Walsh v Stokes t/as Chevron Landscapes - [2025] QCAT 274

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Walsh v Stokes t/as Chevron Landscapes [2025] QCAT 274

PARTIES:

CECILIA ANNE WALSH

(applicant)

v

ROBERT CHARLES STOKES T/AS CHEVRON LANDSCAPES

(respondent)

APPLICATION NO/S:

BDL086-23

MATTER TYPE:

Building matters

DELIVERED ON:

8 July 2025

HEARING DATE:

12 February 2025

HEARD AT:

Brisbane

DECISION OF:

Member Munasinghe

ORDERS:

Robert Charles Stokes t/as Chevron Landscapes must pay Cecilia Anne Walsh the amount of $142,142 within 28 days of the date of this order.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DEFECTIVE WORK – where the applicant engaged the respondent to build a deck – where there was no written contract – whether building work was defective – whether an action in tort arose – whether respondent was entitled to damages – whether cost of rectification reasonable

Civil Liability Act 2003 (Qld)

Limitation of Actions Act 1974 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

Bellgrove v Eldridge [1954] HCA 36

Chad Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd [1993] ABT BC9302692
Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476
Hawkins v Clayton (1988) 164 CLR 539
Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
Judd v McPhail [2022] QCAT 125
Kaze Constructions Pty Ltd v Housing Indemnity Australia Pty Ltd (1990) BCL 63
Sablewell Pty Ltd v Kirstborough Pty Ltd and Ors QBT BC9505897

Vaiao v Sharkie [2019] QCAT 264

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

REASONS FOR DECISION

Background

Cecilia Walsh (‘applicant’) is a homeowner, who seeks damages against Robert Charles Stokes (‘respondent’) for purportedly defective building work he performed for her. The respondent is a building contractor who trades under the business name Chevron Landscapes.
Toward the end of 2012, the applicant engaged the respondent to replace a timber deck at her home (‘the deck’). The deck was originally constructed in 1989. The applicant told the respondent that she wanted the deck “built the same as her original deck”.[1]
[1]Affidavit of C Walsh dated 02.10.23, para 1d.
After measuring the existing deck, the respondent provided the applicant with a verbal quotation in the amount of $38,000. The parties did not enter a written contract. The applicant paid the respondent the full amount of the quotation in cash.
The respondent dismantled the deck. He removed its hardwood joists and bearers, tread boards and railings but did not remove bearers that were not damaged. Rather, he used those bearers in situ to rebuild the deck. He added upright posts to support the new structure, purportedly to ensure compliance with current building standards.
Around September 2018,[2] the applicant noticed that the deck “felt unstable” and the top decking wood was coming loose from the timber bearers and joists underneath”. She raised her concerns with the respondent, who allegedly told her that the wood that he used was a from a “bad batch” which was not “cured properly”.
[2]Application, Alleged defective work/incomplete work schedule p 2.
In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] QCAT 274
Decision Date: 8 July 2025

CaseChat Overview and Summary

Cecilia Anne Walsh commenced proceedings in the Queensland Civil and Administrative Tribunal against Robert Charles Stokes trading as Chevron Landscapes, alleging defective building work. Walsh hired Stokes to construct a deck, but when she discovered issues with the deck's construction, she engaged another builder to repair it. Walsh sought damages for the cost of rectification and other expenses, claiming that Stokes breached an oral contract or was liable in tort. The dispute centred on whether there was a valid contract and, if not, whether Stokes was liable in negligence for the defective work.

The court examined whether Walsh could recover damages for the defective deck under an oral contract or in tort. It noted that both contracts were required to be in writing to be enforceable under the Queensland Building and Construction Commission Act 1991. As neither contract was in writing, Walsh could not claim against Stokes for breach of contract. The court then considered whether Walsh could claim in negligence. It found that, based on the assumptions of responsibility and vulnerability in domestic building cases, Stokes owed Walsh a duty of care. Walsh needed to prove that Stokes breached this duty and that the breach caused harm that was not too remote. Walsh demonstrated that Stokes used unsuitable timber, resulting in the deck's degradation and necessitating complete reconstruction. The cost of rectification was reasonable given the extent of the damage.

The Tribunal found that Stokes was liable for the cost of rectifying the defective work. It held that Stokes should have used H4 or H5 timber, which is suitable for contact with the ground, and entirely new bearers and posts instead of reusing timber from the old deck. The court concluded that the cost of rectifying the deck by rebuilding it was reasonable and ordered Stokes to pay Walsh $142,142 within 28 days.

Orders

Orders of the court

Robert Charles Stokes t/as Chevron Landscapes must pay Cecilia Anne Walsh the amount of $142,142 within 28 days of the date of this order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant called Mr Clarke to give evidence at the hearing. Mr Clarke confirmed that at the relevant time he was a building inspector employed by the QBCC. Relevantly, he said: (a)He observed that the timber joists used in the deck were rough sawn H3 plantation grown radiata pine softwood. The letter H, and the numeral proceeding it, indicates that chemicals have been applied to the timber to protect it from water and elements. (b)The respondent ought to have used timber with a H4 to H5 rating, which is suitable for applications where the timber is in contact with, or close to, the ground. (c)Timber with a H4 or H5 rating does not have a “dry rot effect”. (d)The H3 pine the respondent used was a “cheap option off the shelf”. (e)When shown Exhibit 1 he opined that the timber had degraded due to humidity under the deck and H4 or H5 timber would not have degraded to the same extent. (f)If H4 or H5 timber was used to construct the deck, its lifespan would have been 25 years. (g)When the respondent constructed the deck in 2012, he should have used entirely new bearers and posts instead of reusing timber from the old deck. (h)He read the JHA report and agrees with the conclusions raised in it. (i)The deck cannot be repaired. Rectification of the deck requires it to be “ripped out” and rebuilt. Consideration The contract price for the initial work was $38,000. The contract price for the repair work was $6,550. Both were ‘regulated contracts’ under Schedule 1B, Part 2, Division 1 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). Accordingly, both contracts were required to be in written form,[5] otherwise they have ‘no effect’ and cannot be enforced by the parties.[6] [5]QBCC Act sch 1B ss 13(2), 14(2). [6]Ibid sch 1B ss 13(5), 14(10) Here, neither the initial contract, nor the repair contract, were in writing. Any agreement between the parties was entirely oral. Therefore, the applicant cannot claim against the respondent for breach of contract. However, it is appropriate to consider whether she has a claim against the respondent in negligence. Any such claim is subject to the provisions of the Civil Liability Act 2003 (Qld) (‘CLA’). To recover in negligence, the applicant must prove:[7](a)The respondent owed her a duty to avoid a foreseeable and not insignificant risk of harm;[8](b)The respondent breached its duty; and (c)The applicant suffered harm because of the respondents’ breach of its duty (which is not too remote).[7]Vaiao v Sharkie [2019] QCAT 264, [29], citing Chad Roberts Constructions Pty Ltd v Johnson Tiles Pty Ltd [1993] ABT BC9302692; Sablewell Pty Ltd v Kirstborough Pty Ltd and Ors QBT BC9505897.[8]CLA s 9. In Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam,[9] Senior Member Brown relevantly said: [44] In domestic building cases involving the original parties to the building work, as recognised in Bryan v Maloney, there is an assumption of responsibility on the part of the building contractor. Accordingly, consideration of the vulnerability of the building owner in determining the existence of the duty of care is not required…[9][2024] QCAT 476.