Meyers v Pollard - [2021] QCAT 310

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Meyers v Pollard [2021] QCAT 310

PARTIES: MARIA MEYERS

(applicant)

v

IAN POLLARD

(respondent)

APPLICATION NO/S:

BDL145-20

MATTER TYPE:

Building matters

DELIVERED ON:

10 September 2021

HEARING DATE:

25 August 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

ORDERS:

1. Ian Pollard pay to Maria Meyers the sum of $65,227.60 within 21 days of the date of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where work performed by unlicensed builder – effect of non-compliance with s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether homeowner entitled to be reimbursed money paid for building work and restitution expenses

Building Code of Australia Volume 2

Electronic Transactions (Queensland) Act 2001, s 14

Queensland Building and Construction Commission Act 1991 (Qld), s 13, s 33, s42, s77, Schedule 1B Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10

Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75

Thompson v Shen and Kao [2017] QCAT 33

Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

No appearance

REASONS FOR DECISION

The hearing of this application commenced on 25 August 2021. M Pollard, the respondent to this application, did not appear at the hearing. The Tribunal attempted to call Mr Pollard from the hearing room on the mobile telephone number supplied by him in the Response he filed in the Tribunal on 16 July 2020. This telephone number had been disconnected.
An examination of the file reveals that Mr Pollard was emailed a Notice of hearing to the email address also provided by him in the Response he filed in the Tribunal on 16 July 2020 on 29 June 2021.
The material Mr Pollard filed in Response to the initial application was sufficient for me to be satisfied Mr Pollard was aware of the matters raised against him by Ms Meyers and that he had provided his response.
I was satisfied that Mr Pollard had notice of the hearing and had elected to not take part in the hearing. I was satisfied the hearing could proceed in his absence.

The Proceedings

Maria Meyers accepted three quotes from Ian Pollard trading as Rocky’s Rock Walls in August and September 2016 to replace a sleeper boundary wall and retaining wall and for the installation of pavers on the boundary between her property and the adjoining property. Mr Pollard undertook the work and completed it in October 2016. Ms Meyers paid him in full – the total sum of $17,195.00.
After the work was completed, problems developed with the wall construction and the pavers. In May 2018, having not been able to negotiate a solution with Mr Pollard, Ms Meyers complained to the Queensland Building and Construction Commission (the ‘QBCC’).
An initial inspection report was provided by the QBCC after inspections on 10 and 11 July 2018. This report dated…

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: [2021] QCAT 310
Decision Date: 10 September 2021

CaseChat Overview and Summary

In the case of Meyers v Pollard, Maria Meyers brought an action against Ian Pollard for the recovery of $65,227.60. This sum represented the amount paid by Meyers to Pollard for construction work that was never completed. The dispute arose under the Queensland Building and Construction Commission Act 1991 (Qld) and was heard by the Queensland Civil and Administrative Tribunal (QCAT). The tribunal had to determine whether Pollard's failure to hold a licence, as required by section 42(1) of the Act, entitled Meyers to a reimbursement of the money she paid to Pollard for the work, as well as her restitution expenses.

The primary issue for the tribunal was whether Pollard's failure to hold a licence, as required by section 42(1) of the Act, nullified the contract between the parties and entitled Meyers to be reimbursed the money she had paid Pollard for the work, as well as her restitution expenses. This involved interpreting the provisions of the Act and determining the extent to which Pollard's non-compliance affected the contractual rights and obligations of the parties. The tribunal had to consider whether the statutory requirements were intended to protect only the public or also the homeowner in this situation.

The tribunal held that Pollard's failure to hold a licence did not nullify the contract between the parties. However, it did entitle Meyers to be reimbursed the money she had paid Pollard for the work and her restitution expenses. The tribunal found that the statutory provisions were intended to protect both the public and the homeowner, and that Pollard's non-compliance with the Act entitled Meyers to a remedy. The tribunal ordered Pollard to pay Meyers $65,227.60 within 21 days of the date of the order.

Orders

Orders of the court

1. Ian Pollard pay to Maria Meyers the sum of $65,227.60 within 21 days of the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Meyers v Pollard [2021] QCAT 310
PARTIES:	MARIA MEYERS
(applicant)
v
IAN POLLARD
(respondent)
APPLICATION NO/S:	BDL145-20
MATTER TYPE:	Building matters
DELIVERED ON:	10 September 2021
HEARING DATE:	25 August 2021
HEARD AT:	Brisbane
DECISION OF:	Member Gardiner
ORDERS:	1. Ian Pollard pay to Maria Meyers the sum of $65,227.60 within 21 days of the date of this order.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where work performed by unlicensed builder – effect of non-compliance with s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) – whether homeowner entitled to be reimbursed money paid for building work and restitution expenses Building Code of Australia Volume 2 Electronic Transactions (Queensland) Act 2001, s 14 Queensland Building and Construction Commission Act 1991 (Qld), s 13, s 33, s42, s77, Schedule 1B Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 10 Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75 Thompson v Shen and Kao [2017] QCAT 33 Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	No appearance