Todd v Lennon-Muscat - [2025] QCATA 93

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Todd v Lennon-Muscat & Anor [2025] QCATA 93

PARTIES:

MARK JAMES TODD

(applicant/appellant)

v

PAUL LENNON-MUSCAT

(respondent)

CHRISTOPHER HICKMAN

(respondent)

APPLICATION NO/S:

APL309-23

ORIGINATING APPLICATION NO/S:

BDL265-21

MATTER TYPE:

Appeals

DELIVERED ON:

21 October 2025

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1.     Leave to appeal is granted;

2.     The appeal is allowed;

3.     The decision of the Tribunal dated 28 August 2023 is varied as follows:

Order 1 is set aside and in lieu thereof it is ordered that Paul Lennon-Muscat must pay Mark James Todd the sum of $39,761.77 within 14 days of the date of this decision.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – question of law – whether tribunal erred in assessing appellant’s entitlement to damages – original claim against second respondent dismissed on basis of no contractual relationship and no duty of care owed – where tribunal found second respondent had not received payment directly from appellant and whether this precluded order for repayment in circumstances where second respondent not licenced to undertake building work – errors of fact – claim for rectification work confined to cost of removal of defective work – error in interpretation of s 42 of Queensland Building and Construction Commission Act 1991 (Qld) – appeal on question of mixed law and fact – rehearing

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – appellant paid first respondent to perform building work – appellant subsequently became aware respondents were unlicenced to perform building work under Queensland Building and Construction Commission Act 1991 (Qld) – first respondent refused to repay deposit – appellant claimed against each respondent for repayment of monies paid, rectification and costs – claim against first respondent allowed – claim against second respondent dismissed

Civil Liability Act 2003 (Qld), s 9, s 11
Queensland Building and Construction Commission Act1991 (Qld), s 42
Queensland Building and Construction Commission Regulation 2018 (Qld), s 54

Queensland Civil and Administrative Tribunal Act2009 (Qld), s 142(1), s 146, s 147

Cachia v Grech [2009] NSWCA 232
Ericson v Queensland Building Services Authority [2013] QCA 391
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Greer & Anor v Mt Cotton Constructions Pty Ltd [2018] QCATA 196
Harrison and Anor v Meehan [2016] QCATA 197
Harrison v Meehan [2017] QCA 315
James v Tottman (No.2) [2022] QCATA 10
Marshall v Marshall [1999] 1 Qd R 173
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
M.Todd v Muscat & Hasan Construction Pty Ltd & Ors [2023] QCAT 332

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld)

Applicant:

RMO Law

Respondents:

Self-represented

REASONS FOR DECISION

This is an appeal from a decision about a building dispute.
The proceeding below was commenced by the appellant naming Muscat & Hasan Construction Pty Ltd as first respondent, Paul Lennon-Muscat as second respondent and Christopher Hickman as third respondent. In these reasons I will refer to each of the respondents below as the first, second and third respondents noting that the first respondent is a no longer a party in these appeal proceedings.
The applicant said below that:
(a)The appellant required concreting work to be undertaken at his residence;
(b)The second respondent, who was a director of the first respondent, attended at the appellant’s residence and subsequently provided a quote dated 1 July 2021 to undertake concreting work at the appellant’s residence for a price of $33,107.00;
(c)On 2 July 2021 the appellant paid to the second respondent an amount of $11,587.45;
(d)On 14 July 2021 the appellant paid to the second respondent an amount of $11,587.45;
(e)At various times, the second and third respondents attended at the appellant’s residence and undertook building work;
(f)On or about 22 July 2021 the appellant became aware that none of the respondents held a licence issued by the Queensland Building and Construction Commission (‘QBCC’) to undertake building work;
(g)On 22 July 2021 the appellant advised the second respondent that he had become aware of the unlicensed status of the respondents;
(h)The respondents did not return to the residence after 22 July 2021;
(i)Despite requests to do so the second respondent failed or refused to repay to the appellant any part of the monies he had received from the appellant;
(j)The appellant subsequently engaged an engineer to assess and advise on the work undertaken by the respondents;
(k)The opinion of the engineer was that the work undertaken by the respondents was defective and required rectification;
(l)The appellant claimed against each of the respondents $36,825.87 being repayment of the monies paid by the appellant and rectification and associated costs.
The matter proceeded to hearing on 12 July 2023. The appellant and third respondent appeared at the hearing. There was no appearance by the first and second respondents.
Evidence was given by the appellant and the third respondent. On 28 August 2023 the Tribunal ordered that the first and second respondents pay to the appellant $18,647.47. The appellant’s claim against the third respondent was dismissed.[1]
[1]M.Todd v Muscat & Hasan Construction Pty Ltd & Ors [2023] QCAT 332.
The appellant appeals the decision on two grounds:
(a)Ground 1 - the Tribunal erred in dismissing the claim against the third respondent;
(b)Ground 2 - the Tribunal erred in assessing the entitlement of the appellant to recover from the respondents.
A party to a proceeding may appeal to the appeal tribunal against a decision of the tribunal in the proceeding.[2] Leave is required if the appeal involves a question of fact or mixed law and fact.[3] The principles to be applied in considering whether leave to appeal should be granted are:
(a)Is there a reasonably arguable case of error in the primary decision?[4]
(b)Is there a reasonable prospect that the applicant will obtain substantive relief?[5]
(c)Is leave necessary to correct a substantial injustice to the applicant caused by some error?[6]
(d)Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[7]
[2]Queensland Civil and Administrative Tribunal Act2009 (Qld), s 142(1) (‘QCAT Act’).
[3]Ibid, s 142(3)(b).
[4]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[5]Cachia v Grech [2009] NSWCA 232 (30 July 2009), [13].
[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[7]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
If leave to appeal is granted, in deciding the appeal on a question of law the Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[8] The Appeal Tribunal may set aside the decision and substitute its own decision only if this results in the disposition of the appeal entirely in the appellant’s favour.[9] An appeal on a question of fact or mixed law and fact must be conducted by way of rehearing.[10] The Appeal Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and remit the matter to the tribunal for reconsideration.[11]

Consideration

[8]QCAT Act, s 146.

[9]Ericson v Queensland Building Services Authority [2013] QCA 391.

[10]QCAT Act, s 147(2).

[11]QCAT Act, s 147(3).

Ground 1

The Tribunal made a number of findings relevant to the third respondent:
(a)The third respondent had no financial connection with the first and second respondents;
(b)The third respondent worked as a labourer under the supervision of the second respondent;
(c)The third respondent was paid $1,200 by the second respondent for his work as a labourer;
(d)The third respondent received no payment directly from the appellant;
(e)The third respondent was on site for at least three days but not on every day work was carried out at the appellant’s property by the second respondent;
(f)Section 42 of the Queensland Building and Construction Commission Act1991 (Qld) (‘QBCC Act’) does not provide a right of recovery for monies paid to an unlicensed person;
(g)For the appellant to succeed against the third respondent, the appellant was required to establish that he had a contractual relationship with the third respondent or that the respondent carried out the work unsatisfactorily, negligently, or not in accordance with the plans and specifications;
(h)The appellant’s claim against the third respondent for breach of contract could not succeed as the parties were never in a contractual relationship;
(i)The appellant’s claim against the third respondent for negligence could not succeed as the third respondent was not at the site every day of the build and the appellant had failed to identify the nature of the defective work undertaken by the third respondent.
It is necessary to say a number of things about the conduct of the proceeding below.
Despite being directed to do so, none of the respondents filed a response to the originating application. Having said this, it is relevant to note that the third respondent did file a statement of evidence.
Directions were made by the Tribunal on 27 October 2021 that if the respondents failed to file responses by 22 November 2021 the appellant may be entitled to a final decision conditional upon the assessment of damages. On 19 November 2021 the third respondent filed an application to be removed from the proceeding on the basis that, inter alia, he had no direct relationship with the appellant and was not liable to the appellant. The application, which may be understood as an application for summary dismissal of the claim against him, was refused. On 16 August 2022 the Tribunal directed that unless the respondents filed responses by 20 August 2022 the appellant would be entitled to a final decision. Directions were made on 3 March 2023 that the matter would proceed to a determination on the papers unless an oral hearing was requested by a party by 17 March 2023. No such request was made.
It is appropriate to pause here to consider the effect of the various directions referred to above. It is clear that, in the absence of a response being filed by each of the respondents, the appellant would be entitled to a final decision against each of the respondents subject to the assessment of damages. It is also apparent from the directions that the assessment of damages would require the Tribunal to consider the basis upon which the appellant might have an entitlement to recover damages against each of the respondents.
The matter was listed to be determined on the papers. The Tribunal Member constituted to decide the matter determined that the matter proceed to a final hearing. The procedure for the proceeding was at the discretion of the Member. If the Member considered that an on papers hearing was not appropriate it was solely within the Member’s discretion to proceed by way of an oral hearing subject to there being no unfairness to the parties. No unfairness is asserted by the appellant.
The appellant says, and it is not contentious, that the third respondent was not the holder of a QBCC issued licence to undertake building work. Nor is it contentious that the third respondent was never paid money by the appellant for undertaking work at the appellant’s residence. The finding of fact by the Tribunal that the third respondent had no financial connection with the first and second respondents is not appealed. This finding may be understood as meaning that the third respondent simply worked for the other respondents. The finding of fact that the third respondent was paid $1,200 by the second respondent is not appealed. It seems clear from the reasons that the learned member was satisfied this was the only payment received by the third respondent for undertaking the subject building work. There was no evidence below to the contrary.
Section 42 of the QBCC Act provides:
42 Unlawful carrying out of building work
(1)Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act.
Maximum penalty—
(a)for a first offence—250 penalty units; or
(b)for a second offence—300 penalty units; or
(c)for a third or later offence, or if the building work carried out is tier 1 defective work—350 penalty units or 1 year’s imprisonment.
(2)An individual who contravenes subsection (1) and is liable to a maximum penalty of 350 penalty units or 1 year’s imprisonment, commits a crime.
(3)Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4)A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed—
(a)is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b)does not include allowance for any of the following—
(i) the supply of the person’s own labour;
(ii)the making of a profit by the person for carrying out the building work;
(iii)costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and
(c)is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and
(d)does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.
In Greer & Anor v Mt Cotton Constructions Pty Ltd[12] the QCAT Appeal Tribunal considered the various authorities dealing with the proper construction, and the effect, of s 42:
[12][2018] QCATA 196.
In Marshall v Marshall the Court of Appeal considered the meaning and effect of s 42 of the (then) Queensland Building Services Authority Act 1991 (QBSA) (now the QBCC Act). McPherson JA stated that the combined effect of s 42(1) and s 42(7) of the QBSA was twofold: to prohibit a person from carrying out unlicensed building work; and to prohibit a person from undertaking to carry out unlicensed building work. His Honour held:
In my opinion, the effect of s.42(3) is to prevent an unlicensed builder, in proceedings of any kind, from recovering the price or any part if it payable under a contract for building work carried out in contravention of the section. Taken by itself, that might perhaps not prevent a builder from receiving money voluntarily paid by the other party. The terms of s. 42(3) are, however, very wide. A person who carries out work in contravention of s. 42 is “not entitled” to any “monetary consideration” for doing so. According to the ordinary meaning of those words, a person receives a “monetary consideration” for carrying out work if he is paid for doing it.
…
…but s.42(3) expressly declares it to be money to which the recipient is “not entitled”, which can only mean that it is money to which he has in law no right or title. If that is so, there is no identifiable basis on which he can, as against the person who paid it, claim to keep or retain it or its equivalent.

McPherson JA referred to the legislative history of s 42 noting that the section was:
…the third attempt by the legislature to make its meaning clear. On this occasion it may be credited with having intended to cast the net as widely as possible. An unlicensed builder is, as s. 42(3) now provides, not entitled to any monetary consideration for carrying out building work. A principal object of the legislation, both in its original and in its current form, is to prevent unlicensed builders from doing certain kinds of building work.
In addressing the question of whether the homeowner was entitled to recover monies paid to the builder McPherson JA held:
In determining whether or not the mistake of law has that character here, it is, in my respectful opinion, first of all necessary to determine whether the effect of s. 42, and in particular of s. 42(3), is to relieve the plaintiff of any legal obligation to pay the price or any part of it. It is only if there was no such legal obligation that the plaintiff can claim to recover her payment as money paid under a mistake of law. Once that is shown, it may not be necessary to make the further inquiry whether s. 42(3) also has the effect of denying the defendant the right to retain the money so paid. The plaintiff may, on the authority of David Securities Pty. Ltd. v. Commonwealth Bank (1992) 175 C.L.R. 353 be entitled without more to recover the money paid.
But if the payment was made in pursuance not merely of a mistake of law but under an agreement or transaction that was prohibited and made an offence by statute, then the plaintiff needs to go the further length of establishing that the statutory prohibition does not preclude her from recovering what she has paid.
…
If the defendant was not entitled to any monetary consideration for carrying out building work in contravention of s. 42, then, as I would interpret s. 42(3), he is not entitled to retain the payment made to him for doing it. Because the prohibition in s. 42 was enacted for the benefit of a class of persons of whom the plaintiff is one, she is entitled to recover the payment she made to the defendant.
Following Marshall was the decision of the Court of Appeal in Sutton v Zullo Enterprises Pty Ltd. In Sutton, McPherson JA held:
But, since the undertaking to do and the carrying out of the building work are both prohibited by s.42(1), it is difficult to see why the expression “monetary consideration for” doing the work should not receive a correspondingly wide meaning preventing recovery of restitutionary compensation for the prohibited work.
In Sutton Pincus JA noted the significance in s 42(1) of the prohibition upon the doing of the relevant work and that it was principally that prohibition which suggested that the result in Pavey v Matthews should not necessarily govern the construction of s 42(3) of the QBSA. In addressing whether a claim in quantum meruit fell within the meaning of ‘consideration’ in s 42(3), Pincus JA held:
…I do not accept that the principle, of which the leading example is Pavey & Matthews, permitting such a claim to be made where a contract is unenforceable for want of formality should be extended to include also instances in which a statute prohibits both the contract and the doing of the work.
The most recent consideration of s 42 by the Court of Appeal is the decision in Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd). In the period between the decisions in Marshall and Sutton, s 42 of the QBCC Act was amended to provide as follows:

(3)Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.
(4)A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed –
(a)is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and
(b)does not include allowance for any of the following–
(i)the supply of the person’s own labour;
(ii)the making of a profit by the person for carrying out the building work;
(iii)costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and

(c)is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work;
(d)does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit.

In Cook’s Construction Keane JA held in relation to the operation of s 42(1) of the QBCC Act:
Section 42(1) renders illegal the making and performance of a contract for building work by an unlicensed builder. It is the conduct of the builder which is struck at. The provision is plainly intended to operate for the benefit of the other party to the building contract.
It is clear from the terms of s 42(3) and s 42(4) that neither provision purports to create a right of action to recover money in any person. Rather, each subsection is concerned to regulate a cause of action for payment which is assumed to have arisen, either under contract or under the principles of the common law which permit claims for payment for work done at the request of another. These common law claims have been variously described as claims for quantum meruit or in quasi-contract or to prevent unjust enrichment.
Section 42(3) is, in terms, concerned to sterilise any claim which might otherwise be made under a contract or under the common law by an unregistered builder. Section 42(4) is concerned to impose limitations upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without s 42(4), the entitlement of an unregistered builder to payment which would, apart from the Act, arise upon the performance of work by the builder, would be defeated by s 42(1) and s 42(3)
Keane JA found that it was only to the extent that a claim for reasonable remuneration was made out by the builder in conformity with s 42(4) that the operative effect of s 42(3) upon the rights and liabilities of the parties was affected.
As to the operative effect of s 42, Keane JA held:
Section 42 of the Act exhibits a clear intention to render illegal both the making and the performance of a contract by an unlicensed builder in so far as building work is concerned. Section 42(3) makes it clear that the consequence of a contravention of s 42(1) by an unlicensed builder is that the builder is unable to recover payment for unlicensed building work. Those consequences include the recovery of payments made to the builder by the other party to a contract for unlicensed building work.
In considering the question of whether and to what extent there was any limitation placed upon a payer’s right of recovery, Keane JA held:
…to insist upon a more extensive limitation upon the payer's right of recovery, for example, one based on its inability to make restitutio in integrum – whether in money or money's worth – is to introduce a qualification upon the payer's right of recovery which is consequential upon the operation of s 42(3). That qualification urged by the appellant cannot be accepted: its acceptance would defeat the operation of s 42(3). (footnotes omitted)

The learned member correctly found that s 42 does not in express terms create a right of recovery of payments made to an unlicensed person. As the authorities to which I have referred make clear, that entitlement arises by operation of the prohibition on an unlicensed person receiving payment for undertaking building work.
The mischief at which s 42 is directed is unlicensed persons entering into agreements for the performance of building work, undertaking building work and receiving payment for undertaking building work. As McPherson JA stated in Marshall v Marshall[13] if an unlicensed person receives payment for undertaken building work there is no identifiable basis on which he can, as against the person who paid it, claim to keep or retain it or its equivalent. The words underlined are significant for present purposes. The third respondent was not paid by the appellant. He was paid by the first or second respondent. The appellant can only recover payments he made to unlicensed persons. He cannot recover payments made to the third respondent because he did not pay any money to the third respondent. On the other hand, the appellant has an entitlement to recover payments made to the first and second respondent on the basis that these were payments made directly by the appellant.
[13][1999] 1 Qd R 173.
The learned member did not err in not finding the third respondent was obliged to repay to the appellant any amount paid to him by the second respondent or any amount paid by the appellant to the first and/or second respondents.
Ground 2
The appellant says the Tribunal erred in assessing his entitlement to damages. There are three issues relevant to this ground of appeal:
(a)The basis of the appellant’s claim for damages against the respondents;
(b)The findings of the learned member relevant to (a);
(c)The approach of the learned member to the assessment of damages.
In the original building dispute application the appellant claimed against all respondents restitution of $23,174.90 and rectification or completion of defective work in the amount of $13,650.97.
The powers of the tribunal to resolve a building dispute include ordering rectification or completion of defective or incomplete tribunal work.[14] Rectification or completion work can only be ordered against a party to a proceeding and only in circumstances where the party is the holder of a QBCC issued building licence. Here, none of the respondents was licenced. Accordingly, rectification was not an order the Tribunal could have made. It seems that what the appellant was in fact seeking was an award of damages for the cost of rectification work as identified in the report by the engineer.
[14]QBCC Act, s 77(3)(g).
Nowhere in the appellant’s material below is the claim clearly expressed as one for damages for breach of contract or damages for breach of duty. Clearly however the appellant’s entitlement to damages could only arise in circumstances where he was able to establish breach by the respondents, whether breach of contract or breach of duty.
The learned member found that a contract for the performance of domestic building work was entered into by the appellant and the first respondent.[15] The learned member found that the work undertaken by the first and second respondents was defective.[16] The learned member found that the work undertaken by the first and second respondents had not been undertaken in an appropriate and skilful way and with reasonable care.[17] The learned member found that rectification work was required in respect of the defective work in accordance with the engineer’s opinion.[18] The learned member found that the second respondent was a director of, the secretary of, and sole shareholder in the first respondent and was responsible for the work undertaken at the appellant’s property.[19] The learned member found that the cost of rectification was $13,650.97 and that the appellant was entitled to recover this amount from the first and second respondents. These findings are not appealed.
[15]Reasons [6] and [7].
[16]Reasons [11].
[17]Reasons [13].
[18]Ibid.
[19]Reasons [14].
While no specific finding of breach of contract was made by the learned member it is readily apparent from the reasons that the learned member’s finding that the appellant was entitled to recover the cost of rectification work flowed from a breach of the contract. Noting the finding by the learned member that the parties to the contract were the appellant and the first respondent, it is unclear from the reasons as to the basis upon which the second respondent was found to be liable to the appellant. There was no finding that the second respondent was a party to the contract. No finding was made that the second respondent owed to the appellant a duty of care or that the duty was breached. These matters are not raised by the appellant in this appeal.
The claim in the proceeding below against the third respondent was not articulated in any way separately or differently to the claims against the first and second respondents. Given the finding by the learned member that the third respondent was not a party to the contract, the appellant’s claim against the third respondent could only have been one for breach of duty. The learned member found that a claim by the appellant against the third respondent for negligence could not succeed on two bases: firstly, the third respondent only worked on site for three days and not every day of the build; secondly, the appellant had failed to identify the defective work carried out by the third respondent.[20] These findings are not appealed. It may be accepted from the foregoing that the learned member was satisfied the third respondent did not owe the appellant a duty of care. The appellant does not raise as an appeal ground error by the learned member in this regard.
[20]Reasons [35].
The learned member said the following in relation to the assessment of damages:
Notwithstanding the operation of s 42 of the QBCC Act, the claim for the refund of the $23,174,90 must be rejected because the payment of the rectification costs of $13,650.97 would return Todd to the position of having a properly erected driveway. The refund of $23,174.90 as well as payment of the rectification costs of $13,650.97 would unjustly enrich Todd. Therefore, the claim for the refund of $23,174.90 is rejected.[21]
[21]Reasons [18].
The appellant says that the proposed work would have restored the appellant to the position he would have been in had the building work not been undertaken by the respondents. This submission may be accepted. The evidence before the Tribunal below was that the claim for the cost of rectification work was confined to the cost of the removal of the defective work in accordance with the opinion by the engineer. The claim did not extend to the cost of constructing a new driveway. The learned member erred in making a finding contrary to the evidence. This was an error of fact.
The learned member also erred in rejecting the claim by the appellant for the refund of the monies paid by the appellant to the first and/or second respondents. As has been explained earlier in these reasons, s 42 of the QBCC Act is clear in its terms. In the absence of a claim by an unlicensed person pursuant to s 42(4), the person may not retain any money received for carrying out building work. The appellant was entitled to recover the amount of $23,174.00 paid to the second respondent. The learned member erred in construing the effect of s 42 of the QBCC Act. This was an error of mixed law and fact.
Conclusion of grounds of appeal
It follows from the foregoing that leave to appeal should be granted.

Rehearing

An appeal on a question of fact or mixed law and fact must be decided by way of rehearing.[22] I now proceed to decide the appeal in accordance with s 147 of the QCAT Act. In Harrison and Anor v Meehan[23] the Appeal Tribunal explained what is required when rehearing a matter:
[20] ... Appeals by way of rehearing involve a new determination of the rights and liabilities of the parties, rather than a mere correction of the errors in the determination of the Tribunal below.
[21] An appeal by way of rehearing under s 147 of the QCAT Act is not a rehearing de novo. The Appeal Tribunal must make its own determination on the material before the Tribunal below (supplemented, if necessary by additional evidence if permitted under s 147(2)) with due respect for the findings of fact of the primary Tribunal, and due consideration of the advantages enjoyed by it.
[22] In rehearing the matter we have adopted the learned member’s primary findings of fact other than where those findings have been challenged in these appeals or where there is some doubt as to the findings made. We have otherwise formed our own views on the evidence consistently with the principles applicable in appeals by way of rehearing on the record of proceedings before a primary tribunal.
[22]QCAT Act, s 147(2).
[23][2016] QCATA 197.
The correctness of this approach was affirmed by the Court of Appeal.[24]
[24]Harrison v Meehan [2017] QCA 315.
I have addressed in these reasons the grounds of appeal raised by the appellant. It is unnecessary for me to traverse those matters again in rehearing the matter. Accordingly, I confine my further consideration to the assessment of the appellant’s claim for damages.
As earlier noted, the first respondent is not a party in this appeal having been removed as a respondent by order of the Appeal Tribunal made 17 February 2025. The first respondent was in fact deregistered before the decision below was handed down. Accordingly, there was no basis upon which orders could have been made against the first respondent although it should be observed that the deregistration of the first respondent was not known to the appellant until after the commencement of the appeal.
Claim against Paul Lennon-Muscat for recovery of monies paid for performing unlicenced building work
The learned member’s finding that the appellant paid to the second respondent $23,174.90 is not appealed. The second respondent was not licensed at the time he received the payment or when the work was undertaken, nor has the second respondent made a claim for reasonable remuneration under s 42(4) of the QBCC Act. Accordingly, the appellant is entitled to recover the amount of $23,174.90 from the second respondent.
Claim against Christopher Hickman for recovery of monies paid for performing unlicenced building work
The third respondent received no payment from the appellant. Such monies as the third respondent received for undertaking the building work were paid to him by the first and/or second respondents. For the reasons I have earlier set out, on a proper construction of s 42 of the QBCC Act and the various authorities to which I have referred, there can be no order for the repayment of monies received by the third respondent from the first and/or second respondents.
Claim against Paul Lennon-Muscat for damages for breach of contract and/or breach of duty
The appellant has confined his claim for damages to the cost of removal of the defective work undertaken by the respondents. The finding below that the rectification work was necessary and reasonable is not appealed. It was not contentious below that the second respondent was the guiding hand of the first respondent. He was the director, secretary and shareholder of the first respondent. I am satisfied, on the evidence below, that the second respondent utilised the first respondent as a vehicle to undertake his business as a building contractor. I am satisfied that the second respondent held himself out as, and conducted himself in a manner consistent with being, a qualified and competent building contractor.
The finding below that the parties to the contract were the appellant and the first respondent is not appealed. The second respondent was not a party to the contract. It is therefore necessary to consider whether the appellant has an entitlement to damages as against the second respondent independent of contract.
For the reasons I have expressed, on the evidence below, I am satisfied that the relationship between the appellant and the second respondent was characterised by an assumption of responsibility by the second respondent and known reliance by the appellant and falls within one of the special categories of cases in which a duty of care is owed.[25] I am satisfied that the second respondent owed to the appellant a duty to undertake the building works in an appropriate and skilful way with reasonable care and skill and free from defects.
[25]Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476.

The provisions of the Civil Liability Act 2003 (Qld) (‘CLA’) fall to be considered. I am satisfied that there was a risk that if the second respondent failed to undertake the building work in an appropriate and skilful way, free from defects, the appellant would suffer harm in being required to have the defective work rectified. I am satisfied the risk was not insignificant and that a person in the position of the second respondent would have taken appropriate precautions in ensuring that the work was undertaken free from defects.[26] I am satisfied that the harm the appellant may suffer was serious and there was no undue burden imposed upon the second respondent associated with taking precautions to avoid the risk of harm – the second respondent was simply required to undertake the work in a competent manner.[27] I am satisfied that but for the breach of duty by the second respondent the defects resulting from the performance of the building work would not have been apparent and the appellant would not have suffered loss in being required to expend monies in rectifying the defects.[28] The defects were the direct result of the way in which the second respondent undertook the building work.[29]
[26]CLA, s 9(1).
[27]CLA, s 9(2).
[28]CLA, s 11(1)(a).
[29]CLA, s 11(1)(b).
I am satisfied that the second respondent breached the duty of care he owed to the appellant. I am satisfied that the appellant is entitled to recover the cost of the rectification work from the second respondent.
Claim against Christopher Hickman for damages for breach of contract and/or breach of duty
On the evidence below and the uncontested findings of fact I find that the third respondent was not a party to the contract for the performance of the building work. Nor am I satisfied that the relationship between the appellant and the third respondent was characterised by an assumption of responsibility by the third respondent and known reliance by the appellant. I am not satisfied that the relationship between the appellant and the third respondent falls within one of the special categories of cases in which a duty of care is owed. Nor am I satisfied on the evidence below that the relationship between the appellant and the third respondent was such that there was reliance or vulnerability on the part of the appellant. I make this finding based on the following: there is no evidence that the third respondent was nominated by the appellant to undertake the work; there was no close relationship between the appellant and the third respondent; the work undertaken by the third respondent resulted not from any direct dealings with the appellant but was rather undertaken at the direction of the second respondent; the work of the third respondent was not of a particular skilled or technical nature. In conclusion I am not satisfied that the third respondent owed to the appellant a duty of care in undertaking the building work.
Assessment of damages
In refusing to order the repayment to the appellant of the monies he paid to the second respondent, the learned member said that if the amount was ordered to be repaid and in addition the appellant was awarded rectification costs, the appellant would as a result be unjustly enriched. In my view, the learned member erred in so finding.

In James v Tottman (No. 2)[30] the Appeal Tribunal considered the application of s 42 of the QBCC Act in the context of a claim for damages for defective building work. At first instance, the building owner had been awarded a refund of the money paid to an unlicensed builder in addition to damages for the cost of rectification work. Judicial Member McGill SC stated:
[4] In the Application for leave to appeal or appeal filed by the appellant on 31 July 2020 he raised a number of matters. The first was that, under the decision of the Member, the respondent received a “windfall” and was “unjustly enriched”. This was the same argument addressed to the Court of Appeal in Cook’s Construction Pty Ltd v SFS 007 298 633 Pty Ltd [2009] QCA 75, and rejected by that Court, on the basis that that was the result of the operation of legislation put in place specifically to deter people from undertaking building work unless they held the relevant licence under the Act. The adverse effects of that prohibition are mitigated by the operation of s 42(4) of the Act, which provides a limited form of relief in respect of unlicenced work, but the Court held that it was a matter for the builder to claim and prove the amount recoverable under s 42(4), which that builder had not done.
[5] In that respect, the appellant is in the same position. He did not pursue a claim under s 42(4), which should have been pursued by filing a Counter-application under the Rules. That could have been formulated as a conditional application, advanced if he were found to be the party to the contract, which he disputed. Had he done so, he may have been able to recover some of the cost of materials supplied to the site. He told me he spent more than the $11,000 paid to him on materials, and a number of invoices were attached to an affidavit by him which the member did consider. On the respondent’s case, some of those materials were defective; for example, the soil under the turf, which was said to have been contaminated by nut grass. This is the answer to the second point, and also to the sixth point, raised by the appellant in the Application for leave to appeal and appeal, that no consideration was given by the Member to the cost of materials supplied. (footnotes omitted)
[30][2022] QCATA 10.
An order for the repayment of monies received by an unlicensed person is not an award of damages. It is the consequence of the statutory prohibition on a person receiving payment for undertaking building work when the person is not licensed. As Judicial Member McGill SC observed, the effect of the statutory prohibition is mitigated by s 42(4) which entitles an unlicensed person to claim reasonable – and limited – remuneration for carrying out building work. The assessment of damages on the other hand flows from, as the case may be, breach of contract or breach of duty.
It follows from the foregoing analysis that the appellant is entitled to recover from the second respondent $23,174.90 being the repayment of the monies paid by the appellant to the second respondent and $13,650.97 being the cost of rectification work. These amounts total $36,825.87.
The learned member awarded interest on the damages awarded for rectification costs. The evidence below was that the rectification work was undertaken in September 2021. The Tribunal may award damages, and interest on the damages at the date, and calculated in the way, prescribed under a regulation. By s 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld), interest is payable on the amount of damages awarded: (a) if the parties have entered into a contract, at the rate provided under the contract; or (b) at the rate agreed between the parties; or (c) otherwise, at the rate of 10%. By s 54(2) of the regulation interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid. Damages do not become payable until awarded by the Tribunal.
The decision below was handed down on 28 August 2023. It is appropriate that the final orders reflect that interest is payable at the rate of 10% on the amount awarded of $13,650.97 from 28 August 2023. Interest accrues at the rate of $3.74 per day. Interest to the date of this decision totals $2,935.90.
The Tribunal below awarded the appellant costs in the amount of $3,876.50. Leave is required to appeal a costs order.[31] There has been no application for leave to appeal the costs order below.
[31]QCAT Act, s 142(3)(a)(iii).
The final assessment of the appellant’s entitlement to recover against Paul Lennon- Muscat is:
Recovery of monies paid by the appellant  $23,174.90
Cost of rectification work  $13,650.97
Interest  $ 2,935.90
Total  $39,761.77

Final orders

I make the following orders:
(a)Leave to appeal is granted;
(b)The appeal is allowed;
(c)The decision of the Tribunal dated 28 August 2023 is varied as follows:
Order 1 is set aside and in lieu thereof it is ordered that Paul Lennon-Muscat must pay Mark James Todd the sum of $39,761.77 within 14 days of the date of this decision.