Riley v Ball and Ors trading as Bayview Landscaping
[2023] QCAT 385
•28 September 2023
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Riley v Ball and Ors trading as Bayview Landscaping [2023] QCAT 385
PARTIES:
HOLLY LEA RILEY (applicant)
v
BRODY BALL, NICHOLAS JEWELL AND MATTHEW LAVENDER TRADING AS BAYVIEW LANDSCAPING AND MOWING (respondent)
APPLICATION NO/S:
BDL039-22
MATTER TYPE:
Building matters
DELIVERED ON:
28 September 2023
HEARING DATE:
6 September 2023
HEARD AT:
Brisbane
DECISION OF:
Member S M Burke
ORDERS:
1. The Respondent is ordered to pay the Applicant the amount of $19,522.00 within 28 days.
CATCHWORDS:
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – DECISION BY DEFAULT – termination of contract – rectification of defective works – rectification costs and cost to complete contract works
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”).
REASONS FOR DECISION
The Applicant, Holly Lea Riley, filed an application for a domestic building dispute on 3 February 2022. Subsequently, directions of the Tribunal have been delivered and material provided by the Applicant in the way of statements and supporting material.
The Respondent has failed to file any material in support of its response.
Accordingly, in accordance with the directions of the Tribunal dated 4 May 2022 and 27 July 2023, the Tribunal proceeds to make a final decision in this matter given that the Respondent has failed to comply with the directions of the Tribunal.
Background
On 6 August 2021, the Applicant, as owner of a property at 42 Purser Street Dundowran (“the property”), and the Respondent, as landscape builder, entered into a verbal agreement regarding the construction of a concrete slab measuring 11m x 10m for the price of $10,000.00.
Further, on 16 August 2021, the parties entered into another verbal agreement for the construction of a flyover roof.
On or about 17 August 2021, the Respondent provided to the Applicant a written quotation for the construction of the concrete slab and construction of a patio entertainment area as follows:
Concrete slab entertainment area
10x8 slab
Dingo hire for levelling and clearing of ground $270.22
Expansion joint $232.41
Concrete reo mesh includes ties and forming wire $987.73
Concrete reo caps and beds $146.00
Concrete weight baring and structural including exposed finish $5,377.68
Stump grind of existing tree x 2 $132.44 includes labour price
Labour $2,899.25 for 4 workers
TOTAL AMOUNT $10,045.73
In addition to the above work, the quotation related to the patio entertainment area which was the flyover roof area with a quotation sum of $15,244.10.
The final quotation price was $25,289.83 with a deposit of $12,644.92 requested. To be paid before the commencement of the works.
On 17 August 2021, the Applicant accepted the quotation by SMS message.
On 18 August 2021, the Applicant paid the deposit of $12,700 .00.
Building works commenced on 19 August 2021.
A further amount of $5,000.00 was paid by the Applicant to the Respondent as the final payment for the slab.
On 1 October 2021, the Applicant terminated the agreement between the parties having notified the Queensland Building and Construction Commission (“QBCC”) on 23 September 2021 that the works to date were unsatisfactory.
On 2 November 2021, the QBCC inspected the works and provided a report on 22 November 2021.
In relation to the report produced by the QBCC, a Direction to Rectify was issued to the Respondent in relation to 3 of the items of complaint in relation to the works as follows:
Item 2 – All areas across the slab that has excessive hollows of greater than 15mm to be rectified to achieve required tolerance specified in Table 2.1 in the QBCC’s Standards and Tolerance Guide 2019.
Item 3 – The unsightly edge butting against the existing concrete patio to be rectified to create a consistent finish to satisfy tolerances specified in section 2.2 in the QBCC’s Standard and Tolerance Guide 2019.
Item 4 – All areas across the slab that has excessive lumps of greater than 15mm to be rectified to achieve the required tolerance specified in Table 2.1 in the QBCC’s Standard and Tolerance Guide 2019.
The Respondent was required to comply with the Direction to Rectify within 35 days being 27 November 2021.
The Respondent failed to carry out any rectification works.
Original Application and Response
The Applicant’s original application dated 1 February 2022 sought the following orders:-
(a)The Respondent pay the Applicant the sum of $5280.00 as per the quotation supplied in order that a licensed contractor could rectify the slab to QBCC standards.
(b)The Respondent pay the Applicant the sum of $1300.00 for defective posts as reported by the QBCC.
(c)The Respondent pay the Applicant the sum of $3150.00 for items paid by the Applicant and not supplied by the Respondent.
Subsequently, in a statement dated 14 June 2022, the Applicant provided quotations from Steve’s Concrete and Stratco for the proposed rectification works.
The Applicant relied upon the report of the QBCC dated 22 November 2021 for the list of defects the subject of the application.
The Respondent’s response to the application dated 19 February 2022 stated that the Applicant had not read the quotation provided or material list provided and was refusing to reach an agreement to work out the dispute. This was the only response or material provided by the Respondent.
The Applicant asserted that the Respondent was not licensed at the time and therefore was not able to carry out the rectification works or complete the works under the original contract.
Directions of the Tribunal
By directions delivered on 16 February 2022, the Applicant was required to file an affidavit of service or other evidence that the application was served on the Respondent in accordance with QCAT Practice by 2 March 2022.
Further directions on 16 February 2022 provided:
(a)the Applicant must file and give to the Respondent a copy of the contract in respect of the building works the subject of the dispute by 2 March 2022;
(b)the Respondent must file a response and provide a copy to the Applicant by 16 March 2022;
(c)the application is to be listed for a Directions hearing at a date and time to be advised.
On 4 May 2022, the Tribunal made further directions in relation to the application including that the Respondent provide its response to the application in compliance with the directions of 16 February 2022 by 18 May 2022.
Further, the Applicant was directed to provide a statement of evidence addressing the matters referred to in Direction 6 thereof by 15 June 2022. Those issues related to the contract and the claim alleged by the Applicant and addressing the issue of whether the Respondent was the holder of a relevant licence.
Direction 8 of the directions dated 4 May 2022 stated that the Applicant is entitled to a final decision in the event that the Respondent failed to comply with the direction to provide a response to the Applicant’s application by 18 May 2022.
On 20 July 2022, the Tribunal made further directions that the Respondent must comply with direction 3 of the directions of 4 May 2022 by providing a response to the application. The Tribunal further directed that the Applicant would be entitled to a final decision in the proceeding in the event that a response was not received.
At a directions hearing on 27 July 2023, the following directions were made:-
(a)The Applicant must file a copy of a further statement of evidence addressing expenditure on rectification by the Applicant of defective building work by 10 August 2023.
(b)The application will be determined on the papers without an oral hearing and on the basis of the documents forming the Tribunal record after 10 August 2023.
Compliance with Directions of Tribunal
On 24 February 2022, the Applicant complied with the directions of 16 February 2022.
A further statement of evidence was provided by the Applicant on 14 June 2022 in compliance with the directions dated 4 May 2022. That statement provided all relevant quotations for the rectification works and the results of a licence search for the Respondent.
A further statement was provided by the Applicant on 7 August 2023 in accordance with the directions of 27 July 2023 providing details of the costs incurred to rectify the works performed by the Respondent.
The Respondent responded to the application on 19 February 2022 merely stating that the Applicant had not read the contract and failed to negotiate an agreement to resolve the dispute.
Whilst technically it may be argued that the Respondent has complied with the directions of the Tribunal having delivered its response on 19 February 2022 (filed in Brisbane 1 March 2022), the Respondent has failed to provide any statements or evidence in response to the Applicant’s claim. The Respondent has been given ample opportunity to provide any evidence on which it would intend to rely.
In accordance with the directions of 27 July 2023, the Tribunal proceeds to make a final decision in relation to the Applicant’s claim.
Applicant’s Claim
The Applicant claims the sum of $19,522.00 for rectification costs as follows:
(a)Cost to cut up slab that was poured by the Respondent - $1,865.00
(b)Cost to remove the concrete from the slab to make way for new slab to be poured - $7,887.00
(c)Cost of new slab poured to replace the defective and unstable slab - $8,960.00
(d)Cost to replace incorrect posts supplied for patio - $810.00
I accept the evidence of the Applicant that the Respondent was not licensed. I do not intend to canvass this matter further given that the Applicant has not presented her case on the basis that, in contravention of s 42 of the QCAT Act, the Respondent is not entitled to any monetary or other consideration for carrying out the works whilst unlicensed. Rather, the Applicant has proceeded to claim rectification costs of the alleged defective works carried out by the Respondent.
The Applicant relies upon the report provided by the QBCC dated 22 November 2021 to support the contention that the works performed by the Respondent were defective.
Given the lack of evidence from the Respondent to dispute the contents of the QBCC report, I accept the contents of the report and am satisfied that the works performed by the Respondent were defective. The Respondent was given the opportunity to rectify the defects but failed to respond to the Direction to Rectify issued by the QBCC.
It is not necessary for me to canvass each item of defective work outlined in the QBCC report. There is no evidence to contradict the contents of that report. Thus I accept that the works were defective and the Applicant was entitled to have those defective works rectified.
The following invoices provided by the Applicant relate to the rectification works carried out on behalf of the Applicant:
(a)Fraser Coast Concrete Sawing dated 27 June 2022;
(b)Advance Civil dated 16 July 2022;
(c)Brock Dunn Concreting dated 19 August 2022;
(d)Steelrite dated 27 April 2023.
The scope of works undertaken and the costs incurred have not been challenged by the Respondent. In the circumstances, I accept that the works carried out were necessary to rectify the defects outlined in the QBCC report and to rectify the defective work performed by the Respondent.
I am satisfied that the costs incurred by the Applicant were reasonable and that the amount of $19,522.00 is owed by the Respondent to the Applicant.
Orders
Based on the reasons provided above, the Tribunal determines that the following orders should be made: -
(a)The Applicant’s application is allowed.
(b)The Respondent is to make payment to the Applicant the sum of $19,522.00 being the amount incurred by the Applicant by way of rectification of the defective building works.
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