Jones v Skelton Brothers Pty Ltd t/as Clean Deal Roofing - [2024] QCAT 92

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Jones v Skelton Brothers Pty Ltd t/as Clean Deal Roofing [2024] QCAT 92

PARTIES:

KAREN JONES

(applicant)

v

SKELTON BROTHERS PTY LTD T/AS CLEAN DEAL ROOFING

(respondent)

APPLICATION NO/S:

BDL160-22

MATTER TYPE:

Building matters

DELIVERED ON:

27 February 2024

HEARD AT:

Brisbane

DECISION OF:

Adjudicator Adcock

ORDERS:

1. Karen Jones is relieved from any further payment to Skelton Brothers Pty Ltd.

2. The counter-application by Skelton Brothers Pty Ltd is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where contract did not comply with the requirements of the Queensland Building and Construction Commission Act 1991 (Qld) – consequences of non-compliance – where contract is of no effect

TORTS – NEGLIGENCE – DUTY OF CARE – STANDARD OF CARE, SCOPE OF DUTY AND CAUSATION – GENERALLY – where breach of duty by builder in undertaking building work – assessment of damages

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 3, s 5, s 13, s 14, s 19, Schedule 2, s 42, s 44, s 77

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

What is this application about?

Skelton Brothers Pty Ltd (‘Skelton’, ‘Skelton Brothers’) carried out roof restoration and painting works for the applicant homeowner, Ms Jones, at her property in Chapel Hill.
Ms Jones alleged that works were defective due to a different paint being used to the one agreed to by the parties.
Ms Jones is seeking final relief against payment and rectification costs. According to Ms Jones, ‘the only way to rectify the issue in the future will be to reroof’.
Skelton are seeking the outstanding proportion of their invoice plus debt-collection costs.
The Tribunal directed that both applications be decided on the papers and that decision, and the reasons are as follows.
Legislative framework
Section 77 of the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’) confers jurisdiction on the Tribunal to hear building disputes.
Roof restoration work and painting work are domestic building work, and the claim relates to a contact for the performance of ‘reviewable domestic work’ within the Tribunal’s building dispute jurisdiction.[1]
[1]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.
Section 77(2) qualifies QCAT jurisdiction by first requiring an applicant to comply ‘with a process established by the commission to attempt to resolve the dispute’.
Compliance with section 77(2) purports to be evidenced by a letter from the Queensland Building and Construction Commission (‘QBCC’) dated 6 May 2022 confirming that QBCC’s involvement in the matter had ended.
QBCC made no directions or other findings as to the alleged defects. No explanation or reliance was provided by either party as to the role taken by QBCC. I infer no findings from the lack of action taken by QBCC other than being satisfied that they were unable to resolve the dispute.
I am satisfied that there has been compliance with the QBCC processes for resolution of ‘the dispute’.
The Tribunal’s powers
As it relates to building disputes, the Tribunal’s powers include, without limitation, the ability to do any of the following:
(a)order the payment of an amount found to be owing by 1 party to another;
(b)order relief from payment of an amount claimed by 1 party from another;
(c)award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;
(d)order restitution;
(e)declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;
(f)avoid a policy of insurance under the statutory insurance scheme;
(g)order rectification or completion of defective or incomplete tribunal work;
(h)award costs.[2]
[2]QBCC Act, s 77(3).

Was Skelton appropriately licenced?

Pursuant to section 42(1) of the QBCC Act, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under the Act.
The effect of s 42(1) of the QBCC Act is that an unlicensed person is prohibited from either entering a contract to perform building work or actually performing building work. The consequence of this prohibition is that the contract is unenforceable by the builder.
According to the ‘QUOTE/CONTRACT’ Skelton Brothers held QBCC Licence number: 1279801.
Skelton Brothers also held a Painting and Decorating Licence from 24 June 2014 until 30 June 2022. The Painting and Decorating endorsement was removed from the licence on 30 June 2022. The reason stated by QBCC on the licence was ‘Contractor Requested’.
Skelton were therefore licenced to do the painting work during the time the work at Ms Jones’ house was being undertaken.

The pre-works negotiations

Prior to engaging with Skelton, Ms Jones and her partner Mr Horton held discussions with Mr Don Skelton. It is uncertain whether Mrs Jones believed that Mr Skelton would be personally undertaking or directly supervising the work, but it appears that Ms Jones entered the contract with Skelton Brothers as she valued Mr Skelton’s knowledge and experience.
It was evident that Mr Skelton had gone to some lengths to explain the ‘Dulux Acurex system’ to Ms Jones and Mr Horton, which was the documented paint scheme which was agreed to be used on Ms Jones’ metal roof. The Dulux data sheets were also provided to Ms Jones and Mr Horton so they could familiarise themselves with the characteristics of the paint they had chosen to be used on their home.
The contract issue
The document that was provided to Ms Jones by Skelton was titled ‘QUOTE/CONTRACT’ and provided the scope of the work that would be undertaken as well as the paint that was to be used. The document however was only signed and dated by Mrs Jones. It was nether signed nor dated by Skelton.
The QBCC Act sets out the requirements for domestic building contracts. A domestic building contract includes a contract to carry out domestic building work.[3] A regulated contract includes a domestic building contract for which the contract price is more than the regulated amount.[4] Regulated contracts may be level 1 or level 2 contracts depending on the contract price: the price quoted for the works was $8,822.89 making this a level 1 contract. However, the difference between level 1 and level 2 contracts is not material for present purposes.
[3]Ibid, sch 1B, s 3(1)(a).
[4] Ibid, sch 1B, s 5(1)(a).
A regulated contract must be in a written form, dated and signed by or on behalf of each of the parties to it.[5] A contract only has effect if it complies with these requirements.[6]
[5]Ibid, sch 1B, s 13(2), s 14(2).
[6]Ibid, sch 1B, s 13(5), s 14(10).
The failure by a building contractor to comply with a requirement under the QBCC Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable unless the contrary intention appears in the Act.[7]
[7]Ibid, sch 1B, s 44.
Section 13(5) and section 14(10) of Schedule 1B of the Act are expressed in clear and unequivocal words. A contract that is not in writing, signed and dated by the parties is of no effect. A contract that has no effect is void and cannot be enforced.
The QBCC Act implies into every regulated contact certain warranties.[8] Because the quote relied upon by Ms Jones does not meet the requirements of a regulated contract, with the result that the contact is of no effect, the implied warranties also do not apply.
[8]Ibid, Schedule 1 B, s 19.
I therefore conclude that the ‘contract’ between Ms Jones and Skelton is of no effect. I also conclude that I cannot assess damages on the basis of breach of contract.
A potential claim in negligence
A domestic building dispute includes a claim or dispute in negligence related to the performance of reviewable domestic work.[9] Essentially, in a claim for breach of duty an applicant must establish:
(a)the respondent owed the applicant a duty of care;
(b)the respondent breached the duty; and
(c)as a result of the breach of duty the applicant has suffered loss.
[9]Ibid, Schedule 2.
I am satisfied that the first two elements are made out in a claim for negligence. However, on the evidence before me, I am not satisfied that the applicant has suffered any loss.
The applicant makes various submissions about the paint that should have been used. She points out that the paint that was stated in the agreement was manufactured specifically for a metal roof and the paint that was used was not manufactured for a metal roof. The applicant also has concerns about the lack of curing time between coats and the long-term consequences of having used a different paint.
Although I understand the applicant’s concerns, I am not satisfied that she has suffered any loss that justifies further compensation. In fact, Ms Jones is arguably in an improved position.
Is there unjustly enrichment giving rise to a quantum meruit claim?
Derived from Latin, “quantum meruit’ translates to “the amount one deserves” or “as much as one has earned”. It is an action to recover money for services supplied in circumstances where no formal written contract or agreement exists and to ensure a party is not unfairly benefitted at the expense of another’s effort.
Given there is no formal contract between the parties, I will consider whether the respondent should be able to claim ‘a reasonable sum’ for the work completed.
What is reasonable in the circumstances needs to be considered in light of all of the circumstances.
My findings as to this dispute I can list as follows:
-     the applicant has received a benefit of a painted roof;
-     the paint used was different to the paint the parties had agreed to use;
-     the paint that was used was not given the appropriate curing time;
-     the longevity of the paint that was used is unknown, but it is highly unlikely to ‘perform’ to the standard of the paint that should have been used.
One consideration of any claim for quantum meruit should be the time and effort invested in providing the goods and service, as well as the incurred expenses in providing the works. A further consideration in a quantum meruit claim should also be whether the parties in any way acted in bad faith.
Bad faith is described as referring to the other contracting party performing the contract dishonestly or fraudulently.[10]
[10]Sewell & Kettle Law Dictionary (online at 27 Feb 2024) ‘bad faith’.
There are various instances relating to the conduct of the respondent that give me concern. They include, but are not limited to, Mr Hulm’s submissions about his apparent expertise as a painter and decorator in the absence of any evidence; the fact that Mr Hulm amended his earlier position in his later Affidavit to remove his claim that he held Dulux accreditation; and the subsequent removal of Skelton’s painting and decorating endorsement on their QBCC licence.
I also point out the failure of the respondent to provide any evidence from Don Skelton as to the discussions he allegedly had with the applicant. Given the applicant’s extensive and detailed submissions related to the various discussions with Mr Skelton, including the agreement as to the paint to be used and the claimed admission that the wrong paint was in fact used, Skelton could have disputed the substance of those conversation and admissions, but no such evidence was provided.
This unexplained failure to call evidence allows me to draw an interference that the evidence would not have assisted the respondent.[11]
[11]The rule in Jones v Dunkel [1959] HCA 8; 101 CLR 298.
For the reasons described above, I find the respondent does not have a claim in contract due to them not complying with s 13(2) of Schedule 1B of the QBCC Act. I am also not satisfied that the respondent is entitled to any payment on the basis of a quantum meruit claim.
Orders
My decision is as follows:
(a)Karen Jones is relieved from any further payment to Skelton Brothers Pty Ltd.
(b)The counter-application by Skelton Brothers Pty Ltd is dismissed.