Ownit Homes Pty Ltd v Williams
[2024] QCAT 571
•2 December 2024
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Ownit Homes Pty Ltd v Williams [2024] QCAT 571
PARTIES:
OWNIT HOMES PTY LTD (applicant)
v
MARK WAYNE WILIAMS (respondent)
APPLICATION NO/S:
BDL185-23
MATTER TYPE:
Building matters
DELIVERED ON:
2 December 2024
HEARING DATE:
5 July 2024
HEARD AT:
On the Papers
DECISION OF:
Member Pearce
ORDERS:
1. The respondent shall pay to the applicant the amount of $41,880.01 within 28 days of the date of this order.
CATCHWORDS:
BUILDING DISPUTE – allegations of defective work, unlicensed work and work in breach of contract what is “necessary” and “reasonable” – mitigation of loss
Queensland Building and Construction Commission Act1991 (Qld), s 77
Hungerfords v Walker (1989) 63 ALJR 210
British Westinghouse Electrical and Manufacturing Co ltd v Underground Electric Railways Co of London Ltd [1912] AC 673
Payzu Limited v Saunders [1919] 2 KB 581
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
Background
This case involves a dispute regarding a building contract. The Contract was entered into on 21 June 2022. The respondent was engaged to undertake some bricklaying on the lower floor of the construction of a house on a domestic building site. Work commenced on 21 June 2022 and was completed on 16 August 2022. On this date the agreement was terminated by the applicant.
The applicant paid the respondent a total of $8,181.52. The amount payable under the agreement was $14,632.66 including GST plus an additional $3,000.00 for tight access.
The applicant claims the respondent’s work is defective, the respondent was advised of this and appears to accept this as per an email from him dated 6 July 2022. The bricklaying was found to be non-compliant with code in many areas and as a result was required to be pulled down and removed from the work site. The entire job was to be re-done. The applicant withheld the balance of payment. The respondent then failed to remove the works and as a result the applicant formally terminated the contract in writing on 16 August 2022.
During the course of negotiations about rectification works it was discovered that the respondent did not in fact hold a QBCC licence and had used the licence details of another tradesman. It is unclear under what circumstances this occurred.
Due to the delays caused by the respondent not removing the substandard works the applicant incurred additional expenses due to the delay caused.
A directions hearing was held on 12 December 2023 and the respondent was ordered to file a response by 9 January 2024. The applicant was to file requested materials by 6 February 2024.
The directions specifically state that should the respondent not file a response, the applicant may be entitled to a final decision. The respondent failed to file anything and as such this matter shall be determined by the Tribunal with the material before it.
The Tribunal’s Jurisdiction
The Tribunal has jurisdiction to determine a building dispute.[1] This includes a domestic building dispute.[2]
[1]Queensland Building and Construction Commission Act1991 (Qld) s 77.
[2]Ibid, Schedule 2, Definition of “building dispute”.
The respondent agreed to provide bricklaying to a construction job on a home. This falls under domestic building work. The Tribunal therefore has jurisdiction and may award damages, interest thereon, restitution and costs.[3]
[3]Queensland Building and Construction Commission Act1991 (Qld) s 77.
To succeed in its claim, in essence, the applicant must reasonably satisfy the Tribunal that the respondent breached the contract to lay the bricks in an appropriate and tradesman-like manner, and that it occasioned loss as a result. The primary objective of damages is to compensate a party for actual loss suffered as a result of the other party’s failure to perform the contract according to its terms.[4] However, it is well established that a party claiming damages must mitigate its loss, and act reasonably.[5] Whether a party has acted reasonably or unreasonably is a question of fact.[6]
[4]Hungerfords v Walker (1989) 63 ALJR 210.
[5]British Westinghouse Electrical and Manufacturing Co ltd v Underground Electric Railways Co of London Ltd [1912] AC 673.
[6]Payzu Limited v Saunders [1919] 2 KB 581.
The applicant has provided the contract that was entered into between the parties. It is clear in section 4 of that contract that the contract required a certain level of workmanship:
(a)The trade works will be carried out in a proper, skilful, and tradesperson like manner and in accordance with the contract;
(b)Materials supplied by it will be suitable, new and free of defects; and
(c)It holds all licences required to carry out the trade works.
For the purposes of this hearing, I am satisfied, based on the material provided, that the respondent’s work was defective and therefore in breach of the contract. In fact, the respondent appears to agree with this position in his emailed response to the applicant on 6 July 2022. The Tribunal is now able to determine what is required to place the applicant in the position they would have been in had the defective work from the respondent not occurred.
The respondent further breached the contract by not being licensed to perform the work carried out. As mentioned above it has been discovered in the course of dealings that the QBCC licence number used did not in fact belong to the respondent. The circumstances under which this licence was used have not been outlined to the Tribunal.
Claim
The applicant has made a claim totalling $41,880.01 and has described this as the costs incurred as a result of the respondent’s work. The list is extensive and includes the following items:
(d)Reimbursement of progress payment paid to respondent $8,181.82;
(e)Scaffolding charges as a result of site not being ready;
(f)Repair and reinstate sediment control barrier;
(g)Brick pull down;
(h)Replacement of bricks;
(i)Brick hardware;
(j)Skip bin charges;
(k)Brick removal by truck;
(l)Dumping fees for bricks;
(m)Extra electrical charges for running cable through brickwork;
(n)Liquated damages being $50.00 per day for 96 days.
In order to be successful in its claim the applicant must demonstrate that it acted to mitigate its loss and did not unnecessarily case further delays or damages.
The applicant presented evidence by way of email which demonstrates that the respondent failed to return to the site on numerous occasions over the period of time following the admission that the works were not of the requested standard. The agreement was the respondent would remove the brickwork to allow for the job to be re-done. It appears from the evidence supplied by the applicant that they gave the respondent ample time to attend and rectify the situation as agreed and that the respondent failed to do so. It is necessary to re-iterate that the respondent has failed to supply any information to the Tribunal to consider its position.
The tribunal finds that the applicant acted reasonably in its response to the respondent’s conduct and the claim is reasonable.
Conclusion and Orders
The Tribunal finds that the works carried out by the respondent were defective and as such a breach of contract.
The respondent shall pay to the applicant the amount of $41,880.01 within 28 days of the date of this order.
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