Martin v Jung - [2023] QCAT 283

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Martin v Jung [2023] QCAT 283

PARTIES:

PAUL MARTIN

(applicant)

v

DANNY (WON KYO) JUNG

(respondent)

APPLICATION NO/S:

BDL010-20

MATTER TYPE:

Building matters

DELIVERED ON:

25 July 2023

HEARING DATE:

22 March 2023

HEARD AT:

Brisbane

DECISION OF:

Member Paratz AM

ORDERS:

Danny (Won Kyo) Jung is to pay to Paul Martin the amount of Six Thousand One Hundred and Seventy-Five Dollars and Eighty Cents ($6,175.80).

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where the builder performed unlicensed building work – where there was no written contract for building work – where the identity of the builder was in dispute

Queensland Building and Construction Commission Act 1991 (Qld), s 42(1), S 77(3)(h)

Baker v Aquatics Pool Painting Pty Ltd [2020] QCAT 280

Martin v Jung [2021] QCAT 320

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Mr Martin engaged a person or entity to renovate a bathroom at a house in Brisbane, Queensland which was purchased in 2019 as an investment property to rent out, and was renovating for that purpose. Mr Martin operates a business known as Five Star Kennels. The legal identification of the entity who he engaged is a matter of dispute. The person he dealt with was Mr Jung.
Mr Jung is the respondent in these proceedings. Mr Jung is a tiler who also involved himself in a wide range of building activity. Mr Jung has not at any relevant time been a licenced builder in Queensland. He has held a licence as a tiler.
A quote dated 29 July 2019 was provided by Point Tiles and Construction Pty Ltd. No contract in writing was ever entered into for the bathroom works.
Mr Martin became unhappy with the work performed by Mr Jung before the work was completed, and asked him to rectify the work that had been conducted, or to leave the job.
Mr Jung requested that a Korean interpreter be made available for the hearing. An interpreter was arranged by the Tribunal as requested. At the commencement of the hearing, Mr Jung said that he spoke English, but that he wanted the assistance of the interpreter for clarity, and the interpreter provided assistance to Mr Jung throughout the course of the hearing.
The application
An application for domestic building disputes was filed in the Tribunal by Mr Martin on 10 January 2020. He named Danny (Won Kyo) Jung as the Respondent and described him as a licensed building contractor holding QBCC licence number 1502 9068.
Mr Martin sought restitution and costs.[1] In the general dispute details section[2] he wrote that ‘the work that is the subject of this dispute was performed by Point Tiling and Construction ABN 92620856706 who never offered me a contract.’
[1]Application for domestic building disputes, filed 10 January 2020, Part B (1).
[2]Ibid , Part B…

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 283
Decision Date

CaseChat Overview and Summary

In the case of Martin v Jung, the plaintiff, Paul Martin, sought a refund of moneys paid to the defendant, Danny Jung, for building work that was allegedly substandard. The dispute came before the Queensland Civil and Administrative Tribunal (QCAT). Martin claimed that Jung, who presented himself as a qualified tiler and plumber, had performed substandard work on a bathroom renovation project, leading to significant issues that required rectification.

The primary legal issues that the tribunal needed to address were whether Jung had misrepresented himself as a qualified professional, whether the work performed was substandard, and if Jung was liable for the costs associated with rectifying the work. Martin argued that Jung had falsely represented himself as a qualified tiler and plumber and had performed work that did not meet industry standards. Conversely, Jung denied that he had misrepresented his qualifications and claimed that he had only acted as an employee of Point Tiling and Construction Pty Ltd, which was fined for not having a registered nominee director.

The tribunal concluded that Jung had indeed misrepresented himself as a qualified tiler and plumber and had performed work that was substandard. It was found that Jung had given Martin the impression that he was the company representative and had completed the majority of the work, without disclosing that he was not licensed. The tribunal also accepted that the work needed rectification, which was corroborated by the fines imposed by the Queensland Building Construction Commission. As a result, the tribunal ordered Jung to refund the amount paid to him and to cover the costs of a building report and the QCAT fee.

The final orders of the tribunal were that Danny Jung pay Paul Martin the total amount of $6,175.80, which included the refund of moneys paid, the cost of the building report, and the QCAT fee.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

He said that he recalled Mr Jung saying that he had been doing bathrooms for 10 years, that Point Tiles was his company, that he had been using flexible piping extensively, and that he was doing all the plumbing on houses he worked on.Evidence of Mr Jung Mr Jung said that he was never a director or office bearer of Point Tiling and Construction Pty Ltd. He said that the person listed as sole director of that company on an ASIC search, Sun-Nam Kim, was his wife. He said that his wife did not have any building qualifications, but that she controlled the finances, and gave him money. He said that at the time he did this job he was acting as an employee of the company. He said that after the Queensland Building Construction Commission (QBCC) investigated this matter, that he and the company were fined a total of about $7,000.00 to $8,000.00 for the nominee not being registered. He denied that the work needed to be rectified, as he said the job was not finished. He was asked about his doing plumbing work, and said that in order to save money he had to do work that a plumber should do, to help, but did not know that was against the law. He denied that he had given Mr Martin the impression that it was his company, and said that he told Mr Martin that he did the majority of the work, but did not say that he was licensed. He was asked about a business card which he gave to Mr Martin, which had on one side the words ‘Point Tiling Construction Pty Ltd’, and on the back the name ‘Danny Jung’, and said that the card did not indicate that he held any particular position in the company. Mr Jung estimated that he had completed about 60% of the work. He described the plumbing work he had done as temporary, but when it was pointed out to him that he had closed up the wall, said that it wasn’t connected to the mains, and that it was easy to see all the pipes as there was no ceiling. He said that he installed flexi-lines in the cavity. When he was asked as to whether the plumber could access the flexi-lines he said that he actually didn’t know much about the plumbing, that he would have told the plumber, and that the plumber would have told him if it was all right, or if not, and that he would have opened up the wall to repair it if needed. He was asked if he was aware that flexi-line should not be used internally, only from a toilet to a tap or a sink where it could be observed, and replied that he didn’t really know, and that the plumber would tell him about that. He was asked about the wall sheets being different thickness, and replied that was no problem as the tiler would smooth that out. The quote that was provided to Mr Martin was headed ‘Point Tiles and Construction Pty Ltd’. It was quote number 004, and had an issue date of 29 July 2019 and was expressed to be valid until 29 July 2019. The quote was for a total of $14,399.00. The description of the work and the amounts claimed were as follows:[8][8]Quote from Point Tiles and Construction Pty Ltd. 29 July 2019, (Exhibit 3).

Decision

Reasons for decision

Mr Martin also claimed the QCAT fee of $345.80. As he has been wholly successful in his claim as to the building work, I allow this fee as costs.Conclusion I allow the following claims in the total amount of $6,175.80:(a)Refund of moneys paid - $5,500.00(b)Building report – $330.00(c)QCAT fee – $345.80 I order that Danny (Won Kyo) Jung pay to Paul Martin the amount of $6,175.80.

Ratio Decidendi

Legal Principle Established

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