Devereaux v Schmidt [2025] QCAT 315

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Devereaux v Schmidt [2025] QCAT 315 PARTIES: LEANNE DEVEREAUX (applicant) v NATHAN SCHMIDT (respondent) APPLICATION NO/S: BDL408-23 MATTER TYPE: Building matters DELIVERED ON: 11 September 2025 (Amended on 11 September 2025) HEARING DATE: 3 June 2025 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Nathan Schmidt pay Leanne Devereaux the sum of $8,298 within 14 days of this order. Nathan Schmidt file in the Tribunal and give a copy to Leanne Devereaux of any submissions in response to the claim by Leanne Devereaux for payment by him of the cost of $440 for the report made by Total Building Inspections Qld within 14 days of the date of this order. The decision on costs shall be made on the papers. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY – where domestic building work was done having a value greater than $3,300 by an unlicensed contractor – where there was no written contract – where the work was defective – where the respondent was not entitled to recover or keep remuneration paid for the unlicensed work – where a licensed contractor recommended the construction work done be demolished – where it was held the owner was entitled to recover cash payments made evidenced by bank statements but not for other damage claimed done in absence of evidence Queensland Building and Construction Commission Act 1991 (Qld), s 42 Queensland Building and Construction Commission Regulation 2018 (Qld), s 5, Schedule 1 s 2 -- 1 of 6 -- 2 Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 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 [1] In around August 2023 the respondent Mr Schmidt built a deck for the applicant, Ms Devereaux, at her home. [2] The cost to Ms Devereaux was $6,483. [3] Ms Devereaux says the construction is poor and it must be demolished. [4] She commenced the within domestic building dispute in the Tribunal seeking to recover an amount of $9,335 from Mr Schmidt for the cost of demolishing the deck and building a new one. The applicant’s case [5] According to the applicant, Mr Schmidt initially quoted her for three different types of construction. The applicant accepted one of the quotes providing for use of “composite decking” at a cost of $6,550 (incl GST). No written contract was entered into. [6] The work commenced on 9 August 2023 and was completed on 27 August 2023. [7] Ms Devereaux says she paid a supplier $2,898 for “eco boards” used in the construction of the deck. She says that is evidenced by a copy of a bank statement from her account. [8] She says she paid $385 for delivery of that timber on 24 August 2023, again claimed to be evidenced by her bank statement and she says she paid Mr Schmidt $3,200 in cash for his work, relying on another bank statement showing a cash withdrawal in that amount on 25 August 2023. She says she paid Mr Schmidt $3,200 on 27 August 2023 after he had finished the work. [9] She says she therefore paid out $6,483 in total. [10] Ms Devereaux was disappointed with the standard of the work done. She engaged Total Building Inspections Qld to provide a report. That company inspected the work and provided a report. The report was prepared by a licensed building contractor. The report concluded that the deck was poorly built and required demolishing summarising as follows: The quality of the workmanship to this deck is poor. It appears that this work has been completed by a person not qualified for the task of building a deck. This deck has been built on the ground with no foundation being used. Because of this the deck can subside with ground movement or moisture. Because of these reasons this structure requires demolishing and rebuilt to Australian Standards 1684. Recommend checking licensing details for the contractor that was used. -- 2 of 6 -- 3 Directions made in the proceedings [11] The respondent failed to file a response to the application for building dispute as required by the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) and as directed by the Tribunal, despite time for that being extended. The respondent did file an informal answer to the claim after that and the Tribunal directed that that document be deemed a response to the applicant’s claim. [12] As is usual in Tribunal proceedings, the Tribunal directed the parties to file written statements of evidence and give copies to each other. The applicant complied but the respondent did not. The respondent was warned that failure to comply with directions for the filing of evidence would result in denial of opportunity to do so in the future. [13] In result the Tribunal ultimately directed that the matter be determined on the papers on the written submissions of the parties filed and without oral hearing. The respondent’s case [14] The only material filed by the respondent is the informal “response” filed 12 March 2024. [15] There Mr Schmidt complains mostly about Ms Devereaux’s pursuit of her claim amounting to abuse and intimidation and defamation. [16] He says he claims against the applicant compensation of $6,250, but he has filed no counter application entitling him to ask for that relief, nor offered evidence in support of his claim to $2,000 “unpaid income”, $850 for a day’s labour rebuilding the deck after complaint made by the applicant and additional weekend charges previously omitted from his bill which he says amounts to $3,400. [17] Mr Schmidt attaches to the informal response a copy of information he provided to the Queensland Building and Construction Commission (‘QBCC’) on complaint made about his construction of the deck without a contractor’s licence. [18] He advised QBCC that he had been engaged to: Build an on-ground structure approx.. 200mm off the ground out of H4 Treated Pine Sleepers and H3 joists that had no contact with the ground to support decking boards the client provided. This structure is noncertified and no certification is required as it is a “Walkway” only, at ground level. My portion of the works was under $3,300 as specified by QBCC works. [19] He added that he was to be paid $3,200 but had only been given $1,200 in cash in an envelope. Legislation [20] Division 7 of Part 3 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘the Act’ or ‘QBCC Act’) is entitled Requirement to be licensed. By s 42 of that Division it is provided: 42 Unlawful carrying out of building work (1) Unless exempt under schedule 1A, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under this Act. -- 3 of 6 -- 4 … (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed— (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following— (i) the supply of the person’s own labour; (ii) the making of a profit by the person for carrying out the building work; (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit. [21] Building work is defined in Schedule 2 of the Act to include the renovation, alteration, extension, improvement or repair of a building, which would seem to cover the work done here, the construction of a deck at the house. His quotes referred to a deck. QBCC categorised the work as construction of a deck in their correspondence to Ms Devereaux advising her they would not direct Mr Schmidt to rectify the work (given lack of evidence of the agreement between the parties and evidence that the value of the work exceeded $3,300). [22] I determine that Mr Schmidt agreed to construct a deck at the house and that the work was building work. [23] The definition goes on to say however that building work does not include work of a kind excluded by regulation. [24] By s 5 of the Queensland Building and Construction Commission Regulation 2018 (Qld) the work stated in Schedule 1 of the regulation is not building work. Section 2 of Schedule 1 identifies “work of a value of $3,300 or less”. [25] The value of building work includes the cost of both labour and materials. The applicant’s claim [26] Mr Schmidt gave a written quote covering three options for the construction of “Decking”. He quoted for bamboo decking, for composite decking and for treated pine decking. He quoted a price of $6,550 for the composite decking option which Ms Devereaux accepted. [27] The value of the work, regardless which party purchased the timber, exceeded $3,300, and it was therefore building work associated with the alteration, extension, -- 4 of 6 -- 5 improvement or repair of a building, regardless as to whether it was described as a walkway or deck. A contractor’s licence was required. [28] Section 42(3) of the Act is therefore triggered and Mr Schmidt is not entitled to any monetary consideration for the work done, whether good work or poor. [29] That means he must pay back any money paid to him for the work, save he may claim reasonable remuneration limited to the cost of materials supplied. Given all the money paid to him was for his labour, all the money paid must be refunded to Ms Devereaux. [30] Ms Devereaux states she paid Mr Schmidt $3,200. Mr Schmidt says he only received $1,200. [31] There is no evidence that Mr Schmidt voiced any complaint, either in writing or orally, after the claimed short fall payment made on 27 August 2023. According to Ms Devereaux, who denies the shortfall, the first time that was suggested by Mr Schmidt was some 11 weeks after payment when the parties were in dispute. [32] I accept Ms Devereaux’s evidence that she paid him cash in the sum of $3,200. The bank statement showing that amount withdrawn from her account on the same date as money was admitted by Mr Schmidt to have been paid to him by her, confirms that to my satisfaction. [33] Ms Devereaux also claims from Mr Schmidt the cost of demolition and reconstruction of a deck by a licensed contractor. [34] Given there was no contract in writing between the parties, by s 13 Schedule 1B of the QBCC Act there is no contract between the parties having any effect. Ms Devereaux is not entitled to sue on the warranties implied under the QBCC Act Schedule 1B in regulated contracts nor otherwise claim damages for breach of contract. [35] Any claim Ms Devereaux has must lie in negligence. Such is available as an exception to the rule that there is no claim in negligence for pure economic loss.1 The builder, Mr Schmidt, may be taken to have assumed a responsibility, a duty of care towards Ms Devereaux, to take reasonable care to avoid causing her economic loss. The pure economic loss caused her is clear, the deck is useless and must be demolished and replaced. I accept the report by Total Building Inspections Qld about that. There is no expert or other evidence contradicting that evidence. [36] What is her economic loss? [37] The deck must be demolished. Ms Devereaux has a quotation for that from Fornash Pty Ltd in the sum of $1,815 (incl GST). That cost is not challenged by anything in Mr Schmidt’s material and is allowed. [38] Ms Devereaux also claims however for the full amount of the cost to her of the deck $6,480 (sic). In fact she paid $6,483. [39] But given Ms Devereaux will recover the money paid for labour, $3,200, pursuant to s 42 of the QBCC Act, that means her “loss” is limited to only the money paid by her 1 Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25, [30], [33]; Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476, [44]. -- 5 of 6 -- 6 for the timber, $2,898, and cost of its delivery $385, a total of $3,283. She is entitled to recover that as damages for negligence. [40] Ms Devereaux also claims a number of other things however, $600 for replacement of nine chipped tiles and $440 for the cost of the expert report by Total Building Inspections Qld. [41] There is no evidence in support of a cost of $600 to replace tiles or explanation offered as to how that amount is calculated. Without evidence I am not prepared to order Mr Schmidt to make any payment. [42] The cost of $440 for the expert report forms no part of the substantive claim in negligence. It is a cost of the litigation. In her initiating application Ms Devereaux claims costs generally. Given the parties are not legally represented I conclude the only costs at issue are the cost of the report by Total Building Inspections Qld, $440, and any filing fee paid for the application for domestic building dispute. Given the filing fee was waived by the registry, the only cost issue is the claim for payment of the report. [43] It is appropriate that Mr Schmidt be given an opportunity to make submissions about that. [44] Mr Schmidt must refund the amount of $3,200 paid for his labour and pay damages of $2,898 for cost of timber, cost of timber delivery of $385 and cost of demolition of $1,815, a total of $8,298. -- 6 of 6 --