly in writing with an amendment to that agreement being entered into between the parties on 4 May 2022.
The scope of works is set out in an email dated 2 February 2022 and relates to fencing work to a proposed dwelling to be built on the property. The email dated 2 February 2022 from Ms Dodd to the Respondent provides a plan detailing the measurements and location of the fencing and retaining walls to form the scope of works under the agreement.
The terms of the agreement included the following scope of works (“contract works”):
(a)The Respondent was to provide the following:-
(i)      Two 27.4 metre retaining walls using steel galvanised posts with CCA approved 2.4 metre treated pine sleepers.
(ii)      All labour and materials included; with
(iii)     walls to be 4 sleepers high and last panel stepped down to 3 metres high;
(iv)     included geo fabric with ag pipe and gravel for drainage;
(v)      use of bobcat and labour required to scrap boundary line for retaining wall installation at 13 Lynd Road;
(vi)     supply and install standard timber fencing with all labour and materials included;
(vii)   fence brackets to be supplied and welded to retaining walls to mount the fence on top;
(viii)     52.8 metres fence length total for left and right boundary line;
(ix)     Supply and install standard pedestrian gate at 15 Lynd Road;
(x)      Supply and install sleepers and fence on rear boundary line at 15 Lynd Road;
(xi)     3.5 metre retaining wall and fencing to extend fencing to front property boundary.
The contract price for the contract works was $19,333.00.
Between 21 June 2022 and 24 October 20022 the sum of $12,501.75 was paid by Ms Dodd to the Respondent as requested.
According to Ms Dodd, there were no variations to the agreement or the scope of works.
Construction commenced on 2 March 2022 and the Respondent ceased works on 30 November 2022.
On 21 October 2024, the Applicants filed an application with the Tribunal claiming $30,000.00 for rectification costs alleging that the Respondent carried out defective works while unlicensed.
Directions
An application for a domestic building dispute was filed by the Applicants on 21 October 2024.
On 28 November 2024, the Tribunal made directions regarding the filing of material by each of the parties. The Applicants filed their material by 11 December 2024. The Respondent failed to deliver a response.
Further directions were made on 6 February 2025 by the Tribunal regarding an affidavit of service of the Respondent and a response from the Respondent.
In the event that the Respondent failed to deliver any response, the Tribunal directed that the Applicants would be entitled to a final decision. The Applicants were directed to provide a written statement with material relating to the written contract and its terms and QBCC licence searches of the Respondent. This material was to be provided by 4 April 2025.
The Applicants filed the required statements and supporting documentation by 4 April 2025. No material was provided by the Respondent.
Evidence provided by the Applicant
As no material has been submitted by the Respondent, in accordance with the directions of the Tribunal on 6 February 2025, the Tribunal proceeds to assess the Applicant’s claim based on the material on which the Applicant relies.
The Applicants’ evidence is uncontested despite the Respondent receiving all the material delivered by the Applicant to the Tribunal.
On 16 January 2024, a Queensland Building and Construction Commission (“QBCC”) building inspector, Mr Colin Rendall inspected the property at 13 Lynd Road, Maclean at the request of Ms Courtney Bolton. A report dated 19 January 2024 (“the QBCC 13 Lynd Road report”) was provided by Mr Rendall outlining the item of complaint being the alleged defective work.
On 13 August 2024, Mr Rendall inspected the property at 15 Lynd Road, Maclean at the request of Ms Dodd. A report dated 16 August 2024 (“the QBCC 15 Lynd Road report”) was provided by Mr Rendall outlining the items of defective work addressing the complaints submitted by Ms Dodd.
It is noted that the reports state that payments had been made by the Applicants in the amount of $13,683.00 (with the contract sum being $13,683.00) for the 15 Lynd Road property and $5,650.00 (with the contract price being $5,650.00) for the 13 Lynd Road property. This is not consistent with Ms Dodd’s statement but it is not relevant for the purpose of the dispute and the claim before the Tribunal.
In relation to Ms Bolton’s complaint, one complaint was submitted regarding the 13 Lynd Road property relating to the boundary fence between 13 Lynd Road and 15 Lynd Road, namely, that the boundary fencing is bowing at multiple points along the fence length and that when pushed the fence would give considerably. The fence was considered no longer safe.
Mr Rendall concluded in the 13 Lynd Road report that the contractor had not constructed the fence in compliance with the minimum requirements of the National Construction Code (“NCC”), technical sheet 20 for Timber Queensland and there was no corrosion protected welds to the fence support brackets.
The QBCC made the following finding:
(a)QBCC finds the contractor responsible for the construction of the fence to comply with the minimum requirements of the NCC, technical data sheet 20 by Timber Queensland, AS 3660 1-2-14 Termite management and has not corrosion protected the welds to the fence support brackets which has reduced the structural adequacy and is unsatisfactory.
A Direction to Rectify and/or Complete No. 011813 was issued to the Respondent on 23 January 2024 with an attached defective work list addressing the complaint submitted by Ms Bolton.
On 28 February 2024, the QBCC advised Ms Bolton that the Respondent had not complied with the Direction to Rectify No. 011813 and that the QBCC was unable to assist any further with her complaint.
Three complaints had been made to the QBCC by Ms Dodd regarding the 15 Lynd Road property as follows:
(a)Item 1 – 2 x retaining walls not built to standard with dirt leaking through gaps as a result of water not draining properly; retaining wall on garage side creating gaps under the garage foundations;
(b)Item 2 – fence all 3 sides defective; fence leaning, not to standard; wrong bolts/screws used or missing;
(c)Item 3 – gate not to standard; screws poking out of the posts; not many screws used; post on termite barrier creating a potential issue.
The QBCC 15 Lynd Road report provided the following findings:
(a)Item 1:
(i)      the retaining wall does not have a silt barrier installed;
(ii)      the drainage system to the rear of the wall is not connected to a legal outfall;
(iii)     material washed from the rear of the wall creates a health and safety issue on the adjacent path in that the path surface becomes slippery and unsafe;
(b)Item 2:
(i)      The contractor had constructed a low-level retaining wall with a timber paling fence attached by brackets welded to the retaining wall posts;
(ii)      The fence posts are fixing though 12 mm holes in the brackets with batten screws which are approximately 4 mm in diameter;
(iii)     The clearance around the batten screws allows the fence to move from the vertical;
(iv)     The weld to the brackets has not been treated with rust protection and is a structural support to the fence;
(v)      The tops of the posts have not been cut for weathering;
(vi)     There is no termite clearance between the fence and the dwelling;
(c)Item 3:
(i)      The side gate had been constructed so that the post against the house has breached the termite barrier;
(ii)      There is no termite gap where the fence butts to the dwelling with a 25 mm clearance required by AS3660 in part 2-2.
In relation to each of the items of complaint, Mr Rendall made the following decision:
(a)Item 1:
(i) QBCC finds the contractor is responsible for the construction of the retaining wall structures which do not meet the NCC performance provisions, have not been constructed to Timber Queensland Technical Data sheet 9 and create a health and safety issue and are unsatisfactory.
(b)Item 2:
(i) QBCC finds the contractor is responsible for the constructions of the fence and for the fence to comply with the minimum requirements of the NCC technical sheet 20 by Timber Queensland and AS 3660-1-2014 Termite Management and has not constructed the fence in accordance with those requirements and has not corrosion protected the welds to the fence support brackets which has reduced the structural adequacy and is unsatisfactory.
(c)Item 3:
(i) QBCC finds the contractor is responsible for the installation of the side gate which has breached the termite barrier creating a path for termite attack damaging building elements, a broken screw which is a health and safety issue and is unsatisfactory.
In respect of all three items the QBCC determined that a Direction to Rectify should be issued.
A Direction to Rectify or Remedy No. 0112954 dated 16 August 2024 was issued to the Respondent in accordance with the findings of the QBCC inspector Mr Rendall requiring immediate action for work by a licensed contractor to address the defective work list attached.
By 24 September 2024, the QBCC advised Ms Dodd that the Respondent had not complied with the Direction to Rectify and/or Complete No. 0112954 issued on 16 August 2024 advising further that the QBCC was unable to assist the Applicants any further with the complaint.
Both reports provide extensive photographic evidence of the complaints by each of the Applicants.
I am satisfied on the evidence of Mr Rendall that the work provided by the Respondent is defective and that the Respondent has failed to repair the fence in accordance with the Directions to Rectify.
In the circumstances, it is necessary for the Tribunal to assess the damages claimed by the Applicant.
Damages
The Applicants have not made a claim for the refund of the monies paid to an unlicensed contractor which would have been warranted pursuant to s 42 of the Queensland Building and Construction Commission Act 1991 (Qld) (“QBCC Act”) which specifies that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work.
Section 42(3) is said to sterilise any claim which might otherwise be made under the contract or under common law by an unlicensed builder. It provides that a person who carries out building work in contravention of s 42 is not entitled to any monetary or other consideration for doing so.
The prohibition in subsection (3) is subject to subsection (4) which provides that a person is not prevented from claiming a reasonable remuneration for carrying out the building work, but only if the amount claimed is no more than the amount paid by the person in supplying material and labour for carrying out the building work and does not include an allowance for the supply of the person’s own labour and the making of a profit.
For the purpose of the Applicants’ claim it is not necessary for the Tribunal to consider further the Applicants’ statutory entitlement.
The Applicants have made a claim for damages for the rectification costs to remedy the defective work supplied by the Respondent.
The principals in relation to the assessment of damages in building disputes are clearly set out in Bellgrove v Eldridge (1954) 90 CLR 613 at 617:
The measure of damages recoverable by the building owner for the breach of the building contract is …the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach.
Damages for defective work are generally the amount necessary to make the work conform with what the contractor was required to provide under the contract and thus in accordance with the plans and specifications which formed part of it.[1] The basic purpose of an award of damages is to restore the aggrieved party to the position which would have been obtained had the wrongful act not occurred. In the case of incomplete and defective work the usual remedy will be the cost of completing building works in accordance with the building contract.
[1]Robinson v Harman [1848] Eng R 135.
The qualification outlined by the High Court in Bellgrove v Eldridge is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.
There is no evidence to suggest that the rectification of the works involves anything less than removal and rebuilding of the fence. There is no evidence suggesting that the defects could be rectified in a piecemeal manner without demolition and rebuilding.
I am satisfied that it was necessary and reasonable for the Applicants to demolish and re-build the fencing works the subject of the contract.
In support of their claim, the Applicants have provided two quotations for the rectification work required to the boundary fence and gate.
The quotation from SD Fencing Pty Ltd details the works to be carried out and the materials to be used with a quotation of $32,109.00 including GST.
A second quotation from Marks Landscaping and Fencing also details the work required to remedy the defective work with a quotation of $37,776.66 for the works.
There is no apparent reason from an assessment of the scope of works for the monetary difference in the two quotations.
It is accepted that the scope of works outlined in the SD Fencing Pty Ltd quotation will rectify the defective work and provide the Applicants with the remedy to which they are entitled as a result of the Respondent’s breach.
Orders
The Respondent, Benjamin Croft, is to make payment to the Applicant the sum of $32,109.00 as damages for breach of contract, such sum being the rectification costs of the faulty work carried out by the Respondent.