Fitzgerald v Ryan McLaren t/as Dialled Earthworks & Construction - [2025] QCAT 307

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Fitzgerald v Ryan McLaren t/as Dialled Earthworks & Construction [2025] QCAT 307

PARTIES:

CIARAN FITZGERALD

(applicant)

v

RYAN MCLAREN T/AS DIALLED EARTHWORKS & CONSTRUCTION

(respondent)

APPLICATION NO/S:

BDL425-23

MATTER TYPE:

Building matters

DELIVERED ON:

18 August 2025

HEARING DATE:

16 June 2025

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Benjamin

ORDERS:

1. Ryan McLaren t/as Dialled Earthworks & Construction must pay to Ciaran Fitzgerald $29,997 within 28 days of the date of this decision.

2. Ryan McLaren t/as Dialled Earthworks & Construction must pay to Ciaran Fitzgerald costs fixed in the amount of $379.50 within 28 days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – IMPLIED TERMS – where applicant homeowner entered into regulated domestic building contract with respondent builder – where a contractual relationship was formed between the parties by email communications – where a term about reasonable payment implied – where builder required to carry out works with reasonable care and skill in accordance with implied warranties contained in Queensland Building and Construction Commission Act 1991 (Qld) schedule 1B – where respondent did not carry out works with due care and skill – where respondent breached contract

DAMAGES – ASSESSMENT OF DAMAGES IN ACTIONS FOR BREACH OF CONTRACT – where author of quote for rectification works not called to give evidence at hearing – where no conflicting quotes or evidence of damages in evidence – where respondent’s bases for challenging the quote unsubstantiated by evidence – where quote accepted as evidence of cost of rectification work

Building Act 1975 (Qld), s 21, s 22
Electronic Transactions (Queensland) Act 2014 (Qld), s 14

Queensland Building and Construction Commission Act1991 (Qld), s 19, s 21, s 22, schedule 1B s 4, schedule 2

Bellgrove v Eldridge (1954) 90 CLR 613
Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551
Munro v Camdun Pty Ltd [2024] QCAT 452
Olindaridge Pty Ltd & Anor v Tracey & Anor [2014] QCATA 207
Renbar Constructions Pty Ltd v Sader [2022] NSWSC 172
Robinson v Harman (1848) 1 Ex Rep 850
Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015] QSC 119

Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

What is this proceeding about?

This proceeding is about a building dispute.
Mr McLaren undertook concreting work for Mr and Mrs Fitzgerald at their home. Mr Fitzgerald says that the work is defective and seeks to recover from Mr McLaren damages for the cost of rectification work.
Findings about jurisdiction
We are satisfied as to the following:
(a)Mr Fitzgerald is a building owner;[1]
(b)Mr McLaren is a building contractor;[2]
(c)Mr McLaren undertook domestic building work for Mr Fitzgerald;[3]
(d)The dispute, the subject of the proceeding, is a domestic building dispute;[4]
(e)The requirements of s 77(2) of the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’) have been satisfied; and
(f)The Tribunal has jurisdiction to decide the dispute.
Did the parties enter into a contract complying with the requirements of Schedule 1B of the QBCC Act?
[1]Queensland Building and Construction Commission Act 1991 (Qld) schedule 1B s 1 (‘QBCC Act’).
[2]Ibid.
[3]Ibid schedule 1B s 4.
[4]Ibid schedule 2.
The first issue to address is whether there was a contract having legal effect between the parties. A contract for the performance of domestic building work between a building owner and a building contractor is a regulated contract.[5] A level 2 regulated contract is one where the contract price is $20,000 or more.[6] It is not controversial that the contract price relating to the work undertaken by Mr McLaren was more than $20.000.
[5]Ibid schedule 1B s 5.
[6]Ibid schedule 1B s 7; Queensland Building and Construction Commission Regulation 2018 (Qld) s 45.
A level 2 regulated contract must be in writing, signed by the parties and dated.[7] If a building contract does not meet these requirements, it is of no effect.[8] Where a building contract has no effect it cannot be enforced by the parties.
[7]Ibid schedule 1B s 13(2).
[8]Ibid schedule 1B s 13(5).
It is not in dispute that:
(a)On 24 February 2022 Mr McLaren forwarded quote QU-0004 to Mr Fitzgerald. The amount of the quote was $36,316.80;
(b)Following a meeting on site, on 1 March 2022 a revised quote QU-0004 was prepared and forwarded by email from Mr McLaren to Mr Fitzgerald;[9]
(c)The revised quote included the following scope of works:
(i)      Supply and install plain concrete for driveway (approximately 200sqm²);
(ii)      Patio (approximately 100sqm²);
(iii)     Side and front slab (approximately 100sqm²);
(iv)     Shed driveway (approximately 100sqm²);
(v)      Stairs leading to backyard;
(vi)     Supply machine, drainage relocation and installation, mesh, steel, crusher dust and all other consumables;
(d)The price of the works under the revised quote was $39,906.50; and
(e)On 10 March 2022 Mr Fitzgerald emailed Mr McLaren accepting the revised quote.
[9]Exhibit 2.
After Mr Fitzgerald accepted the revised quote, Mr McLaren provided to Mr Fitzgerald a document titled ‘Construction Contract’. This document was never signed by the parties. The evidence of Mr McLaren about the ‘Construction Contract’ is somewhat contradictory. On the one hand he says that the Construction Contract was intended to be the final agreement between the parties and on the other he states he considered the parties had formed a concluded agreement on 10 March 2022 when Mr Fitzgerald accepted the revised quote. The evidence of Mr and Mrs Fitzgerald is that after accepting the revised quote they entered into the Construction Contract with Mr McLaren.
The revised quote included a number of terms and conditions including:
(a)Mr McLaren would perform the work in a workmanlike manner in accordance with all applicable laws, regulations, codes, restrictive covenants, and homeowners association requirements;
(b)Mr McLaren would provide to Mr Fitzgerald acknowledgement of full payment of each payment laid out in the payment schedule;
(c)Mr McLaren would take all reasonable precautions in performing the work;
(d)Mr McLaren would comply with all applicable laws, ordinances, rules, regulations and orders of public authorities for the safety of persons and property; and
(e)Mr Fitzgerald would provide to Mr McLaren reasonable access to the property to perform the work and keep the property clear of all hazards.
The revised quote also noted that the contract price may change due to unforeseen cost increases of certain stated items.
The quote did not contain a payment schedule.
The Construction Contract provided for payment of the contract price at four stages: $7,906.50 upon execution of the contract, $16,000 upon completion of preparation of concrete; $8,000 upon pour of concrete and $8,000 upon the second pour of concrete. There is no evidence that Mr and Mrs Fitzgerald were made aware of the Construction Contract at the time of the submission of the revised quote by Mr McLaren. Nor is there any evidence to suggest that acceptance of the revised quote by Mr Fitzgerald was conditional upon the parties entering into the Construction Contract. Similarly, there no evidence that Mr Fitzgerald’s acceptance of the revised quote was an agreement to negotiate the Construction Contract.
Whether or not a contract has been formed requires an objective determination of the intention of the parties. The following matters are relevant:
(a)There is no evidence that, when the revised quote was accepted, the parties contemplated the execution of a formal contract in the form of the Construction Contract;
(b)There is no evidence that the revised quote did not contain the matters of importance in relation to which the parties had reached agreement, that is to say, the scope of works and the price;
(c)The evidence is that the parties proceeded to act in accordance with the terms of the revised quote; and
(d)There is no evidence that the parties intended to involve solicitors in drawing up a formal agreement.[10]
[10]Geebung Investments Pty Ltd v Varga Group Investments (No 8) Pty Ltd (1995) 7 BPR 14,551 per Kirby P.
What is the effect, if any, of the absence of a payment schedule in the revised quote? A contract will fail for incompleteness where an essential, material or important part of the bargain is yet to be agreed, unless:
(a)there is a machinery provision which can be applied to supply the omitted term;
(b)a term can be implied to deal with the omission; or
(c)severance is possible.
A contract is not bad for uncertainty merely because of ambiguity: the ambiguity must be incapable of resolution before that result will follow. Courts are reluctant to strike down an agreement on the ground of uncertainty or incompleteness.[11] Uncertainty or incompleteness may be remedied by the implication of a term. A term may be implied into a contract: to give business efficacy to the contract; as a consequence of the contract itself or the obligations it creates; because a statute applies to the contract and requires certain terms to be implied.
[11]Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106.
The implication of a term to give business efficacy to a contract is an implication in fact, the requirements for which are:
(a)the term must be reasonable and equitable;
(b)the term must be necessary to give business efficacy to the contract;
(c)the term must be obvious;
(d)the term must be capable of clear expression; and
(e)the term must not contradict any express term of the contract.
In Renbar Constructions Pty Ltd v Sader,[12] the Court found that the subject building contract had an implied term that the owner would pay the price for building work done within a reasonable time, notwithstanding the absence of valid progress payment claims by the builder. Here, the question is whether a term should be implied into the agreement between the parties, that payment of the contract price would be made by Mr Fitzgerald within a reasonable time. A term requiring that Mr McLaren be paid for works carried out is reasonable and would have placed no additional burden on Mr Fitzgerald. Further, the contract could not operative effectively if the term were not implied, as it would leave Mr McLaren in the unacceptable position that he would not be paid for work he completed at his expense. The term is capable of clear expression and is so obvious that it goes without saying. There was no suggestion Mr McLaren was providing the works gratuitously. Nor is there any inconsistency between the implied term and the concluded agreement. Nothing in the agreement precluded Mr McLaren’s entitlement to be paid.
[12][2022] NSWSC 172.
We find, on the evidence before the Tribunal, that the parties formed a concluded agreement when Mr Fitzgerald communicated to Mr McLaren acceptance of the revised quote. The agreement included a term that the contract price would be paid to Mr McLaren within a reasonable time.
The next issue to address is whether the agreement between the parties is a contract satisfying the requirements of schedule 1B of the QBCC Act. As has been stated earlier in these reasons, for a domestic building contract between a building owner and a building contractor to be of effect, the contract must be in writing, signed by the parties and dated. It may be accepted that the agreement between the parties does not, on the face of the evidence, meet these requirements. It is necessary however to consider the application of the Electronic Transactions (Queensland) Act2001 (Qld) (‘ET Act’).
Section 14 of the ET Act provides:
14     Requirement for signature
(1)     If, under a State law, a person’s signature is required, the requirement is taken to have been met for an electronic communication if—
(a)a method is used to identify the person and to indicate the person’s intention in relation to the information communicated; and
(b)the method used was either—
(i)as reliable as appropriate for the purposes for which the electronic communication was generated or communicated, having regard to all the circumstances, including any relevant agreement; or
(ii)proven in fact to have fulfilled the functions described in paragraph (a), by itself or together with further evidence; and
(c)the person to whom the signature is required to be given consents to the requirement being met by using the method mentioned in paragraph (a).
(2)     The reference in subsection (1) to a law that requires a signature includes a reference to a law that provides consequences for the absence of a signature.
The effect of s 14 of the ET Act was explained by Martin J (as His Honour then was) in Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd:[13]
66. Section 14 provides that the requirement for a person’s signature is met for an electronic communication if a method is used to identify the person whose signature is required and to indicate that person’s intention in relation to the information communicated. In the acceptance email, there is no identification of any person as the acceptor of the earlier offer. That is not fatal.
67. Section 14(1)(b) provides two alternative methods which will satisfy s 14(1)(a). In this case, the second method has been established. The identification of the person and the person’s intention can be established by further evidence. That further evidence is made up of the various conversations which were had prior to 31 October 2014 and the offer email together with the admission in the pleading that Drew Kellehan sent the email which expressed acceptance of the offer.
68. The other point raised by the defendant is that the plaintiff has not demonstrated that it consented to the requirement of the signature being met by using the method referred to above. In circumstances where parties have engaged in negotiation by email and, in particular, where an offer is made by email, then it is open to the court to infer that consent has been given by conduct of the other party. (footnotes omitted)
Conclusion on whether the parties entered into a contract complying with the requirements of Schedule 1B of the QBCC Act
[13][2015] QSC 119.
No direct evidence was given by Mr Fitzgerald or Mr McLaren in relation to the email communications surrounding the revised quote. We are satisfied that the email from Mr McLaren to Mr Fitzgerald on 1 March 2022 and the email from Mr Fitzgerald to Mr McLaren on 10 March 2022 satisfy the requirements of s 14(1)(a) and (b) of the ET Act. In relation to the requirement in s 14(1)(c), we are prepared to infer that, the parties having engaged in negotiation by email, both parties consented to the requirement for a signature being met by the email communications.
The terms of the contract
Having found that the parties entered into a contract meeting the requirements of schedule 1B of the QBCC Act, we turn to the terms of the contract.
In addition to the terms and conditions contained in the revised quote, and the implied term as to payment of the contract price, the warranties mentioned in Division 2 of Part 3, schedule 1B of the QBCC Act form part of the agreement between the parties:[14]
(a)Mr McLaren warranted that the work would be carried out in accordance with all relevant laws and legal requirements including for example the Building Act 1975 (Qld);[15] and
(b)Mr McLaren warranted the work would be carried out:
(i) In an appropriate and skilful way; and
(ii) With reasonable care and skill.[16]
[14]QBCC Act schedule 1B s 19(1).
[15]Ibid schedule 1B s 21.
[16]Ibid schedule 1B s 22.
Finally, before moving on from the issue of the contract, it is necessary to address the effect of the Construction Contract. As we have observed, the Construction Contract was not signed by the parties. The document largely reflected the revised quote albeit with additional conditions. To the extent that the Construction Contract imposed obligations on Mr McLaren regarding the performance of the work there is no inconsistency with the original agreement. The Construction Contract also included a payment schedule which we have also earlier referred to. It does not appear to be controversial that the parties considered the Construction Contract to form part of the agreement for the performance of the works by Mr McLaren. Although not expressed thus by the parties it seems that, and we find, the Construction Contract was a variation of the original agreement. The parties acted consistently with this, noting the evidence that the payments made by Mr Fitzgerald to Mr McLaren were in accordance with the payment schedule. While the Construction Contract was not signed, this does not render the variation unenforceable.[17] Ultimately, nothing turns on the status of the Construction Contract on the basis that the determination of the proceeding turns on whether Mr McLaren undertook the work in breach of the original agreement and the implied statutory warranties.
[17]Munro v Camdun Pty Ltd [2024] QCAT 452.
The building work
The concreting work undertaken by Mr McLaren consisted of a driveway, a patio, a side and front slab, a shed driveway and stairs leading to the backyard of Mr Fitzgerald’s residence.
Mr Fitzgerald’s evidence is that he became concerned at delays by Mr McLaren in completing the works. Mr Fitzgerald communicated these concerns to Mr McLaren by email and text message. After Mr McLaren undertook the concrete pour, Mr Fitzgerald communicated to Mr McLaren his concerns regarding a number of aspects of the work.
Mr McLaren responded advising Mr Fitzgerald that the work had been completed ‘as per the contract’ and that he was owed $8,000.[18]
[18]Applicant statement – page 35.
Mr Fitzgerald in turn responded, sending an email to Mr McLaren identifying the issues and attaching a number of photographs of the work and advising that once the issues were rectified he would make a further payment of $5,000 to Mr McLaren.[19]
[19]Applicant statement – page 36.
Mr Fitzgerald then sent, by way of email to Mr McLaren, a formal complaint calling on Mr McLaren to rectify the defects failing which the contract would be terminated and Mr Fitzgerald would engage an alternative contractor to complete the work.[20]
[20]Applicant statement – page 38.
Mr McLaren replied the following day by email advising that it was his intention to rectify the issues identified and setting out what further steps he proposed to undertake. Mr McLaren stated that there had been a ‘communication error’ relating to Mr McLaren’s obligation to apply a ‘base coat’ which he said he had been told to apply only in those areas ‘that needed it so that (Mr Fitzgerald) could paint it’ and that had he been ‘told to do the whole area I most certainly would have done it.’[21]
[21]Applicant statement – page 40.
Subsequent communications between the parties were unproductive of a resolution of the issues. Mr Fitzgerald complained to the QBCC.
A QBCC building inspector, Mr Hickling, attended at the property on 16 November 2022 and inspected the works. Mr Hickling prepared a report dated 22 November 2022. Prior to Mr Hickling’s inspection, the parties had reached agreement on the details and scope of rectification work to be undertaken by Mr McLaren.

The agreed rectification work included the application of spraycrete. The parties agreed on the price of the work at $750. This amount was subsequently paid by Mr Fitzgerald to Mr McLaren. While the parties appear to have considered the further work to be rectification work, it was in fact variation work for which Mr McLaren received valuable consideration. For the reasons we have previously explained, it was not necessary for the variation to have been in writing in order to have effect as a valid variation.
After Mr McLaren completed the rectification work in February 2023, which included the application of spraycrete,[22] Mr Fitzgerald remained dissatisfied with the quality of the work. Mr Hickling subsequently returned to the site for an inspection and prepared a report dated 21 August 2023. The report is in evidence.[23] Mr Hickling gave evidence at the hearing.
[22]Applicant statement – page 85.
[23]Applicant statement – page 152-179.
Mr Fitzgerald relies upon the report of Mr Hickling as evidence of defective work undertaken by Mr McLaren. Referring to the items of building work complained of by Mr Fitzgerald, Mr Hickling opined the following in the report:
(a)Item 1: The installation of the coloured sealer to the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;
(b)Item 2: The installation of the coloured sealer to the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer had drip lines and was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;
(c)Item 4: The installation of the coloured sealer to the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 13.2 Surface finish of paintwork, in that there was excessive coloured sealer on the slab edge and electrical conduits located on the house perimeter adjacent to the pool enclosure resulting in an unsatisfactory finished appearance and defective construction practice;
(d)Item 4: The installation of the applied texture finish and coloured sealer to the rear patio area did not meet a reasonable standard of construction or finish expected of a holder of a contractor’s licence of the relevant class in that the sealer had been brushed on the electrical conduit and there was an excessive build-up of the applied finish around the conduits;
(e)Item 5: The installation of the applied finish to the centre of the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the texture was not consistent resulting in an unsatisfactory finished appearance and defective construction practice;
(f)Items 6 and 7: The installation of the coloured sealer and patching to the first stair riser to the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer and applied finish was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;
(g)Item 9: The installation of the coloured sealer to the southern footpath had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;

(h)Item 10: The installation of the coloured sealer to the southern side of the house had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;
(i)Item 11: The installation of the sealer to the side path located on the eastern end of the BBQ had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice;
(j)Items 13, 14 and 16: The installation of the coloured sealer to the rear patio had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice; and
(k)Item 15: The installation of the coloured sealer to the front stairs and footpath had not been completed in accordance with the QBCC Standards and Tolerances Guide, clause 2.2 Finish to external concrete paving, in that the sealer was not consistent in colour, texture and general appearance resulting in an unsatisfactory finished appearance and defective construction practice.

In relation to three of the complaint items (items 3, 8 and 12), Mr Hickling opined that there was insufficient evidence to reveal any obvious defective construction practices by Mr McLaren. This related to cracks in the coating and grass being sealed or rolled into covercrete.
Mr Hickling gave evidence at the hearing about, inter alia, a direction to rectify given by the QBCC to Mr McLaren on 29 September 2023.[24] After the direction to rectify was given, the QBCC sent a letter dated 6 November 2023 to Mrs Fitzgerald advising that the direction had not been complied with by Mr McLaren and identifying the items of building work that had not been satisfactorily completed. Mr Hickling’s evidence was that the items referred to in the November 2023 letter were the same as the items in the direction to rectify. This particular issue is relevant to the extent and cost of rectification work which will be addressed later in these reasons.
[24]Exhibit 3.
Mr McLaren gave evidence at the hearing about the items of work the subject of the direction to rectify. In relation to item 16, Mr McLaren said that he had attempted rectification work. In relation to item 5, Mr McLaren was unable to offer any evidence. In relation to items 1, 2, 4, 6 and 7, Mr McLaren’s evidence was that his lack of time and financial resources to undertake the work were the cause of the unresolved issues. In relation to items 9, 10 and 11, the evidence of Mr McLaren was that any unevenness in the appearance of the sealer would not be apparent until some weeks after application given the porous nature of concrete and spraycrete. It is of note that the conclusions reached by Mr Hickling in relation to the quality of work were unchallenged by Mr McLaren. To the extent that Mr McLaren offered an explanation about the appearance of the sealer, he did not challenge Mr Hickling’s opinion but rather sought to explain why the sealer had an inconsistent appearance.
Weighing up the evidence of Mr Hickling and Mr McLaren, we prefer the evidence of Mr Hickling. Mr Hickling was an independent building inspector from the QBCC who inspected and reported on Mr McLaren’s work. His report was detailed and directed at what he identified were items of defective work undertaken by Mr McLaren.
We are satisfied that the work undertaken by Mr McLaren as referred to in the report of Mr Hickling was defective for the reasons set out in the latter’s report.
Did Mr McLaren breach the contract?
As we have earlier referred to, the terms of the contract required Mr McLaren to undertake the work in a workmanlike manner. Mr McLaren was also obligated under the implied statutory warranties to carry out the work in an appropriate and skilful way and with reasonable care and skill. On the basis of the opinions expressed by Mr Hickling, we are satisfied that Mr McLaren breached the terms of the contract by failing to carry out the work in an appropriate and skilful way and with due care and skill.
Damages
The guiding principle in assessing damage for breach of contract may be found in Robinson v Harman.[25] The innocent party is entitled to be placed in the same position as if the contract had been performed according to its terms. In Bellgrove v Eldridge,[26] the High Court stated that an innocent building owner was entitled to recover the cost of rectifying defective work to give the owner the equivalent of the outcome which is substantially in accordance with the building contract. The High Court also made a qualification to this general rule: the remedial work must be necessary to produce confirming and it must be a reasonable course to adopt.
[25](1848) 1 Ex Rep 850.
[26](1954) 90 CLR 613.
Mr Fitzgerald says that the direction to rectify issued by the QBCC identifies all of the defective work he says was undertaken by Mr McLaren. Mr Fitzgerald relies upon a quote from a licenced building contractor which he says is the cost of rectification of the defective work. The quote, dated 3 December 2023, is for $29,997 and refers to the following scope of works: Remove existing defective coating by diamond grinding. Prepare for new coating by acid etching. Apply new covercrete coating and sealer. It should be noted that the quote is from a QBCC licenced contractor.
The author of the quote was not called to give evidence by Mr Fitzgerald. Mrs Fitzgerald gave evidence that the author of the quote was provided with a copy of the letter from the QBCC to Mrs Fitzgerald dated 6 November 2023. We accept the evidence of Mr Hickling that the items of work referred to in the November 2023 letter are the same as the items referred to in the direction to rectify. Mrs Fitzgerald’s evidence, which we accept, was that the author of the quote was requested to confine his quote to the items referred to in the November letter. We accept that the quote is so confined.
What weight should be given to the quote in the absence of the author giving evidence? In Olindaridge Pty Ltd & Anor v Tracey & Anor[27] (‘Olindaridge’) the Appeal Tribunal addressed the weight to be given to evidence contained in quotes in the absence of the authors of the quotes being called to give evidence at the hearing, stating:
The quotes were before the Tribunal. How they were dealt with could ultimately only come down to a question of relevance and weight, as the homeowners submit. They were undoubtedly relevant to the issues. However, before any weight was attached to them, the builders were entitled to procedural fairness.
…
The estimates were of course attached to the homeowner’s statement and Exhibit 7. However, many persons acting for themselves in proceedings attach all manner of documents to what are supposed to be statements of evidence and other documents provided to the Tribunal, much of which is ultimately not relevant or could not reasonably be given any weight in the circumstances of the case. The Tribunal must wade through and determine what is relevant. In discharging its responsibilities to give parties natural justice, it must ensure that if something is considered relevant credible and significant that the other party or parties have a proper opportunity to respond to it and test it in cross-examination.
Of course, the Tribunal is not bound by the rules of evidence, and is entitled to rely upon information which is presented in a format which would be unacceptable in a court. It was entitled to rely upon the estimates as attached to the statement of Mrs Tracey. However, if it proposed to do so, it was obliged to do so in a manner that gave natural justice to the builders. This, it seems to us, required putting the builders on notice of its intention to do so, despite the homeowners failure to identify Mr Morgan and Mr Frankham as witnesses relied upon or to make them available for cross-examination, so that they could proceed accordingly.
As a corollary, we observe that the requirements of s 29 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) arguably obliged the learned Member to point out to the self-representing homeowners that if they did rely upon the estimates attached to Mrs Tracey’s statements, then Mr Morgan and Mr Frankham should be made available for cross-examination.[28]
[27][2014] QCATA 207.
[28]Ibid [40]-[44].
It follows that the question for us is: In the absence of the author of the quote relied upon by Mr Fitzgerald giving evidence at the hearing, what weight, if any, should be attached to the evidence in the form of the quote? Neither party addressed the issue in their final submissions at the hearing. During the hearing, Mr Fitzgerald was advised of the adverse consequences that might flow from the failure to call the author of the quote and, specifically, the weight the evidence contained in the quote might be given. Mr Fitzgerald indicated to the Tribunal that the author of the quote had advised he was not prepared to give evidence at the hearing.
Olindaridge has been cited in the Tribunal as authority for the proposition that the failure to call the author of a quote relied on to support a claim for damages means that no weight may be given to the evidence contained in the quote. We do not understand Olindaridge to be authority for the proposition that this is an invariable maxim. The facts in Olindaridge were clearly material to the determination by the Appeal Tribunal. In Olindaridge, a home had been extensively damaged by termites. The builder denied liability for the termite ingress. There was conflicting engineering and pest expert evidence about the construction of the slab, which had compromised the termite barrier and the cause of, and location of, termite ingress. The homeowner relied upon a number of quotes for the cost of rectification work ranging from $80,000 to $143,000. The builder’s evidence was that the cost of rectification was less than $10,000. There was evidence that the actual cost of rectification work could not be ascertained until parts of the dwelling had been demolished. The Tribunal at first instance adopted something of a broad-brush approach to assessing the cost of rectification work, adopting one of the quotes with a 10% allowance for cost increases. It is against this background that the decision in Olindaridge must be viewed.
Here, there is no conflicting expert evidence about the defective work. There is only the evidence of Mr Hickling. Nor is there any conflicting evidence from building contractors about the scope and cost of rectification work. There is only the quote relied upon by Mr Fitzgerald. We have accepted the evidence of Mrs Fitzgerald that instructions were given to the author of the repair quote to limit the quote to those items identified as defective in the QBCC direction to rectify. There is no evidence that the author of the quote did not do so.
Mr McLaren cross-examined Mr Hickling at the hearing. Mr Hickling was not challenged by Mr McLaren in relation to the former’s expression of opinion in his report that the concreting work undertaken by Mr McLaren was defective. In cross examination, Mr McLaren was asked about each of the items of building work identified as defective in the report of Mr Hickling. Mr McLaren had various explanations for the state of the works including lack of money and time to undertake the work, overlooking completing the work, and not returning to the job site at a point in time when defective work would have become apparent. Mr McLaren also gave evidence that he had been paid an additional amount of $750 by Mr Fitzgerald to apply spraycrete to the concreted areas as part of the rectification works undertaken by Mr McLaren in early 2023. Mr McLaren accepted that the concrete finish was ‘very undesirable.’ Mr McLaren said that only one quote for rectification work had been provided by Mr Fitzgerald and that the author of the quote might have ‘skin in the game’.
Mr McLaren’s evidence is that the true cost of the rectification work he undertook was in the order of $10,000 and not the $750 paid by Mr Fitzgerald. Mr McLaren says that the quote relied upon by Mr Fitzgerald is not limited to the rectification of defective work but is also ‘for covercrete which the original rectification was only a coloured sealant not covercrete.’ Mr McLaren also says that the ‘business (providing the quote) is … not specifically a concreting business but a (b)uilding maintenance and project management corporation in (sic) which would provide a much higher quoted price.’
Mr McLaren’s evidence and submissions were principally directed at two issues: firstly, that the rectification works sought by Mr Fitzgerald relate to work outside the scope of the original contract; secondly, that the amount claimed for rectification work is excessive.
Dealing with the first issue, it is not contentious that the parties agreed on the detail and scope of the rectification work Mr McLaren undertook. This is reflected in the initial report of Mr Hickling, who noted that the parties had agreed on the method of rectification. Mr McLaren’s rectification work consisted of the application of a sprayed textured coating over the concrete, which was then sealed with a coloured sealer. Mr Hickling opined that the finish to the concrete, after Mr McLaren had attempted rectification work, was unsatisfactory. As we have found, Mr McLaren’s attempted rectification work was in fact work undertaken as a variation of the original scope of works.
Dealing with the second issue, Mr McLaren offered no credible evidence that the quote relied upon by Mr Fitzgerald is excessive. His argument that the quote is excessive seems to be based on the credibility of the contractor providing the quote and an apparent difference between spraycrete and covercrete. As to the former, and as we have observed, the quote is from a QBCC licensed contractor. As to the latter, Mr McLaren offers no evidence as to the difference between spraycrete and covercrete, either as a method of rectification or in relation to cost.
Taking all of these matters into consideration, we are of the view that weight may be ascribed to the quote for rectification work relied upon by Mr Fitzgerald, despite the author of the quote not giving evidence at the hearing.
It is apparent from the evidence of Mr Hickling that rectification work will require removing and replacing the existing finish to the effected areas of concrete. We accept that the work identified in the quote is both necessary and reasonable. We assess the cost of rectification in the amount of $29,997.00.
The original contract price was paid in full. Mr Fitzgerald is entitled to recover the cost of rectification being $29,997.00.
As this is a proceeding for a building dispute the Tribunal may award costs. We allow costs fixed in the amount of $379.50 being the filing fee on the originating application.