Towler v Gabriel - [2025] QCAT 343

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Towler v Gabriel & Anor [2025] QCAT 343

PARTIES:

BENJAMIN JOHN TOWLER
(applicant)

v

GABRIEL GABRIEL

(first respondent)

MICHAEL ANTHONY BRACK

(second respondent)

APPLICATION NO/S:

BDL105-23

MATTER TYPE:

Building matters

DELIVERED ON:

11 September 2025

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

Gabriel Gabriel and Michael Anthony Brack are jointly and severally liable to pay to Benjamin John Towler $152,480.00 on or before 4.00 pm on Thursday, 23 October 2025.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED WORK – PERFORMANCE OF WORK – GENERAL – whether the contractor completed the building works – whether there was defective building work - whether defective work required rectification and replacement – whether the contractor liable for damages to the homeowner – whether damages recoverable by the homeowner – whether other remedies are available in the homeowner

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(3), Schedule 1B s 4, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 37

Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 39

Bellgrove v Eldridge (1954) 90 CLR 613

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

Benjamin John Towler (‘the Applicant’) seeks damages from Gabriel Gabriel (‘the First Respondent’) and Michael Anthony Brack (‘the Second Respondent) to rectify or complete defective building work to his property in the State of Queensland.

Background Facts

On 20 June 2022, the Applicant had an on-site meeting with Michael Brack to measure up concreting works and was informed by Michael Brack that he and his father, Gabriel Gabriel, were in a partnership business together. Michael Brack also said his nephew Jayden and brother Joey were also involved in the business.
On 21 June 2022, the Applicant sent an electronic message to Michael Brack enquiring as to when he was to receive the quote. Michael Brack replied stating it would be sent that day.
On 21 June 2022, Michael Brack, of Brates Landscaping & Concreting Services, sent an email to the Applicant with a quote for the supply and installation of concrete as follows;
Prep and pour 425 m² of plain broom finish. F72 mesh, 25 to 32 mpa y12 trimmer bar and corner bars where needed dowel into existing slabs install strip drains plastic impact rated underlay black plastic chairs able flex expansion form installed (Square meter rate is $65). Deposit and progress payments made after each section is completed site to be left clean and tidy.
$27,625.00
On 22 June 2022, the Applicant accepted the quote for the supply and installation of concrete at a cost of $27,625.00.
On 22 June 2022, Michael Brack sent an email from Brates Landscaping and Concreting Services to the Applicant requesting payment of a deposit. The description of the deposit is in these terms;
Deposit for 425 m² plain broom finish 25% $6,906.25.
The email provided that payment of the deposit could be made to a St George Bank account in the name of Michael Brack.
On 22 June 2022, the Applicant paid $7,000.00 to the nominated account of Michael Brack by bank internet transfer.
On 28 June 2022, work commenced with preparation, mark out and boxing up the area for concreting. On 30 June 2022, the Applicant enquired by message whether;
Are you going to shoot them footings to go.
Michael Brack replied that they were at Bunnings and stated;
Hey mate yes that’s the plan….
On 5 July 2022, Michael Brack asked if the Applicant could pay for concrete on Gabriel Gabriel’s account direct to the supplier by credit card and pay the balance owing in cash on Friday after the work was completed. The Applicant agreed to pay the concrete bill directly on the account of Gabriel Gabriel and the contract price was altered to $25,500.00.
On 8 July 2022, the pour of the concrete was undertaken and completed. The Applicant received an invoice from Concrete Shopper Pty Ltd on the account of Gabriel Gabriel in the amount of $12,493.58 for the concrete supplied for the pour. The Applicant arranged payment of that amount on 8 July 2023 by bank internet transfer to an account nominated on the invoice from Concrete Shopper Pty Ltd.
Also, on 8 July 2020, the Applicant sent a text message to Michael Brack stating that he was owed $1,000.00 as he had given Michael Brack that amount earlier to pay for two workmen who left early. Michael Brack replied that afternoon,
OK mate no worries.
On 9 July 2020, Michael Brack and Gabriel Gabriel were to return to clean up the site, remove the boxing and finalise the works. They did not return that day. The Applicant called and texted Michael Brack to ask when they were returning to the site and also to discuss initial building work defects with the installed concrete including the finish along with the mess and damage that had been done to the neighbour’s property. Michael Brack informed the Applicant they were not coming back that day as they were going to another job but would be back on Monday, 11 July 2022.
On 11 July 2022, neither Michael Brack nor Gabriel Gabriel returned to the Applicant’s site.
On 12 July 2022, Michael Brack, with his nephew Jayden, returned to clean up the site.
On 15 July 2022, the Applicant sent a text message asking;
Is the email listed on the quote [email protected] the best email to contact you on Michael
The Applicant received a text message response within a few minutes stating;
Yes mate that’s correct
On 16 July 2022, Michael Brack and Gabriel Gabriel returned to site and started cutting and grinding the slab back into square. They did not finish the job.
On 19 July, Michael Brack sent an electronic message that he had tested positive for COVID-19 and that he has 5 or more days in isolation but will try to work something out for the Applicant. The Applicant has not heard from him since.
On 29 July 2022, the Applicant sent a Notice of Demand by email to Gabriel Gabriel and to Michael Brack informing them of their failure to return to rectify building work defects for a basic professional level and made a demand for a full refund of payments of $25,500.00 and required;
(a)a response or reply by 5 August 2022; and
(b)the refund of $25,500.00 by 12 August 2022.
The Applicant has received no response from either of those persons.
Subsequently, the Applicant sent a Notice of Intent to both Respondents advising that he was commencing civil and criminal legal proceedings against them in relation to the rectification works required for the concrete work performed by them at his premises.
On 5 August 2022, the Applicants sent a further email to Gabriel Gabriel and Michael Brack advising that as no formal response had been received (except for Gabriel Gabriel’s attempt at harassment and intimidation) he would commence an action outlined in his letter of intent to get a resolution of this matter.
On about 1 September 2022, the Applicant made a complaint to the Queensland Building and Construction Commission (‘QBCC’) listing 13 items as defective work.
An Inspector from QBCC, Colin Rendall, inspected the items in the complaint at the Applicant’s property on 24 January 2023. He then prepared an Inspection Report[1] dated 27 January 2023 discussing those items and said that a Direction to Rectify should be issued for a number of the items.
[1]Inspection Report filed on 12 May 2023.
On 13 March 2023, QBCC wrote to the Applicant advising that Michael Brack had not complied with the Direction to Rectify and/or Complete No. 0110354 issued 27 January 2023 for the building work at the Applicant’s premises. The defective building work not rectified was listed and QBCC then stated;
The QBCC is unable to assist you further with your complaint.
The Queensland Home Warranty Scheme is unable to provide cover for any of the items
Your case has been finalised.
QBCC further explained that the defective work in the complaint items did not fall within the definition of primary insurable work and therefore assistance is not available.
On 11 April 2023, the Applicant filed in the Tribunal an Application for a domestic building dispute claiming rectification of all defective building work and damages of $91,624.50 and for extra costs of $17,000.00 was also made against Gabriel Gabriel and Michael Brack. This damages claim was based upon the following;
(a)an award of damages for $91,624.50 for the cost to remove the existing defective concrete and have new concrete installed as well as the cost to have the existing shed removed with its contents and stored whilst new concrete is poured; and
(b)an award of $17,000 to have the shed reassembled after the concrete has been replaced.

Tribunal Jurisdiction

The Tribunal has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or an “enabling Act”.[2]
[2]QCAT Act s 9.
The Application for a domestic building dispute filed by the Applicant relied upon the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
The QBCC Act provides that a person involved in a building dispute may apply to the Tribunal to have the Tribunal decide the dispute.[3] The issue therefore is whether or not the Application filed by the Applicant is for a “building dispute”.
[3]QBCC Act s 77(1).
A “building dispute” is defined to mean a domestic building dispute which is described as;[4]
a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.
[4]Ibid, Schedule 2.
The term “reviewable domestic work” includes the renovation, alteration, extension, improvement or repair of a home and can include work associated with the renovation, alteration, extension, improvement or repair of a home. That can include landscaping, paving and the erection or construction of a fixture associated with a detached dwelling or home. It can also include provision of services or facilities to the dwelling or the property on which the dwelling is situated.[5]
[5]Ibid, Schedule 1B.
The Contract between the Applicant and both Respondents comes within the meaning of the term “domestic building work” and also “reviewable domestic work” referred to in the QBCC Act. Accordingly, the dispute between the Applicant and both Respondents is a “building dispute” and the Tribunal has jurisdiction to hear and determine these proceedings.
For the purposes of these proceedings, the QBCC Act is the “enabling Act”.

Service of the Application on the Respondents

On 3 April 2022, there was evidence of the Applicant sending an email to the First Respondent and the Second Respondent stating;
I am writing to inform you of my intent to lodge application to QCAT…. Legally I need to inform you that I intend to sue you for damages related to the concrete job you both conducted at my premises…….
I have to give you the opportunity to provide me with a current mailing address so the court can issue you with my filed documents. Failure to do so may result in you not getting informed of the court date and failure to attend may end in a direct ruling in my favour.
If you wish for me to add your details to my application please reply to this email.
This email will be used as evidence in court to prove I am compliant in my attempt to contact you and provide you the opportunity to comply with court regulations. I will also send you one text message to inform you that I have sent this email.
Also, on 3 April 2022, the Applicant sent an electronic message to the First Respondent and to the Second Respondent in these terms;
I am texting to inform you to check your emails in regard to my intent to lodge legal action against you both with QCAT. All the details are contained in the email.
Just after midday, the Applicant received the following electronic message (presumably from the first respondent, Gabriel Gabriel);
I told you not to contact me again, I won’t tell you again.
Shortly after receiving the above electronic message, the Applicant sent a reply by electronic message stating;
Your acknowledgement of receiving my notification of court proceedings has been documented for the court records.
If I must contact your again for this matter I shall but only if required by the court. You can avoid this by providing the details requested by the court if you choose not to that is your choice.
An electronic message was sent in reply some few minutes later, presumably from the first respondent, stating;
Your a wanka so go away I am blocking you, so do what you want.
On 11 April 2023, the Applicant filed an Application for waiver of compliance with the procedural requirement and stated;
I have tried to contact both parties to obtain a postal address. Gabriel responded with a refusal see attached) and Michael has not responded. I tried via email and text message.
On 3 May 2023, the Applicant filed in the Tribunal an affidavit of service stating the Respondents were served with the Application for domestic building dispute on 1 May 2023 the emailing that document to the email address of the First Respondent and to the Second Respondent.
On 3 October 2023, the Tribunal conducted an “On The Papers Hearing” in relation to service of the Application for a domestic building dispute and made the following Directions;
(a)Service of the application for domestic building disputes by email is not, unless the Tribunal permits, valid service; and
(b)If service of the application for domestic building disputes cannot be served personally or by pre-paid post to the last known addresses of Gabriel Gabriel and Michael Anthony Brack, Benjamin John Taylor must file in the Tribunal two copies of written submissions with all relevant documents, addressing the following… (Particular matters specified in the Direction)
On 4 October 2023, the Applicant filed in the Tribunal an email advising he was not able to comply with Tribunal Directions in getting the physical addresses of the two Respondents, but he could provide the names of his mother and wife (of Gabriel Gabriel) and the car registration, ABN numbers and QBCC licence details. Otherwise, he could not comply with the Tribunal’s directions.
On 20 October 2023, the Applicant wrote to the Tribunal advising that he had now served the Respondent’s and informed the Tribunal of how the service have been effected. He said;
Michael Brack was served by email as originally approved and served back in May. Additionally, I now served him via registered post to the last known address provided from a private investigator and in person today by hand delivering a copy of the papers to his mother. His mother said she would not accept service of the papers on his behalf as he was no longer living at that address. Part of that conversation was provided in these terms;
Caroline (former wife Gabriel Gabriel and mother of Michael Brack) then stated “you are the guy that is making complaints against Michael and Gabriel for a job they did last year at Loganholme.” I responded “yes I am from… Loganholme” then she stated “you are the one who yelled at Michael and was aggressive towards him and threatened him when he was trying to fix the issues there” and I replied “ma’am if that’s what you have been told then that’s your truth and I am not here to argue with you however I have evidence that shows it was the other way around but I’m going to leave the papers here and leave, have a nice day ma’am”
As I walked away she shut the door and said “I’ll be sending people I know around to see you and sort you out” I just kept walking.
On 25 October 2023, the Applicant filed in the Tribunal a further affidavit of service stating that on 20 October 2023 he served Michael Brack with the Application for domestic building dispute in these proceedings by;
(a)personally serving the document at an address in Acacia Ridge where a private investigator said he was living with his mother; and
(b)by sending a copy to the email to sick [email protected]; and
(c)by leaving a copy of the document to the second respondent’s mother at the Acacia Ridge address; and
(d)by sending a copy by registered post to the Acacia Ridge address.
There is also a Lodgement Receipt from Australia Post stating that the Applicant sent documents to Gabriel Gabriel at an address south of Brisbane. There is no affidavit explaining the sending of that document.
On 21 November 2023, the Tribunal made the following Directions;
(a)Gabriel Gabriel and Michael Anthony Brack must file in the Tribunal two (2) copies and give to Benjamin John Towler one (1) copy of a response to the application by 4.00 pm on 6 December 2023; (Direction 1) and
(b)If Gabriel Gabriel and Michael Anthony Brack fail to comply with Direction 1 herein, Benjamin John Towler may be entitled to a final decision. (Direction 2)
(c)If Benjamin John Towler is entitled to a final decision in accordance with Direction 2 herein, the matter will be determined on the papers without an oral hearing on the basis of the documents forming the Tribunal record after 9 January 2024.
Both Gabriel Gabriel and Michael Anthony Brack did not comply within the time specified, or at any relevant time subsequently, with Direction 1 referred to above.
On about 9 January 2024, the Applicant said he had received no response to the Application from Michael Brack nor from Gabriel Gabriel after the Directions made by the Tribunal on 1 November 2023. He said that the only response he received was from Gabriel Gabriel;
was a text informing me to unpolitely go away.
Service of an Application for a domestic building dispute is undertaken by giving a copy of the application to each party to the proceeding.[6] However, the way in which a party to a proceeding may be given an application can be by delivering it personally, sending it by post to the relevant address, sending it to an email address or by leaving it with someone who is at the relevant address and is apparently an adult and apparently residing or employed there.[7]
[6]QCAT Act s 37.
[7]Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 39.
On the evidence before the Tribunal there has been a number of attempts of service on both Respondents. An affidavit of service[8] says that the Application was personally served on Michael Brack on 20 October 2023. At face value that affidavit deposes to personal service on the Respondent but when completing the way in which the Respondent was identified leaves the Tribunal in some doubt as to whether there was personal contact with the Respondent or whether the application was left at that address identified in the affidavit of service. The Tribunal is not satisfied on the whole of the evidence that there has been personal service on Michael Brack.
[8]Filed 25 October 2023.
The affidavits of service refer to the application being sent by post to the relevant address. There is early evidence of a number of attempts by the Applicant to obtain the address of each of the Respondents for these proceedings however, there was no response from either Respondent to this request. The Tribunal is left with the view that the address of each of the Respondent has not been provided and the Applicant remains unaware of their address (except for the address at which the former wife of Gabriel Gabriel and mother of Michael Brack resides). The Tribunal is not satisfied on the whole of the evidence there has been service by post at the relevant address on each, or either, Respondent.
The affidavits of service referred to the application being sent by email to the Respondents. That email address has been used consistently in exchange of emails between the parties in relation to the formation of the contract, performance of the building works under the work contract and for attempts to arrange both, or either, Respondent to return to the site to rectify defects. At one stage, the email address for the Respondents was identified in an email request from the Applicant and confirmed by Michael Brack. There have also been electronic messages between the parties forming the continuity of all communications undertaken in conjunction with exchanges of emails during the construction period. The Tribunal is satisfied that the Applicant has all relevant times to these proceedings been able to contact the Respondents by email. The Tribunal finds the sending of the Application for a building dispute to the email address of the Respondents is service on each of those Respondents for the purposes of s 37 of the QCAT Act. Accordingly, both Respondents have been served with Application.

Further, the service of an Application can be undertaken by leaving it with someone who is an adult and usually resides at that address. The Applicant’s evidence is that a private investigator has identified the address at Acacia Ridge where the former wife of Gabriel Gabriel and the mother of Michael Brack resides, and which is also the address at which Michael Brack resides. The evidence is that the Applicant on a prior occasion left a copy of the Application with the former wife and mother at the Acacia Ridge address. The most recent service of the application was left at that Acacia Ridge address. There is some evidence that Gabriel Gabriel has an address at Berrinba in the State of Queensland[9] so it is difficult to conclude that Gabriel Gabriel resides at the Acacia Ridge address. The Tribunal can’t be satisfied that this method of service was affected so far as the receipt of the Application by Gabriel Gabriel particularly as the Applicant previously sent the Application to that Respondent by Registered Post to an address at Coomera.[10] As for the Acacia Ridge address of the mother of Michael Brack, there has been service of the Application on Michael Brack by this means of service.
[9]See the Concrete Shopper Pty Ltd Invoice for concrete.
[10]See affidavit of service filed 25 October 2023.
Accordingly, by reason of the findings set out above, Gabriel Gabriel and Michael Brack have been served with the Application for a domestic building dispute in these proceedings. It also follows in accordance with the Directions of S M Brown of 21 November 2023 there has been non-compliance by both respondents to those Directions, the Applicant is entitled to a final decision.[11]
[11]Tribunal Directions dated 21 November 2023 at 1 & 2.

Who did the Applicant Contract with?

In these proceedings, there is no written contract signed by the parties.
The contractual relationship was made the by email and discussions. The contract is partly in writing and partly oral.
On 20 June 2022 at a site meeting, Michael Brack explained to the Applicant that he and Gabriel Gabriel were in business together. As a result of that site meeting, the quote was sent by email on 21 June 2022
The written part of the contract consists of an offer made by email from Michael Brack on 21 June 2022 and which has been referred to above. The offer was accepted on 22 June 2022 and the deposit was paid.
The contract was for work, and labour and supply of materials. The work and labour was supplied by Michael Brack and by Gabriel Gabriel. The main ingredient of the contract, mainly approximately 425 m² of contract, was supplied by Gabriel Gabriel.
The Tribunal is satisfied about that the contract referred to in these proceedings was made between the Applicant, on the one part, and Michael Brack and Gabriel Gabriel on the other part. The Applicant was contracting as the homeowner and the two Rrespondents were the contractors for the other part.. The Tribunal finds that the parties to the contract were the Applicant and as the contractor, Michael Brack and Gabriel Gabriel.

Was the Concreting Work Defective?

On 9 July 2022, following the concrete pour the previous day, the Applicant sent a text message to Michael Brack stating that he noticed some initial issues with the job and finish and that they had left a mess including damage done to the neighbour’s property.
The Applicant says that the concrete slab was out of square and was too long, too wide and too close to the adjoining fence.
On 29 July 2022, the Applicant sent an email to Gabriel Gabriel and Michael Brack with a Notice of Demand requiring them to rectify the works or make a full refund of payments made under their contract. There was no response to that email.
Following the Applicant’s complaint about building defects to the QBCC, Colin Rendall, Inspector for QBCC, made an inspection of those complaints at the Applicant’s property on 24 January 2023.
On 27 January 2023, Colin Rendall provided an Inspection Report in relation to each of the Applicant’s complaints of defective work. The Inspection report made the following comments in respect of each complaint.

Complaint 1 – shed slab not square and too long

The Applicant told Colin Rendall that in relation to the shed slab, an attempt had been made to rectify this defective work, but that work is incomplete and inadequate.
An Inspection Report found that;
(a)the slab installation did not meet the specified size for the shed;
(b)the position of the slab was not in accordance with Council setbacks; and
(c)rectification was started but was incomplete.
The Inspection Report stated that the work has been identified as non-compliant with the plans and/or specifications but as this requires an adjudication on contractual issues QBCC will take no further action in relation to the item.

Complaint 2 – water drain is about 54 mm higher than the surrounding concrete

The Applicant’s complaint stated that the driveway water drain is too high and this is causing water to flow back towards the house and not away from it.
The Inspection Report commented on this complaint as follows;
(a)the gully pit installed in the driveway has made water flow towards it across the drive;
(b)the position of the gully is at the high point of the drive and water falls away and not into the pit; and
(c)the area has not been installed to the specified heights.
The Inspection Report concluded that the work has been identified as non-compliant with the plans and/or the specifications. However, as this relates to a contractual matter which the QBCC cannot adjudicate on, it will therefore take no further action in relation to this item.

Complaint 3 – shed slab should be extended two metres past the front of the shed door

This complaint was that the slab should have extended 2 m past the front of the shed door to make it 11 m from front to the back doorway and have a ramped edge away from this level surface, but it is only 1300 now and 1100 when poured.
The Inspection Report commented on this complaint as follows;
(a)the slab installation did not meet the specified size for the shed;
(b)the position of the slab was not in accordance with Council setbacks;
(c)the entry ramp is not as specified; and
(d)the roller door weather rebate has not been installed.
The Inspection Report concluded that the work has been identified as non-compliant with the plans and/or specification. As this is a contractual issue which QBCC is not able to adjudicate on, it will take no further action in relation to the item

Complaint 4 – slab area near the pool not smoothed door after boxing removed

The Applicant’s complaint was that the area where the boxing was removed around the shed slab is where it meets the pool slab and was not smoothed off after they removed the boxing, leaving holes and rough spots and a highpoint in the corner.
The Inspection Report commented on this complaint as follows;
(a)there are voids and visible marks of the formwork on the finished surface;
(b)the finish is not consistent in texture, surface levels and general appearance;
(c)The finish does not meet acceptance criteria found in AS 3727 Residential paving and QBCC Standards and Tolerance Guide.
The Inspection Report concluded that this involved building work which was defective. While it was non-structural the Inspection Report said that the QBCC decision was;
The surface finish to the concrete paths around the pool and specifically against the shed is not to AS 3727 Residential paving in that the finish surface is not level and even and the general appearance is not consistent.

Complaint 5 – the shed slab was supposed to be smooth for an epoxy finish

The complaint is that the shed slab was supposed to be smooth so that the Applicant could epoxy it when they were brooming it.
The Inspection Report commented on this complaint as follows;
The work has been identified as non-compliant with the plans and/or specification.
The Inspection Report concluded that the work has been identified as non-compliant with the plans and/or specifications. As this is a contractual issue which QBCC is not able to adjudicate on, it will take no further action in relation to the item

Complaint 6 – expansion foam not installed around the pool

This complaint relates to the external area of the concrete work where the Applicant noticed that expansion foam had not been installed around the pool during the concrete pour. Michael Bracks tried to fix it and stuffed foam in after but only put it down about 50 mm tile deep not the full depth of the 150 mm of pool caping.
The Inspection Report commented on this complaint as follows;
Control joints, isolation joints and expansion joints have not been installed in accordance with the requirements of AS 3727 Residential pavements.
The Inspection Report concluded that this was building work and it was defective. While it was a non-structural defect the Report stated;
QBCC finds the contractor has not installed the required control, isolation and expansion joints to the driveway and garage slab with the result that there will be cracking to the slab. QBCC standards and tolerance guide 2-1 states in part;
Within the first 12 months from completion of the work, cracking or movement in concrete verandahs, garages, carports, paving, patios, driveways etc., where the builder did not make allowances for shrinkage or general movement of the concrete (e.g.. isolation joints where required around penetrations such as verandah posts, pipes, expansion joints, control joints and contraction joints), shall be assessed in accordance with Table 2.1 and is defective where the limits in that table are exceeded.
The Inspection Report then stated the QBCC Decision in these terms;
QBCC finds that the contractor is responsible for the lack of or incomplete installation of isolation, control and expansion joints to the shed slab; driveway and the pool surrounds which do not meet the minimum requirements of AS 3727 Residential pavements and have resulted in cracking to the installation that exceeds tolerances.
The Inspection Report considered this complaint related to building work which was defective. It was non-structural defect.

Complaint 7 – expansion foam does not run entire length of the existing house slab

This complaint related to the driveway slab and expansion foam was not running the entire length of the existing house slab.
The Inspection Report found that;
(a)control joints, isolation joints and expansion joints have not been installed to the requirements of AS 3727 Residential pavements;
(b)this item is similar to Item 6 of the complaint form. and
(c)a Direction to Rectify should be given.
The Inspection Report provided the following decision in respect of this complaint;
QBCC finds the contractor is responsible for the lack of incomplete installation of isolation, control and expansion joints to the shed slab, driveway and pool surrounds which do not meet the minimum requirements of AS 3727 Residential pavements and have resulted in cracking to the installation that exceeds tolerances.
This complaint related to non-structural building work which was defective.

Complaint 8 – crack in concrete starting against the house

This complaint relates to the driveway where major cracks were noticed the first day after the concrete pour and is at the corner where only 4 steel pins were drilled into the existing slab. The crack started against the house where the expansion foam is missing.
The Inspection Report found that;
(a)there are voids and cracks to the finished surface;
(b)the finish is not consistent in texture, surface levels and general appearance;
(c)these cracks exceed the acceptable criteria in AS 3727.
The Report concluded that the finish does not meet acceptable criteria found in AS 3727 Residential paving and the QBCC standards and Tolerance Guide part 2-2.[12]
[12]The terms of the Tolerance Guide as set out in the Inspection Report at pages 11 and 12.
The Inspection Report quoted the QBCC decision in these terms;
The surface finish to the concrete driveway is not to AS 3727 Residential paving in that the finished surface is not level and even and the general appearance is not consistent. And there are cracks that exceeds tolerances set out in AS 3727 Residential paving.
The next action to be considered by the QBCC was a direction to rectify. The building work was defective but in the non-structural category.

Complaint 9 – the entire job has no expansion joints

The Applicant’s complaint is that the entire job has no expansion joints. He was told that the contractors would return the next day to do expansion cuts and remove the last of the boxing and clean up the site. They never did return.
The Applicant also says that after calling “Gabe” (Gabriel Gabriel) to discuss this issue he was told that he was not doing the cuts now, it is an extra.
The Inspection Report commented on this complaint as follows;
(a)control joints, isolation joints and expansion joints have not been installed to AS 3727 Residential paving;
(b)this item is similar to item 6 of the complaint form.
The Inspection Report said the QBCC decision was;
QBCC finds the contractor is responsible for the lack of or incomplete installation of isolation, control and expansion joints to the shed slab, driveway and pool surrounds which do not meet the minimum requirements of AS 3727 Residential pavements and have resulted in cracking to the installation that exceeds tolerances.
The Inspection Report said that the next action to consider was a Direction to Rectify. This building work was considered to be defective although it was in a non-structural category.

Complaint 10 – shed slab is not 750 mm of the boundary line

The Applicant’s complaint is the shed slab is not 750 mm off the boundary line as is required by Local Council regulations.
The Inspection Report said in respect of this complaint;
(a)the slab installation did not meet the specific boundary clearances for the shed;
(b)the position on the slab was not in accordance with Council setbacks; and
(c)rectification works were started but are incomplete.
The Inspection Report also said that the work has been identified as non-compliant with the plans and or specifications, however, QBCC cannot adjudicate contractual issues and will therefore take no further action in relation to the item.

Complaint 11 – there are voids and footprints in the finished surface

The Applicant’s complaint is in relation to the pool slab that there are voids and visible footprints on the finished surface which does not have a consistent texture, surface levels and general appearance.
The Inspection Report says that the finish does not meet the acceptance criteria found in AS 3727 Residential paving and the QBCC Standards and Tolerance guide part 2-2. That Report also states;
The finished surface is not level and even and the general appearance is not consistent in that there are trowel marks, screed lines and footprints in the finished surface.
The Inspection Report said that this building work is defective although it is non-structural. The next action should be a Direction to Rectify.

Complaint 12 – the concrete has a poor-quality finish

The Applicants complaint is that the concrete surface has a poor-quality finish.
The Inspection Report comments as follows;
(a)there are voids and visible marks on the finished surface;
(b)the finish is not consistent in texture and neither are surface levels and general appearance; and
(c)the defects can be seen from the normal viewing position.
The Inspection Report said that the finish does not meet the acceptance criteria found in AS 3727 Residential paving and the QBCC Standards and Tolerance Guide 2-2. The Report concluded as follows;
QBCC finds the contractor is responsible for the surface finish to the concrete work by the contractor in that it is not to a AS 3727 Residential Paving and the finished surface is not level and even and the general appearance is not consistent.
The Inspection Report considered the building work was defective although it was in a non-structural category and the next action was a Direction to Rectify.

Complaint 13 – the concrete was to cover the bottom 50 mm of sleepers

The Applicant’s complaint relates to the carport where the concrete was supposed to cover the bottom 50 mm of sleepers the entire way around the carport. It was formed to do so but they didn’t do it.
The Inspection Report says that this work was identified as non-compliant with the plans and all specifications. However, because this item is a contractual issue, it is not able to adjudicate the issue. It will take no further action in relation to this item.
The Applicant says that none of the Directions to Rectify given to either of the Respondents by the QBCC have been followed up and neither of them have responded to the QBCC.
The contract did not include any express terms as to the quality of workmanship.
However, it would have had implied terms that the work to be performed would be undertaken in a workmanlike manner and would be fit for the purpose.
Welsh v Ross[13] related to a domestic building dispute in which Member Chapple said;[14]
Generally speaking, a builder owes to an owner a duty to perform building works with reasonable care and skill.
[13](2024) QCAT 367
[14]Relying on Bryan v Maloney (1995) 182 CLR 609 at [11]
While that decision was discussing the issue of negligence and whether the Builder owed a duty, nevertheless those statements have application in these proceedings involving a contractual dispute.
Evidence in these proceedings of defective work is set out by the Applicant and in the Inspection Report provided by Colin Rendall of QBCC. That Report examines 13 complaint items. None of those complaint items are found to be performed satisfactorily or in a workmanlike manner. A number of complaints are not in accordance with the plans and specifications. A number of complaints do not comply with AS 3727 Residential paving, or with QBCC Standards or with Tolerance Guidelines part 2-2. In summary, the Inspection Report established that in respect of the 13 complaint items all were defective work and the concreting should be replaced.
The Tribunal accepts the Inspection Report where it discusses each of the 13 complaint items and finds that the work identified in that report was performed in an arm unworkmanlike manner and was not fit for purpose. Accordingly, the Tribunal finds that the concreting of the shed slab to the Applicant’s property was defective building work and needs to be replaced.

What are the costs to rectify the defective work.

The Applicant wants the defective works rectified to an acceptable standard.
He has had tradesmen inspect the works and says that;
the only way to do this is to remove all the defective concrete and relay the concrete.
The Applicant says that to remove and replace the concrete, the shed will be disassembled and removed from site, stored and then later reassembled when the replacement concrete has been laid. The Applicant also says as this will not provide a warranty on the re-erection of the original shed and a new shed has been recommended at a cost of $34,884.00 for its supply and installation.
The Applicant has obtained several quotes to perform the rectification work.
On 3 November 2023, a handwritten quote was received to carry out works for a total cost of $9,170.00. This quote relates to tiling work around the swimming pool where the existing tiles had been damaged.
KAM Constructions Pty Ltd provided a quote dated 5 October 2023 to disassemble, transport, store and rebuild the steel garage on the Applicants premises including the replacement of all fixings have a cost of $16,510.
On 5 October 2023, KAM Constructions Pty Ltd sent an email to the Applicant stating they cannot provide a price for parts for the existing garage but can advise that a replacement garage with the same exact specifications, provided as a kit only, would cost $18,374.00.

On 4 November 2023, a quote was received from Fletcher 2 Concreting to rip up on the existing concrete from the driveway, parking bay and shed slab including a section at the pool and to relay the concrete at a cost of $110,000.00.
A quote was obtained from ThommoCrete Pty Ltd on 20 November 2023 for concrete works to include repairs and application of 385 m² of concrete to the driveway, shed, footpath and the house surrounds at a cost of $118,800.00.
A further quote was obtained from Concreting Solutions to cut out, remove concrete to driveway, shed slab, and surrounds and to dispose the old concrete and reinstate the new concrete including all materials, steel reinforcement, 32 mpa concrete with relevant finishes at a total cost of $143,880.00.
The Applicant says that the concrete needs to be removed and replaced and an original quote of $91,624.50 is out of date and that he received a new quote for $118,800.00. He says he obtained two other quotes to compare which came to $121,000.00 and $143,880.00 and says that aa a “fair costing I am going with the second quote of $121,000.00.”
The Applicant also says that in order to remove the concrete the shed needs to be disassembled, removed from site, stored and reassembled. He says that the shed company will not warrant the erection of the original shed for its structural integrity and its ability to be watertight cannot be ensured. Accordingly, it is recommended that the shed be completely replaced at a cost of $18,374.00 to supply and install a new shed.
The Applicant does not have quotes for electrical and plumbing works as neither trade would give a quote. However, he says that both trades estimate their quotes will be between $2500 and $6000 each “so I averaged that to $4,000.00 per trade for a total of $8,000.00 for electrical and plumbing.

Damages for Replacement of Defective Concreting Work.

The Tribunal has the power to award damages, interest on the damages, restitution and award costs amongst other remedies.[15]
[15]QBCC Act s 77(3).
In Bellgrove v Eldridge,[16] the proceedings involved an action for damages for breach of contract brought by a building owner against a builder who had substantially departed from the specifications. By reason of such departure, the foundations were defective and the building was unstable. In the majority judgement (Dixon C J, Webb J and Taylor J) it was stated that the homeowner is entitled to the reasonable cost of rectifying the departure or defect so far as is possible subject to the following qualification set out in Hudson on Building, 7th ed (1946), p. 343;[17]
The measure of damages recoverable by the building owner for the breach of a building contract is, it is submitted, 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.
[16](1954) 90 CLR 613.
[17]Ibid, 617-618.
The majority judgement in that case went on to state as follows:[18]
But the work necessary to remedy the defects in a building and so produce conformity with the plans and specifications may, and frequently will, require the removal or demolition of some part of the structure. And it is obvious that the necessary remedial work made call for the removal or demolition of a more or less a substantial part of the building. Indeed – and such was held to be the position in the present case - there may well be cases where the only practical method of producing conformity with plans and specifications is by demolishing the whole of the building and erecting another in its place. In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace a small part, or a substantial part, or, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer: together with any appropriate consequential damages, the extent of the building owner’s loss.
The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity but that also, it must be a reasonable course to adopt.
[18]Ibid, 618.
The Applicant seeks damages under several heads of damage.
The first head of damage is for removal of the existing concrete to the driveway, shed, footpath and house surround and works necessary to relay new concrete in those areas. The quotes from ThommoCrete Pty Ltd of 20 November 2023 for $118,800.00 and from Fletcher 2 Concreting for $121,000 relate to this rectification. A further quote is from Concrete Solutions for similar rectification work at $143,880.00. The Applicant says;
so in my fair costing I am going with the second quote of $121,000.00.
Given that the Tribunal has already made findings that there has been a breach of the terms of the contract as a consequence of the defective concrete workmanship and has accepted the Inspection Report supporting the removal of the existing concrete and the replacement with new concrete, it is fair and reasonable for the Applicant to have that replacement rectification work undertaken in accordance with the quotations provided. However, the Applicant must mitigate damages. While the Applicant asks for $121,000.00, there has been in the material no criticism of the quote provided by ThommoCrete Pty Ltd for $118,800.00. It is reasonable to accept the quote for $118,800.00. The Tribunal will award damages of $118,800.00 for the removal and the replacement of concrete to the driveway, shed, footpath and house surround in accordance with the quote from Thommocrete Pty Ltd.
The second head of damages claimed relates to the disassembly, transport, storage and re-building of the shed that is located in the area where the concrete has already been laid. The evidence is that in order to rectify the concrete it is necessary to remove and reassemble the shed. That additional work follows on as a consequence of the need to remove the existing concrete and to carry out rectification works for the new concrete. There is a quote from KAM Constructions Pty Ltd of 5 October 2023 to carry out the removal transportation storage and rebuilding all the steel Garrard shed at a cost of $16,510.00. That quote provides full rebuilding of this shed and the replacement of all fixings necessary for the erection of the building. The exclusion to that quote is as follows;
Due to the nature of the structure, there is no way of foreseeing what damaged parts may need to be replaced, for this reason we cannot include any parts other than the screw kit.
Again, the removal and the reassembly is a consequence of the need to undertake rectification work for all the defective concreting work. The Tribunal considers that it is necessary for this work to be undertaken to produce conformity with what was contracted and that in the circumstances, it is reasonable to allow the costs in the quote. Under this head of damage, the Tribunal finds that the Applicant has suffered damage of $16,510.00 and will award of damages in the sum.
The third head of the damages claim relates to the replacement of the existing shed with a new replacement garage shed at a cost of $18,374.00. This quote is also from KAM Constructions Pty Ltd is for a new replacement shed with the same specifications. The Applicant explains the claim for a new replacement shed in these terms;
However, the shed company will not warrant the erection of the original shed as its structural integrity and its ability to be watertight cannot be ensured. So they recommend that the shed will need to be completely replaced at a cost of $34,884.00 to remove the old shed and supply and install new shed.
The Applicant’s calculation of $34,884.00 is the total of the invoices referred to in the second head of damage together with the third head of damage. The difficulty in making an assessment of the third head of damage is that the Applicant has not provided evidence, or sufficient evidence, about the existing shed. For instance, is the existing shed one that has been newly constructed with manufacturer’s warranties or was that shed constructed many years ago where a warranty, if any, relating to structural integrity or being waterproof had expired a long time ago. The evidence is that the Applicant has an existing shed and now wants to replace it with a new shed which would have manufacturer’s warranties apart from the installer’s warranties, if any. In other words, the Applicants claim is a new shed for an old shed. There is no evidence to support what appears to be an “asset betterment” in favour of the Applicant. The Tribunal is not satisfied that it is necessary for a new shed to be erected, in place of the old shed, so as to achieve conformity with the plans and specifications. The Applicant evidence has satisfied the Tribunal that it would be reasonable to award the Applicant damages for the cost of a new shed in the amount of $18,374.00. The Tribunal rejects this further head of damage and rejects the claim of $18,374.00.
The fourth head of damage relates to a quote dated 3 November 2023 for tiling work. This quote is in the amount of $9,170.00 for which the Applicant explains as follows;
When the concrete was poured the tiles around the pool were extensively damaged beyond repair the quote to replace the pool tiles is $9170.00.
This quote, on the evidence, is as a consequence of the faulty workmanship pursuant to the contract. It occurred as a result of defective work. Accordingly, the repair of the tiles is to maintain conformity with the plans and specifications for the project. It is reasonable to allow this claim. Accordingly, the Tribunal accepts the Applicant’s evidence on this as well as the contents of the quote dated 3 November 2023. The Tribunal will award the amount of $9,170.00 by way of damages for the repair of damaged tiles.
There is a fifth head of damage claimed but not quantified. This includes suspected, but not proved, potential damage to the pool itself, damage to the coping concrete that encases and strengthens the rim of the pool. An estimate is made between $5,000.00 and $50,000.00. However, the Applicant is unsure how to price this claim until the concrete is removed to see what damage, if any, has been done. This claim does not provide any evidence of actual damage. The claim and commentary in support of it is speculative. The Tribunal finds that there has been no damage proved and rejects the claim. The Tribunal will not award any damage under this fifth head.
There is a sixth head of damage relating to electrical and plumbing. No quotes have been provided as the extent of the works cannot be identified. However, electrical and plumbing traders have provided an estimate to the Applicant of between $2,500.00 and $6,000.00 each which takes into account the time to hire excavators to redo the trenching and materials to be provided. The Applicant averages each of those claims at $4,000.00 per trade. The Applicant’s claim under this head of damage is $8,000.00.
While the evidence on this claim is sparse, to say the least, there is nevertheless a reasonable expectation that electrical and plumbing trades will be required for the rectification of the defective works. There does not appear to be any component in the quotes for the removal and replacement of the shed for electrical and plumbing work. While the estimate is in very general terms, in the circumstances, it is reasonable to allow an amount for this claim given that there is a minimum and maximum amount provided. As for the amount, it is appropriate to accept the Applicants claim of $4,000.00 for each trade. The Tribunal accepts that the cost of the electrical and plumbing trades will be of the order of $8,000.00 (collectively). The Tribunal will award damages of $8,000.00 under this sixth head of damage.
The seventh head of damage is for the costs of a certifier to change the plans and resubmit “everything to council and engineering and soil testing”. There is no quote or estimate provided by a certifier. Nor is there any explanation as to why a quote from a certifier was not obtained. There is no evidence of any “change” to the plans and there is no evidence of the plans been resubmitted to Council and engineering. There is no explanation for “soil testing.” The Applicant appears to make an estimate of between $4,000.00 and $6,000.00 for a certifier and claims the reduced amount of $4,000.00 “in my pricing”. The Tribunal has absolutely no evidence relating to this seventh head of damage. In the absence of any evidence, the Tribunal cannot be satisfied that the claim in the seventh of damages is necessary to make the rectification works comply with the plans and specifications. This is particularly the case as there is no evidence that the plans and specifications are to be changed. In those circumstances, it would not be reasonable to make an award under this head of damage. The Tribunal is not satisfied that this claim has been established and rejects the seventh head of damage claimed.

Conclusion

The Tribunal is satisfied defective work undertaken by both Respondents entitles the Applicant to an award of damages. In the Application for domestic building dispute filed 13 April 2023, the Applicant claims rectification or completion of defective work in the amount of $91,624.50. The Applicant also seeks costs, but these are not legal costs and are identified by the Applicant as the costs of rectification. During the course of the proceedings, the Applicant has updated the costs of rectification with various quotes referred to above. For the reasons set out above, the Applicant is entitled to damages based upon the updated quotes and an order will be made that the Applicant is entitled to the following damages;
(a)rectification of defective concrete work   $118,800.00
(b)removal and reinstallation of shed   $16,510.00
(c)new replacement shed   $     NIL
(d)tiling work   $   9,170.00
(e)potential damage to the swimming pool   $     NIL
(f)Electrical and plumbing   $   8,000.00
(g)change of plans and specifications and certifier             $     NIL
(h)total of the damages claim   $152,480.00
Both of the Respondent’s carried on business together. Whether that was in partnership or some type of joint venture is unnecessary for the Tribunal to decide. In terms of liability for the Applicants damages, both of the Respondents are jointly and severally liable for those damages. The Tribunal will make orders in accordance with that basis of liability.

Orders

Gabriel Gabriel and Michael Anthony Brack are jointly and severally liable to pay to Benjamin John Towler the amount of $152,480.00 on or before 4.00 pm on Thursday, 23 October 2025.