Ehrlich v A & J Fencing Pty Ltd

[2024] QCAT 388

QUEENSLAND CIVIL AND

ADMINISTRATIVE TRIBUNAL

CITATION:	Ehrlich v A & J Fencing Pty Ltd [2024] QCAT 388
PARTIES:	JO ANNE EHRLICH (applicant)
v
A & J FENCING PTY LTD (respondent)
APPLICATION NO/S:	BDL062-22
MATTER TYPE:	Building matters
DELIVERED ON:	13 September 2024
HEARING DATE:	19 August 2024
HEARD AT:	Brisbane
DECISION OF:	Member S M Burke
ORDERS:	1.     The Respondent is ordered to pay the Applicant the sum of $53.77 by 16 October 2024.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORKS – REMEDIES FOR BREACH – DAMAGES – where contractor failed to rectify works – whether works formed part of the contract works – where contractor made no response to claims
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

1. By an application for a domestic building dispute dated 23 February 2022, the Applicant, Jo Anne Ehrlich, sought an order for the rectification of  building works carried out by the Respondent, A & J Fencing Pty Ltd.

2. The works involved the replacement of a dividing fence at 6 Colac Court Petrie, Queensland, pursuant to a quotation for the works in the sum of $1500.00 dated 11 August 2021, being the Applicant’s share of the cost of the fence works.

3. The fence works were carried out on 3 November 2021.

4. The Applicant sought the following orders from the Tribunal:

   (a)rectification of the fence providing proper support for the panel of fencing which has been wrongly attached to a rotting post;

   (b)the removal of the rotted post and replacement with a new post;

   (c)adequate attachment of rails to the new post;

   (d)additional paling to cover the gap between the final paling on the panel and the post;

   (e)fit a post to the gap that has been created where the new fence should meet the front fence by the removal of one of the former posts leaving the yard insecure.

   (f)works to be signed off by trained contractor.

5. On 8 November 2021, the Applicant advised the Respondent of her concerns regarding the poor workmanship of the construction of the fence, providing photos of the alleged problems.

6. The Respondent replied by emails dated 8 and 19 November 2021, advising that the work referred to was not part of the scope of works in the original quotation and that the cost to replace the post would be $319.00 including GST.

7. Between 19 November 2021 and 17 February 2022, the parties corresponded outlining their positions with respect to the scope of works for the fence. The Respondent denied that the works formed part of the scope of works and the Applicant claimed that the works performed were defective and unfinished.

8. The Applicant has paid only $750.00 with a balance of $750.00 outstanding pursuant to the Respondent’s quotation.

   Complaint to Queensland Building and Construction Commission

9. On 22 February 2022, the Queensland Building and Construction Commission (‘QBCC’) made the following final decision:

   (a)the QBCC will not be directing A & J Fencing Pty Ltd to rectify the complaint items; and

   (b)the Queensland Home Warranty Scheme is unable to provide cover for any of the complaint items.

   (c)the case has been finalised.

10. The reasons for the decisions were set out as follows:

    (a)The work the subject of complaint was not “building work” as defined in the Queensland Building and Construction Commission Act 1991 (Qld) for the purpose of enabling the QBCC to direct a contractor to fix or complete.

    (b)The work did not fall with the definition of primary insurable work for the purposed of assistance under the Queensland Home Warranty Scheme.

    Further Evidence submitted by the Applicant

11. By email dated 16 April 2024, the Applicant provided to the Tribunal  a tax invoice from Mr Troy Parks of All About Carpentry and Maintenance identifying the works as “supply and install 2 fence posts to side fence at 6 Colac Court Petrie”. The total for the works was $803.77 including GST. Photographs of the completed works were included.

12. The quotation for the rectification works is dated 5 February 2024 being quote no. 002110.

    Directions of the Tribunal

13. Directions regarding the provision of evidence were made by the Tribunal on 21 March 2022, 16 June 2022 and 19 January 2022.

14. The Applicant has complied with the Tribunal’s directions.

15. The Respondent has failed to submit any response to the evidence provided by the Applicant.

16. I am satisfied that the Respondent has been provided with copies of the directions made by the Tribunal.

17. Given the failure of the Respondent to provide any material to the Tribunal, I have proceeded to assess the Applicant’s claim on the material provided.

18. The photographic evidence is conclusive that the fence required rectification and that the work undertaken by the Respondent was defective.

19. There is no evidence that the amount invoiced for the rectification work is unreasonable or unnecessary.

20. Given that the Applicant had not paid the balance of the works in full, it is necessary that I take that fact into account.

21. The unpaid balance of the works was $750.00. The invoice to rectify the works carried out is $803.77.

22. In the circumstances, the Applicant’s entitlement is for the sum of $53.77, being the amount the Applicant is out of pocket. The payment of this sum will put the Applicant in the position which she would have been in had the works been properly performed.

    Orders

23. Based on the reasons provided above, the Tribunal determines that the Applicant is entitled to be paid the sum of $53.77 by the Respondent.