Panetta v Friedrichs - [2024] QCAT 389

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION

Panetta v Friedrichs [2024] QCAT 389

PARTIES

JOSEPH PANETTA

(applicant)

v

TROY MICHAEL FRIEDRICHS

(respondent)

APPLICATION NO/S:

BDL190-23

MATTER TYPE:

Building matters

DELIVERED ON:

9 September 2024

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

The Tribunal orders that Troy Michael Friedrichs is to pay to Joseph Panetta damages of $32,548.87 by 4.00pm on Friday, 11 October 2024 for breach of contract relating to the supply and installation of the concrete driveway and paths at 22 Hamson Terrace, Nundah, in the State of Queensland.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – DOMESTIC BUILDING DISPUTE – whether works defective – reasonable costs of necessary rectification work

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 32, s 32(2), s 37, s 92

Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), r 19, r 39(1), r 39(2)

Queensland Building and Construction Commission Act 1991 (Qld), s 77, s 77(3), Schedule 2

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

These proceedings involve a contractual dispute relating to the installation of a new concrete driveway and paths at 22 Hamson Terrace, Nundah, Queensland.
The other aspect of these proceedings is that Troy Michael Friedrichs (‘the Respondent’) has not filed in the Tribunal a Response to the Application initiating these proceedings and has not participated, in any way whatsoever, in these proceedings.

Factual Background

Joseph Panetta (‘the Owner’), who resides outside of Queensland, is the owner of a residential property at 22 Hamson Terrace, Nundah, Queensland (‘the Nundah property’). The evidence is that the Owner rents the Nundah property to tenants.
In the second half of 2022 the Owner sought quotes for concreting of the driveway and paths at the Nundah property.
On Wednesday, 2 November 2022 an email was sent by Troy Friedrichs attaching Quote #360 for $23,023.00 from “Civilcrete” of 2 Lomond Street, North Lakes to carry out the concreting and associated works at the Nundah property. The quote also stated:
Deposits and payment terms to be discussed and agreed by both parties prior to the commencement of works.
That Quote #360 provided a contact phone number for Civilcrete as “Troy 0468 366 636”.
By an email dated 2 November 2022 the Owner notified the Respondent that the quote was accepted. However, there were to be discussions as to arrangements for payment of the deposit and payment terms. It appears those discussions were held and arrangements were made although there is no direct evidence of those discussions. Accordingly, the contract is partly in writing and partly oral.
On 11 November 2022 Civilcrete issued an invoice for $11,551.50 as the first instalment of the concrete price and also stated:
Deposit and materials costs 50% then 25% upon 1^st pour then 25% upon completion
The bank details specified in that invoice were at Westpac in an account in the name of “T Friedrichs”.
The Owner then made a number of payments by bank transfer as follows:
(a)11 November 2022 a payment of $3,511.50;
(b)12 November 2022 a payment of $3,511.50;
(c)14 November 2022 a payment of $4,000.00;
(d)6 December 2022 a payment of $4,000.00;
(e)7 December 2022 a payment of $1,755.75.
The bank transfer details, while showing that those payments were, made do not include any details of who the money was paid to. However, as a consequence of these payments, by 7 December 2022 the Owner had paid a total amount of $16,778.75 (the Owner calculated these payments at $17,267.25).

After an exchange of text messages between “Troy” and the Owner about the commencement date of the works, the first pour of the concrete was scheduled for 7:00 am on Tuesday, 6 December 2022.
On 6 December 2022 Civilcrete sent Invoice #446 to the Owner for $5,755.75 described as:
2nd claim for job. Driveway pour completed.
That invoice required payment by EFT to a Westpac account in the name of “T Friedrichs”.
A number of messages were then exchanged in the next few days about the progress of the concreting works and on Monday, 12 December 2022, the Owner sent a text message to “Troy” asking:
when do you think the concreting will be finished
On 13 December 2022 the Owner took a number of photographs of the concrete driveway showing footprints, brush marks, cracking in the concrete and concrete splatter on parts of the home.
On Tuesday, 13 December 2022 the Owner received a text message from “Troy” stating an apology and then said:
The boys are just finishing up a job for my main builder. I aim to be completing your job next week. Cheers.
There was a further exchange of text messages by the Owner and “Troy” asking when he would return to the site to complete the works. By Monday, 19 December 2022, the Owner was still making those enquiries and in a text message that day asked:
Any idea of which day?
On Wednesday, 21 December 2022 the Owner sent an email to the Respondent stating, among other matters:
I’ve tried to contact you via text and phone calls. I can only imagine that you are still sick or the Xmas rush has you pinned down. So again I ask you when do you envisage the job to be finished?
On Tuesday, 3 January 2023, the Owner sent a further email to the Respondent informing him that action was being taken through the QBCC as the work had not been completed in accordance with contractual specifications and informing the work undertaken by the Respondent had:
(a)neglected to comply with the Brisbane City Council regulations on expansion joints which has resulted in uncontrolled cracking of the concrete;
(b)failed to seal the surface and had left the driveway unable to be used for its intended purpose;
(c)each batch of concrete was a different colour and the colour variation was very obvious; and
(d)other issues and problems with construction of the driveways and paths.
On Monday, 23 January 2023 the Owner sent an email to the Respondent stating:
It’s been 6 weeks since you told me that the job would be “finished next week”.
Repeated calls texts and emails have failed getting a response from you as to when you will complete the job. Due to your failure to at least call and explain why there has been a delay, I have lodged a complaint about defective and incomplete building work. I have also the intention of lodging a Notification of Offence with the QBCC. I will be taking legal advice in regard to this matter.
On some subsequent date the Owner made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about building defects associated with concreting.
On Tuesday, 24 January 2023, the Respondent replied by email to the Owner stating that he had been “through some really hard personal matters” and stated:
We can resume works at your house next week if you are happy with that. We will pour other side of house and speak about rectification work on driveway. I am prepared to covercrete it if we can’t work out of another solution.
Failing this we would have to remove the driveway.
Later on Tuesday, 24 January 2023, the Owner sent an email to the Respondent stating that he would like the work to “continue ASAP” and that next week “would be good”. The Owner also referred to the work to be completed and stated he “will look at your suggestions for repair of the driveway”.
On Thursday, 26 January 2023 the Owner sent an email to the Respondent asking for an indication as to what day work will recommence so the Owner could inform his tenants.
On 1 February 2023 the Respondent sent a text message to the Owner stating, in part:
I’m going to arrange concrete for a day next week for pathway pour. If that is not an option I will have the boys come take my formwork and take up the driveway and I’ll reimburse Joe what has been paid.
On 10 February 2023 the QBCC wrote to the owner saying an agreement to resolve the dispute with Troy Michael Friedrichs could not be reached and as a result the Owner had now reached the end of the dispute process. QBCC said it would not be issuing a Direction to Rectify and the Owner’s complaint had now been finished as QBCC could not take any further action in this matter.
On 27 March 2023 solicitors, Porta Lawyers, acting for the Owner, wrote a letter to the Directors, Civilcrete Pty Ltd of 2 Lomond Street, North Lakes (and at other addresses) for the attention of the Respondent stating that the works had not been completed and that works already undertaken had developed uncontrolled cracking to such an extent that the driveway was unusable until such time as the works are remedied. The letter also stated:
(a)materials, formwork and steel have been left on the site creating unsafe environment and obstructing access;
(b)that the Owner had attempted to contact the Respondent to ascertain when the works would be completed and despite those attempts, the Owner had not been afforded a response;
The solicitors letter also contained an offer to resolve this matter provided Civilcrete reimbursed the Owner $17,267.25 along with additional costs for:
(a)cost of $208.81 for cleaning of clothing damaged due to works carried out;
(b)repair a sewer drain inspection report totalling $379.00;
(c)remove concrete splashed onto the property and repainting the damaged area totalling $550.00; and
(d)payment of $2,000.00 for inconvenience suffered by the Owner and the tenants in accessing the property during this process.
The Owner said his claim for reimbursement was $20,155.06. Other terms included removal of materials including the concrete driveway as well as the mutual termination of the contract. The solicitors’ letter also stated that if the offer was not accepted within seven (7) days formal proceedings would be commenced to recover damages owed including costs on an indemnity basis.
On 20 June 2023 the Owner commenced proceedings in the Tribunal against the Respondent by filing an Application for domestic building dispute (‘the Application’) in reliance on the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
As a consequence of Directions made by the Tribunal, the Owner advised[1] the Tribunal that on 13 February 2024 he had sent a copy of his statements and evidence in support of the Application by email to Troy Friedrichs. The Owner also attached an Australian Post receipt for a “large envelope”.
[1] See Owner’s letter to Tribunal Case Manager (Jorja) filed 13 March 2024.

Tribunal’s Jurisdiction in this Building Dispute

The Tribunal’s jurisdiction to deal with matters is conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) or by an “enabling Act”.[2]
[2]QCAT Act s 9.
A person involved in a building dispute may apply to the Tribunal for the Tribunal to decide the dispute.[3] The definition of “building dispute” includes a domestic building dispute.[4] Domestic building work means a dispute between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of the reviewable domestic work.[5]
[3]QBCC Act s 77.
[4]QBCC Act Schedule 2.
[5]QBCC Act Schedule 2.
In these proceedings the Applicant has unsuccessfully sought to have his complaints about defective building work resolved by the QBCC. The dispute relates to a contract for the performance of reviewable domestic building work. Accordingly, the Tribunal has jurisdiction in these proceedings to hear and determine the dispute. The QBCC Act is, for the purposes of these proceedings, the “enabling Act”.
The Tribunal has extensive powers to resolve this dispute including ordering the payment of an amount found to be owing, awarding damages, ordering restitution and other remedies.[6]
[6]QBCC Act s 77(3).

Can these Proceedings Continue in the Absence of the Respondent

The Respondent has not participated in these proceedings. The Respondent has not filed a Response in the Tribunal to the Application and has not provided any statements or evidence whatsoever to support a defence of the Application.
The issue arises whether the Tribunal should proceed to hear and determine the Application in the absence of the Respondent.
The Application was filed on 20 June 2023.
On 7 July 2023 the Owner filed an Affidavit of service in the Tribunal. That Affidavit says that the Application was served on the Respondent at 3:13 pm on 5 July 2023. The Affidavit also stated that the method of service was by “Express Post” to the Respondent at 1 Eden Drive, Eatons Hill, Queensland.
The Owner must, within the period stated in the rules, give a copy of the Application to each party to the proceedings.[7] The Owner is required to give a copy of the Application to the Respondent within 28 days.[8] The method of giving the Application to the Respondent can be by sending it by post to the relevant address.[9] The “relevant address” means the service address in the entity’s address for service.[10] The Respondent’s details in the Application nominates an address at 1 Eden Drive, Eatons Hill, Queensland. Accordingly, the Tribunal is satisfied that there has been service of the Application on the Respondent who has notice of the Owner’s claim against him in these proceedings.
[7]QCAT Act s 37.
[8]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 19 (‘QCAT Rules’).
[9]QCAT Rules r 39(1).
[10]QCAT Rules r 39(2).
As previously explained, the Respondent did not file a Response to the Application in the Tribunal.
The Tribunal has conducted a number of Directions Hearings in these proceedings and a copy of all the Directions have been sent by email (the Application contained the Respondent’s email address of [email protected]) to the Respondent. The Directions made were as follows:
(a)On 24 July 2022 a Direction that the Respondent was to file in the Tribunal and to give to the Owner a “response to the application” by 3 August 2023. That Direction has not been complied with by the Respondent.
(b)On 21 November 2023 a Direction extending the time for the Respondent to file in the Tribunal a “response to the application” to 4 December 2023 and in the event the Respondent did not comply by filing a response, then the Owner may be entitled to a final decision. Other directions were also made on that date. The Respondent did not comply with these Directions.
(c)On 12 December 2023 an amendment to the previous Directions of November 2023 were made extending the date to 19 December 2023 for the Respondent to file a response along with other amendments which did not impact on the Respondent. The Respondent still did not comply.
(d)On 12 December 2023 a further Direction was made that unless the Owner requested an oral hearing, these proceedings would be determined by the Tribunal on the papers without an oral hearing and based on the documents forming the Tribunal record after 26 March 2024. No response was received from the Respondent.
(e)On 13 February 2024 the Owner sent to the Respondent, by email, his statement and evidence relied on for the hearing of this Application.
The Respondent was also given a notice from the Tribunal of the Directions hearing for 23 November 2023 by email on 26 October 2023.
These Directions by the Tribunal and the Notice of the Directions Hearing satisfy the Tribunal that the Respondent was given notice that the Application was proceeding in the Tribunal.
The Respondent was given notice that the Tribunal intended to determine these proceedings “on the papers, without an oral hearing and based on the documents forming the Tribunal record after 23 March 2023”. The Tribunal is authorised[11] to conduct these proceedings “entirely on the basis of documents, without the parties, their representatives or witnesses appearing at the hearing” and in those circumstances the provisions relating to the Registrar giving formal notice is not applicable.[12]
[11]QCAT Act s 32(2).
[12]QCAT Act ss 32, 92.
The above discussion of evidence relating to the Tribunal’s Directions and notice demonstrate that the Respondent had appropriate, sufficient and adequate notice that the proceedings were continuing and that a determination would be made “on the papers”. In the circumstances the Tribunal is satisfied that these proceedings can continue and be determined without the Respondent’s participation in the proceedings.

The Issues in this Dispute

The issues to be determined by the Tribunal in these proceedings are:
(a)who was the party who contracted with the Owner? Was it Troy Michael Friedrichs (the Respondent) or Civilcrete or Civilcrete Pty Ltd;
(b)was there a breach of contract by the party contracting with the Owner?
(c)if there was a breach, what are the damages that flow from that breach?
The Tribunal will consider each of these issues in the discussion below.

Who was the Party to the contract with the Owner

The evidence before the Tribunal discloses that in identifying who was the contracting party with the Owner, there are three possibilities, namely:
(a)Civilcrete Pty Ltd; or
(b)Civilcrete; or
(c)Troy Michael Friedrichs, the Respondent.

Civilcrete Pty Ltd.

The Owner’s evidence is that his solicitors on 27 March 2023 sent a letter of demand to Civilcrete Pty Ltd at various addresses, one of which was to 1 Eden Drive, Eatons Hill. It can be assumed that the letter was sent on instructions from the Owner.
The problem facing the Tribunal is that letter (addressed to Civilcrete Pty Ltd) is the only evidence of the existence of Civilcrete Pty Ltd. That company would be an incorporated entity but there is no evidence establishing that the entity was incorporated, the date of incorporation, its registered address or details of present or former directors. There is no ASIC search in evidence. The evidence does not establish the existence of this entity.
The solicitors’ letter that has brought this problem about was sent to various addresses for the company including what appears to be the home address of Troy Michael Friedrichs at 1 Eden Drive, Eatons Hill. Also, that letter was sent for the attention of Troy Michael Friedrichs. Further, that letter rather inaccurately refers to the contract made by the Owner when he “contacted you on or around early November 2022, regarding concrete works… to the driveway and footpaths at 22 Hamson Terrace, Nundah.” The letter overlooks the email sent by Troy Friedrichs on Wednesday 2 November 2022 attaching the Quote #360 dated 2 November 2022 as forming part of the contract between the parties.
There is no evidence to support the proposition that Civilcrete Pty Ltd was a contracting party with the Owner so far as these proceedings are concerned. Further, there is no evidence to support the proposition that Civilcrete Pty Ltd existed as an incorporated entity under the Corporations Act 2001 (Cth). The Tribunal is not satisfied that Civilcrete Pty Ltd was a contracting party with the Owner for the purposes of concreting the driveway and paths at the Nundah property.

Civilcrete

There is evidence that Civilcrete sent Quote #360 dated 2 November 2022 to the Owner with a description of the concreting works to be performed at the Nundah property. That is supported by Tax Invoices #439 and #446 from Civilcrete which sought progress claims for work undertaken for that concreting job.
The issue therefore is, who is Civilcrete?
Civilcrete appears to be an unincorporated and unregistered business name. Quotes and Tax Invoices issued by Civilcrete refer to its address at North Lakes, Queensland and identify the telephone contact as being the mobile phone number for “Troy”. The telephone contact is different from the personal telephone contact of the Respondent provided in the details in the Application.

The Quote and the Tax Invoices state an Australian Business Number (ABN). No evidence is provided about that number or the business/person who is registered with that number.
The Tax Invoices require payment to Westpac but into an account in the name of “T Friedrichs”.
The position appears to be that Civilcrete conducts business as a “business name” but as an unregistered entity and has no “legal personality”. Its records do not state who trades as (or in other words who is the owner of) the business name of Civilcrete.
Accordingly, the Tribunal is not satisfied that Civilcrete did, or could, enter into the contract (which was partly written and partly oral) with the Owner on or after 2 November 2022. The Tribunal does not accept that Civilcrete was capable of contracting with the Owner and makes the finding that it was not a contracting party for the purposes of these proceedings.

Troy Michael Friedrichs (the Respondent)

The evidence is that Troy Michael Friedrichs:
(a)sent, in his own name, an email dated 2 November 2022 with Quote #360 to the Owner;
(b)was the contact person with his mobile phone number nominated by the Quote;
(c)was the person the Owner responded to by email on 2 November 2022 to accept the Quote;
(d)there appears to have been discussions after 2 November 2022 about the payment terms of the deposit and progress payments and which terms appear to have been agreed. There is no direct evidence of these discussions. It seems implicit that Troy Michael Friedrichs would have been the person discussing those matters with the Owner when an agreement was reached on how payment was to be made.
(e)was the owner of the Westpac account into which the deposit and progress payments were made by the Owner for the work concreting the driveway and paths;
(f)was the contact person nominated by the Civilcrete on its Tax Invoices;
(g)was the person who responded to the Owner’s text messages about commencement of the concreting work and for problems and issues that arose after 5 December 2022. He authorised and directed workmen to perform work at the Owner’s property, was to inspect the driveway after the concrete had been poured and was otherwise responsible for the scheduling of workmen to carry out concreting according to the various text messages in evidence. In one text message he stated to the Owner:
sorry mate I missed your message yesterday. The boys are just finishing up a job for my main builder. I aim to be completing your job next week.
(h)On 1 February 2023 the Respondent’s text message to the Owner contained the following statement:
I’m going to arrange concrete for a day next week for pathway pour. If that is not an option I will have the boys come take my formwork and take up the driveway and I’ll reimburse Joe what has been paid.
It is significant that the bank account for the business was in the personal name of the Respondent. This suggests that the financial benefits of the business went to the Respondent who was the relevant entity. It also suggests that the Respondent was the owner of the business carried on under the trade name of “Civilcrete”.
There is other evidence which points to the Respondent as being the person who conducted and was in control of the business. That evidence can be found in the Quote and the Tax Invoices where the Respondent was nominated as the contact person. There are also a number of email exchanges between “Troy” and the Owner indicating that he was the responsible person for scheduling the work arrangements for workmen to attend the site. This evidence also points to the Respondent being the owner of the business conducting the concreting work for the Owner.
There is further significant evidence occurring in a text message exchange of 1 February 2023 in which the Respondent informed that the Owner that after a delay of approximately 1-2 months the Respondent offered the following option to the Owner;
(a)for work to commence the next day for the concreting of the path; or
(b)for the “boys” to come around and collect the formwork and other materials and to “take up the driveway” and “I’ll reimburse Joe for what has been paid”.
The terms of this option were made by the Respondent in his personal capacity and he did not purport to make the offer on behalf of another entity or as a representative of any other entity, namely “Civilcrete” or “Civilcrete Pty Ltd”. The terms of the text message were that the Respondent was personally making the offer to recommence work concreting the path or alternatively was to remove all the building materials and formwork, take up the driveway and personally reimburse “Joe”. The evidence in these proceedings is that the reference to “Joe” means the Owner.
The evidence relating to the bank account, text messages, Quote and the Tax Invoices consistently refers to the Respondent in his personal capacity in dealings with the Owner in the concreting contract. The Tribunal is satisfied that the party with whom the Owner contracted with for the performance of the concreting work in the Quote and in the oral discussions about terms of payment was the Respondent personally. The Tribunal finds that the contracting parties to the contract for the performance of the concreting work to the driveways and paths at the Nundah property were the Owner and the Respondent.

Was there a Breach of the Terms of the Contract

The terms of the contract are contained in the Quote and the discussions relating to payment of the deposit and progress payments.
There is no evidence before the Tribunal of discussions about the standard of workmanship to be undertaken by the Respondent. Nevertheless, it would have been an implied term of the contract that the Respondent would carry out the concreting works for the driveway and the paths in a good and workmanlike manner which would be fit for the purpose they were intended for at the Nundah property.
The Owner has given the evidence that the work carried out by the Respondent, or by workmen on his behalf, was unsatisfactory in a number of respects including the concrete driveway at an early stage developed uncontrolled cracking which may have been due to the lack of expansion or control joints in the concrete driveway. The driveway sloped towards the house so that any water on the driveway flowed towards the house and not away. There was damage to adjacent piping around the driveway.
The evidence from the Respondent in the text messages seems to be quite explicit that the work was defective, although there were no particulars as to the exact nature of that unsatisfactory work.
On 28 February 2023 Adam McCormack of Kustom Concrete Finishes and Pumping carried out an inspection of the Respondent’s work at the Nundah property. He subsequently prepared a Report dated 3 March 2023 (although the Report says it is dated 3 March 2017) in which he expresses an opinion about the Respondent’s workmanship in these terms:
The driveway in its current condition is considered totally unsatisfactory and the only option is to remove and replace completely, as per the details described below.
The Report provides quotes for work to supply all labour and materials to:
(a)Quote #11047 of 28 February 2023 to remove old concrete driveway and install new concrete driveway at a cost of $16,548.00 (plus GST);
(b)Quote #11116 of 26 April 2023 to concrete the paths at a cost of $14,833.50 (incl GST).
Subsequently on 29 February 2024 an updated Quote #11047 providing a cost of $22,440.00 was provided for the removal and replacement of the driveway.
On 13 April 2023 a Report was provided by Ron Faulks of Faulks Finishes who provided his opinion in relation to the works performed by the Respondent at the Nundah property. In summary, he expressed the opinion about the Respondent’s workmanship in these terms:
(a)the contractor has used the correct materials. However, despite this the contractor has carried out work that is unsatisfactory as follows:
(i)      the fall of the driveway is towards the house which is not acceptable;
(ii)      to remedy the incorrect fall, the contractor has installed a spoon drain in the concrete which has proven insufficient to deal with the volume of water travelling towards the home in wet conditions. The incorrect fall towards the house can be rectified by a different drain being installed and connected to stormwater to divert surface water away from the house;
(iii)     the front step is not compliant by way of a legal step height;
(iv)     no expansion joints have been cut into the concrete and therefore shrinkage cracks have occurred; and
(v)      the contractor left the site in an unacceptable state with concrete splatter all over the side of the house.
(vi)     remove old concrete driveway and install new concrete driveway at a cost of $16,548.00.
The quote attached to this report was for the removal of the existing concrete driveway with installation of a new driveway and pathways, installing a drain in the driveway and a total cost $31,103.66 (including GST). A second quote was also provided by for works relating to finishing the paths and to “Saw cut, skip, excavation, clean driveway and entry” and provide a colour tint of the Owner’s choice at a total cost of $15,062.85 (including GST).
The evidence in these proceedings establishes that the workmanship by the Respondent is not acceptable and the concrete driveway needs to be removed and replaced. The Tribunal accepts the evidence of these facts provided by the Owner and in the Reports from Adam McCormack and Ron Faulks. The Tribunal finds that the Respondent’s concreting work at the Nundah property is unsatisfactory and the only option is to remove and replace completely the concrete driveway and to instal new concrete paths. The work performed by the Respondent is unsatisfactory and was not performed in a good and workmanlike manner and was not fit for the purpose intended at the Nundah property. This is a breach of the terms of the contract.
The Tribunal makes a finding that the Respondent in performing the concreting work was in breach of the terms of the contract with the Owner. The Respondent will be liable for any damages resulting from that breach of contract.

What are the Damages that Flow from the Breach of the Contract

The contract price according to the Quote was $23,023.00. Of this contract price the Owner has paid the Respondent by way of deposit and progress payments a total of $16,778.75 (the Owner calculated these payments at $17,267.25). The unpaid balance of the contract price is $6,244.25.
The Owner has provided evidence to the Tribunal of the cost of repairs or remediation of the Respondent’s work in Reports from Adam McCormack and Ron Faulks. The Tribunal accepts the quotes and prices in those Reports.
The Owner seeks damages for the cost of removal and repairing the driveway and the cost of uncompleted work for the paths. The request is in keeping with the Reports provided in support of the proposition that the existing driveway should be replaced. The Respondent had not undertaken any concreting of the paths. This request is fair and reasonable. The evidence of that cost is in the evidence in the Report from Adam McCormack and the updated quote provided in 2024. There is also evidence from Ron Faulks that the cost is $31,103.66 (including GST). The Tribunal accepts the quote from Adam McCormack as being fair and reasonable in the circumstances which encompasses, with the updated quote, rectification of the Respondent’s work.
There is evidence relating to a number of out of pocket expenses. That evidence is in the form of invoices and receipts which the Tribunal accepts as fair and reasonable expenses incurred as a result of the Respondent’s breach of contract. Those out of pocket expenses are as follows:
(a)replacing damaged draining pipes at a cost of $379.00;
(b)estimate for repainting and removing splashed concrete on the house at a total cost of $550.00. This quote is said to be from “Higher Trades”. It is calculated on the basis of six (6) hours at $85 per hour labour required with paint and miscellaneous materials costing an additional $40.00.
(c)damage to clothing from splashed concrete. This cost is a laundry bill of $205.72; and
(d)legal costs of $385.00 in relation to writing the solicitors’ letter of demand to the Respondent. While legal costs are meant to be borne by the parties themselves, this is not a legal cost for representation before the Tribunal. It is a cost flowing from the breach of contract by the Respondent and the Owner seeking the assistance of his solicitors to prepare a letter of demand on his behalf. In the circumstance it is considered that this is a fair and reasonable cost arising from the breach of contract. The Tribunal considers that it is in the interests of justice in order that the Respondent pay these costs considering the way in which the Respondent was asked on many occasions by text messages for information about continuing the contract and the failure to respond unnecessarily disadvantaging the Owner. These legal costs would have been unnecessary had the Respondent replied sufficiently to the Owner’s requests by text message and email.
The Owner seeks restitution damages for stress and inconvenience travelling from Sydney to Brisbane and return in the amount of $2,000.00. The Owner has provided a statement titled “Restitution” in support of this claim. This statement refers to his frustration and disappointment, difficulty in contacting the Respondent, disappointment with poor workmanship and stress levels of having to move away from his home to help look after his elderly father in his Sydney home. There is no evidence in that statement, or elsewhere, relating to the level of stress or any independent professional medical opinion relating to his stress and/or the anxiety or the treatment for those conditions. Nor is there any evidence relating to his travelling from his home/Sydney to Brisbane and returning as claimed. While it may well be the case the Owner has spent a considerable amount of time trying to get the Respondent to rectify the unsatisfactory workmanship, there is no evidence of any relevant head of damage claimable by the Owner. This component of the damages claim is not compensable due to insufficiency or absence of any relevant evidence. Whether it would be a compensable component had there been any relevant evidence available to the Tribunal is a matter which does not have to be dealt with in the absence of that relevant evidence. The Tribunal is not satisfied that the Owner has established a claim for damages for stress, frustration, disappointment or for any of the other matters referred to in his “Restitution” statement. This component of the Owner’s claim for damages is dismissed.
The damages which the Tribunal will award the Owner and which will be payable by the Respondent are as follows:
(a)driveway replacement and installation of new driveway – $22,440.00
(Quote 011047 of 29/02/2024)
(b)finish new concrete paths –  $14,833.50
(Quote 11116 of 26/04/2023)
(c)out of pocket costs:
(i)      repair of damaged drain pipes – $379.00
(ii)      removal of splashed concrete – $550.00
(iii)     laundry cost for damaged clothing – $205.72
(iv)     restitution for stress –  $ NIL
(v)      solicitors’ costs for letter of demand $385.00
(vi)     total out of pocket expenses –         $1,519.72             $1,519.62
(d)less: unpaid contract price –   ($6,244.25)
(e)Total damages –   $32,548.87
The Tribunal finds the Owner has suffered damages of $32,548.87 as a consequence of the Respondent’s breach of contract for concreting of the driveway and paths at the Nundah property. The Tribunal awards the Owner damages of $32,548.87 for the Respondent’s breach of contract.

Orders

The Tribunal orders that Troy Michael Friedrichs is to pay to Joseph Panetta damages of $32,548.87 by 4.00pm on Friday 11 October 2024.for breach of contract relating to the supply and installation of the concrete driveway and paths at 22 Hamson Terrace, Nundah, in the State of Queensland.