Pickerill and Anor v Jarvis - [2024] QCAT 127

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Pickerill and Anor v Jarvis [2024] QCAT 127

PARTIES:

JOHN KENNETH CHARLES PICKERILL AND BEVERLEY PICKERILL

(applicants)

v

CHRISTOPHER ANDREW JARVIS

(respondent)

APPLICATION NO/S:

BDL217-21

MATTER TYPE:

Building matters

DELIVERED ON:

25 March 2024

HEARING DATE:

2 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1.     Christopher Andrew Jarvis is to pay to John Kenneth Charles Pickerill and Beverly Pickerill the amount of $3,609.15 on or before 4.00 pm Friday, 26 April, 2024;

2.     Apart from Order (1) above, the claims made by John Kenneth Charles Pickerill and Beverly Pickerill, including the claim for costs, as set out in the Application for domestic building disputes filed in the Tribunal by them this this this on 31 August 2021 are dismissed;

3.     The Response and/or counter-application filed in the Tribunal by Christopher Andrew Jarvis on 15 October 2021 is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – where the applicant homeowners engage the respondent builder to renovate parts of the home – where the builder commenced renovations – where the builder ceased renovations during the contract – Where the builder alleged the applicants were in breach of the contract – where the builder terminated the contract – where the Applicants disputed the builder’s termination of the contract – where the builder claimed damages for breach of contract – where the homeowners claim that progress payments were in excess of the amount of renovations completed – where homeowners seek refund of progress payments made – whether homeowners alleged builder engaged in unconscionable conduct contrary to the Australian Consumer Law.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 100, s 102

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

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

The parties are in a contractual dispute relating to the renovation of a bathroom, ensuite, laundry and toilet at 10 Meranti Street, Sunnybank Hills
The issues in these proceedings are;
(a)whether the parties’ contract was validly terminated on 7 June 2021; or
(b)if the contract was not validly terminated;
(i) were monies refundable for any overpayment of progress payments prior to 7 June 2021; and
(ii) were monies payable in restitution or as damages for defective works as at 7 June 2021 and for any remaining incomplete works;

Background

John Kenneth Charles Pickerill and Beverly Pickerill (‘the Applicants’) are the owners of residential premises at 10 Meranti Street, Sunnybank Hills.
Christopher Jarvis (‘the Respondent’) operates the businesses of plumbing and bathroom renovations from 138 Stiller Drive, Kuraby.
During April 2021 the Respondent provided to the Applicants quotations including a “Work Schedule” setting out dates for payment of progress payments.
By April 2021 the Respondent provided to the Applicants a detailed quote 003953/4 for renovations to the bathroom, laundry, toilet and the ensuite to the main bedroom of the premises.
On 28 April 2021 the Applicants and the Respondent entered into a supply and install contract for the renovations specified in the detailed quote. The contract provided the works would commence on 24 May 2021 and reach practical completion within 20 days approximately. The contract price was $54,491.00 (including GST of $4,953.73). Schedule 1 Item 7 of the contract contained the requirement for progress payments of the contract price as follows;
Deposit      5%      $2,725.00;
15%    $8,173.65;
50%     $27,245.50; and
Balance    30%     $16,347.30.
The Schedule to the contract and the General Conditions form part of the contract. The Conditions of Contract made provision for payment of the contract price in the following terms;
you must pay us the contract price by way of the progress payments stated in item 7 of schedule 1.
On 28 April 2021 the Applicants paid a deposit of $2725.00.
On 24 May 2021 the Respondent commenced renovations at the Applicants’ premises.
The Applicants paid a progress payment of 15% of the contract price ($8173.65) on 24 May 2021.
A further progress payment of two amounts totalling $27,245 was paid by the Applicants on 4 June 2021.
By 7 June 2021 the Respondent had completed the ensuite as well as the waterproofing and tiling to the laundry floor.
On 7 June 2021 the Respondent informed the Applicants that it was impossible to continue the renovations because of the Applicants’ unwillingness to cooperate and their constant ‘breaches of contract”. The Respondent says it was impossible to continue with the job and he was withdrawing from the contract. The Respondent said that he would not be completing the contract and removed his equipment but reinstalled the existing laundry tub and washing machine to ensure the Applicants were not without those amenities.
By that stage the Applicants say they had paid $38,144.15 (70%) and the Respondent had only completed renovations to the value of $23,163.00 (40%). The Applicants requested the contract be completed. The Respondent said that he would prepare a final invoice with totals of materials already either delivered to the site or had been ordered and if there was any refund due it would be stated on the final invoice.
On 7 June 2021 the Respondent gave the Applicants a Termination Notice of the contract. The Notice stated the grounds of termination were serious breaches of the contract including;
(a)stage payment not received on due date;
(b)interrupted site access;
(c)breach of the first paragraph of the Conditions of Contract for “The Site”;
(d)unreasonable behaviour causing delays;
(e)inability to make product selection causing further delays.
The Applicants on 7 June 2021 responded to the Notice of Termination by informing the Respondent the termination was not in accordance with Clause 26 of the contract and was not valid nor accepted by the Applicants. They further informed the Respondent that pursuant to Clause 12 of the contract, the Respondent does not have the right to unilaterally amend the scope of the contract. The Applicants rejected the unsubstantiated claims made in the termination notice.
The Applicants maintain that the contract remains in full force and effect and that it has not been validly terminated by the Respondent. They state that the Respondent’s return to finish the works and rectify the defects is “an untenable situation for both parties, and therefore in consideration of the above points [we] seek compensation.”[1]
[1]See Applicant's Statement of Evidence filed 13 June 2022 at page 4 paragraph "A".
On 9 June 2021 the Respondent sent a final invoice to the Applicants. That invoice contained an offer of settlement by refunding $1,369.15 to the Applicants. An exchange of correspondence then passed between the parties which was unsuccessful in resolving the dispute.
On 2 July 2021 the Applicants made a complaint to the Queensland Building and Construction Commission (‘QBCC’) which ultimately did not proceed with that complaint.
On 17 August 2021 the QBCC advised the Applicants that it was taking no action in terms of their complaint and that the case was closed.
On 31 August 2021 the Applicants filed in the Tribunal an Application for domestic building dispute relying on the jurisdiction provided by the Queensland Building and Construction Commission Act 1991 (Qld).[2] The Applicants identified the Respondent as the other party to the dispute stating that renovation works were defective and incomplete and seeking the Tribunal make orders that;
(a)repayment of $14,980.65 including GST plus interest or overpayment of money to the Respondent;
(b)rectification or compensation for all defects (29 defects listed). The estimated cost to rectify the defects was approximately $10,000.00;
(c)replace all fittings supplied that are different to what is specified in the contract or alternatively reimburse the cost to engage another contractor to remove non-approved fittings and supply and install fittings specified in the contract;
(d)provide documentation for the fittings that the respondent has supplied and installed including but not limited to, product information, maintenance information, warranties, brochures, delivery dockets and invoices;
(e)the Respondent provide the “10 Year Warranty” certificate as specified in the contract;
(f)the Respondent reimburse the Applicants for the filing costs of the Application filed in the Tribunal and other costs.
(g)reimbursement of the cost of a building inspection;
[2]Referred to as the QBCC Act in these proceedings.
On 15 October 2021 the Respondent filed in the Tribunal his Response and/or counter-application disputing allegations made in the Applicants’ Application and seeking the following orders;
(a)compensation for loss of earnings for three employees and the Respondent for a two-week period that was left to work on the contract. That claim was quantified as $18,500.

Tribunal’s Jurisdiction

The Tribunal’s jurisdiction is conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an “enabling Act”.[3]
[3]QCAT Act, s 9.
The QBCC Act provides that a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[4] A building dispute is defined as including a domestic building dispute.[5] The parties in these proceedings have a dispute relating to renovations to a domestic building. The parties have attempted, albeit unsuccessfully, to resolve this dispute by means of a process established by the Commission to attempt to resolve disputes. Accordingly, the QBCC Act is the “enabling Act” in these proceedings and provides the Tribunal with jurisdiction.
[4]QBCC Act, s 77.
[5]QBCC Act, Schedule 2 Dictionary.
The Tribunal may make a number of orders in these proceedings including orders for payment of an amount, damages, restitution or rectification or completion of defective or incomplete tribunal work and award costs.[6]
[6]QBCC Act, s77(3)(a)-(h).

Was the Contract Terminated on 7 June 2021

On 7 June 2021 the Respondent informed the Applicants that due to their unwillingness to cooperate and their constant “breaches of contract”, it was impossible to continue with the job and the Respondent was withdrawing from the site. The Respondent says that he and his workmen reinstalled the existing laundry tub and washing machine so the Applicants could use their laundry facilities normally and were not without those amenities. No work had been started on the bathroom and the Applicants were left with a newly completed ensuite and the existing bathroom and a fully operational laundry.
The Applicants required the Respondent to pay a refund of $15,000 for work which they said was not completed. The Respondent said that he would provide them with a final account which totalled all of the materials already delivered to the site or that had been ordered.
The Applicants sent an email to the Respondent requesting advice that day of the reasons why the Respondent was “walking off the job before completion of the contract of Works”.[7]
[7]Statement of Evidence by Applicants filed 13 June 2022 at paragraph 17 and exhibit "JBP – 09".
The Respondent gave the Applicants a termination notice dated 7 June 2021 and relied upon several breaches of the contract as grounds for termination. The Respondent says that the early termination of the contract and work was caused by the Applicants’ unreasonable behaviour. The Respondent in his evidence relies on the following breaches of the contract by the Applicants;
(a)failure to pay the second progress payment on time;
(b)failure to provide the car garage as a base for keeping the Respondent’s equipment and other items during the renovations;
(c)the request by Beverly Pickerell for the Respondent to remove equipment every night from the bedroom adjacent to the ensuite;
(d)alleged constant interruptions, complaints about noise, dust and general remarks to undermine the Respondent’s capacity to carry out the work including on occasions moving in the way of the Respondent’s workmen in the small 2.5 m x 2.5 m ensuite;
(e)stepping on wet floor tiles which were being laid requiring a request for Beverly Pickerill to leave the work area for their own safety;
(f)refusal by the Applicants of the Respondent’s use of the new ensuite toilet facilities which had been installed and the Applicants’ direction the Respondent could only enter the house through the rear doorway.
The Applicants say that the Respondent’s purported termination was not in accordance with Clause 26 of the Conditions of Contract and the Respondent unilaterally sought to vary the scope of works in the contract which was not in accordance with Clause 12 of the Conditions of Contract. They advised the Respondent they did not accept his early termination of the contract and his unilateral variation of the scope of the contract works.
The Applicants contend that the Respondent has invalidly attempted to terminate the contract as;
(a)there is no serious breach of the contract; and
(b)even if there was a serious breach, the Respondent is required to follow the provisions of Clause 26 of the contract which he failed to do.

Failure to Pay the Second Progress Payment on Time.

The Respondent relies upon a “Work Schedule”[8] dated 15 April 2021 which specifies the times or dates for payment of progress payments. That document specifies Monday, 24 May 2021 as the date for the payment of the 15% progress payment of $8,173.65. The Respondent says that those funds were not available until 26 May 2021.[9] The Respondent relies on the following clauses in the contract;
(a)you must pay us the contract price by way of the progress payments stated in item 7 of schedule 1; (Clause 2); and
(b)you should be aware of any upcoming instalments. Carefully follow the arrangements for payments made in your contract, making sure that you pay by the due date… (Part 2 at page 9).
[8]Respondent's Response filed 15 October 2021 at attachment "Item 8".
[9]Respondent's further Evidence filed 16 August 2022 at page 1 at "Point 10 close quotes.
The Applicants state that on 24 May 2021 at 8:13am they processed payment of $8,173.65. The Applicants have provided evidence of a bank transfer receipt evidencing that transaction on that date.[10] The Applicants proceed to challenge whether or not the payments made to the Respondent were proportionate to the works completed.[11] The Applicants also rely upon the Respondent’s failure to comply with Clause 26 of the Conditions of Contract. In any event, the Applicants contend that if there was a breach it was not a serious breach entitling the Respondent to terminate the contract.
[10]Statement of Evidence by Applicants at paragraph 10 and exhibit "JBP – 06".
[11]Statement of Evidence by Applicants at paragraph 5 and relying on extensive calculations in exhibit "JBP – 35".
In accordance with the Directions of Senior Member Brown 15 September 2021 the Applicants filed in the Tribunal a copy of the contract in respect of the building works are the subject of this dispute. In that contract the parties have agreed to the method termination as set out in Clause 26. That clause states, in part, as follows:
If you are in serious breach of your obligations, we may give you a written request to remedy the breach within 14 days.
If the breach is not so remedied within that time, we may then terminate this contract by giving you a written notice.

The Applicants and the Respondent have each agreed to the method by which the contract is to be terminated. To effectively terminate the contract;
(a)there has to be a “serious breach” of the parties’ obligations;
(b)a written request to remedy the breach will need to be given to the party in breach of the obligation;
(c)the party receiving the written request has 14 days to remedy the breach;
(d)if the breach is not remedied within 14 days the party giving the written request may then terminate the contract by giving written notice.
The contract does not define what a “serious breach” is. It appears that the issue is to be determined objectively by what a reasonable person in the circumstances would regard as being a “serious breach”. Clause 2 of the contract requires that progress payments must be paid as stated in “item 7 of schedule 1” of the contract. Schedule 1 does not specify a date of payment of the $8,173.65 progress payment. The Respondent refers to the “Work Schedule” dated 15 April 2021 to which specifies payment by Monday, 24 May 2021. However, that “Work Schedule” is part of quotes given by the Respondent which became part of the contract between the parties. Accordingly, the position therefore is that in accordance with the contract the Applicants were required to pay the contractor a progress payment of 15% of the contract price ($8,173.65) by 24 May 2021. The Applicants did make a payment of $8,173.65 on 24 May 2021to comply with the contract. In those circumstances the Respondent cannot prove that the Applicants were in “serious breach” of the contract and were not entitled to terminate the contract on this ground.
Even if the respondent did not receive the progress payment to 26 May 2021, the evidence from the Applicants is that they made that payment by bank transfer on 24 May 2021. The fact that the Respondent did not receive the payment until two days later does not mean that the Applicants did not make the payment on 24 May 2021 in accordance with their evidence. The Respondent has failed to demonstrate by any evidence that the payment by bank transfer by the Applicants on 24 May 2021 was not made. The Tribunal accepts the evidence of the Applicants that they made the payment on 24 May 2021. Accordingly, the Applicants were not in “serious breach” and the Respondent was not entitled to take any steps towards terminating the contract.
In any event the evidence before the Tribunal is that at no material time did the Respondent give to the Applicants a “written request to remedy the breach within 14 days”. Accordingly, the Respondent was not entitled to terminate the contract as his actions did not comply with Clause 26 and the purported termination was of no legal force and effect based upon the ground of delay in payment of this progress claim. The Respondent did not comply with Clause 26 in unilaterally determining in the circumstances of these proceedings that the contract should be terminated.
Even if the Respondent was relying upon the “common law” to terminate the contract rather than Clause 26, any purported termination by the Respondent was ineffective and of no legal force and effect. Not every breach of a contract entitles the innocent party to terminate the contract. There must be a substantial breach of the contract before the entitlement to terminate arises. Based on all the evidence in these proceedings there was no substantial breach in relation to payment of this progress payment.
The Tribunal finds that the Respondent was not entitled to terminate the contract based upon the allegation that the Applicants had not paid a progress payment in accordance with the contract. The Tribunal rejects the Respondents submissions and the claim based upon this breach. The Respondent’s purported termination of the contract relying on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Failure to Provide the Car Garage as a Base

The Respondent refers to “the negotiation stage” at which they discussed the extent of the Respondent’s equipment and the requirement for space to set up as a “base”, usually the garage in the home. The Respondent says his request was denied by the Applicants who insisted on parking their cars in the garage despite having a larger driveway and living in a quiet small cul-de-sac with ample parking during the day. The Respondent says the Applicants breached the contract and relies on the following clause in the contract relating to “the Site”;
your contractor is entitled to occupy the site for the purposes of carrying out the work. You are entitled to reasonable access to the site to view the work but you must not interfere with the carrying you become liable for resulting costs or delays.
The Respondent claims that he and his workmen were forced to set up an equipment base outside and open to the elements which created huge security concerns for tools and equipment.
The Applicants provide a house layout plan of the site and referred to a covered patio area offered for a work area which they say the Respondent declined. The Applicants also provide a photograph of the patio to the house which shows that it was under cover and had ample space. An area adjacent to the bathroom and laundry was chosen by the Respondent for a work and rest area as well as the use of the main bedroom (next to the ensuite which was being renovated by the Respondent) for a work area and storage of tools. The Applicants state the Respondent was given clear and uninterrupted access to the ensuite by both the front door and the laundry door to complete the ensuite works and did so for a period of two weeks without issue.[12] The Applicants also rely on the Respondent’s failure to comply with Clause 26 of the Conditions of Contract when there was a purported termination of the contract.
[12]Statement of Evidence by Applicants filed 13 June 2022 at paragraph 1 relying upon exhibits “JBP – 30” and “JBP – 31”.
The Applicants state there is no provision in the Contract under which this scenario could be classified as a serious breach of the contract.
The Respondent bears the onus of proving the allegation that the Applicants were in breach of the contract. The evidence is that the Respondent did not get the location in the garage which was the preferred location but had to make do with other locations on the building site. The Applicants dispute the Respondent’s allegations. Their evidence, was that alternative locations were selected and used on the site as a work area and for the storage of tools to which the Respondent had interrupted access. The Tribunal is not persuaded and is not satisfied on the evidence that the Respondent was prevented from having uninterrupted access to the site and neither was the Respondent prevented from having a suitable work base for his equipment. The Applicants’ evidence satisfies the Tribunal that adequate access and an adequate base were provided by them for the Respondent notwithstanding that the base provided did not appear to be the Respondent’s first choice of location. The Respondent was entitled to occupy a space as a base at the site but did not have an entitlement to nominate and direct the Applicants as to which exact space would be the base. This issue is further complicated by the fact that only part of the house, and not the whole house, was being renovated. It appears from the evidence the Applicants remained residing in the house during the period of the renovations. The Tribunal accepts the Applicants’ evidence that they provided an adequate area on the site for the Respondent to use as his base. The Tribunal rejects the Respondent’s evidence.
The Respondent’s termination was undertaken without any regard to or compliance with Clause 26 of the contract. Apart from the Respondent’s evidence not establishing that there was a “serious breach”, the termination method was undertaken without issuing any appropriate notice or giving the Applicants 14 days in which to remedy any breach. Even a determination relying upon “common law” principles would be of no legal effect as the Respondent has failed to establish that there was a “substantial breach” of the contract entitling termination.
The Tribunal finds that the Respondent was not entitled to terminate the contract based upon the allegation that the Applicants had prevented the Respondent from having uninterrupted access and did not provide a base for his workmen and storage of tools. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Beverly Pickerill’s Complaints and a request about Equipment kept in the Bedroom.

The Respondent says he was requested to start work on the ensuite adjacent to the bedroom which had been vacated by the Applicants who removed their existing furnishings from that room. The ensuite was at the other end of the house and required storage of some equipment in the bedroom. The Respondent says that Beverly Pickerill complained about the amount of equipment in the bedroom and asked for it to be removed every night which was not practical. The Respondent relies upon Clause 3 of the Conditions of Contract;
you must give us uninterrupted access to the site to check measure and to deliver and install the product.
If we ask for access to deliver the product, and you cannot give that access within 7 days, you must pay us the third progress payment.
You must provide us, while we are at the site, with adequate access to available water, electricity, toilet and washing facilities.
The Applicants referred to the Quality Control provisions[13] which state that it is their responsibility to check the quality of the work and to conduct regular inspections of the work. They maintain they are entitled to engage regularly with the Respondent to discuss and check on matters related to the quality of the work. They contend that in the circumstances it was not unreasonable to expect that these interruptions would occur on an almost daily basis.
[13]The Quality Control provisions are located in “Contract Information Statement” of the Contract at page 10.
The Applicants have also provided photographs of the way in which the Respondent was using the main bedroom for the storage of equipment.[14]
[14]Statement of Evidence by Applicants filed 13 June 2022 at paragraph 1 relying upon exhibits “JBP – 30” and “JBP – 33”.
The Respondent does not identify the exact terms in Clause 3 of the contract which are alleged to be breached, but presumably it is the provision in Clause 3 which allows for uninterrupted access to deliver and install the project. The breach is said to be a complaint about the amount of equipment in the bedroom and the request for it to be removed every night which was not practical. The Respondent was working on the ensuite for approximately two weeks. The breach as expressed by the Respondent is a conclusion about complaints and requests by Beverly Pickerill. What the Respondent does not provide in this evidence is any particulars or details of what was said or done by Beverly Pickerill, so that the Tribunal can make an assessment as to the seriousness, or otherwise, of the alleged breach. Without those particulars or details the Tribunal is left with the Respondent’s conclusion about the complaints and the request which is challenged by the Applicants’ evidence.
The Applicants’ evidence is that under the contract it was their obligation to check the quality of the work and carry out regular inspections. They say they did nothing more or less than this in the two-week period that work was proceeding on the ensuite. Whether the “Quality Control” is a term of the contract is debatable as it is part of that section of documents included in the contract described as “Contract Information Statement”. Other provisions in the contract exclude the “Contract Information Statement” from the terms of the contract. As such it purports to provide information about the contract which is contained in the Schedule 1 Particulars of the Contract and the Conditions of Contract. However it is unnecessary to decide that particular issue.
The Respondent’s evidence does not suggest that he notified the Applicants of this breach during the two weeks work was proceeding on the ensuite. The first notice appears to be on 7 June 2021 after work on the ensuite was completed. Even though requests were made for removal of equipment from the bedroom apparently it was not necessary to do that as it was “impractical”. Given the competing evidence, whether there were complaints and requests or whether there were quality control checks and inspections is difficult to determine because of the lack of evidence from the Respondent on this issue. The Tribunal is not satisfied that the Respondent has discharged the onus of proof and that it cannot be said that his evidence outweighs that of the Applicants. On this basis the Tribunal makes a finding that it is not satisfied of the breach of contract based upon this complaint and requests. Further given the lack of evidence from the Respondent it has not been established that the complaints and requests relied upon amount to a “serious breach”. Even if they did, the Respondent has failed to comply with Clause 26’s procedure giving a notice of breach and allowing a 14-day period for that to be rectified. Even for the purposes of a common law termination the allegation does not amount to a substantial breach.
For these reasons, the Tribunal finds that the Respondent has not proved that there was a breach of the contract which would give rise to an entitlement on the part of the Respondent to terminate the contract. The Tribunal finds that the Respondent was not entitled to terminate the contract for this alleged breach. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Beverly Pickerill’s Interruptions, Constant Complaints and General Remarks.

The Respondent says that there were constant complaints from Beverly Pickerill about noise, dust and just “general remarks” to undermine the workmens’ capacity to carry out the work. On one occasion she was told by the Respondent to “just leave them alone to get on with the job”. The Respondent says that the interruptions became a problem for the smooth flow of work. On occasions Beverly Pickerill was requested to move because she was in the way of workmen in the small 2.5 m x 2.5 m ensuite. The Respondent relies upon the provision about “the Site” in the Conditions of Contract to which references have been made above.
The Applicants say there is no provision in the contract under which this scenario could be classified as a serious breach. They rely on a document that accompanied the Conditions of Contract (called Contract Information Statement) which discusses “Quality Control” and that it was their responsibility working with the contractor to check the quality of the work. That Statement refers to regular inspections of the work. They say that given the nature of the work and the cost it was not unreasonable to expect these interruptions to occur on almost a daily basis.
This breach relied upon by the Respondent relates to the period of two weeks during which work was performed on the ensuite and for tiling work undertaken in the laundry. The Respondent’s evidence has the same shortcomings and failings as have already been discussed above in relation to the breach in which Beverly Pickerill is said to have made complaints and requests for removal of equipment stored in the main bedroom. That discussion above applies here and is relied upon for the purposes of deciding this issue. In summary the Respondent has not produced evidence to satisfy the Tribunal that there was a breach, nor that the alleged breach is a “serious breach”; nor is there evidence that the termination procedure in Clause 26 was adopted, and lastly, there was no substantial breach established by the Respondent entitling termination at common law.
For these reasons, the Tribunal finds that the Respondent has not proved that there was a breach of the contract which would give rise to an entitlement on the part of the Respondent to terminate the contract. The Tribunal finds that the Respondent was not entitled to terminate the contract for this alleged breach. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Beverly Pickerill steps on Wet Floor Tiles.

The Respondent says that on one occasion Beverly Pickerill stepped on wet floor tiles which were being laid and was asked to leave the work area for her own safety. The Respondent also says that at the end of each day Beverly Pickerill would inspect the work and make complaints about areas that were not yet completed. It is said she was very argumentative during the whole job and prevented the Respondent on several occasions from completing daily scheduled work due to her “incoherent and hypothetical questions”. The Respondent relies upon “The Site” provisions in the Conditions of Contract which already been referred to above.
The Applicants rely upon the Quality Control Provisions in the section of the contract dealing with “Contract Information Statement”. They do not accept the Respondent’s statements and there is a dispute on the facts as to what actually occurred.
As previously stated the Respondent has the onus of proof. The circumstances in which Beverly Pickerill came to step on a wet tile as alleged are not explained. Nor is it explained whether or not this was accidental or a deliberate action by her. Nor is it explained whether there are any safeguards or barriers put up at the time to indicate that there were “wet tiles” in the vicinity. The Respondent’s evidence leaves matters in a factual vacuum which does not allow the Tribunal to make an assessment of the factual circumstances to determine whether or not there was a breach. In short, the Respondent’s evidence is unsatisfactory as it falls short of fully informing the Tribunal of what was happening at the time when it is said Beverly Pickerill stepped on wet tiles.
Further, the Applicants’ evidence says that they are entitled to enquire about the works and to inspect the works in accordance with the quality control provisions. That evidence competes with that of the Respondent for acceptance by the Tribunal. The Tribunal however is not satisfied on the evidence provided by the Respondent that he has satisfied the onus of proof of establishing sufficient facts to demonstrate that there was a breach by the Applicants or either of them. Accordingly, the Tribunal does not find that there was a breach of the type as alleged by the Respondent. Nor has it been established that there was a “serious breach” entitling termination under Clause 26, nor is it shown that the Clause 26 termination procedure was adopted and used by the Respondent and finally there was no proof of a “substantial breach” entitling any common law termination.
For these reasons, the Tribunal finds that the Respondent has not proved that there was a breach of the contract which would give rise to an entitlement on the part of the Respondent to terminate the contract. The Tribunal finds that the Respondent was not entitled to terminate the contract for this alleged breach. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Respondent told not to use new toilet facilities and user the rear entrance to thehouse.

The Respondent says that on Monday, 7 June 2022 the workmen were prevented from using the new toilet facilities which they had installed in the ensuite and could only use the rear entrance tor the house. The Respondent says that the contract states that he and his workmen must be allowed uninterrupted site access to carry out work and should also be allowed toilet and washing facilities. The Respondent relies upon “The Site” provisions to which references have already been made and also to Clause 3 of the Conditions of Contract which state;
you must give us uninterrupted access to the site to check measure and to deliver and install the product.
If we ask for access to deliver the product, and you cannot give that access within 7 days, you must pay us the third progress payment.
You must provide us, while we are at the site, with adequate access to available water, electricity, toilet and washing facilities.
The Applicants referred to the layout of the site as illustrated by the house plans. The Applicants say that on completion of the ensuite, the contractual works shifted to the front of the house. The laundry, bathroom and toilet were on the other side of the home to the ensuite. They say the Respondent was given clear and uninterrupted access to the new work area at the front of the house via the laundry. Apparently, the Respondent proceeded to seal the work area from the rest of the house including the ensuite. They say that those plans show that there was a toilet available to the Respondent while working on their adjoining laundry and bathroom area and he did not need to access the toilet in the ensuite. They say the Respondent was given clear and uninterrupted access to this new work area via the laundry to complete those works and the use of the adjacent toilet. They say there was adequate access to a toilet and washing facilities at all times. There was no need for the Respondent to have access to the ensuite which was completed and was being used by the Applicants who were back into the main bedroom. There were discussions between the parties when works were to commence on the main toilet, and it was to be “out of action” for a short time and arrangements were made for them to use the ensuite for a few days when that construction was to occur in the work schedule. The Applicants say works had not commenced on the main toilet area on 7 June 2021.
The Respondent’s evidence is that he wanted to continue the use of the ensuite toilet facilities when work on that area was completed and the contract construction was moving to new work areas in the house. The Respondent says he preferred the use of the ensuite toilet facilities and this was refused.
The Applicants’ evidence is that the construction works were now moving to the other side of the house and they were moving back into the main bedroom and would obviously be using the ensuite themselves. They provided evidence that there were alternate toilet facilities and washing facilities available in the house. This evidence does not appear to be challenged by the Respondent. In any event, the Tribunal accepts the evidence of the Applicants and will decide this issue based upon their evidence. The Tribunal makes a finding that it accepts the evidence of the Applicants rather than that of the Respondent. The Tribunal does not accept the evidence of the Respondent on this issue. The Respondent’s purported termination of the contract was not in accordance with Clause 26 in the contract nor with the requirements for common law termination.
For these reasons, the Tribunal finds that the Respondent has not proved that there was a breach of the contract which would give rise to an entitlement on the part of the Respondent to terminate the contract. The Tribunal finds that the Respondent was not entitled to terminate the contract for this alleged breach. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Failure to make product selections in a timely manner.

At one stage of the proceedings the Respondent was contending that the Applicant took too long to decide on product selections causing further delays. It is not clear from the Respondent’s material filed in the Tribunal whether he persists with this allegation.

Assuming that the allegation is relied upon, the Applicants’ evidence is that there is no schedule provided in the contract which outlines a date by which the Applicants must make product selections. They contend they were proactive in attempting to make product selections and refer to a number of documents.[15] They say all product selections were made prior to the works commencing on 24 May 2021 with the exception of the benchtop.
[15]Statement of Evidence by Applicants filed 13 June 2022 at paragraph 1 relying upon exhibits “JBP – 03”, “JBP -04” and “JBP – 06”.
The Respondent does not provide any evidence of delay by the Applicants in getting materials to site. There is no evidence of any hold-ups in the completion of works particularly to the ensuite. Tiling was completed to the laundry following completion of the ensuite and there is no evidence that there was a delay in the selection of tiles and getting those materials to site. The Respondent has not demonstrated that there were any requests for selection of materials by a certain date or as required by the contract. In summary, the Respondent’s evidence is inadequate and fails to establish any breach by the Applicants. The Respondent’s evidence is disputed by the Applicants. Given the lack of any evidence to suggest that there was delay by the Applicants, apart from the conclusions expressed by the Respondent, the Tribunal accepts the version of facts provided by the Applicants.
For these reasons, the Tribunal finds that the Respondent has not proved that there was a breach of the contract which would give rise to an entitlement on the part of the Respondent to terminate the contract. The Tribunal finds that the Respondent was not entitled to terminate the contract for this alleged breach. The Respondent’s purported termination based on this alleged breach was of no legal force and effect. The Respondent’s claim will be dismissed on this issue.

Respondent’s Final Account dated 9 June 2021 in Full Settlement.

On 9 June 2021 the Respondent issued invoice 1185 as the final account relating to the contract for the period to 7 June 2021. That invoice took into account the Respondent’s calculation of payments and expenses throughout the project which included a refund to the Applicants of $1,369.15 in full settlement between the parties.
The final account is described as a “Variation Statement”. The items identified as “extra” are a down light and a double power point inside a mirror cabinet. Otherwise, the terms in Invoice 1185 appear to be supplied and installed or merely supplied to site (but not installed) in accordance with the contractual quote.
The final account was also accompanied by another document “Settlement Agreement” which offered the Applicants a total refund of $1,369.50 (including GST).
On 15 June 2021 the Applicants rejected the proposed settlement and said that the value of the works completed would result in a refund by the Respondent of $14,980.65. The Applicants rejected the terms of the “Settlement Agreement” by the Respondent. The Applicants also submit that the Respondent was not entitled to any variation of the terms of the contract as the “Variation Statement” did not comply with Clause 12 of the Conditions of Contract.
Further consideration of this issue will be dealt with below in the discussion relating to the Applicants’ claim for a refund from the Respondent of $14,980.65.

Respondent’s Claim for Loss of Earnings of $18,500.00.

In the Response and/or counter-application filed by the Respondent on 15 October 2021 he seeks an order for compensation for the loss of weekly earnings of $1,500.00 per employee and for the Respondent of $3,500.00 plus company profit of 5% for a two week period calculated as follows;
(a)3 workmen x $1500.00 x 2 weeks = $9,000.00;
(b)Respondent x $3,500.00 x 2 weeks = $7,000.00;
(c)Company profit of 5% = $2,500.00
The total of the claim is $18,500.00.
The Applicants reject the claim for lost earnings. They maintain the purported termination of the contract was not in accordance with Clause 26 and refer to their letter of 7 June 2021 to the Respondent. The Applicants did not accept the termination and said that they expected the Respondent to continue to carry out the contract. They maintain the Respondent has no entitlement to lost earnings due to his own “unlawful” action. They also dispute the Respondent’s claim to 3 employees on site and say that there are only two employees namely the Respondent’s son and grandson. They also contend there is no mitigation of loss in this claim.
The Respondent’s claim that he validly terminated the contract with the Applicants has not been successful. As has already been found by the Tribunal, the purported termination was of no legal force and effect. The contract remains on foot and in force. The submissions by the Applicant are correct and the Respondent has no entitlement to lost earnings. The fact that the Respondent decided on 7 June 2021 to leave the work site and to wrongly purport to terminate the contract does not give rise to a valid claim for damages. As the Tribunal has already found there is no breach of the contract as claimed by the Respondent. The Respondent is not entitled to damages and the claim is dismissed. Further, assuming for the moment that the Respondent had a claim in damages, there is insufficient evidence provided as to why the Respondent and his workmen were unable to find any other source of income for the relevant two week period claimed as the Tribunal has not been provided with any details of surrounding circumstances such as other jobs that may have been in the “pipeline” to which the Respondent could have moved onto albeit at an earlier date. The Tribunal has not been satisfied that the quantum of damages claimed by the Respondent is the correct measure of damages in the circumstances.
For the reasons set out above the Respondent’s claim for the compensation is dismissed.

Tribunal’s Conclusions with respect to the Applicants’ Claims

The Respondent’s claim that the Applicants have breached the contract on several occasions has not been established on the evidence and the Tribunal rejects the Respondent’s claims.
The Respondent’s claim that he was entitled to terminate the contract on 7 June 2021 has been unsuccessful as there were no relevant breaches of the contract. The Tribunal dismisses the Respondent’s claim.
The Respondent claims compensation of $18,500.00. That claim is dependent upon the Applicants being in breach of the contract which the Respondent has failed to prove. The Tribunal dismisses the Respondent’s claim for compensation.

Applicants’ Compensation Claim for Defective Works in the Laundry

The Applicants consider tiling work in the laundry is defective. They require the tiling to be stripped and redone[16] as the works do not comply with AS 3958.1 “Guide to the Installation of Ceramic Tiles”. The Applicants referred to;
(a)some tiles are “drummy” but are not “necessarily indicative of imminent failure”. They considered the tiles “suspect over the long-term”;
(b)the tiling is not parallel to the flooring in the remainder of the house and is not in keeping with the aesthetics of the whole job;
(c)a row of tiles should have been placed on the perimeter but instead were placed inside the perimeter. It is claimed that as a result, the tiles on the perimeter have a tolerance on the joint alignment of the row of cut tiles that does not comply with Standard 5.4.6(d);
(d)the installation of the drain is not square and is said to be non-compliant with Standard 5.4.6 and other provisions. They provide a photograph showing that one section of the drain is approximately 3 cm from the grouting whereas on the other side of the drain it is approximately 4 - 4.5 cm from the grouting;
(e)the grouting is not consistent and does not comply with Standard 5.4.6(c);
(f)the edges of the cut tiles are jagged and flake and do not comply with Standard 5.4.3(a); and
(g)two other tiling defects in the laundry identified in an inspection report.[17]
[16]Statement of Evidence by Applicants filed 13 June 2022 at paragraph D relying upon exhibits “JBP – 34”.
[17]Statement of Evidence by Applicants filed 13 June 2022 at paragraph D relying upon exhibits “JBP –35” and “JBP – 37” for the Inspection report.
The Applicants assess the value of these works as $1,362.90 (including GST).[18] The Applicants submit that regardless of the value, the works are defective in their entirety and therefore the value of these works less the value of rectification of defective works in the laundry is $NIL (including GST).[19]
[18]Statement of Evidence by Applicants filed 13 June 2022 at paragraph D relying upon exhibits “JBP – 15 (which appears to be an incorrect reference and should refer to the calculations at
[19]Statement of Evidence by Applicants filed 13 June 2022 at paragraph D relying upon exhibits “JBP – 15.
The Applicants arranged for an Independent Building Report to be prepared on 1 June 2022 by James Smith, a Building Inspector and Consultant with QBCC Licence 1504 9482. The author of that Report said that he was engaged “to carry out building defect assessment to all wet areas” of their premises at Sunnybank Hills. That Report assesses the laundry area and assesses unfinished work to be tiling of the splashback, walls, a chipped single tile on the laundry floor and ends, and inconsistent grout finish to the laundry floor which varies between 2-4 mm (suggesting that possibly “spaces” were not used to reach even margins between tiles). In the summary of that Report the Building Inspector said;
Partial renovation works have been done to the laundry area. Only floor tiles laid to laundry. No splashback tiles – wet tiles, neither cabinets fitted yet.
The Report identified works which had not yet been completed in the laundry area but did not identify any of the tiling or grouting defects referred to in the Applicants’ evidence. Given the scope of the report which the Independent Building Expert received from the Applicants all relevant “building defects” would be assessed in that Report. The failure to mention any of the tiling and grouting issues raised by the Applicants means at the very least there is no supporting evidence by the Expert of the defects referred to in the Applicants’ evidence. At worst, the Expert does not identify the matters to which the Applicants referred as a building defect. The Applicants claim costs of rectification and other costs and these are not supported or corroborated in the Expert’s Report.
The Respondent denies that he, or his workmen, have carried out defective tiling work. He says all works were carried out in a workmanlike manner and according to the relevant Standards. To that extent there is a conflict in the evidence between the Applicants and the Respondent.
The Tribunal places significant emphasis on the assessment of building defects as provided by the Independent Building Expert. That Report was prepared almost twelve (12) months after the Respondent left the site and purported to terminate the contract with the Applicants. The fact that the scope of the Report was to assess “building defects” and does not identify any of the tiling or grouting issues referred to by the Applicants leads the Tribunal to the conclusion that the Expert did not regard them as being defective work. Further, the Expert has not carried out an assessment of any costs associated with the defective works identified by the Applicants. Rather, the approach of the Expert’s Report is more consistent with the evidence from the Respondent. In these circumstances the Tribunal accepts the evidence of the Independent Building Expert and the Respondent in preference to the evidence from the Applicants about tiling and grouting defects. Accordingly, the Tribunal finds that it is not satisfied by the Applicants’ evidence that the tiling and grouting defects have been proved and rejects the Applicants’ claim. The Applicants’ claim under this head of damage is dismissed.

Compensation for Defective Works in the Ensuite

The Applicants consider some work in the ensuite to be defective.[20] The defective works identified are as follows;
(a)bracing panel not installed flush with side glass panel;
(b)glass rod glued to edge of bracing panel in an inappropriate manner to cover up the issue shown in (a) above;
(c)shower pipe jammed against the bulkhead;
(d)misaligned mitre joint on the window frame;
[20]Statement of Evidence by Applicants filed 13 June 2022 at paragraph E relying upon exhibits “JBP – 38”.
The Applicants cost these defective works at $3,590.00 (including GST).[21] However, this valuation contains an enlarged list of defects not previously referred to above and without specifying what work is required to remedy these expanded defects nor does it specify any hourly rate of labour, the costs of materials or any methodology used in arriving at the estimated cost $2,000.00 for Items “D1” to “D6” in the costing. Similarly, for item “D7” the replacement cost of $200.00 in the costing again is without any particulars whatsoever of how that amount has been calculated, the hourly rate of labour, or the cost of materials. Similar comments can be made about items “D 8” to “D 19”. Further comments will be made about this costing below.
[21]Statement of Evidence by Applicants filed 13 June 2022 at paragraph E relying upon exhibits “JBP – 39”.
The Independent Building Report on 1 June 2022 from James Smith assesses the renovated ensuite of the Applicants’ home. That Report refers to the following;
(a)inconsistent silicon finish to the vanity bench top junctions with a variation 2-5 mm;
(b)poor silicon applications identified in several locations;
(c)silicon finish has not been tooled off to shower screen junctions to floor and wall tiles;
(d)water disbursing outside the shower recess area, insufficient/improper sealant to shower screen and brackets junctions;
(e)shaving cabinet margins were out, binding on top edges. Also, early-stage de- silvering noted to mirror edge;
(f)shaving cabinet not self-closing. Although it is not a building defect, it is recommended to crossmatch it with contract specification;
(g)vanity drawer not equipped with soft-close arms. Although it is not a building defect, it is recommended to crossmatch it with contract specification;
The Independent Building Inspector did not provide any assessment of the cost or the value of rectification work referred to in respect of the above items and are made the following comments by way of summary to the Report;
Based on our opinion, renovation works had not been completed to Ensuite. For any discrepancies in specifications of materials, refer to your signed contract.
The Respondent “refutes” the allegation of poor workmanship and says installation is carried out as per building codes and has been investigated by the QBCC and found to comply with all regulations.
The evidence of the Applicants is not corroborated by the Expert Report prepared a year after the Respondent completed works to the ensuite. The Expert refers to silicon finishes and other issues affecting the shaving cabinet and the vanity drawer. The Expert concluded that the renovation works had not been completed but does not fix or determine any cost in rectifying any of those issues relating to silicon application, the shaving cabinet and the vanity drawer. In those circumstances, the Tribunal has no evidence before it as to the costs to complete the renovations. The Applicants consider the value of the defective works is $3,590.00.[22] However these defects are not corroborated by the Independent Building Expert. The Applicants’ calculation is the “estimated cost to rectify” but this provides no details of labour costs, hours required, cost of materials or any indication as to how the Applicants have gone about the assessment of those costs. While the Applicants claim an engineering background which may involve civil construction or other forms of engineering such as electrical, hydraulic or other, there is no evidence as to any particular expertise or ability on the part of the Applicants to properly cost domestic building works. The Respondent’s evidence rejects any notion that there is defective building work.
[22]Statement of Evidence by Applicants filed 13 June 2022 at paragraph E relying upon exhibits “JBP – 39”.
In the circumstances, taking into account all of the evidence and the matters to which I have referred to above, the Tribunal is not satisfied that there has been defective works in the ensuite resulting in any proper cost assessment.. The Tribunal accepts the evidence of the Independent Building Expert to the effect that renovation works have not been completed in the ensuite but there is no costing available to the Tribunal to complete those renovation works. The Applicant prefers the evidence of the Independent Building Expert to that of the Applicants and relies upon the Expert. The Tribunal rejects the Applicants’ evidence and finds that there is insufficient evidence of defective works in the ensuite resulting in any damage to the Applicants. The Tribunal dismisses the Applicants’ claim under this head of damage.

Applicants’ Claim for Compensation for Monies Paid for Works Not Completed

The Applicants seek compensation for works for which they have paid in progress payments but which were not completed. They value those non-completed works at $14,980.65 (including GST).[23]
[23]Statement of Evidence by Applicants filed 13 June 2022 at paragraph A relying upon exhibits “JBP – 16”.
The calculation for a refund of $14,980.65 has been assessed by the Applicants on the following basis;
(a)ensuite – works completed – $ 20,311.00
(b)laundry estimate of value of works – $1,362.90
(c)bathroom – no works undertaken – $0.00
(d)toilet – no works undertaken – $0.00
The Applicants then submit;[24]
The total value of the works completed in accordance with the contract is $1,362.90.
[24]Statement of Evidence by Applicants filed 13 June 2022 at paragraph A relying upon exhibits “JBP – 16” at page 2.
The Applicants accept some ensuite and other variations for goods supplied and installed in accordance with Invoice 1185 but rejected other variations. The total of the variations accepted is $1,489.60.
The Applicants say that the value of works completed includes the $1,362.90 and the variations of $1,489.60 a day calculated as being $2,852.50 and seek a refund of $14,980.65.
The Respondent says that it does not believe it has been overpaid for the work that has been completed. The respondent claims that by 7 June 2021 he had completed the works on the Applicants’ site in accordance with quotations 3955 and 3953. The Respondent calculated the cost of the project to 7 June 2021 as follows;
(a)Total cost of renovations $34,491.00
(b)Cost of extra materials supplied (but not installed) $ 2,328.00
The Respondent says the Applicants paid $38,144.15 in progress payments and there is a refund due to the Applicants of $1,369.15. These calculations do not fully explain the costing exercise completed by the Respondent on 9 June 2021. Are the “Variations” of $2,284 part of the “Cost of extra materials supplied” of $2,328.00 referred to above? In the absence of any explanation from the Respondent the Tribunal will proceed on the basis that those “Variations” are part of that “Cost”. Secondly, there appears to be a mathematical error in the Respondent’s calculations of 9 June 2021. The aggregate cost of the “Total cost of renovations” and the “Cost of extra materials supplied” is $36,819.00. Accordingly, the refund due to the Applicants is $1,325.15 (not $1,369.15 as stated in invoice 1185 of 9 June 2021).

JBP – 35”).