Tide Constructions Pty Ltd v Northern Metal Roofing Pty Ltd - [2023] QCAT 330

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Tide Constructions Pty Ltd v Northern Metal Roofing Pty Ltd [2023] QCAT 330

PARTIES:

TIDE CONSTRUCTIONS PTY LTD

(applicant)

v

NORTHERN METAL ROOFING PTY LTD

(respondent)

APPLICATION NO/S:

BDL186-21

MATTER TYPE:

Building matters

DELIVERED ON:

28 August 2023

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Younger

ORDERS:

1. The application is dismissed.

2. No order as to costs.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where domestic building dispute between a contractor and sub-contractor – informal contract – whether repudiation of contract entitling the applicant to terminate – whether breach of contract for incomplete work or defective work

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 100
Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 43, s 67AZN, s 77, s Schedule 1B, s Schedule 2
Queensland Building and Construction Commission Regulation 2018 (Qld), r 5, r 45

Bellgrove v Eldridge (1954) 90 CLR 613

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 658
Robinson v Harman (1848) 1 Ex 850; 154 ER 363
Roo Roofing Pty Ltd v Commonwealth of Australia [2019] VSC 331

Wilson v Kirk Contractors Pty Ltd (1991) 7 BCL 284

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)

REASONS FOR DECISION

Background

Tide Constructions Pty Ltd (‘TC’), a licensed building contractor, engaged Northern Metal Roofing Pty Ltd (‘NMR’), another licenced building contractor, to undertake work involving the supply and installation of roofing and wall cladding, at a residential property in Ocean View, Qld.
On 17 July 2020 NMR gave a quotation, headed “Quote No: R/10875A”, to TC amounting to a total of $20,130 as follows:
(a)Supply and install 40mm metal roof battens to N4 wind rating, colorbond fascia, skyline gutter, .42 colorbond corrugated, roof flashings and barges: $8,030 including GST;
(b)Supply and install .42 colorbond horizontal wall cladding, including flashing and fixtures: $12,100 including GST.[1]
[1]Application for domestic building disputes, filed by the applicant on 23 July 2021, ‘Annexure 6’ (‘Application’).
The quotation excluded a number of items, including scaffold or edge protection, and was accompanied by a one-page “Workmanship Warranty” stipulating some terms and conditions. Nothing was stipulated as to timeframes or performance of the work.[2]
[2]Ibid.
The quotation was not signed by either party.[3]
[3]Ibid.
Both parties accept that NMR commenced the work on or around 21 July 2020.[4] It is also common ground that NMR did not complete the work, however each party submits that this was the fault of the other party.
[4]Statement of Adam Rigby, Tide Constructions dated 14 February 2022 (‘Statement of Mr Rigby’) at [2]. Admitted in Response, ‘Attachment A’ at [2].
There were verbal and email discussions that took place between representatives of the parties with respect to the engagement, including on 27 July 2020 and 3 September 2020. The parties have provided conflicting versions about the contents and effect of these discussions, which are summarised below.

Tribunal proceedings

TC filed in the Tribunal an application for a domestic building dispute on 23 July 2022 seeking:
(a)restitution of $6,315.42, being the difference between NMR’s invoice and the total cost for SRH to complete the work; and
(b)costs, being the filing fee, of $352.[5]
[5]Application, Part B.
The dispute was directed to be determined on the papers and without an oral hearing.[6]

The Applicant’s evidence

[6]Directions Order dated 24 March 2022 at direction [5].

As to timeline

TC submit that NMR were aware of the strict timeline in place to have the work completed, and rely on the following in support:
(a)A telephone conversation between Adam Rigby of TC and Ronald Holmes of NMR on 27 July 2020 to the effect that roof cladding would be completed by the end of the week 31 July 2020, as TC had plaster work booked in on 3 August 2020;[7]
(b)At 1.30pm on the same date, Mr Rigby sent a follow-up email to Mr Holmes “confirming that the cladding will be complete this week as discussed also the roof really needs to be finished end of the week due to [sic] we have plaster being installed on Monday.” He further stated he had sent the cladding colour by text.[8]
(c)On 12 August 2020, Mr Rigby had a verbal conversation with Brad Horton of NMR, in which Mr Horton agreed that all works that required scaffold were to be completed prior to 18 August 2020 as scaffolding was coming down that day.[9]
(d)On the same date, Mr Rigby sent an email to Mr Holmes, which stated, that the “scaff coming down Tuesday so all work off scaffold needs to be completed” and that he (Mr Rigby) had spoken to Brad about this who had assured him it will be fine.[10]
(e)Mr Rigby deposes that the scaffold had to remain erected onsite with TC being charged by the day, because NMR did not complete the works when agreed.[11]
(f)Between 12 August and 3 September 2020, Mr Rigby deposes that he attempted to contact NMR “numerous” times to have works completed as agreed, however NMR would not attend site when requested and did not complete the works as agreed.[12]
(g)On 3 September 2020, Mr Rigby had a telephone conversation with Brad (Horton) of NMR in the presence of Jarryd Duffy, director of TC, and Maria Edisan, Administration Assistant for TC, in which Mr Rigby expressed concerns in relation to NMR’s lack of attendance, and advised that TC would be terminating the contract if NMR continued to show no effort in completing the works. Mr Rigby states that Brad replied: “I do not care if you go elsewhere, you can go find another roofer”.[13] No evidence has been provided by Mr Duffy or Ms Edisan.
(h)As a result of this conversation, Mr Rigby sent Mr Holmes an email on 3 September 2020 stating that NMR were not to attend the TC job site again and that all works were to be completed by close of business that day. Mr Rigby added that “as I have said previous”, if the job was not 100% completed by close of business then TC would be sending someone else to finish off at NMR’s expense.[14]
(i)TC submit that NMR made no attempt to complete the works on or after 3 September 2020 and did not return to the site.[15]
[7]Statement of Mr Rigby at [3] and ‘Annexure 1’.
[8]Ibid.
[9]Ibid at [4].
[10]Ibid at [4] and Application, ‘Annexure 2’.
[11]Statement of Mr Rigby at [4]-[5] and Application, ‘Annexure 2’.
[12]Statement of Mr Rigby at [6].
[13]Ibid at [7].
[14]Ibid at [9] and Application, ‘Annexure 3’.
[15]Ibid at [3], [10] and Application, ‘Annexure 2’.

Termination of the contract & completion of work by third party

TC submit that they:
(a)lawfully terminated the contract on 3 September 2020 after several attempts to have NMR complete the work;[16]
(b)were contracted by the property owner to complete the scoped works, and therefore “had no choice” but to engage another roofing contractor, Summit Roofing Holdings Pty Ltd (‘SRH’), to finish the scope of works.[17]
[16]Submissions filed by the Applicant on 14 April 2022 at [2a].
[17]Ibid.
SRH completed the further works on 28 September 2020,[18] and invoiced TC a total of $8,615.20, comprised of:
(a)tradesman x 48 hours: $3,600
(b)apprentice x 42 hours: $1,680
(c)materials: $899.47
(d)“knucike boom”: $1,653 + GST.[19]
[18]Statement of Hayden Quaife, Summit Roofing, dated 14 February 2022 (‘Statement of Mr Quaife’) at [3].
[19]Application, ‘Annexure 5’.
SRH provided images and a report dated 26 November 2020,[20] listing the following work performed by them:
(a)Finish fascia & gutter to the front entry including replacement of all flashings around the front door;
(b)Install a dry pan to redundant vent;
(c)Remove whirlybird and install full length sheet;
(d)Remove & replace barg cap under gutter that didn’t line up;
(e)Finish wall cladding flashings;
(f)Install stop end to gutter;
(g)Replace short Manor red wall cladding sheets to front entry & flash; and
(h)Supply & install all flashings to finish Manor red cladding.
[20]Application, ‘Annexure 4’ and ‘Annexure 8’.

TC allege that there were defects in NMR’s work which they noticed on or about 3 September 2020 and that SRH was engaged to rectify these defects.[21]
[21]Alleged defective work/incomplete work schedule filed 23 July 2021; Statement of Mr Quaife at [2].
TC deny that any delay was due to their (TC’s) actions, and that:
(a)TC provided NMR with all information needed to complete the works on time;
(b)NMR were given many opportunities to complete the work before 3 September 2020, however they repeatedly did not show up on site;
(c)NMR only voiced problems after repeated attempts were made to contact them.[22]

The Respondent’s evidence

[22]Statement of Evidence in Response to Northern Metal Roofing, undated at [12].

As to timeline

Mr Holmes of NMR deposes that he has reviewed all communications between the parties, and he denies that prior to and upon commencement of the works, TC had provided NMR with any strict timelines or details of a schedule of other trades or completion.[23]
[23]Statutory declaration of Ronald Holmes dated 15 March 2022 (’Statutory declaration of Mr Holmes’) at [4(b)(i)].
Mr Holmes deposes that TC only provided information about timelines after the works had commenced on site, and that TC also sought to change the scope of the works and the timeline because of pre-requisite works that needed to be completed by TC.[24]
[24]Ibid at 4(b)(ii).
NMR submit that because of TC’s delay with completing the pre-requisite works and providing information to NMR, it was unreasonable to expect NMR to complete the scope of works in the timelines sought by TC.
In relation to the conversation with Mr Rigby on 27 July 2020, Mr Holmes “did not disagree” they discussed completion of the cladding and roof by 31 July 2020, but:[25]
(a)this was the first time NMR had been made aware of any specific deadline for completion of any of the works;
(b)He (Mr Holmes) was under the assumption that all necessary information had already been provided to NMR, allowing them to have ordered the materials needed to complete the works. This included the colour selection to be provided by TC.
[25]Ibid at [4(b)].
Mr Holmes deposes that following his conversation with Mr Rigby:
(a)he found that no colour selection had been made by TC and as a result, no material had been ordered;
(b)he received a text message from Mr Rigby at 12.54pm on 27 July 2020 with respect to the colour selection for the cladding, which was too late for NMR to place an order with their supplier that day, due to cut-off time being 12 noon, and the earliest they could place the order was 28 July 2020.[26]
[26]Ibid at [4(b)(ii)(4)] and ‘NM-1’.
Mr Holmes deposes it was unrealistic and unreasonable for TC to expect that ordering, manufacture, delivery and installation could be achieved in four days, due to TC not providing their colour selection in time.[27]
[27]Ibid at [4(b)(ii)(6)].
The text message exchange on 27 July 2020 contains Mr Holmes’ response to the colour selection text early on 28 July 2020, namely a ‘thumbs-up’ emoji. Then follows a further text from Mr Rigby at (what appears to be) 8.31am: ”Will this be complete in time for plaster Monday?? Give me a call when you can.”[28] No evidence as to any response to this has been provided by either party, although the Applicant referred generally to a lack of response from the Respondent.
[28]Ibid at ‘NM-1’.
Mr Holmes deposes that on 12 August 2020:
(a)TC changed the scope of the works including for the manor clad sheeting to be replaced,[29] which then required time to price the additional works, receive confirmation to proceed with the variation and then carry out installation of the new scope of works;[30]
(b)The additional works could not be completed in three business days, by the scaffold removal date - 18 August 2020 - and these works required the scaffold to remain in place.[31]
[29]Ibid at [4(b)(ii)(8)] and ‘NM-3’.
[30]Ibid at [4(b)(8)].
[31]Ibid at [4(c)].
NMR submit that these changes to the scope reinforced that there was no strict timeline for the works to be completed.[32]
[32]Ibid at [4(b)(ii)].
Mr Holmes deposes he had a conversation with Mr Horton on 12 August 2020 with respect to “significant pre-requisite works not in our control” that would be required by TC, and that TC “was now asking for further works outside of our scope to be done.”[33]
[33]Ibid at [4(c)].
Mr Holmes deposes that the pre-requisite works Mr Horton referred to included carpentry/framework to support cladding, scaffolding through framework of cladding, decking to be cut back, electrical work, installation of doors and windows, and installation of steel beams and soffits.[34]
[34]Ibid at 4(c)(ii).
Mr Horton provides direct evidence confirming this, as to his discussions with Mr Rigby on 12 August 2020.[35] Mr Horton deposes that he agreed that NMR works could be undertaken and completed, but only if the Applicant completed their pre-requisite works and any associated paperwork involved with a variation to the works was immediately actioned.[36]
[35]Statement of Bradley Horton dated 14 March 2022 at [2(a)(ii)-(iii)].
[36]Ibid at [2(b)].
Mr Horton deposes that between 12 August and 3 September 2020, he attended the site multiple times to continue works, only to see that the pre-requisite works had not been completed, and he expressed his concerns to Mr Holmes.[37]
[37]Ibid at [2(a)(iv)].
Mr Holmes deposes that on 19 August 2020, he had a telephone conversation with Mr Rigby to the effect that pre-requisite works had now been completed.[38]
[38]Ibid at [4(c)(iii)].
Mr Holmes deposes that he attended the site on 21 August 2020 and met with Mr Rigby, when it was discussed that the pre-requisite works were still not completed, and Mr Rigby advised they would be completed by 28 August 2020.[39]
[39]Ibid at [4(c)(iv)].
Mr Holmes deposes that on 26 August 2020 he had a telephone conversation with Mr Rigby to the effect that Mr Rigby promised that the pre-requisite works would be completed in time.[40]
[40]Ibid at [4(c)(v)].
Mr Holmes deposes that on 29 August 2020 he re-attended the site and found that the pre-requisite works were still incomplete.[41]
[41]Schedule 2, QBCC Act.
Mr Holmes deposes that on 3 September 2020:
(a)although the pre-requisite works had not been completed (by TC), NMR arranged to attend site to attempt to progress the works;
(b)He received the email from Mr Rigby at 1.13pm stating that they had until close of business to have 100% of works completed. However, due to non-completion of the prerequisite works by TC there was “no way” NMR could have had the work completed by that time;[42]
(c)At 1.34pm, only 21 minutes after the email, Mr Holmes received an email from Jon Causer of NMR informing that Mr Rigby had called him and demanded they immediately remove any installers from site and did not want NMR to go anywhere near the job again;[43]
(d)Mr Holmes spoke with Mr Causer later that afternoon at which time Mr Causer said he had tried to discuss the reasons for the delay with Mr Rigby but he would not listen and hung up on him. As instructed by Mr Rigby, Mr Causer and the other NMR worker had left the site.[44]
[42]Statutory declaration of Mr Holmes at [4(g)(ii), (iii)].
[43]Ibid at [4(g)(iv)].
[44]Ibid at [4(g)(v)].
NMR submit they were unreasonably and unfairly instructed to leave on 3 September 2020 before works could be completed.[45]
[45]Ibid at [4(g), (j)(vi)].
Specifically, Mr Horton deposes that on 3 September 2020:
(a)he was at the job site undertaking what works he could, whilst still not being able to complete all work due to the pre-requisite works having not been completed;[46]
(b)Mr Rigby phoned him and threatened to terminate NMR’s contract and to remove their workers from site. Mr Horton responded that in his opinion NMR would not be too concerned with that action given the extensive delays because of TC’s failure to complete the pre-requisite works;[47]
(c)Following this call, he received a call from Mr Causer of NMR stating that Mr Rigby had directed NMR to leave site immediately and not return.[48]
[46]Statement of Mr Horton at [2(d)(ii)].
[47]Ibid at [2(d)(iii)].
[48]Ibid at [4(d)(iv)].
On 4 September 2020, Mr Holmes deposes that due to Mr Rigby’s failure to listen to the issues NMR had incurred on site previously, Mr Holmes emailed Mr Rigby, noting:[49]
(a)Mr Holmes’ account of 3 September 2020, stating that one of NMR’s workers, Jon (Causer) had told him Mr Rigby had been rude and abrupt way saying that he (Mr Rigby) had tried contacting NMR multiple times (Mr Holmes notes there were 2 x 12.57pm calls to his mobile) and were putting a stop on their works at the job site;
(b)NMR had been trying to complete this job and the extras that had been asked of them including the requests made by TC on 12 August 2020 for the manor clad sheeting, and on 27 July 2020 for the wall cladding to be completed within a week. Mr Holmes noted that Mr Rigby only sent the colour selection through later that day, and with a 48-hour turnaround on materials (the week timeframe) “was never going to be a possibility”. Mr Holmes stated that he believed Mr Rigby’s expectation of installation time was unrealistic, noting the degree of difficulty of the cladding work, the limited access and that the installation time was never discussed with him;
(c)with the number of hold ups and extras Mr Rigby had asked for, this had lead to the project being dragged out, and the time that it has taken (1 month) is perfectly reasonable;
(d)Photos and reasoning for areas of pre-requisite works which had “held up” NMR from completing their works. NMR had not held up other trades and had to remove and reinstate works (cladding) because of a lack of information given and coordination from TC;
(e)NMR had two tradesmen onsite working on 3 September when Mr Rigby told Jon to stop works, leave the site and that he (Mr Rigby) was going to have another contractor finish the works. NMR believe this to be “completely unreasonable” as the photos show they are nearly complete and they would be again waiting on TC’s carpentry;
(f)The amount of communication from Mr Rigby about the project, 4 emails and approximately 4 text messages, is “very underwhelming”;
(g)NMR are “more than happy to go back and complete our works and the extras, attached is a plan detailing the areas quoted for & extra areas required”. A response was sought by close of business Monday, and if not required back, they would be invoicing for their completed works and extras, and they would leave an appropriate amount off the claim for any unfinished works.
[49]Ibid at ‘NMR-2’.
Mr Holmes deposes he received no response to his email of 4 September 2020.[50]
[50]Ibid at [4(g)(vi)].
Mr Holmes submits that the Applicant’s failed to properly manage, coordinate and complete its own scope of pre-requisite works, and that the associated delay and non-completion of the work by the Respondent was due to the Applicant’s actions.

Mr Holmes disagrees that they did not attempt to complete the work after 3 September 2020, referring to his email of 4 September 2020. Mr Holmes deposes that they did not attend site again due to the direction from Mr Rigby. He states the Applicant had full control of the site and NMR had an obligation to follow those instructions, or they could have been found to have been in breach of legal and workplace health and safety requirements.[51]
[51]Ibid at [4(h)].

Alleged defects

NMR deny that the works undertaken by them were defective and deny any wrongdoing on their part. Specifically, Mr Holmes deposes:
(a)He cannot speak to the engagement of SRH but the only way they could have completed the works would have been if the pre-requisite works were in fact completed;[52]
(b)He was never made aware or notified of any defects in works nor given the opportunity to inspect and rectify the alleged defects;[53]
(c)none of the images (in the Applicant’s evidence) show defective works, but rather demonstrate only incomplete works.[54]
[52]Ibid at [4(i)].
[53]Ibid at [4(i)].
[54]Ibid at [4(k)].

Respondent’s invoice

On 30 September 2020, NMR invoiced TC for the works in the amount of $21,872.62 (excluding GST), broken down as follows:[55]
Supply and install roofing as per quote R/10875A:  $8,030
Supply and install new cladding works as per quote R/10875A – part claim 81.82% - $2,199.78 left to claim on cladding:   $9,900.22
Removal of portion of existing wall cladding & supply and install of new wall cladding to these areas including new flashings as required and new fixings – 80% claim - $985.60 left to claim:   $3,942.40
NMR depose that from their review of the accounts paid, they claimed and were paid $21,872.62,[56] being the full invoiced amount.
[55]Application, ‘Annexure 7’.
[56]Statutory Declaration of Mr Holmes at [4(j)(v))].
NMR depose that the entire scope of their works comprised the “Original Scope” as set out in their quote, and the “Variation Work” of $4,928 (including GST), being a total value of $25,058 (including GST).[57]
[57]Ibid at [4(j)].
By contrast, TC depose that they paid NMR $17,930.22 of the invoiced amount.[58]

Alleged loss/damage claim

[58]Statement of Mr Rigby at [13].

Applicant’s submissions

Mr Rigby deposes that the lack of attendance by NMR to complete works by agreed dates exposed TC to a claim for liquidated damages by the owners of the property, which was subsequently brought against them.[59]
[59]Ibid at [8].
TC submit that NMR invoiced them for incomplete work, and that taking into account the further costs incurred to rectify defects, TC paid NMR more than what would otherwise have been paid to finish the scope of works.[60] TC seeks that NMR pay for the cost incurred by TC to rectify and complete the works.[61]
[60]Ibid at [13].
[61]Ibid.
Mr Rigby deposes that TC paid a total of $26,545.42 to complete the project.[62]
[62]Ibid.
Mr Rigby does not specify what those costs are attributable to, however it is reasonable to assume he is referring to the payment to NMR of $17,930.22 plus the payment to SMH of $8,615.20, which total $26,545.42.
TC are seeking that NMR pay the difference between NMR’s quotation of $20,230 for the agreed scope of works and the total costs to complete the works:
Total cost to TC:              $26,545.42
less full NMR invoice:      $20,230
equals        $6,315.42.[63]
[63]Ibid.

Respondent’s submissions

NMR deny they are liable for any additional cost that the Applicant incurred in completing the works because the only reason NMR could not complete the work was due to the acts and omissions of the Applicant. Namely, NMR allege the Applicant failed to:
(a)complete pre-requisite works;
(b)give adequate and reasonable notice to complete works once pre-requisite works were partially completed;
(c)give instructions in a timely manner;
(d)respond to NMR’s clear willingness to finish the work, subject to the pre-requisite works being finished;
(e)give notice of any alleged defects and to give NMR reasonable time and access to rectify; and
(f)give access to complete the works.[64]
[64]Statutory declaration of Mr Holmes at [4(viii)].

Statutory framework & jurisdiction

The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
The Tribunal has jurisdiction to hear and decide building disputes, pursuant to s 77 of the QBCC Act provided the parties have first complied with a dispute resolution process established by the QBCC.[65]
[65]Section 77(2), QBCC Act.
A building dispute includes a domestic building dispute, which includes a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.

Who is a building contractor?

A building contractor is defined to generally mean a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.[66] Schedule 1B of the QBCC Act, specific to a domestic building contract, is also relevant here.
[66]Schedule 1B, QBCC Act.
Subcontractor means a person who enters into a contract with a building contractor to carry out domestic building work to be carried out under a domestic building contract.[67]
[67]Ibid.
A building contractor in relation to a domestic building contract, includes a person who carries out domestic building work. [68]
[68]Ibid.

What is domestic building work?

Building work relevantly includes “the renovation, alteration, extension, improvement or repair of a building” but does not include work of a kind excluded by regulation.[69] Various types of work set out in Schedule 1 of the Regulation are excluded from the definition of building work,[70] including erecting scaffolding.[71]
[69]Schedule 2 of the QBCC Act.
[70]Regulation 5 and Schedule 1, QBCC Act.
[71]Schedule 1, regulation 26, QBCC Regulation.
Domestic building work includes the renovation, alteration, extension, improvement or repair of a home.[72] A home includes a building or portion of a building that is designed, constructed or adapted for use as a residence.[73]
[72]Schedule 1B, s 4, QBCC Act.
[73]Schedule 1B, s 9, QBCC Act.
Reviewable domestic work means domestic building work except for excluded building work.[74]
[74]QBCC Act, Sch 2, Sch 1B, ss 1 and 4(8).
A domestic building dispute also includes a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work, other than a claim for personal injuries.[75]
[75]QBCC Act, s 77.
Pursuant to s 77(3) QBCC Act, in deciding a building dispute the Tribunal may award damages, interest, restitution, rectification or completion of defective or incomplete tribunal work, and costs.

Consideration - jurisdiction & type of dispute

I find that the Tribunal has jurisdiction to decide the dispute under s 77(1) of the QBCC Act, and that the process established by the QBCC to attempt to resolve the dispute has been complied with.[76] This on the basis of the letter filed by the Applicant from QBCC, stating that the dispute resolution process had ended, and the parties had been unable to reach an agreement.[77]
[76]As required by s 77(2), QBCC Act.
[77]The letter from QBCC dated 8 March 2021, filed with the Application for domestic building disputes on 23 July 2021.
I find that:
(a)TC was a building contractor within the meaning in the QBCC Act, in that they carried on a business that consisted of or included carrying out building work;
(b)NMR was a subcontractor to TC based on the evidence that NMR provided a quote directly to TC, and TC paid NMR directly;
(c)the type of work to be performed by NMR, namely roofing and related works in relation to a home, was reviewable domestic building work under the QBCC Act,[78] and that work does not fall within any of the exclusions for building work;
(d)service of the Application for domestic building disputes was properly effected on the Respondent, by posting the same to NMR’s registered office on 13 October 2021.[79]
[78]Schedule 1B, s 1(b), QBCC Act.
[79]Affidavit of Service filed by the Applicant on 19 October 2021.

Issues

TC, as the Applicant, has the onus of proving its claim to the requisite standard, namely the balance of probabilities.
The parties, who were not legally represented, did not clearly state the legal basis for the claim or the reasons for disputing the claim. A claim for damages for defective work may arise in contract law for breach of contract, or in negligence for damages for breach of a duty of care.
From the Applicant’s submissions, I am of the view that TC’s claim for damages relates to an alleged breach of contract and/or repudiation by the Respondent.
Whilst the parties did not specify, I am of the view the issues for consideration include:
(a)Was there an enforceable contract between the parties?;
(b)Did the Respondent breach the contract by failing to complete the work on time, repudiate by non-completion and/or through defective work?
(c)Did the Applicant lawfully terminate the contract?
(d)Is the Applicant entitled to the remedy which they seek?

Was there an enforceable contract between the parties?

Law

Domestic building contracts are regulated under Schedule 1B of the QBCC Act, and the provisions of that Schedule apply to domestic building contracts and the parties to those contracts.[80]
[80]Section 67AZN, QBCC Act.
A domestic building contract means a contract to carry out domestic building work, but relevantly, excludes a contract between a building contractor and a subcontractor.[81]
[81]Schedule 1B, ss 3(1)(a) and 3(2)(a), QBCC Act.
A domestic building contract where the contract price is more than $20,000 is a level 2 regulated contract.[82] A level 2 regulated contract, in order to have effect, must be in writing, dated and signed by the parties.[83] There are further requirements stipulated for a level 2 regulated contract as set out in the QBCC Act.[84]
[82]Ibid, s 7 and r 45, QBCC Regulation.
[83]Ibid, s 14(2) and (10).
[84]Ibid, s 14(3) to (9).

Consideration – type of contract

There is no evidence of a written contract between the parties. The quotation provided by NMR to TC is dated 17 July 2020, but is not signed by either party.
I find that in the circumstances here, TC was a building contractor and NMR was a subcontractor to TC. This finding is based on the direct arrangements between the parties, including the evidence that TC engaged NMR directly through TC’s quotation dated 17 July 2020,[85] and NMR invoiced TC directly for the work on 30 September 2020.[86]
[85]Application, ‘Annexure 6’.
[86]Application, ‘Annexure 7’.
Therefore, although the dispute is a domestic building dispute, the agreement or informal contract between the parties is not a domestic building contract or a regulated contract under the QBCC Act.[87]
[87]Schedule 1B, ss 3(1)(a) and 3(2)(a), QBCC Act.
Although the contract was informal, it is legally enforceable.

Did NMR breach the informal contract?

I find there is evidence that:
(a)NMR had an informal contract with TC to perform roofing and cladding works at the relevant site;
(b)NMR performed approximately 80% of the quoted works and sent an invoice on 30 September 2020 to TC setting out the work completed and the unfinished work remaining to be invoiced;
(c)TC paid NMR for their invoice, after direction from the Tribunal. Whilst there is a dispute in the evidence as to the amount paid for that invoice, I find on the balance of probabilities that NMR were paid their full invoiced amount and that this was only in relation to the work which they completed.
I find that on the available evidence, I am unable to be satisfied on the balance of probabilities that NMR’s non-completion of the work in the time specified by TC amounted to a breach of contract or repudiation of the contract, entitling TC to terminate the contract.
I make this finding on the basis that:
(a)The quotation and invoice of NMR provides the only clear evidence as to the scope of work to be performed;
(b)There is conflict in the evidence between the parties as to the variations of the informal contract, including as to the timeframe which the work was to be performed in and whether delays were due to the actions or inactions of TC or NMR. There is no independent evidence to assess whether delays to the timeframes were reasonable or not, taking into account the variable factors including changes to the scope of the works that were apparently verbally agreed. I am unable to be satisfied to the requisite standard of this evidence due to the lack of written agreement as to the expanded scope of works and timeframes for completion, and the conflict in the parties’ evidence;
(c)There is evidence to support that Mr Rigby of TC directed representatives of NMR to leave the site on 3 September 2020 and not return, and that NMR offered to return to complete the work and variations but that this was not taken up by TC;[88]
(d)Mr Rigby’s evidence was that prior to terminating the contract, he had tried to contact NMR “numerous times” and NMR had “refused” to attend site when requested.[89] However, the Applicant did not provide any telephone records, and only provided limited emails of the contact between the parties. By contrast, Mr Holmes of NMR’s evidence was that the Applicant had only provided limited communication to them over the course of the project, and that NMR did attend the site when requested but were unable to complete the work but were unable to do so due to the Applicant not completing pre-requisite works. This conflict casts doubt on the Applicant’s evidence, such that I am not satisfied of it to the requisite standard.
[88]Response of Mr Holmes at ‘NM-2’; Statement of Mr Rigby, ‘Annexure 3’.
[89]Statement of Adam Rigby at [6].
Further, I am not satisfied that the evidence supports, to the requisite standard, that the work performed by NMR was defective. The reasons for this include:
(a)Although the Applicant’s evidence was that they first noticed defects and notified NMR of this on 3 September 2020,[90] the Respondent accepts the work was incomplete but disputes the work was defective, and deny they were notified of any defects at that time. There is no other evidence to support the Applicant told the Respondent of the defects at that time;
(b)The Applicant submitted that the Respondent had left defective work in accordance with QBCC Standards and Tolerances Guide,[91] but there is no further evidence in support of this submission;
(c)In Mr Rigby’s email of 3 September 2020 directing NMR to not attend a TC job site again, Mr Rigby stated “you have made us look like fools and displayed bad business ethics”, however no defective work was mentioned. In my view this supports that the Applicant was dissatisfied with their interactions with the Respondent, but does not support their claim of defective work;
(d)The totality of the evidence of the alleged defects was provided nearly three months later, in Mr Quaife of SR’s email dated 26 November 2020,[92] and attaches undated photographs and a site plan with some handwritten notes. The email and the attachments do not clearly identify alleged defects in NMR’s work. It appears the majority of the items refer to completion items, with only a vague reference to replacing some items with no explanation as to the particulars of the defects and rectification work.
(e)On the limited evidence provided, a question also arises as to whether SR were completely independent in assessing there was defective work, or whether they were told by the Applicant that the work was defective and to provide a report to that effect. In his later Statement,[93] Mr Quaife states that SR “were informed that the job site…was a non-completion and had defects to rectify also…on 28 September 2020 we completed the works and defects…then provided a report and images…”. On balance, there is insufficient evidence to support the Applicant’s allegation of defective work by NMR;
(f)It was open to the Applicant to seek for the Respondent to rectify the alleged defects when they allegedly became apparent to them on or about 3 September 2020. They did not do so. It was also open to the Applicant to seek assistance from the QBCC, however it appears the Applicant did not seek QBCC assistance until 8 March 2021.[94] By November 2020, SR had already completed the work and rectified the alleged defects at the Applicant’s request. Therefore, the QBCC correspondence appears to have only been obtained as a pre-requisite to the Tribunal Application,[95] rather than due to any genuine attempt to have the QBCC assist with respect to alleged defects.
[90]Alleged defective work/incomplete work schedule filed 23 July 2021; Statement of Mr Quaife dated 14 February 2022 at [2].
[91]Submissions of the Applicant at [2a], filed 14 April 2022.
[92]Statement of Mr Rigby, ‘Annexure 8’.
[93]Statement of Mr Quaife dated 14 February 2022.
[94]Letter from QBCC, dated 8 March 2021, filed with the Application on 23 July 2021.
[95]Filed on 23 July 2021.

Did the Applicant lawfully terminate the contract?

There was no agreement between the parties setting out any basis for termination of the contract.
TC’s evidence was that they lawfully terminated the contract on 3 September 2020 after they had attempted to have NMR complete the work. Whilst not specified, it appears that TC relies on repudiatory conduct by NMR to terminate the contract.
For conduct to be repudiatory, when viewed objectively, it must indicate an intention by a party to no longer be bound by the terms of the contract.[96] When determining whether there has been repudiation all the circumstances of the matter must be considered.[97] A failure to perform may amount to repudiatory conduct even if it is not in breach of an essential term, if that failure manifests unwillingness or inability to perform in circumstances where the other party is entitled to conclude that the contract will not be performed substantially according to its requirements.[98]
[96]Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623, 658.
[97]Wilson v Kirk Contractors Pty Ltd (1991) 7 BCL 284.
[98]Roo Roofing Pty Ltd v Commonwealth of Australia [2019] VSC 331.
I find that the evidence supports that:
(a)On 3 September 2020, the Applicant told the Respondent’s workers to leave the work site, preventing them from carrying out any further work;
(b)The Respondent was willing and able to perform the work, however was waiting on pre-requisite works to first be performed by the Applicant which were not done by 3 September 2020;
I am not satisfied that on any objective assessment, NMR’s conduct indicated an intention to not be bound by the terms of the contract and amounted to a repudiation. Therefore, I am of the view that the Applicant did not lawfully terminate the informal contract.

Is the Applicant entitled to the remedy which they seek?

Given my above findings, I find there is no basis for the Applicant to be awarded the remedy that they seek in the Tribunal.

Orders

The application is dismissed.
I find that the parties should bear their own costs in accordance with s 100 of the QCAT Act.