M.Todd v Muscat & Hasan Construction Pty Ltd
[2023] QCAT 332
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
M.Todd v Muscat & Hasan Construction Pty Ltd & Ors [2023] QCAT 332
PARTIES:
MARK JAMES TODD (Applicant)
v
MUSCAT & HASAN CONSTRUCTION PTY LTD (First respondent)
PAUL LENNON-MUSCAT (Second respondent)
CHRISTOPHER HICKMAN (Third respondent)
APPLICATION NO/S:
BDL265-21
MATTER TYPE:
Building matters
DELIVERED ON:
28 August 2023
HEARING DATE:
12 July 2023
HEARD AT:
Brisbane
DECISION OF:
Member Poteri
ORDERS:
1. Muscat & Hasan Construction Pty Ltd and Paul Lennon-Muscat must pay Mark James Todd the sum of $ 18,647.47 within 14 days of the date of this decision.
2. The application against Christopher Hickman is dismissed.
CATCHWORDS:
BUILDING CONTRACTS – Performance of Work by Unlicensed Contractors – where the Works required rectification – where the Homeowner is claiming rectification costs from the Unlicensed Contractors – where the Homeowner is claiming damages from a workman who was employed by the Unlicensed Contractors for part of time that the Unlicensed Contractors were on site – where the Homeowner says that s42 of the Queensland Building and Construction Commission Act 1991 supports the claim against the workman.
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B Part 3, s 22, s 23(3)
APPEARANCES & REPRESENTATION:
Applicant:
Applicant was represented by M/s S Hoefnagels, Ryan Murdoch O’Regan, Lawyers
First Respondent:
No Appearance
Second Respondent:
No Appearance
Third Respondent:
Self-Represented
REASONS FOR DECISION
This matter was heard on 12 July 2023. The Applicant, Mark James Todd (Todd) appeared by Teams with his lawyer, Ms Hoefnagels, of Ryan Murdoch O’Regan, Lawyers. The Third Respondent, Christopher Hickman (Hickman), appeared in person.
There was no appearance from the First Respondent, Muscat & Hasan Construction Pty Ltd (Company) and Paul Lennon-Muscat (Muscat). The Tribunal hearing support officer attempted to contact both Respondents by telephone and calling their names in the precinct of the Tribunal, without success.
The issue of Todd being legally represented was discussed with Hickman. I advised Hickman that having a lawyer representing a party in a hearing can assist the Tribunal in clarifying some of the issues in dispute. Hickman consented to Todd being legally represented and I gave leave for Ms Hoefnagels to represent Todd.
Except for the allegations against Hickman, the facts set out in the affidavit of Todd dated 13 October 2021 and filed in the Tribunal on 18 October 2021 are not in dispute. That is, in July 2021 Todd contracted with the Company to construct a concrete driveway at his house at 25 Vaughan Drive, Ormeau. In July 2021, Todd paid Muscat for this work in two payments of $11,587.45 making a total of $23,174.90. These monies were paid by Todd into a bank account in the name of Muscat.
Muscat and the Company were not the holders of any building licences from the Queensland Building and Construction Commission (QBCC) when the work was commenced and undertaken by the Company and Muscat.
Todd agreed to the terms and prices presented to him by the Company and Muscat as outlined in exhibit MJT 1 of the affidavit of Todd executed on 13 October 2021. The contract arrangements are a breakup of the costs of the works. There are no conditions, such as the time to complete the works or that the works are to be completed to a particular standard. Some plans and specifications were used in the build. It is not apparent when these plans and specifications were provided to the Company and Muscat. There is a reference to an engineering plan in an email from Muscat to Todd dated 2 July 2021 – part of exhibit MJT 1 of the affidavit of Todd dated 13 October 2021. There is also a reference to the plans and specifications in the report Morgan (Morgan report), consulting engineers, dated 6 September 2021 that is exhibit MJT 8 of the affidavit of Todd dated 13 October 2021. I conclude that Muscat and the Company were provided with plans and specifications by Todd for the undertaking of the works.
The contract between the Company and Todd is a regulated contract under the provisions of the Queensland Building and Construction Act 1991 (QBCC Act) and the Tribunal has jurisdiction to hear Todd’s application. The parties did not raise any jurisdiction issues.
As a regulated contract there are implied warranties under Part 3 of Schedule 1B of the QBCC Act. Pursuant to s 22 and s 23(3) of Part 3 of Schedule 1B of the QBCC Act there are implied warranties that the contractor will carry out the works in accordance with the plans and specifications, in an appropriate and skilful way and with reasonable care.
Notwithstanding the statutory warranties under the QBCC Act, under the common law there would be implied warranties regarding the standard of the completed works to give effect to the terms of the contract.
Muscat is the director, secretary and shareholder of the Company. See the ASIC search dated 8 November 2021 which is Annexure A to the submissions of Hickman dated 15 January 2022.
Unfortunately for Todd part of the concreting work undertaken by the Company and Muscat for Todd was substandard and required demolition and rectification. See the Morgan report. This evidence has not been disputed.
MUSCAT AND COMPANY
Muscat and the Company have filed no material in response to Todd’s claim and they can no longer be contacted. Evidence was provided by Todd and Hickman that their whereabouts is unknown. Further the Company and Muscat have not complied with the order of Senior Member Brown made on 16 August 2022 where the Senior Member directs that Todd is entitled to a final decision if Muscat and the Company do not comply with the order made in the Tribunal on 27 October 2021. That is Muscat and the Company must file a response by 30 August 2022. No response has been filed by Muscat and the Company.
Apart from the non-compliance of Tribunal orders there is evidence before the Tribunal which supports Todd’s claim against the Company and Muscat. See Morgan report. That is the Company and Muscat did not undertake part of the works for Todd in an appropriate and skilful way and with reasonable care. The footings for the shed were not constructed in accordance with the plans and specifications. The Morgan report demonstrates that the footings required rectification.
It should also be noted that Muscat was a director, the secretary and sole shareholder of the Company and Muscat was responsible for all the work that was undertaken on Todd’s property.
The rectification work included associated work from a plumber, engineer, certifier and surveyor. The total cost for the rectification works was $13,650.97. These costs are reasonable, and Todd is entitled to recover these costs from the Company and Muscat.
Todd is also claiming that all the monies ($23,174.90) that he paid to Muscat should be refunded to him because of the operation of s 42(3) of the QBCC Act. I agree that that the provisions of s42(3) of the QBCC Act state that a person who carries out building work in contravention of the section (i.e. carrying out the work without an appropriate licence) is not entitled to claim payment. However, s42 (4) of the QBCC Act makes allowances for entitlement to payment for unlicensed work in certain circumstances. The provisions of s42 of the QBCC Act do not give a right of recovery per se.
In a practical sense s42 of the QBCC Act usually comes into operation when an unlicensed contractor is making a claim for payment for work. In those circumstances the homeowner can use s42 to reject or defend the claim.
Notwithstanding the operation of s42 of the QBBC Act, the claim for the refund of the $23,174,90 must be rejected because the payment of the rectification costs of $13,650.97 would return Todd to the position of having a properly erected driveway. The refund of $ 23,174.90 as well as payment of the rectification costs of $13,650.97 would unjustly enrich Todd. Therefore, the claim for the refund of $23,174.90 is rejected.
Pursuant to s77 of the QBBC Act the Tribunal can award legal costs and interest on damages. I propose to make the following orders regarding Todd’s claim against the Company and Muscat:
Rectification costs
$13,650.97
Interest on the rectification costs - I have used the applicable Magistrates Court interest rate (4.1% per annum) published in January 2023. I have calculated the interest from the beginning of September 2021 when the rectification works were undertaken to the end of August 2023. I have rounded up the figure to $1120.
$1,120
Legal Costs - I will comment of this claim later
Filing fee
$358
HICKMAN
Hickman filed material in the Tribunal on 15 January and 16 February 2022.
Hickman gave evidence and says that he was a labourer for Muscat and the Company on the site for 3 days and he received $1200 in cash from Muscat for payment of his services. He stated that he has a full-time job and in the past, he has assisted Muscat in undertaking building work.
Hickman stated that he has no financial connections with Muscat or the Company. This is supported by the search in ASIC of the records of the Company
Hickman stated that he did not contract with Todd or receive any monies directly from Todd. He stated that all discussions regarding the contract and financial issues with the work always took place between Todd and Muscat. He said that he always worked under the supervision of Muscat. He also stated that he is not aware of the current whereabouts of Muscat.
I note from the history of texts exchanged between Hickman and Todd annexed to the response of Hickman dated 15 January 2022 that Hickman appears to have cooperated with Todd in his attempts to contact Muscat. In these texts Hickman maintains that he has no connection with Muscat and the Company and that he never invoiced Todd for any work that he undertook at Todd’s property.
Hickman was cross-examined and it was put to him that he was at the site unsupervised. Hickman acknowledged that, at times, Muscat was not at the site, but he stated that he always undertook the work under the supervision and directions of Muscat.
The submissions and material filed by Hickman in January and February 2022 support his oral evidence.
Todd filed an affidavit dated 1 February 2022 which outlines that Todd observed Hickman being on site without Muscat being present, pouring concrete and appearing to manage the site. Hickman did not dispute this evidence except that he did not agree with the length of time that he was at the site without Muscat.
Hickman accepted that he was unlicenced by QBBC.
I found Hickman to be a truthful witness and I accept his evidence that he has no financial connection with Muscat and the Company, that he worked on the site as a labourer under the supervision of Muscat and received $1200 cash From Muscat for his services. I accept that Hickman never received any payment directly from Todd.
Whilst there is some dispute between Hickman and Todd as to which dates Hickman was on site, I accept that Hickman was on site for at least 3 days, but he was not on site on every day work was carried out on Todd’s property.
Todd submits that Hickman has breached S42 of the QBCC Act which is set out in Todd’s submission dated 12 July 2023. No evidence has been presented to the Tribunal to show that Hickman has any connection with or interest in the Company or Muscat. The only evidence before me is that Hickman was working unsupervised or seen to be managing the work on the site. In giving evidence and being cross examined Hickman downplayed his role whilst working on the site.
Hickman may have breached the provisions of s42 of the QBCC Act by working at Todd’s property without the appropriate licence. All this means is that he may be subject to compliance action by QBCC. As mentioned previously S42 of the QBCC Act does not provide a right of recovery of monies paid for work undertaken by an unlicensed contractor. In any event in these proceedings Hickman was not paid any monies directly by Todd. Todd appears to be arguing that since Hickman has the “benefit” of the monies paid by Todd then he is breaching s42(3) of the QBCC Act. S42(3) of the QBCC Act can only apply in circumstances where monies are paid directly to a party.
For Todd to succeed in a claim against Hickman he must show that he had a contractual relationship with Hickman or that Hickman carried out the work unsatisfactorily, negligently or not in accordance with the plans and specifications whilst he was on site at Todd’s property
A claim against Hickman for a breach of contract cannot succeed because Todd never contracted with Hickman.
A claim against Hickman for negligence, unsatisfactory workmanship or the works were not constructed in accordance with the plans and specifications cannot succeed because Hickman only worked on the site for three days, not every day of the build. Todd has not particularised or specified what work Hickman undertook whilst working on site and which of these works has been built negligently, not in a satisfactory manner or not in accordance with the plans and specifications.
COSTS
During the hearing Ms Hoefnagels made an application for costs and provided oral submissions in relation to these costs. I indicated that I would be willing to accept the quantum of $7037 for these costs. I note that awarding of costs is possible because the provisions of s77 of the QBBC Act. However, the awarding of costs usually follows the event and is discretionary.
Todd has not succeeded in his claim against Hickman, and I note from the Tribunal file that a substantial amount of work in these proceedings was devoted to this claim. On that basis and using a ratio of 50/50 I order that costs should be awarded based on 50% of the claimed amount of $7037 which is $3518.50
ORDER
The order I propose to make is:
(a)Muscat and the Company must pay Todd within 14 days of this decision the total of the following amounts:
Rectification costs
$13,650.97
Interest
$1,120
Filing fee
$358
Costs
$ 3,518.50
Total
$18,647.47
(b)The claim against Hickman is dismissed
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