Blair v Coyne [2026] QCAT 93

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Blair v Coyne [2026] QCAT 93 PARTIES: LOUISE BLAIR (applicant) v JOSEPH JAMES COYNE (respondent) APPLICATION NO/S: BDL133-25 MATTER TYPE: Building Matters DELIVERED ON: 24 February 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Bellamy ORDERS: 1. Joseph Coyne must pay the amount of $97,850 to Louise Blair within 60 days of this decision. 2. Joseph Coyne must pay the amount of $852 to Louise Blair within 28 days of this decision. 3. Joseph Coyne must pay costs of $379.50 to Louise Blair within 28 days of this decision. CATCHWORDS: JURISDICTION – DOMESTIC BUILDING DISPUTE – REVIEWABLE DOMESTIC BUILDING WORK – where domestic building work includes construction of an inground pool PROCEDURE – CIVIL PROCEEDINGS IN STATE TRIBUNAL – ENDING PROCEEDINGS EARLY – where one party unnecessarily disadvantages another party – where respondent failed to engage in proceeding and repeatedly failed to comply with Tribunal directions without reasonable excuse – where discretion of Tribunal exercised to make final decision in applicant’s favour CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY – PERFORMANCE OF WORK – where engineer refused to certify work because it did not conform to the engineering plans – where builder failed to rectify defect and principal terminated the contact – whether builder breached statutory warranties – whether builder liable to pay damages for the cost of rectification -- 1 of 10 -- 2 Queensland Building and Construction Commission Act 1991 (Qld), s 77; Sch 1B, s 1, s 4(1)(c), s 14(2), s 14(10); Sch 2; 7(1)(a), 7(2) Queensland Building and Construction Commission Regulation 2018 (Qld), reg 45 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 48 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 Act 2009 (Qld) REASONS FOR DECISION Introduction [1] The applicant contracted with the respondent to build an inground pool at her property. The engineer refused to certify the construction of the pool on the basis that it had not been done in accordance with the plans. The applicant applied to the Tribunal for restitution in the amount that it would cost to rectify the defects, and she sought some additional orders. The respondent has not engaged in this proceeding despite having ample opportunity to do so. [2] The Tribunal decided to determine this application without further delay, based on the material that has been filed. That material was all provided by the applicant. The respondent could have challenged it but has not done so. Where the information provided appears to be credible and reasonable, I accept it. Power to make a final decision [3] The Tribunal has jurisdiction to hear and decide building disputes, and order various remedies, under s 77 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). Relevantly, those remedies include: (a) …; (b) order relief from payment of an amount claimed by 1 party from another; (c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation; (d) …; (e) …; (f) …; (g) order rectification or completion of defective or incomplete Tribunal work; (h) award costs. -- 2 of 10 -- 3 [4] A building dispute includes a domestic building dispute.1 A domestic building dispute includes a dispute between a building owner and building contractor relating to the performance of reviewable domestic work.2 [5] I am satisfied that the applicant is a building owner, and the respondent is a building contractor, according to the definitions in the QBCC Act.3 Reviewable domestic work includes domestic building work. Domestic building work includes ‘associated work’, which includes swimming pools4 so I am satisfied that the work is reviewable domestic work. [6] According to an affidavit of service filed by the applicant, on 10 May 2025, she witnessed her partner give a copy of the application to the respondent at his registered address. She also sent a copy by email to his business email address. I note that the email address appears on invoices issued by the respondent and it was used to communicate with her. [7] The tribunal made the following directions that were ignored by the respondent: (a) on 16 May 2025, to file and serve a response and/or counter-application by 4:00pm on 13 June 2025; (b) on 5 August 2025, to file and serve a response and/or counter-application by 4:00pm on 19 August 2025; and (c) on 7 October 2025, to file and serve a response to the application by 4:00pm on 21 October 2025. [8] Each direction included a warning that if the respondent did not comply, the applicant would be entitled to a final decision. [9] The direction made on 7 October 2025, stated that: If Louise Blair 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 18 November 2025. [10] To date, the respondent has not complied with any of the Tribunal’s directions or engaged in this proceeding at all. [11] A person involved in a building dispute may apply to the Tribunal to decide the dispute provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.5 I am satisfied that the applicant has complied with that process. [12] Under s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), if the Tribunal considers that a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including by not complying with the Act or an enabling Act, the Tribunal may make its final decision in the proceeding in the applicant’s favour. 1 QBCC Act sch 2 (definition of ‘domestic building dispute’). 2 Ibid (definition of ‘reviewable domestic work’). 3 Ibid (definition of ‘building contractor’ and ‘building owner’). 4 Ibid sch 1B s 4(1)(c). 5 Ibid s 77(2). -- 3 of 10 -- 4 [13] In the exercise of this power, the Tribunal must have regard to: (a) the extent to which the party causing the disadvantage is familiar with the Tribunal’s practices and procedures; (b) the capacity of that party to understand, and act on, the Tribunal’s orders and directions; and (c) whether the party causing the disadvantage is acting deliberately. [14] I am satisfied that the respondent’s failure to engage in this proceeding is unnecessarily disadvantaging the applicant by delaying the determination of her legal entitlements. [15] The evidence about the matters to which the Tribunal must have regard is limited. I am unable to form a view about the extent to which the respondent is familiar with the Tribunal’s practices and procedures. The respondent has the ability to conduct a business, enter into a contract, issue quotes and invoices and perform work. The application was personally served on him. The Tribunal’s orders and directions were expressed in plain English. I am not satisfied that he lacks the capacity to understand, and act on, the Tribunal’s orders and directions. In the absence of an explanation to the contrary, I am satisfied that the respondent’s failure to engage in this proceeding is deliberate. [16] Having regard to the matters in s 48 of the QCAT Act, I am satisfied that it is appropriate to make a final decision in the applicant’s favour. The dispute [17] On 11 February 2022 the applicant and respondent entered into a contract for the construction of a swimming pool for an amount of $43,835. The respondent was at all relevant times licensed to carry out that work. The business name he used was Coyne Pool Construction. [18] The general conditions of the contract included that the work would be carried out in accordance with the plans and specifications. The first payment stage, which was the deposit, covered ‘Site preparation, Engineering plans, Certification and QBCC insurance’. Engineering plans by Structural Innovations Australia, Consulting Engineers (‘SIA’), were certified on 21 April 2022 by Coastline Building Certification Group (‘Coastline’). The plans are detailed and they reference relevant building standards. [19] The QBCC Act provides that a domestic building contract for an amount equal to or more than $20,000 is a level 2 regulated contract.6 As the contract was for $43,835 it is classified as a level 2 regulated contract. A level 2 regulated contract must meet certain criteria in order to have effect.7 One criterion is that it includes: any plans and specifications for the subject work, including all plans and specifications required for carrying out the work in compliance with any development approvals or similar authorisations that are required by law for carrying out the work 6 Ibid sch 1B, ss 1 (definition of ‘regulated amount’), 7(1)(a), 7(2); Queensland Building and Construction Commission Regulation 2018 (Qld) reg 45. 7 Ibid sch 1B, s 14(2), (10). -- 4 of 10 -- 5 [20] While the contract did not include the engineering plans when it was formed, it contemplated the plans being provided and certified. I am satisfied that the contract incorporated the plans once they were certified. I am also satisfied that the contact met the other criteria for a level 2 regulated contract and was therefore compliant. [21] The respondent commenced the building work on 26 April 2022. The Contract gave the date for practical completion as 21 June 2022. [22] The contract was varied twice, with the variations being agreed in writing, signed by both parties on the QBCC Form 5 variation document. [23] There is a document dated 11 May 2022 on Coastline letterhead that is entitled ‘Inspection report QB2210158 – 1. Pool steel inspection’, signed by a Mark Leeves – Inspector. It states: Provide a revised engineering and Form 15 design certificate for the pool with no coping bars as per the engineering plans. The final inspection report by Mr Leeves dated 9 November 2022 also referred to this issue. It said ‘Generally satisfactory (minor issues) subject to documents being provided’ and asked for (among other things) Confirmation from the engineer that it is acceptable for the concrete pool surround to be supported on the pool coping (plans indicated the surround slab to be separate). See below for additional information from the engineer. and Revised engineering and Form 15 design certificate for the pool with no coping bars to the perimeter as shown on the engineering plans as per the pool steel inspection report dated 11/05/2022 (see item 5 for concrete slab surround). [24] Mr Leeves also identified some other defects including that the glass pool fencing did not conform to the mandatory safety standard. [25] On 11 November 2022, Danielle Coyne8 of Coyne Pool Construction sent an email to the applicant that said they would ‘get this changed by the engineer and send the revised plans to you and the certifier’. On 20 December 2022, the applicant sent a reply that said ‘Just wondering if you have received the revised engineering plans & could you please forward them onto me?’. [26] On 11 January 2023, the applicant sent another email that said ‘Just checking in as it’s been 6 weeks since I last heard from you. Do you have any updates on revised engineering plans and pebblecrete?’ There were some more emails about those topics but it does not appear that any progress was made. [27] I note that although the applicant asked about ‘revised engineering plans’ she has not conceded that she had, at that time, waived her entitlement to a pool that was constructed according to the plans. Further, there is no variation document in the Tribunal materials with respect to revised plans. I am not satisfied that the contract was ever varied so that the respondent was relieved of the obligation to construct the pool in accordance with the certified SIA plans. 8 Presumably married to, or otherwise related to, the respondent. -- 5 of 10 -- 6 [28] An invoice for the final payment of $5,000 was issued in February 2023. The applicant had paid the three previous invoices but she did not pay this one. [29] On 29 March 2023, the applicant sent an email to the Coyne Pool Construction that referred to a handover on 6 March 2023 and an earlier conversation about the pool lights being dangerous, patching of pebblecrete and ‘discharging the backwash’. On 20 April 2023, the applicant sent another email listing more defects that she said had been pointed out during handover and she asked if they could be attended to. Photos of some of these have been provided to the Tribunal. [30] On 9 June 2023, the applicant informed the respondent that she had lodged a complaint with the Queensland Building and Construction Commission (‘QBCC’). QBCC did not order the respondent to rectify the claimed defects and closed the case on 22 December 2023. The applicant claims that the pool did not qualify for the home warranty scheme. [31] There is an email dated 12 January 2024 from Mark Trenchard-Smith, Senior Structural Engineer, SIA, with a subject line that includes the applicant’s name and address. It states: As discussed, we are not certifying the construction of the pool shell due to photographs taken during the private certifier inspection showing the pool shell coping reinforcement not being in accordance with our drawings. Additionally, we require concrete slabs on ground to be fixed to the pool shell to ensure no differential movement between pool shell and slab on ground. [32] While it is not entirely clear, it appears that the deviance from the plans resulted in poorer reinforcement in the pool shell, and poorer stability, than the certified plans required. [33] Clause 3.1 of the contract included: (a) the work under this Contract will be carried out in an appropriate and skilful way and with reasonable care and skill and reasonable diligence; … (d) the work under this Contract will be carried out in accordance with the plans and specifications and any other Contract documents; [34] Clause 23.4 provided that: Substantial breach by the Contractor includes, but is not limited to: (a) failing to perform the works under this contract competently; … (d) unreasonably failing to perform the work diligently… [35] On 23 January 2024, the applicant’s lawyers emailed the respondent a notice of intention to terminate the contract. [36] The notice asserted that the works had not reached practical completion by the due date or at all, which was a substantial breach of the contract. The notice further alleged that by failing to construct the pool in accordance with the plans and specifications, the respondent had breached the contract, by failing to carry out the work under the Contract in an appropriate and skilful way with reasonable care, skill and reasonable -- 6 of 10 -- 7 diligence; carry out the work under the Contract in accordance with all relevant laws and legal requirements including the Building Act 1975 (Qld); and carry out the work under the Contract in accordance with the plans, specifications and other Contract documents. Further, this constituted a substantial breach. [37] It seems clear that failing to conform to plans constitutes lack of reasonable care and diligence. The notice did not explain how that constituted a failure to carry out the works in accordance with all relevant laws and legal requirements including the Building Act 1975 (Qld). [38] The notice listed the following additional alleged defects, that were said to collectively constitute a substantial breach, presumably on the basis that the work was not performed competently or diligently: (a) Defective installation of two pool lights which are sticking out/not flush with the wall due to uneven pebblecrete; (b) Stain and discolouration of pebblecrete on pool bench; (c) Pebblecrete on most of the bench step of the pool is failing; (d) Pebblecrete is missing on west side of skimmer box of the pool; (e) Blackspot in the pebblecrete upon the western wall; (f) Multiple rust stains of entire pool in the pebblecrete; (g) Pebblecrete remains on polished concrete surrounds of pool. [39] These defects had previously been mentioned during the handover and in the email of 20 April 2023. The letter gave the respondent 10 business days to rectify the alleged breaches or the applicant would terminate the contract. [40] Clause 23.1 of the contract provided that: If: (a) a party is in substantial breach of this Contract; and (b) the other party gives a notice to the party in breach identifying and describing the breach and stating the intention of the party giving notice to terminate the Contract if the breach is not remedied within 10 business days from the giving of the notice; and (c) the breach is not so remedied, then, the party giving that notice may terminate this Contract by a further written notice given to the party in breach and may recover from the party in breach all damages, loss, cost or expense occasioned to the party so terminating by or in connection with the breach or that termination and may set off such claim against payment otherwise due by the party so terminating. [41] The respondent did not perform any further work and on 8 February 2024, the applicant terminated the contract. I am satisfied that the termination was done in accordance with the requirements in the contract. [42] I note that clause 25 provided for the practical completion stage payment to be made. ‘Practical completion’ was not defined in the contract. However, it is uncontroversial that while practical completion may be achieved where there are only minor defects, it will not be achieved where there is a major structural defect. -- 7 of 10 -- 8 [43] In April 2025, the applicant applied to the Tribunal. Her application included the following representations: Certification was not awarded as the builder did not follow the engineers (sic) drawings. The pool had been built incorrectly. The pool and it’s (sic) surrounds had been completed and the builder issued an invoice for final payment however, practical completion had not been reached so the final payment was not due as per the contract. When practical completion was delayed i (sic) looked into the issue and realised the builder had made a massive mistake with the pool shell. I emailed the engineer to find out why he would not certify the pool and realised the problem cannot be fixed. The pool and its surrounds need to be completely removed and rebuilt hence the large sum for restitution. The builder went silent after multiple attempts asking them to rectify the situation so I then got legal advice and terminated the contract. I then applied to the Queensland home warranty scheme and after nine months of waiting I was told the pool didn’t qualify for the scheme. QCAT is my last option. [44] The applicant has provided quotes for remedial work and photographs of the pool and surrounding area. Findings [45] I am satisfied that the applicant and respondent entered into a compliant level 2 regulated building contract that required the respondent to construct a pool and spa in accordance with certified engineering plans that were later incorporated into the contract. I am further satisfied, on the basis of the certifier’s reports and the email from the senior engineer, that the pool was not constructed in accordance with the plans and that the variance from the plans related to a structural issue, being the reinforcement of the pool shell. While the senior engineer required concrete slabs on the ground to be fixed to the pool shell, which suggests that this was required by the plans, he was not clear about this and it is not readily apparent on my reading of the plans. [46] The respondent’s failure to include reinforcing in accordance with the engineering plans breached clause 3(a) and clause 3(d) of the contract. I am satisfied that the failure to adhere to the plans constituted a failure to perform the contracted works competently, and failure to perform the work diligently, so it was a substantial breach under sub-clauses 23.4(a) and 23.4(d), respectively. This meant that practical completion was never reached. That was also a breach of the contract as the date for practical completion was not met. [47] The applicant claims there are numerous other defects in the work, although these appear to be non-structural and relatively minor. I accept that these defects were brought to the attention of the respondent in April 2023 at the latest, and that the respondent did not rectify them. I accept that the respondent’s failure to rectify them constituted a substantial breach under sub-clauses 23.4(a) and 23.4(d), respectively -- 8 of 10 -- 9 [48] I am satisfied that the applicant gave notice under clause 23.1(b) and the defects were not remedied within 10 business days. Accordingly, under clause 23.1(c), the applicant was entitled to terminate the contract, which she did, and she became entitled to damages, loss, cost or expense occasioned to her by or in connection with the breach(es) or the termination. Damages [49] The measure of damages recoverable by a building owner for breach of a building contract is the difference between the contract price for the work and the cost of making the work conform to the contract, subject to the rectification work being a reasonable course to adopt.9 [50] The applicant has not had any rectification work done yet. According to her, the only way to rectify the non-conformity with the plans is to demolish the swimming pool and build another one. Given the defect involves reinforcement within the pool shell, and in the absence of evidence to the contrary, I accept that. If a new pool is to be built, that would obviate the need to fix the other defects. [51] The applicant also claims that the surrounding area including a large shed will have to be demolished and rebuilt because it is all tied to the polished concrete surrounds. [52] It is incumbent upon the applicant to establish a reasonable basis for the proposed work and cost of the work. She provided quotes from people she described as licensed tradespersons. One was from a Troy Piggot of Infinity Pools, with a QBCC license number, for demolition and re-build of the pool. The quote lists the following items: Removal of existing Shed that blocks the access path to the back yard Supply of excavator, bobcat, labourer and truck Allowance of 3 days to jack hammer, cut and remove honed concrete Remove existing pool shell Disposal of concrete Engineering plans Private Certifier Reform a 7 x 3m pool Steel a 7 x 3m pool Plumbing provisions Concrete shell pour Pebblecrete Handover and Certification [53] The quote gives an ‘approximate costs range from $83,000 - 90,000 + GST’. However, the cost is not itemised despite the items being listed. Some items require explanation. The photographs provided by the applicant show a two meter wide path to the backyard, which is not blocked by the shed. If the shed is somehow preventing access, the evidence before the Tribunal does not establish that. I also query the inclusion of ‘engineering plans’ given there are already engineering plans and the applicant is entitled to have a pool constructed in accordance with those plans. If there is a cost associated with using those plans outside of the building contract, it is not established by the evidence. [54] I am not satisfied that the applicant is entitled to damages for the cost of demolishing the shed or for engineering plans. Without itemisation, it is not possible to tell what 9 Bellgrove v Eldridge (1954) 90 CLR 613. -- 9 of 10 -- 10 the cost of the rectification work would be without those items. I will adopt a conservative approach by starting with the low end of the estimated total, being $83,000 and deduct $10,000 for the excluded items. That leaves a total of $73,000 plus GST ($80,300) for demolition of the pool and surrounding concrete, and construction of a compliant pool. [55] The applicant provided a quote from another builder for the area around the pool to be re-paved. That quote said: 60m2 pool surround 100mm think with thickenings, S182 Mesh, 32mpa concrete Pumped in, saw cut and crusher dust included $11,000 Grind and seal pool surround 28 days later 60m2 and 20lm meters of coping to grind inc sealers and glass grit $9,500 Plus GST = $22,550.00 [56] In the absence of challenge from the respondent or evidence to the contrary, I accept that this is a reasonable quote. The applicant is entitled to damages in that amount for re-paving around the pool. [57] The applicant provided a quote of $10,040 for the supply and construction of a kit shed. As stated, I am not satisfied that the existing shed must be demolished. The applicant is not entitled to damages for the cost of a new shed. [58] The total damages that I have allowed is $102,850. The applicant paid the respondent $5,000 less than the agreed contract price because of the defects. That amount should be deducted, which leaves a total of $97,850. [59] The applicant provided an itemised, paid, invoice for $852 for legal services in relation to the termination of the contract. I am satisfied that the amount is reasonable and was incurred in connection with the termination of the contract, so it is recoverable under clause 23.1(c). [60] The Tribunal may order interest to accrue on the damages awarded from the day of the order. However, the applicant did not seek an order for interest, so I decline to make one. [61] I will give the respondent longer than the standard period to pay the damages for the cost of rectification because it is a large amount for a small business. Other orders [62] The applicant sought recovery of $400 for the filing fee. The filing fee was $379.50. The Tribunal may order costs under s 77(3)(h) of the QBCC Act. The discretion is a broad one. I am satisfied that the cost of the filing fee was reasonably incurred by the applicant in her efforts to pursue her legal entitlements. It is appropriate that the respondent reimburse the $379.50 filing fee. [63] The applicant also sought an apology from the respondent and for the respondent to be issued a fine and demerit points on his QBCC licence. However, the Tribunal does not have the power make such orders. -- 10 of 10 --