Dvorak v Jensen - [2025] QCAT 110

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Dvorak v Jensen [2025] QCAT 110

PARTIES:

RENATA DVORAK

(applicant)

v

BEN JENSEN

(respondent)

APPLICATION NO:

BDL328-22

MATTER TYPE:

Building matters

DELIVERED ON:

17 March 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

The respondent pay to the applicant $6,225.88 within 14 days of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where applicant retained the respondent to carry out building work –– where there was no level 1 regulated contract – where building work was not carried out as agreed and was defective –– whether there was an enforceable contract between the parties –– whether the respondent owed the applicant a duty of care – whether the respondent breached the duty of care –– whether the applicant is entitled to the loss claimed

Civil Liability Act 2003 (Qld), s 4, s 9, sch 2

Queensland Building and Construction Commission Act 1991 (Qld), s 77, sch 1B

Brookfield Multiplex v Owners Corporation Strata Plan No. 61288 [2014] HCA 36

Bryan v Maloney [1995] HCA 17
Burnell v Jarvis [2024] QCAT 126
Cerda v Jacob [2020] QCATA 57
Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476
Dvorak v Jensen [2023] QCAT 437
Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315
McSwan & Anor v Weaver [2023] QCAT 148
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16

APPEARANCES & REPRESENTATION:

The proceeding was heard and decided on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

REASONS FOR DECISION

Application

On 16 November 2022 the applicant (‘Ms Dvorak’) made application to the Tribunal for a domestic building dispute under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) (‘original application’). She claimed against the respondent (‘Mr Jensen’) the following:
Damages and interest on damages  $ 1,380.00
Rectification of defective work  $ 9,301.00
Completion of incomplete work  $ 3,423.80
$14,104.80
Subsequently, on 10 July 2023, pursuant to leave granted by the Tribunal, Ms Dvorak filed an amended application (‘amended application’). She now claims against Mr Jensen:
Damages and interest on damages $13,983.80
Rectification of defective work $11,008.80
$24,992.60
Background and chronology of the events
Ms Dvorak filed in the Tribunal with the original application a summary of the background to the proceeding and a chronology of events. Briefly, the roots of a gumtree planted by the Brisbane City Council in the nature strip adjacent to or near Ms Dvorak’s home at 32 Daintree Drive, Parkinson (‘Ms Dvorak’s home’) caused damage to the concrete and paved driveway of the home. The Council agreed to pay the cost to repair the driveway.
On 15 September 2021 Mr Jensen provided Ms Dvorak with a quotation to repair the damage to the concrete driveway. The quotation was in the form of an invoice for $18,983.80. In part, it is reproduced below:

Description

Amount ($)

Remove…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dvorak v Jensen

Details

AGLC: Dvorak v Jensen [2025] QCAT 110
Case: [2025] QCAT 110
Decision Date: 17 March 2025

CaseChat Overview and Summary

Ms Dvorak filed an amended application against Mr Jensen in the Tribunal, seeking damages and interest of $13,983.80, rectification of defective work amounting to $11,008.80, and a total of $24,992.60. The dispute arose from an agreement where Mr Jensen was retained to repair damage to Ms Dvorak's concrete driveway, caused by a gumtree planted by the Brisbane City Council. The agreed work included the manual removal of pavers, relaying them on new concrete, and the installation of a root barrier. However, Ms Dvorak asserts that Mr Jensen deviated from the agreement by using a mini excavator, which damaged the pavers, the garage door, and the porch tiles, and resulted in rough and uneven concrete. The Tribunal was tasked with determining the enforceability of the contract between the parties, whether Mr Jensen owed Ms Dvorak a duty of care, if that duty was breached, and if Ms Dvorak is entitled to the losses claimed.

The Tribunal considered the nature of the agreement between the parties, noting the absence of a level 1 regulated contract as required by the Building and Construction Industry Security of Payment Act 1999 (Qld). It assessed the evidence presented, including the driveway inspection report by All Inspect, which highlighted non-compliance with Australian standards. The Tribunal examined the terms of the agreement, the performance of work, and the discrepancies between the work agreed upon and that which was actually carried out. It evaluated whether the work was defective and if Mr Jensen's actions breached any duty of care owed to Ms Dvorak.

The Tribunal concluded that an enforceable contract existed between Ms Dvorak and Mr Jensen, and that Mr Jensen did owe a duty of care which was breached. It found that the work performed was defective, and that Mr Jensen’s use of a mini excavator and the subsequent damage to the property constituted a breach of the duty of care. The Tribunal awarded Ms Dvorak damages and interest of $13,983.80, and ordered Mr Jensen to pay the sum of $6,225.88 within 14 days of the order. The Tribunal also found that Ms Dvorak was entitled to rectification of the defective work, but did not specify the rectification process in this particular order.

Orders

Orders of the court

The respondent pay to the applicant $6,225.88 within 14 days of this order.

Background

Background to the litigation

Subsequently, on 10 July 2023, pursuant to leave granted by the Tribunal, Ms Dvorak filed an amended application (‘amended application’). She now claims against Mr Jensen:Damages and interest on damages $13,983.80Rectification of defective work $11,008.80$24,992.60Background and chronology of the events Ms Dvorak filed in the Tribunal with the original application a summary of the background to the proceeding and a chronology of events. Briefly, the roots of a gumtree planted by the Brisbane City Council in the nature strip adjacent to or near Ms Dvorak’s home at 32 Daintree Drive, Parkinson (‘Ms Dvorak’s home’) caused damage to the concrete and paved driveway of the home. The Council agreed to pay the cost to repair the driveway. On 15 September 2021 Mr Jensen provided Ms Dvorak with a quotation to repair the damage to the concrete driveway. The quotation was in the form of an invoice for $18,983.80. In part, it is reproduced below: Ms Dvorak accepted the quotation. On 11 October 2021 Ms Dvorak paid to Mr Jensen a deposit of $5,177.40. The building work commenced on 14 December 2021. Ms Dvorak asserts a mini excavator was used to remove the existing pavers when the agreement between the parties was for removal of the pavers manually and relaying the pavers on the new concrete driveway. The existing pavers were scratched and broken and could not be reused. Ms Dvorak, on 20 December 2021, paid to Mr Jensen a further sum of $8,806.40. On 23 December 2021 the concrete for the new driveway was poured without accounting for the laying of the pavers. On 4 March 2022 the concrete poured on 23 December 2021 was removed and new concrete poured. However, it is asserted by Ms Dvorak, the new concrete was rough and uneven. Ms Dvorak identifies eight issues in dispute between the parties. First, Mr Jensen poured 50mm of concrete when the requirement for a driveway is 100mm. Secondly, the concrete poured has created a tripping hazard at or near the top left corner of the driveway and the concrete is cracking. Thirdly, Mr Jensen has charged GST, despite not being registered for GST. Further, he did not provide Ms Dvorak with a copy of the contract for the work or particulars of his licence to carry out the work. Fourthly, the pavers that were to be removed by hand and re-used were scratched and broken when removed using a mini excavator. Fifthly, Ms Dvorak did not see Mr Jensen install a root barrier as agreed. Sixthly, the mini excavator damaged Ms Dvorak’s garage door. Seventhly, Mr Jensen damaged porch tiles. Eighthly, the mini excavator damaged the ramp to the driveway of Ms Dvorak’s neighbour at 36 Daintree Drive, Parkinson. Ms Dvorak filed with the original application a driveway inspection report by All Inspect dated 27 June 2022 (‘driveway inspection report’). All Inspect inspected the driveway on 20 June 2022. Its findings may be summarised in the following terms:(a)the base thickness of the driveway does not comply with Australian Standard 3727.1 2016 (‘AS 3727.1’);(b)there is no Ableflex (a closed cell polyethylene foam used as an expansion joint filler in concrete joints, brick joints, blockwork, isolation joints and hinge joints) connection between the driveway and downpipes as required by AS 3727.1; and(c)the surface of the driveway does not comply with the AS 3727.1.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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