Finlay v Urban Dweller Constructions Pty Ltd
[2025] QCAT 27
•14 January 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Finlay v Urban Dweller Constructions Pty Ltd [2025] QCAT 27
PARTIES:
RORY FINLAY (applicant)
SARAH FINLAY
(APPLICANT)
v
URBAN DWELLER CONSTRUCTIONS PTY LTD (respondent)
APPLICATION NO/S:
BDL181-23
MATTER TYPE:
Building matters
DELIVERED ON:
14 January 2025
HEARING DATE:
On the Papers
HEARD AT:
Brisbane
DECISION OF:
Member Carrigan
ORDERS:
Urban Dweller Construction Pty Ltd is to pay to Rory Finlay and Sarah Finlay the amount of $19,500.00 by 4.00 pm on Friday, 21 February, 2025.
CATCHWORDS:
CONTRACTS – BUIILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – DOMESTIC BUILDING CONTRACT – JURISDICTION – PARTIES TO THE CONTRACT – BREACH OF CONTRACT – DAMAGES – RESTITUTION – where contractor failed to perform contract duties – where owner paid full consideration under the contract – total failure of consideration – whether a building dispute – damages and or restitution
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9
Queensland Building and Construction Act 1991 (Qld), s 77(1), s 77(3)
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
In these proceedings Rory Finlay and Sarah Finlay (‘the Applicants’) seek to recover $19,500.00 from Urban Dweller Construction Pty Ltd (‘the Contractor’).
Background Facts
On 9 February 2022 the Applicants entered into a Master Builders Queensland “Preliminary Contract” with the Contractor who was to carry out certain preliminary tasks at their North Coast property, in the State of Queensland, prior to the parties entering into a contract to demolish the existing house and build a new two story duplex.
The terms of that contract provided for the Applicants to pay to the Contractor $19,500.00 to perform those preliminary tasks. The contract also provided that the Applicants would pay the $19,500.00 on the signing of that agreement.
The Contractor, by its director, Kevin Shenton, signed the contract on 1 February 2022.
On 9 February 2022 Sarah Finlay, for the Applicants, signed the contract.
On 10 February 2022 Invoice 0125 was sent to the Applicants by the Contractor recording payment in full of the contract price of $19,500.00.
The Contractor was to commence the preliminary tasks under the contract from 16 February 2022.
The Contractor did not commence the preliminary tasks required by the contract and the Applicant then made a number of attempts to communicate with the Contractor to carry out the terms of the contract. These communications continued to at least 4 October 2022. The Contractor failed to commence or complete any of its contractual obligations.
On 21 February 2023 the Applicants made a claim with the Queensland Building and Construction Commission (‘QBCC’) seeking a refund of the money paid as a result of the non-completion of the preliminary tasks in the contract by the Contractor.
On 23 February 2022 QBCC informed the Applicants that their claim had been impartially assessed to determine whether the circumstances entitled the Applicants to assistance under the Queensland Home Warranty Insurance Scheme. QBCC advised the Applicants that the Scheme was unable to provide cover for any part of their claim and accordingly, the claim was “declined in full”.
On 16 June 2023 the Applicants filed in the Tribunal an Application for domestic building dispute seeking repayment of $19,500.00 from the Contractor for non-completion of the preliminary tasks in the contract.
Jurisdiction of the Tribunal.
The Tribunal has the jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or by an “enabling Act”.[1]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9.
The Applicants have brought these proceedings in reliance upon the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
The QBCC Act provides a person involved in a “building dispute” may apply to the Tribunal to have the Tribunal decide the dispute.[2]
[2]QBCC Act s 77(1).
The issue is whether the dispute in the Application for a building dispute filed by the Applicants in the Tribunal comes within the meaning of the term “building dispute” in the QBCC Act. That term is defined to mean “a domestic building dispute”[3] which, in these proceedings, means “a claim or dispute arising between a building owner and a building contractor relating to the performance of, or a contract for the performance of, reviewable domestic work”.[4] ”Reviewable domestic work” means “domestic building work” for the:[5]
(a)renovation, alteration, extension, improvement or repair of a home; and
(b)includes work associated with the renovation, alteration, extension, improvement or repair of a home; and
(c)includes the provision of services or facilities to the dwelling or property on which the dwelling is to be built; and
(d)includes site work relating to work referred to above.
[3]QBCC Act Schedule 2 Dictionary.
[4]QBCC Act Schedule 2 Dictionary.
[5]QBCC Act Schedule 2 Dictionary and Schedule1B Part 1 s 4.
The evidence in these proceedings is that the contract was for the Contractor to conduct a survey of the building site, to obtain foundation data, have drawings and specifications prepared, prepare appropriate footing design, make application to the Local Authority or Private Certifier for approval of building work shown in the drawings and specifications, prepare a tender to carry out the works in the drawings and specifications and for other preliminary matters specified in the contract. These matters come within the above definition of “building dispute” which entitles the Applicants in these proceedings to apply to the Tribunal for a determination that dispute.
The QBCC Act is the relevant “enabling Act” for these proceedings and the Tribunal has jurisdiction to hear and determine the Application for a domestic building dispute filed by the Applicants on 16 June 2023.
The Tribunal has wide powers to resolve this dispute including the power to:[6]
(a)order payment of an amount owing by one party to another;
(b)award damages;
(c)order restitution.
[6]QBCC Act s 77(3) particularly (3)(a), (c) and (d).
Who did the Applicant contract with?
The Preliminary Agreement in these proceedings is between the Applicants, as owner, and Urban Dweller Construction (as it appears on the QBCC licence) as the contractor. The Preliminary Agreement is signed by Kevin Shenton for the contractor.
Urban Dweller Construction does not purport to “trade as” as a registered business name entity. It has QBCC licence number 15075360 and has an address at a Caloundra address, Queensland. The QBCC licence is not in evidence in these proceedings.
The Applicants have filed an ASIC Search showing that Urban Dweller Construction Pty Ltd was registered on 15 June 2017 with its principal place of business at the Caloundra address already referred to above. It also records that Kevin John Shenton is the sole director and secretary company. His address is also at the Caloundra address.
The Tax Invoice dated 10 February 2022 from Urban Dweller Construction records the payment of $19,500.00 from the Applicant.
There is no Business Name search in evidence before the Tribunal to establish that Urban Dweller Construction is a registered business name nor any details as to who might own such a business name.
On 1 February 2023 the Applicants lodged with QBCC a Non-Completion claim for a refund of the $19,500.00. While that claim is not in evidence, QBCC in its letter dated 23 February 2023 addressed to Sarah Charlton (sent to the Applicants’ address) treated the claim as being against Urban Dweller Construction Pty Ltd (the Contractor) and then stated;
On 1 February 2022 you entered into a Preliminary Agreement Contract with the Contractor to carry out the following tasks prior to the parties entering into a contract for construction works.
In these proceedings the Tribunal has provided to the Applicants a number of directions and notices over a period from 28 June 2023 to at least 19 June 2024. All those directions and notices refer to the Respondent in these proceedings as Urban Dweller Construction Pty Ltd. At no time during that period have the Applicants objected to the identity of the Respondent being referred to as Urban Dweller Construction Pty Ltd.
Notwithstanding that the contract refers to the Contractor in these proceedings as Urban Dweller Construction, the Tribunal is satisfied, on the evidence before it, as referred to above, that the identity of that Contractor is Urban Dweller Constructions Pty Ltd. The Tribunal is satisfied that, and makes a finding to the effect that, the proper identity of the Contractor in these proceedings is Urban Dweller Construction Pty Ltd.
Should the proceedings continue in the absence of the Contractor.
The Contractor, Urban Dweller Construction Pty Ltd, has not filed in these proceedings a Response and/or Counter-Application to the Application for domestic building dispute filed by the Applicant on 16 June 2023. Nor has the Contractor filed any evidence, documents or statements relating to these proceedings. Consequently, the only evidence before the Tribunal is that provided by the Applicants.
The evidence is that the Applicants served the Application for a domestic building dispute on Kevin Shenton, the director of Urban Dweller Construction Pty Ltd, by posting it to the company’s registered office at the Caloundra address and also by sending an email to the email address of Kevin Shenton on 23 June 2023.
The evidence is the Tribunal has sent to the Contractor the various Directions made in the period from 20 June 2023 to at least 19 June 2024. The Directions made on 19 June 2024 contained the following:
1. Urban Dweller Construction Pty Ltd must comply with Direction 4 of the Directions made 12 December 2023 by 4.00 pm on 3 July 2024.
2. If Urban Dweller Construction Pty Ltd does not comply with Direction 1 herein without reasonable excuse, Rory Finlay and Sarah Finlay will be entitled to a final decision.
3. & 4. …
5. If Rory Finlay and Sarah Finlay are entitled to a final decision in accordance with Direction 2 herein, the application for domestic building dispute filed 16 June 2023 will be determined by the Tribunal on the papers, without an oral hearing and on the basis of the documents forming the Tribunal record, after 17 July 2024.
There is no evidence before the Tribunal that the Contractor complied with Direction 4 of the Directions made 12 December 2023 by 4.00 pm on 3 July 2024. Further, there is no evidence before the Tribunal that the Contractor has provided any reasonable excuse for failure to comply with Direction 4 by 3 July 2024 or, indeed, subsequently to that date. In the circumstances the Tribunal is satisfied that notice of the proceedings, including notice that the Applicant will be entitled to a final decision, has been given to the Contractor. The Tribunal is entitled to proceed with the hearing and make a determination of the Application for domestic building dispute filed 16 June 2023 in the absence of the Contractor or any evidence on its behalf.
Is the Applicant entitled to repayment of $19,500.00.
The obligation for the Applicants under the Preliminary Agreement was to make payment to the Contractor of $19,500.00. The Applicants have fulfilled and complied with that obligation.
The obligation for the Contractor under the Preliminary Agreement was to carry out a number of tasks (which have already been summarised above). The evidence is that the Contractor has not carried out any of those tasks and they remain uncompleted or unfulfilled. In summary, there has been a total failure of consideration by the Contractor not completing or undertaking its obligations in the Preliminary Agreement.
The Tribunal is satisfied that while the Applicants have complied with their obligations under the Preliminary Agreement, the Contractor has not undertaken or completed any of its obligations under that Agreement. The bargain remains unfulfilled by the Contractor.
Under the terms of the Preliminary Agreement there is no basis on which the Contractor is entitled to retain the $19,500.00, or any part of that amount, and should return the payment in full to the Applicants.
The Tribunal is satisfied that the Applicants having complied with their obligations in the Preliminary Agreement received no value in return from the Contractor who failed to undertake to complete any of its obligations under that Agreement. The Contractor is accordingly in breach of the terms of the Preliminary Agreement.
In these circumstances the Applicant is entitled, by reason of the breach of the Agreement, to an award of damages from the Contractor. The Applicants should be compensated and receive restitution/damages as a result of the Contractor’s breach of the Agreement. The compensation and/or damage is the loss the Applicants have suffered as a result of the breach, which, in these circumstances is the amount of $19,500.00. There will be judgment for the Applicants in the sum of $19,500.00. There are no other orders sought by the Applicants.
Orders
Urban Dweller Construction Pty Ltd is to pay to Rory Finlay and Sarah Finlay the amount of $19,500.00 by 4.00 pm on Friday, 21 February, 2025.
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