Page v Brandes - [2021] QCAT 129

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Page v Brandes [2021] QCAT 129

PARTIES:

VERNARD PAGE
(applicant)

v

JAN PATRICK BRANDES

(respondent)

APPLICATION NO/S:

BDL 230-18

MATTER TYPE:

Building matters

DELIVERED ON:

12 April 2021

HEARING DATE:

19 August 2019

HEARD AT:

Brisbane

DECISION OF:

Member Gunn

ORDERS:

1.   Jan Patrick Brandes is to pay to Vernard Page the amount of $27,500 within sixty (60) days of the date of this decision.

2.   Jan Patrick Brandes is to pay to Vernard Page the amount of $2,200 by way of damages within sixty (60) days of the date of this decision.

3.   Jan Patrick Brandes is to pay to Vernard Page the amount of $338.20 by way of costs within sixty (60) days of the date of this decision.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – unlicensed contractor – where contractor performed unlicensed earthworks and building work – where contractor and homeowner dispute terms of contract – where contract completed – where retaining walls failed after rain event – where homeowner entitled to recover money paid to contractor under the contract, and to recover damages to rectify and complete works pursuant to s 42, s 77, Schedule 1B, Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld).

Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2.

Barbi v Brewer [2013] QCAT 348
Bryan v Maloney (1995) 182 CLR 609
Marshall v Marshall [1999] 1 Qd R 173
Robinson v Harman [1848] EngR 135
Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION
What is this application about?

Mr Page is the applicant homeowner in a domestic building dispute,[1] and Mr Brandes[2] is the respondent contractor.
[1]Filed in QCAT on 23 August 2018, pursuant to the Queensland Building and Construction Commission Act 1991 (Qld).
[2]Jan Patrick Brandes trading as PB Earthworks ABN 95 105 805 411.
In November 2017, Mr Page was a homeowner at Mount Tamborine, in the hinterland of the Gold Coast. His house is built on a hill, and the building site was cut into that hill. Below the cut is a stretch of sloping ground, which has presented Mr Page with historical difficulty to retain. He wanted some earthworks done, including two retaining walls built. This was to retain the soil on the slope, and in particular deal with subsoil drainage in front of his house as a result of rain events.
Mr Brandes gave evidence that he was not aware of the extent of difficulty that Mr Page had experienced in retaining this soil, or that engineering reports had been prepared, the second of which was used in litigation against previous engineers. There was evidence of “aquifers” which flowed during rain events. Mr Brandes provided a one-page quote[3] which enumerated nine stages or types of work, and totalled $27,500 including…

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.

Continue reading Page v Brandes

Details

AGLC: Page v Brandes [2021] QCAT 129
Case: [2021] QCAT 129
Decision Date

CaseChat Overview and Summary

In the matter of Page v Brandes, the Queensland Civil and Administrative Tribunal (QCAT) was tasked with resolving a dispute between Mr Page and Mr Brandes. The primary issues were whether there was a contract between the parties and, if so, what were its terms and effects. Furthermore, the court had to determine the impact of Mr Brandes not being a licensed contractor at the time the works were performed.

The legal issues included establishing the existence and terms of a contract between the parties, and the implications of Mr Brandes not being a registered building contractor. The court examined whether an informal agreement could be recognised despite non-compliance with statutory requirements. It also considered the duty of care owed by Mr Brandes, despite his lack of a licence, and the extent to which Mr Page's failure to disclose pertinent information about the site affected Mr Brandes' ability to perform the work.

The court found that while there was an agreement on the price and works performed, there was disagreement on the scope of works. The tribunal recognised that an informal agreement could be considered in a claim for a refund, but noted that it was not enforceable due to non-compliance with statutory requirements. The court held that Mr Brandes, having not been a licensed contractor at the time of performing the work, was not entitled to payment. The lack of disclosure by Mr Page regarding the antecedent difficulties with the site retention complicated the assessment of the work's completion and the extent of any unfinished or altered work.

The tribunal awarded damages, interest, restitution, and costs, reflecting the statutory provisions and the duty of care owed by Mr Brandes. The court emphasised that Mr Brandes' primary issue was his lack of a license, which precluded him from being entitled to payment.

Orders

Orders of the court

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Background

Background to the litigation

The key issues are as follows:(a)Was there a contract between Mr Page and Mr Brandes and what did it provide?(b)If so, what is the effect of Mr Brandes not being a licensed contractor at the time of works?The Facts Both parties appeared and were sworn or affirmed. There was agreement about the price, and the works performed. There was disagreement about the scope of works, with Mr Page giving evidence that he wanted a level albeit sloping incline when finished. He gave evidence that he wanted the retaining walls ‘underground’. Mr Brandes denied this term, and gave evidence that Mr Page had never specified this, and in any event that is not what is usually done with retaining walls. It is not disputed that Mr Brandes built two retaining walls and that they were concrete sleeper style construction, held fast in upright steel ‘H beams’ set into concrete. A few days later a rain event occurred, which resulted in ‘aquifers’ flowing, and the erosion of some of the soil, as well as exposure of the concrete in which the steel uprights were held. Mr Brandes gave evidence to the effect that if he had been properly provided with the full history of the site, the engineering reports, and the difficulties that Mr Page and other professionals had encountered with the soil retention, he would not have carried out the works as he did. Both parties gave oral evidence. They disagreed as to where the walls were to be built, the efficacy of the materials actually used, the most appropriate manner in which to drain the subsoil water, especially as a result of rain events, and the final profile of the land. I observed that both parties tended to conflate their versions of recalled events and statements, with commentary made having the benefit of hindsight after the rain event. On 19 September 2019, I directed that the parties could submit on the matter of Mr Brandes’ registration as a building contractor as at the date of the works being performed. On the basis of these submissions, there is no evidence that Mr Brandes was a registered building contractor in November 2017, being when the contract was made and the works were undertaken.The Effect of Non-Registration and Damages The work performed by Mr Brandes was ‘reviewable domestic work’.[6] This application relates to the performance of that work.[7] The tribunal may award damages, interest thereon, restitution, and costs.[8] Since Mr Brandes was an unlicensed contractor, he was not entitled to payment for the work.[9][6]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.[7]Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home and associated work: Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 4.[8]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3), Schedule 2 (definition of ‘domestic building dispute’).[9]Queensland Building and Construction Commission Act 1991 (Qld), s 42(3).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 19 September 2019, I directed that the parties could submit on the matter of Mr Brandes’ registration as a building contractor as at the date of the works being performed. On the basis of these submissions, there is no evidence that Mr Brandes was a registered building contractor in November 2017, being when the contract was made and the works were undertaken.The Effect of Non-Registration and Damages The work performed by Mr Brandes was ‘reviewable domestic work’.[6] This application relates to the performance of that work.[7] The tribunal may award damages, interest thereon, restitution, and costs.[8] Since Mr Brandes was an unlicensed contractor, he was not entitled to payment for the work.[9][6]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 2.[7]Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home and associated work: Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B s 4.[8]Queensland Building and Construction Commission Act 1991 (Qld), s 77(3), Schedule 2 (definition of ‘domestic building dispute’).[9]Queensland Building and Construction Commission Act 1991 (Qld), s 42(3). Mr Page relied on oral representations by Mr Brandes, a quote sent by Mr Brandes,[10] Mr Brandes starting the work, and the completion of the work by Mr Brandes. Mr Brandes relied upon the request for works by Mr Page, notably omitting the antecedent difficulty with the site. I note that at the hearing Mr Page denied that the work was completed, but how much was incomplete, and how much was altered as a result of the subsequent rain event is neither necessary, nor easy to calculate. That the contract was not in compliance with the formal statutory requirements including signing by all parties, and not being signed by both parties, renders it of no effect.[11] The builder is not entitled to rely upon it.[10]See footnote 3 above.[11]Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B ss 13, 14. This Tribunal recognises that it may still consider an informal agreement as between the parties[12] in any claim for a refund. [12]Barbi v Brewer [2013] QCAT 348, [10]. In agreeing to perform the works, despite not being licensed at the relevant time, Mr Brandes owed Mr Page a duty to take reasonable care in performing the work.[13] In this matter, difficulties arose, because Mr Page was not fulsome in making Mr Brandes aware of the antecedent difficulties with the retention of the soil at his property. He had not, for instance, fully explained to Mr Brandes his involvement with previous engineers, including litigation, over the very same soil retention. Nor had Mr Page fully disclosed the innate difficulties he had previously encountered. Had Mr Brandes been aware of the difficulties confronting him, he would have been better placed to discharge the duty; whether Mr Brandes’ response would have been any different is unknown. Nevertheless, his lack of licence is the primary issue.[13]Bryan v Maloney (1995) 182 CLR 609, [14].

CITATION:	Page v Brandes [2021] QCAT 129
PARTIES:	VERNARD PAGE (applicant)
v
JAN PATRICK BRANDES (respondent)
APPLICATION NO/S:	BDL 230-18
MATTER TYPE:	Building matters
DELIVERED ON:	12 April 2021
HEARING DATE:	19 August 2019
HEARD AT:	Brisbane
DECISION OF:	Member Gunn
ORDERS:	1. Jan Patrick Brandes is to pay to Vernard Page the amount of $27,500 within sixty (60) days of the date of this decision. 2. Jan Patrick Brandes is to pay to Vernard Page the amount of $2,200 by way of damages within sixty (60) days of the date of this decision. 3. Jan Patrick Brandes is to pay to Vernard Page the amount of $338.20 by way of costs within sixty (60) days of the date of this decision.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – unlicensed contractor – where contractor performed unlicensed earthworks and building work – where contractor and homeowner dispute terms of contract – where contract completed – where retaining walls failed after rain event – where homeowner entitled to recover money paid to contractor under the contract, and to recover damages to rectify and complete works pursuant to s 42, s 77, Schedule 1B, Schedule 2 of the Queensland Building and Construction Commission Act 1991 (Qld). Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77, Schedule 1B, Schedule 2. Barbi v Brewer [2013] QCAT 348 Bryan v Maloney (1995) 182 CLR 609 Marshall v Marshall [1999] 1 Qd R 173 Robinson v Harman [1848] EngR 135 Yongwoo Park v Betaland Pty Ltd [2017] QCAT 228
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
Respondent:	Self-represented