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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 332
Decision Date

CaseChat Overview and Summary

Mark James Todd, the Applicant, brought a claim against Muscat & Hasan Construction Pty Ltd and Paul Lennon-Muscat, the first and second respondents, as well as Christopher Hickman, the third respondent, for issues arising from a building contract for the construction of a concrete driveway. The core disputes were the substandard quality of the work performed by the first and second respondents, the involvement of the third respondent, and the appropriate remedies for the Applicant. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with deciding whether the first and second respondents breached their contractual obligations, whether the third respondent was liable for any damages, and what remedies were available under the Queensland Building and Construction Commission Act 1991.

The Tribunal found that the first and second respondents did not hold the necessary building licences and failed to perform the work in accordance with the plans and specifications, resulting in substandard construction that required rectification. The Tribunal rejected the Applicant's claim for a full refund of the payment made to the first and second respondents, holding that the payment of rectification costs would sufficiently remedy the situation. The Tribunal ordered the first and second respondents to pay the rectification costs, interest, a filing fee, and partial legal costs. The claim against the third respondent was dismissed as there was no contractual relationship between him and the Applicant, and his limited involvement did not warrant liability for damages.

The Tribunal emphasised that while the third respondent may have breached the licensing requirements of the Act, such breaches do not automatically entitle the Applicant to recover payments made. The Tribunal also noted that the provisions of the Act were not intended to provide a direct right of recovery against unlicensed contractors in cases like this. The Tribunal awarded partial costs to the Applicant, considering the disproportionate effort spent on the unsuccessful claim against the third respondent.

The final order mandated that the first and second respondents pay the Applicant $18,647.47 within 14 days of the decision, covering rectification costs, interest, a filing fee, and partial legal costs. The claim against the third respondent was dismissed, with no liability imposed on him.

Orders