Roy v Palmer
[2025] QCAT 344
•17 September 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Roy v Palmer & Ors [2025] QCAT 344
PARTIES:
REBECCA JANE ROY (applicant)
v
JORDAN JAMES PALMER
(RESPONDENT)
RILEY & CO BATHROOM RENOVATIONS PTY LTD
(RESPONDENT)
HILTON JAMES PALMER
(respondent)
APPLICATION NO/S:
BDL168-24
MATTER TYPE:
Domestic Dispute
DELIVERED ON:
17 September 2025
HEARING DATE:
25 August 2025
HEARD AT:
Brisbane
DECISION OF:
Member S M Burke
ORDERS:
The Respondent, Jordan James Palmer trading as Riley & Co Bathroom Renovations, is to make payment to the Applicant in the sum of $50,396.40 on or before 22 October 2025.
CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – MEASURE OF DAMAGES – where builder performed unlicensed building work – where builder did not complete the works – where defective works – where home owner entitled to recover money paid under agreement and damages to rectify and complete works – failure of party to comply with directions – failure of party to deliver any evidence before the Tribunal
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77
Bellgrove v Eldridge (1954) 90 CLR 613
Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75Robinson v Harman [1848] Eng R 135
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
The Applicant, Rebecca Roy, is the registered owner of an apartment at 204/1 Ella Street, Newstead, Queensland. (“the property”).
On 14 January 2024, the Applicant entered into a written contract with the Respondent Jordan Palmer, for and on behalf of Riley & Co Bathroom Renovators. The contract related to bathroom renovation works to be carried out at the property for the contract price of $14,256.00 including GST.
The written contract identified in detail the work to be carried out as follows:
(a)Main bathroom – removal of floor tiles including bedding, removal of skirting tiles, removal of laundry tub, removal of vanity/mirror, removal of shower wall tiles/shower screen, removal of bath, removal of toilet, removal of 2 x exhaust fans. 300 x 600 floor tiles, 200 x 300 shower wall/skirting tiles, 2 x new exhaust fan install. All plumbing for shower, vanity, laundry, re-locate vanity power-point, 100 x 100 tile insert floor waste, install new shower screen, install new vanity, install new shaving cabinet, all silicone, painting, niche (size to be confirmed);
(b)Ensuite – removal of floor tiles including bedding, removal of skirting tiles, removal vanity/mirror, removal of shower wall tiles/shower screen, removal of exhaust fan. 300 x 600 floor tiles, 200 x 300 shower wall/skirting tiles, niche (size to be confirmed), install of new exhaust fan, install of new vanity and shaving cabinet, re-locate power-point, all silicone, shower waste 900mm strip drain, floor waste 100 x 100 tile insert, install shower screen, painting;
(c)Riley & Co will supply all building materials such as villaboard, gyprock, screws, poly, timber, water proofing, aluminium angle, gyprock, top coat, base coat and plumber, tiler, electrician and labour.
All materials to be supplied by the owner were identified in section A Work Details in the written contract.
The work was to commence on 24 January 2024 or within 14 days of the contractor receiving complete approval terms and to be complete within three weeks.
A deposit of 10% was to be paid prior to the start of works and staged payments were to be made thereafter in accordance with the terms in the written contract.
Two variations were agreed to the contract sum for plumbing works and laundry works. The variation works were agreed to be $2,860.00.
Between 22 January 2024 and 20 February 2024, the amount of $15,031.40 was paid by the Applicant to the Respondent for both the four instalments the subject of the contract and the two variations under the contract.
The works commenced on 24 January 2024 and were ceased by the Respondent on 24 February 2024.
On 29 March 2024, the Applicant purported to terminate the contract on the basis that the works had not been carried out properly and the Respondent had failed to produce a waterproofing certificate.
On or about 2 May 2024, the Applicant obtained a report from Jess Moreton of Hayman Projects identifying faults with the work provided by the Respondent. The report dated 2 May 2024 attached photographs of the alleged defective work and comments on the work which it was alleged required rectification.
The Applicant claims that it was necessary to demolish the works carried out by the Respondent and to rebuild the whole of the works. In addition, it was necessary to complete the works which had not been undertaken including tiling, installation of cabinets and vanities, installation of plumbing fixtures and fittings, installation of the shower screens, fit-off of power points and electricals and painting.
The Applicant claims the sum of $62,816.49 as damages as follows:
(a)Demolition costs - $3,355.00;
(b)Costs to complete the works including a variation of $1,200.00 - $32,010.00;
(c)Replacement of materials including tiles, laundry cabinet and tile insert drain - $1,994.79;
(d)Refund of amounts paid to the Respondent who was unlicensed - $15,031.40;
(e)Costs incurred because of the Applicant’s inability to occupy the property including mortgage interest, body corporate fees, water usage, rates, loss of rental income additional car costs etc - $9,225.30.
Directions
On 12 June 2024, the Tribunal made directions including that the matter be listed for a compulsory conference after 19 July 2024.
On 29 October 2024, the Tribunal made further directions including the direction that in the event that the Respondent did not respond to the application that the Applicant would be entitled to a final decision.
Further directions were made by the Tribunal relating to evidence to be submitted by the Applicant in relation to the assessment of damages claimed by the Applicant including:
(a)provision of a copy of the contract in respect of the building works the subject of the dispute;
(b)details of the written contract entered into between the parties as set out in the directions; and
(c)a copy of a QBCC licence search of the Respondent.
Further directions were made by the Tribunal on 29 January 2025 relating to the provision of material by both parties of any evidence on which each party intended to rely. It was directed that the matter would be heard on the papers without any further appearances or representation by the parties and that the Applicant would be entitled to a final decision in the event that the Respondent did not comply with the direction to provide material to the Tribunal.
Evidence provided by the Applicant
As no material has been submitted by the Respondent, in accordance with the directions of the Tribunal on 29 January 2025, the Tribunal proceeds to assess the Applicant’s claim based on the material on which the Applicant relies.
The Applicant’s evidence is uncontested despite the Respondent receiving all the material delivered by the Applicant to the Tribunal.
I am satisfied that the report prepared by Jess Moreton of Hayman Projects identifies the unsatisfactory standard of workmanship provided by the Respondent. The photographic evidence is indicative of the state of the works at the time the contract was terminated. I am further satisfied, in the absence of any evidence from the Respondent to the contrary, that it was necessary and reasonable that the bathroom renovations carried out by the Respondent required demolition and rebuilding in order to comply with proper standards of workmanship.
In the circumstances, it is necessary for the Tribunal to assess the damages claimed by the Applicant.
Damages
From the outset, in assessing the damages to which the Applicant is entitled it is necessary to ensure that the Applicant is put into the same position she would have been had the contract been properly performed. The starting point therefore is that the Applicant would have incurred the sum of $15,031.40 (for the contract works and two variations) had the works been completed by a licensed contractor in a satisfactory manner in accordance with the contract.
The Applicant’s claim for the refund of this amount is not warranted merely on the basis that the Respondent was unlicensed.
The statutory framework of s 42(1) of the Queensland Building and Construction Commission Act1991 (“QBCC Act”) specifies that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work.
Section 42(3) is said to sterilise any claim which might otherwise be made under the contract or under common law by an unlicensed builder. It provides that a person who carries out building work in contravention of s 42 is not entitled to any monetary or other consideration for doing so.
The prohibition in subsection (3) is subject to subsection (4) of s42 which provides that a person is not prevented from claiming a reasonable remuneration for carrying out the building work, but only if the amount claimed is no more than the amount paid by the person in supplying material and labour for carrying out the building work and does not include an allowance for the supply of the person’s own labour and the making of a profit.
Section 42(4) imposes a limitation upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without subsection (4), an unlicensed builder’s right to payment of any amount is defeated by sections 42(1) and 42(3).
The onus of proving any entitlement rests solely on the unlicensed builder.
The rights and liabilities of the parties to a contract which involves the performance of building work carried out whilst a builder is unlicensed have been addressed fully in Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75. Whilst the burden of proving any entitlement to payment rests on the builder, s 42(4) of the QBCC Act does provide an unlicensed builder with an avenue to claim some compensation for works performed under the contract.
Keane J further says at paragraphs [40] and [42]:
[40] …………Rather, s 42(4) assumes the existence of a common law right to remuneration which it preserves against the operation of s 42(3) while at the same time imposing conditions upon the availability and extent of that right. Unless the builder has a good claim conforming to these conditions, the builder’s right to reasonable remuneration cannot avail the builder against the operation of s 42(3).
[41] It is true that, as the appellant argues, the operation of s 42(3) of the Act is qualified by s 42(4). But it is also clear that s 42(4) permits an unlicensed builder to claim “reasonable remuneration for carrying out building work, but only if the amount claimed” satisfied the criteria in paragraphs (a) to (d). It is only the amount of the claim so quantified that the builder may recover despite s 42(3). Absent a good claim so quantified, the operation of s 42(3) is, for practical purposes, unqualified by s 42(4). If the legislature had intended that s 42(3) as amended should read “Subject to the absence of any claim under subsection (4), so as to cast the burden of disproof of any claim for reasonable remuneration on the other party to the contract, it could easily have said so.
[42] In my respectful opinion, it is important that the concern of the courts to avoid an unjust outcome in a particular case should not distort the operation of a statute intended to encourage the licensing of builders by disadvantaging unlicensed builders and advantaging consumers of building services at their expense. It is hardly surprising that the legislature should have left the burden of proving a claim for reasonable remuneration on the builder. What would have been surprising would have been a provision which cast the burden of proof of an unlicensed builder’s claim on the consumer of building services. What is most surprising, of course, is the failure of the builder in this case to adduce evidence capable of proving a claim for an amount of reasonable remuneration in conformity with s 42(4) of the Act.
I am satisfied that the Respondent was not licensed to perform the works the subject of the contract. The QBCC licensee search undertaken by the Applicant identifies that the license number on the contract, being license number 15106424, was for Hilton James Palmer and was a “builder – open” class for a site supervisor. Not only was this license not adequate for the building work to be carried out, it did not relate to the person or entity nominated in the contract as the builder.
Thus, the Tribunal is satisfied that the work undertaken was carried out by an unlicensed contractor.
The Respondent has only a statutory entitlement to make a claim for works carried out within the parameters of s 42(4) of the QBCC Act. The onus is on the Respondent to not only make such a claim but to prove any, or the extent of, such entitlement.
Absent any claim by the unlicensed builder, the operation of s 42(3) is unaffected.
No statutory claim has been made by the Respondent. The Respondent has taken no part in the proceeding and has failed to comply with any Tribunal directions. In the circumstances, the Respondent is not entitled to any remuneration for the building work carried out.
The entitlement of the Applicant to recover monies paid to an unlicensed builder is the reciprocal of the builder’s disentitlement to receive payment.[1]
[1]Marshall v Marshall [1999] 1 Qd R 173, 176 (McPherson J).
The Applicant is entitled to recover from the Respondent the sum of $15,031.40.
In relation to the Applicant’s claim for damages arising from the defective works performed by the Respondent, I am satisfied that it was necessary for the Applicant to engage another contractor to rectify the defective work performed by the Respondent.
The principals in relation to the assessment of damages in building disputes are clearly set out in Bellgrove v Eldridge (1954) 90 CLR 613 at 617:
The measure of damages recoverable by the building owner for the breach of the building contract is …the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach.
Damages for defective work are generally the amount necessary to make the work conform with what the contractor was required to provide under the contract and thus in accordance with the plans and specifications which formed part of it.[2] The basic purpose of an award of damages is to restore the aggrieved party to the position which would have been obtained had the wrongful act not occurred. In the case of incomplete and defective work the usual remedy will be the cost of rectifying and completing building works in accordance with the building contract.
[2]Robinson v Harman [1848] Eng R 135.
The qualification outlined by the High Court in Bellgrove v Eldridge is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.
I am satisfied that it was necessary for the Applicant to demolish and re-build the works performed by the respondent in order to gain conformity with the contract. I accept the quotation provided by Hayman Projects in the sum of $35,365.00 including GST. This sum includes an amount for demolition of $3,050.00 plus GST.
The two quotations provided by Freedom - Bathrooms Kitchens Renovations – relating separately to the main bathroom and laundry for $19,876.05 and the ensuite for $16,928.65 identify the works to be carried out to complete the works the subject of the original contract. It is not possible to identify whether there are additional works included in the quotations. In the absence of evidence from the Respondent and upon an assessment of the details in the quotations compared with the details in the original quotation from the Respondent, I am satisfied that the works are the same.
It is not possible to identify whether the Applicant has incurred extra costs for the supply of tiles. The photographs provided as part of the Hayman Projects report do not support the contention that the tiling had been carried out and it was necessary to supply extra tiles. In the circumstances, it would appear that no extra tiles were purchased and the tiles supplied by the Applicant had been purchased in February 2024. The amount claimed for extra tiles is disallowed.
The Applicant claims a number of sums arising from the claim that extra costs were incurred as a result of her inability to inhabit the apartment whilst the works were being carried out by the second contractor. The material supplied by the Applicant indicates that settlement of the apartment took place on 12 January 2024. From that date onwards, the Applicant would incur costs associated with the apartment including mortgage repayments, water bills and Body Corporate fees.
At the time of settlement, the Applicant was a tenant at unit 3, 9 Doggett Street, Fortitude Valley. The tenant ledger provided by the Applicant shows rental payments until 5 February 2024.
I am unable to determine on the material provided whether the Applicant is entitled to any recompense for extra rent paid or any extra costs which would not have been incurred in any event. This is particularly the case with regards to the Applicant’s obligations in relation to her mortgage repayments and Body Corporate fees which would have been payable in any event.
With regards to the claim for payment of a motor vehicle commute to work in lieu of walking, there is no evidence to support this claim. Given the proximity of the two properties, the claim seems spurious. The same concerns arise in relation to the rental of the carpark.
None of the ancillary claims made by the Applicant are damages which would be foreseeable as arising from the Respondent’s breach of contract or have been supported with evidence to allow any entitlement as damages flowing from the breach of contract.
Orders
The Respondent is to make payment to the Applicant in the sum of $35,365.00 including GST as rectification costs incurred by the Applicant resulting from the unsatisfactory and incomplete work provided by the Respondent at the time of termination of the contract by the Applicant.
The Respondent is to make payment to the Applicant in the sum of $15,031.40 being the refund of the amount paid to the Respondent for works carried out whilst the Respondent was unlicensed and with respect to which the Respondent has failed to prove any entitlement in whole or in part pursuant to s 42 of the QBCC Act.
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