Dvorak v Jensen [2025] QCAT 110

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Dvorak v Jensen [2025] QCAT 110 PARTIES: RENATA DVORAK (applicant) v BEN JENSEN (respondent) APPLICATION NO: BDL328-22 MATTER TYPE: Building matters DELIVERED ON: 17 March 2025 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Scott-Mackenzie ORDERS: The respondent pay to the applicant $6,225.88 within 14 days of this order. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where applicant retained the respondent to carry out building work –– where there was no level 1 regulated contract – where building work was not carried out as agreed and was defective –– whether there was an enforceable contract between the parties –– whether the respondent owed the applicant a duty of care – whether the respondent breached the duty of care –– whether the applicant is entitled to the loss claimed Civil Liability Act 2003 (Qld), s 4, s 9, sch 2 Queensland Building and Construction Commission Act 1991 (Qld), s 77, sch 1B Brookfield Multiplex v Owners Corporation Strata Plan No. 61288 [2014] HCA 36 Bryan v Maloney [1995] HCA 17 Burnell v Jarvis [2024] QCAT 126 Cerda v Jacob [2020] QCATA 57 Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 Dvorak v Jensen [2023] QCAT 437 Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315 McSwan & Anor v Weaver [2023] QCAT 148 Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16 -- 1 of 14 -- 2 APPEARANCES & REPRESENTATION: The proceeding was heard and decided on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) REASONS FOR DECISION Application [1] On 16 November 2022 the applicant (‘Ms Dvorak’) made application to the Tribunal for a domestic building dispute under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) (‘original application’). She claimed against the respondent (‘Mr Jensen’) the following: Damages and interest on damages $ 1,380.00 Rectification of defective work $ 9,301.00 Completion of incomplete work $ 3,423.80 $14,104.80 [2] Subsequently, on 10 July 2023, pursuant to leave granted by the Tribunal, Ms Dvorak filed an amended application (‘amended application’). She now claims against Mr Jensen: Damages and interest on damages $13,983.80 Rectification of defective work $11,008.80 $24,992.60 Background and chronology of the events [3] Ms Dvorak filed in the Tribunal with the original application a summary of the background to the proceeding and a chronology of events. Briefly, the roots of a gumtree planted by the Brisbane City Council in the nature strip adjacent to or near Ms Dvorak’s home at 32 Daintree Drive, Parkinson (‘Ms Dvorak’s home’) caused damage to the concrete and paved driveway of the home. The Council agreed to pay the cost to repair the driveway. [4] On 15 September 2021 Mr Jensen provided Ms Dvorak with a quotation to repair the damage to the concrete driveway. The quotation was in the form of an invoice for $18,983.80. In part, it is reproduced below: Description Amount ($) Remove Approximately 25 cubic meters of concrete 1,000.00 Remove approximately 25 cubic meters of concrete and pavers to be removed from site Replace driveway 5,950.00 Approximately 25 square meters to be replaced and reinforced with F72 steel mesh at 100mm thickness -- 2 of 14 -- 3 Supply of pavers 3,000.00 Supply and match existing pavers, lay tiles to suit current driveway Concrete approx. 25 square meters 4,158.00 Approximately 25 square meters of grey concrete reinforced at 100mm thickness. To make area for bin and under window Skip Bin 650.00 Bin to be delivered for site clean Earth works / excavation 2,500.00 Excavation hire SUBTOTAL: $17,258.00 GST 10% from 17,258.00 $1,725.80 TOTAL (AUD): $18,983.80 TOTAL DUE (AUD) $18,983.80 [5] Ms Dvorak accepted the quotation. [6] On 11 October 2021 Ms Dvorak paid to Mr Jensen a deposit of $5,177.40. [7] The building work commenced on 14 December 2021. Ms Dvorak asserts a mini excavator was used to remove the existing pavers when the agreement between the parties was for removal of the pavers manually and relaying the pavers on the new concrete driveway. The existing pavers were scratched and broken and could not be reused. [8] Ms Dvorak, on 20 December 2021, paid to Mr Jensen a further sum of $8,806.40. [9] On 23 December 2021 the concrete for the new driveway was poured without accounting for the laying of the pavers. [10] On 4 March 2022 the concrete poured on 23 December 2021 was removed and new concrete poured. However, it is asserted by Ms Dvorak, the new concrete was rough and uneven. [11] Ms Dvorak identifies eight issues in dispute between the parties. First, Mr Jensen poured 50mm of concrete when the requirement for a driveway is 100mm. [12] Secondly, the concrete poured has created a tripping hazard at or near the top left corner of the driveway and the concrete is cracking. [13] Thirdly, Mr Jensen has charged GST, despite not being registered for GST. Further, he did not provide Ms Dvorak with a copy of the contract for the work or particulars of his licence to carry out the work. [14] Fourthly, the pavers that were to be removed by hand and re-used were scratched and broken when removed using a mini excavator. [15] Fifthly, Ms Dvorak did not see Mr Jensen install a root barrier as agreed. -- 3 of 14 -- 4 [16] Sixthly, the mini excavator damaged Ms Dvorak’s garage door. [17] Seventhly, Mr Jensen damaged porch tiles. [18] Eighthly, the mini excavator damaged the ramp to the driveway of Ms Dvorak’s neighbour at 36 Daintree Drive, Parkinson. [19] Ms Dvorak filed with the original application a driveway inspection report by All Inspect dated 27 June 2022 (‘driveway inspection report’). All Inspect inspected the driveway on 20 June 2022. Its findings may be summarised in the following terms: (a) the base thickness of the driveway does not comply with Australian Standard 3727.1 2016 (‘AS 3727.1’); (b) there is no Ableflex (a closed cell polyethylene foam used as an expansion joint filler in concrete joints, brick joints, blockwork, isolation joints and hinge joints) connection between the driveway and downpipes as required by AS 3727.1; and (c) the surface of the driveway does not comply with the AS 3727.1. [20] The report concludes: In conclusion, following the inspection of surface work in the readily accessible areas of the property, the driveway needs rework, rectification. Our clients have requested that we place in writing a formal request that all items in this report are rectified. We refer the builder to the builder’s own contract with our client which calls for the builder to act on ALL KNOWN DEFECTS. All items in this report are therefore brought to the builder’s attention and are therefore known to the builder. We would suggest that the builder rework the dwelling so that it complies with the minimums set out in the BCA, the Australian Standard and all other relevant requirements. If the builder feels that we are in error, we request that they justify with a counter reference that would support that position and show cause why they do not have to rectify the defects found. [21] Finally, Ms Dvorak filed with the original application several quotations and invoices, as follows: (a) an invoice from Qld Environmental Projects for $18,983.80 dated 15 September 2021 to remove and replace the driveway and supply and lay pavers; (b) a quotation from Slab Busters for $2,536.00 dated 25 August 2022 to remove sections of the driveway; (c) a quotation from Grimezys Constructions Pty Ltd for $6,765.00 dated 4 September 2022 for the driveway; and (d) an invoice and receipt from tile stone paver for $3,423.80 dated 8 October 2022 for supplying pavers. Response [22] On 18 October 2023 Mr Jensen filed a response (‘response’). He does not dispute the allegations of fact made by Ms Dvorak. However, as a matter of law, he asserts, Ms Dvorak’s claim cannot succeed on the ground it is framed in negligence and a building contractor does not owe a duty of care to a building owner, citing McSwan & Anor v -- 4 of 14 -- 5 Weaver1 (‘McSwan’). Application to dismiss the proceeding [23] Mr Jensen made application to the Tribunal for an order that the proceeding be dismissed on the ground the dispute is not a building dispute, the ground pleaded in the response. The application was decided by the Tribunal under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) following the filing of submissions by the parties.2 [24] The Tribunal concluded a concrete driveway is building work associated with the improvement of a home and therefore the construction of the concrete driveway is domestic building work within the meaning of section 4(3)(b) of schedule 1B to the QBCC Act. It follows, the Tribunal held, the dispute between the parties is a domestic building dispute within the meaning of section 77 of the QBCC Act. [25] The Tribunal further held that a concrete driveway is a fixed structure. Hence, if not a domestic building dispute, the dispute is a minor commercial building dispute. [26] The application by Mr Jensen was dismissed. Ms Dvorak’s statement of evidence [27] Ms Dvorak filed in the Tribunal a statement of evidence. She concedes there was no contract in written form. However, she asserts, Mr Jensen owed her a duty of care. [28] The initial pouring of the concrete driveway, Ms Dvorak states, did not take into account the laying of pavers and was not of the correct depth. It was too high at the top of the driveway creating a tripping hazard. [29] The pavers were removed from the old concrete driveway, Ms Dvorak continues, using a mini excavator with the consequence they were broken and scratched and could not be reused as agreed between the parties. Further, her garaged door and porch titles were damaged as was the ramp to her neighbour’s driveway. [30] Ms Dvorak includes with her statement of evidence photographs of the incorrectly poured concrete driveway and the damage to the garage door, porch tiles and ramp. She includes in her statement particulars of her claim and copies of the relevant quotations and invoices. Consideration Ms Dvorak’s written submissions [31] In her written submissions, Ms Dvorak asserts an entitlement to a refund of the money paid by her to Mr Jensen. The remainder of the claim, she continues, relates to the cost to rectify the defective building work. Mr Jensen’s written submissions [32] Mr Jensen, in written submissions filed in the Tribunal, asserts he did not require a contractor’s licence to carry out part of the building work. He later identifies the work as the removal of the existing concrete driveway and ‘earthworks/excavation’ valued at $3,500.00. 1 [2023] QCAT 148, at [61] – [86]. 2 See Dvorak v Jensen [2023] QCAT 437 (‘Dvorak No. 1’). -- 5 of 14 -- 6 [33] Mr Jensen further asserts that section 42(4) of the QBCC Act does not stop him from claiming reasonable remuneration for carrying out the building work and ‘… a full refund is not required …’ The reasonable remuneration claimed by him is $6,591.92. He cites in support of his claim for reasonable remuneration the decisions of the Tribunal in Baker v Aquatics Pool Painting Pty Ltd3 and Thompson v Shen and Kao4. [34] He asserts that Ms Dvorak’s claim to rectify the defective building work is overstated. [35] Mr Jensen again asserts he did not owe Ms Dvorak a duty of care, citing McSwan. In particular, he refers to paragraphs [61] – [68] of the decision. There, the Tribunal said: [61] As I understand it, the current state of the law is that a builder does not owe a duty of care to an original owner of a building which the builder has constructed for the owner. This is because the owner is not vulnerable to loss occasioned by any wrong that might be committed in construction of that building in terms of defective work. The reason being that the home owner is not vulnerable in the sense of loss because the owner is able to protect itself from such loss by the means of a building contract. [62] Such is the effect of the reasoning of the High Court in 2014 in Brookfield Multiplex 2014. A passage from the joint reasons therein of Hayne J and Kiefel J, as her Honour then was, is apposite given the argument raised by the applicants as to them simply relying on the respondent as a builder to have identified the relevant colour of the roof sheeting. It is as follows: It may be assumed, without deciding, that the developer and the purchaser of a lot ... relied on the builder to do its work properly. ... Because these parties could not check the quality of what the builder was doing, it can easily be said that each relied on the builder to do its work properly. Reliance, in the sense just described, may be a necessary element in demonstrating vulnerability, but it is not a sufficient element. As noted earlier, vulnerability is concerned with a plaintiff’s inability to protect itself from the defendant’s want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant. It is neither necessary nor profitable to attempt to define what would or would not constitute vulnerability. It is enough to observe that both the developer and the original purchasers made contracts ... The making of a contract which expressly provided for what quality of work was promised demonstrates the ability of the parties to protect against, and denies their vulnerability to, any lack of care by the builder in performance of its contractual obligations. [63] There is one other passage of the reasoning in that matter which is helpful in understanding the law as it relates to the circumstances the applicants have found themselves in. It is within the joint reasons of Crennan, Bell, and Keane JJ. Having cited certain passages from the reasoning in the earlier decision in Woolcock 2004 their Honours made the following observations: These passages accord with the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed 3 [2020] QCAT 280. 4 [2017] QCAT 33. -- 6 of 14 -- 7 expectations under a contract. The common law has not developed with a view of altering the allocation of economic risks between parties to a contract by supplementing or supplanting the terms of the contract by duties imposed by the law of tort. Statutory provisions may supplement the common law of contract by providing for special protection to identified classes of purchasers on the ground, for example, that they may not be expected to be sufficiently astute to protect their own economic interests. Part 2C of the Home Building Act 1989 (NSW) is an example of such a statutory regime. By enacting the scheme of statutory warranties, the legislature adopted a policy of consumer protection for those who acquire buildings as dwellings. [64] The references to the statutory regime and statutory warranties to which their Honours were referring is the equivalent of the Home Warranty Scheme enacted in Queensland under the QBCC Act, and as relevant in this proceeding the statutory warranties enacted under Schedule 1 B of that legislation to be incorporated into every regulated contract. The latter is a relevant part of the statutory scheme the Queensland Supreme Court was concerned with in Mousa 2019. [65] Whilst such a scheme and warranties may protect any subsequent owner of the applicants’ property should they sell it, they do not protect the applicants. This is because of the absence of an effective contract entered into between them and the respondent. But the absence of same does not mean that they can be considered to have been without protection and thus can revert to the law of tort. This is because it was incumbent on them, just as much as the respondent, to give effect to the requirements of the legislation and ensure that the contract was put into writing. As the Appeal Tribunal put it in the passage I extracted from Cerda 2000 at paragraph [44] in these reasons These minimum mandatory requirements are neither difficult for builders and building owners to comply with nor onerous in circumstances where persons contract for the performance of domestic building work. [66] However it may be observed that, contrary to that observation, at least in part, the observation of the Tribunal at first instance in Judd 2022 was that the home owner was vulnerable in that she would not have been alerted to, nor appreciated the significance of, the availability of protections that a contract may have afforded. [67] Returning once again to the words of the Appeal Tribunal in Cerda 2020, to which I referred earlier in these reasons: If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts. [68] A similar observation, but one with a more expansive point being covered, was made by the learned Member in Clarke v Queensland Building and Construction Commission: More to the point, level 2 regulated contracts are significant contracts. The statutory requirement for them to be in writing, dated and signed by or on behalf of both parties is there for a self-evident reason – to minimise disputes, of which the current matter is an example, about the terms of such contracts. There is obviously a consumer protection element to the -- 7 of 14 -- 8 evident policy of the legislation, but there is also a broader public interest in the minimisation of disputes the resolution of which, through publicly- funded mechanisms such as the Commission’s and Tribunal’s review processes, comes at a cost to the general public. It is prudent for owners entering into significant arrangements with builders to ensure they have a written contract signed by both parties and dated. Parliament’s plain intention is that owners or builders who fail to observe that requirement do so at their peril. (Citations omitted) [36] In conclusion, Mr Jensen asserts: 4.1. As noted above, there are two separate parts to the Applicant’s claim, being: (1) that I should refund the moneys the Applicant paid to me because I was unlicensed - as detailed above, I incurred reasonable remuneration that I am entitled pursuant to section 42(4) of the Act to keep; and (2) that I am liable in accordance with the tort of negligence to pay the Repair Costs - as detailed above the recent common law position supports the conclusion that I do not owe a duty of care to the Applicant, and therefore cannot be compelled to pay the Repair Costs. 4.2. It is my view that both the legal and common law position suggests the only reasonable conclusion to be drawn is that the Application must be dismissed, on the above basis. Ms Dvorak’s written submissions in reply [37] Ms Dvorak filed in the Tribunal written submissions in reply to Mr Jensen’s written submissions. In summary, Ms Dvorak asserts: (a) whilst preparation work may not have required a contractor’s licence, it formed part of the building work Mr Jensen was engaged to carry out which required a licence; (b) the only acceptable evidence of reasonable remuneration for carrying out the building work is the cost of concrete supplied in the sum of $1,518.89; and (c) the quotation to repair the damage to the concrete driveway provided by Mr Jensen to what Ms Dvorak included ‘Supply and match existing pavers, lay tiles to suit current driveway’; and (d) there are fundamental differences between the facts in McSwan and the facts here. [38] In conclusion, Ms Dvorak seeks orders from the Tribunal for a refund of the money paid by her to Mr Jensen ($13,983.80) less the cost of the concrete supplied ($1,518.89), a total of $12,464.91, and the cost to rectify the defective work ($11,008.80) less the cost to rectify the damage to her neighbour’s ramp ($150.00), a total of $10,858.80, an overall total of $23,323.71. -- 8 of 14 -- 9 Jurisdiction [39] It is not disputed Ms Dvorak is a building owner and Mr Jensen, at the relevant time, was a building contractor.5 [40] The Tribunal, in Dvorak No. 1, held a concrete driveway is building work associated with the improvement of a home and therefore the construction of the concrete driveway is domestic building work within the meaning of section 4(3)(b) of schedule 1B to the QBCC Act. I agree with and adopt the reasoning and conclusion reached. [41] It follows the dispute between the parties is a domestic building dispute within the meaning of section 77 of the QBCC Act. [42] Alternatively, the Tribunal held, a concrete driveway is a fixed structure and, hence, if the dispute is not a domestic building dispute, it is a minor commercial building dispute. [43] Ms Dvorak, before applying to the Tribunal, complied with the process established by the Queensland Building and Construction Commission to attempt to resolve the dispute, as required by section 77(2) of the QBCC Act. [44] The Tribunal has jurisdiction to decide the dispute. Contract [45] The next issue to be decided by the Tribunal is whether there was an enforceable contract between the parties. [46] Mr Jensen, the evidence shows, sent to Ms Dvorak by email a quotation for the building work in the form of an invoice. The contract price was $18,983.80. [47] It is clear Ms Dvorak accepted the quotation. She paid a deposit and building work was carried out. However, how Ms Dvorak accepted the quotation is unclear. She concedes there was no contract in written form. [48] The requirements for a level 1 regulated contract are spelt out in section 13 of schedule 1B to the QBCC Act. A level 1 regulated contract is a domestic building contract for which the contract price is more than $3,300.00 but less than $20,000.00. [49] A level 1 regulated contract must be in written form, dated and signed by or on behalf of each of the parties to it.6 It must contain the particulars and documents specified in section 13(3) and comply with all other requirements prescribed by regulation. [50] The contract has effect only if it complies with section 13(2). [51] The contract between the parties did not comply with the requirements of section 13(2) of schedule 1B to the QBCC Act. The consequence is it is of no effect and Ms Dvorak is without the benefit of the warranties implied by the Act. Negligence [52] Ms Dvorak asserts a claim in negligence. As I have said, Mr Jensen resists the claim on the ground a building contractor does not owe a duty of care to a building owner, in reliance on the decision in McSwan. There, the applicants engaged the respondent to construct an eight-bay carport adjoining their home. The contract between the parties was not in written form and otherwise did not comply with the requirements of section 5 QBCC Act, sch 2, the definitions of building owner and building contractor. 6 Ibid, sch 1B s 13(2). -- 9 of 14 -- 10 14(2) of schedule 1B to the QBCC Act. The dispute between the parties concerned the colour of the roof of the carport, the claim being framed in negligence. [53] The Tribunal, after considering the decided cases, concluded a building contractor does not owe a building owner a duty of care because the building owner is able to protect himself or herself by complying with the requirements for a regulated contract thereby gaining the benefit of the statutory warranties. The Tribunal rejected the claim in negligence, observing: What this extensive judicial reasoning shows us is that ‘it is not what the applicants did that matters, it is what they could have done’. To put it in terms of the facts – it is not the fact that they entered into a contract that was of no effect that left them vulnerable, it is the fact that they could have, and moreover were required by legislation to have, entered into a contract reduced to writing that complied with the requirements of Schedule 1B of the QBCC Act that would have provided them with the benefit of the statutorily imposed warranties under that legislation, thus affording them protection against failure by the respondent to have done that which they say they assumed he would do, thus they were not vulnerable. [54] The Tribunal, in Mikita v Kontek Constructions Pty Ltd7 (‘Mikita’), disagreed. The applicants’ claim in the proceeding was framed in contract and negligence. There was no contract in written form and otherwise complying with section 14(2) of schedule 1B to the QBCC Act. The claim in contract was therefore rejected. [55] In relation to the claim in negligence, the Tribunal, after reviewing McSwan and the cases there referred to, and considering other decisions, held: ... a duty of care may, in particular cases, arise between a building contractor and a homeowner despite a failure to comply with the statutory requirements of a regulated contract (and the consequential loss of the benefit of the statutory warranties under the QBCC Act), as is consistent with the approach adopted by Member Deane in [Burnell v Jarvis [2024] QCAT 126].8 [56] The liability of a building contractor in negligence again came before the Tribunal for consideration in Chau’s & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam9 (‘Chau’s’). The proceeding concerned the installation of a defective air-conditioning system. There was no level 1 regulated contract between the parties complying with section 13(2) of schedule 1B to the QBCC Act with the consequence the contract between the parties had no effect. [57] Turning to the claim in negligence, the Tribunal observed that, prior to the decision in McSwan and Mikita, the Appeal Tribunal in Cerda v Jacob10 held that a building owner was entitled to bring a claim in negligence against a building contractor for damages for defective building work. The Appeal Tribunal, however, did not undertake a detailed consideration of the decisions of the High Court of Australia in Bryan v Maloney11 (‘Bryan’), Woolcock Street Investments Pty Ltd v CDG Pty Ltd12 and Brookfield 7 [2024] QCAT 315. 8 Ibid, at 26(b). 9 [2024] QCAT 476. 10 [2020] QCATA 57. 11 [1995] HCA 17. 12 [2004] HCA 16. -- 10 of 14 -- 11 Multiplex v Owners Corporation Strata Plan No. 6128813, specifically whether the building owner was vulnerable. [58] After reviewing the decisions in McSwan and Mikita, the Tribunal in Chau’s observed that the High Court in Bryan recognised the special relationship between a building contractor and building owner for building work: On the other hand, there are strong reasons for acknowledging the existence of a relevant relationship of proximity between a builder such as Mr Bryan and a first owner such as Mrs Manion with respect to the kind of economic loss sustained by Mrs Maloney. In particular, the ordinary relationship between a builder of a house and the first owner with respect to that kind of economic loss is characterized by the kind of assumption of responsibility on the one part (i.e. the builder) and known reliance on the other (i.e. the building owner) which commonly exists in the special categories of case in which a relationship of proximity and a consequent duty of care exists in respect of pure economic loss. There is nothing to suggest that the relationship between Mr Bryan and Mrs Manion was not characterized by such an assumption of responsibility and such reliance.14 (Emphasis added) [59] It follows, the Tribunal in Chau’s held, in a domestic building case involving the original parties, there is an assumption of responsibility by the building contractor. Issues such as the vulnerability of the building owner to establish a duty of care do not arise. [60] The Tribunal concluded the relationship between the parties was characterised by an assumption of responsibility by the building contractor and known reliance by the building owner. The relationship, the Tribunal held, fell within one of the special categories of cases in which a duty of care is owed. The duty was to undertake the work in an appropriate and skilful way, with reasonable care and skill and free from defects. [61] The Tribunal concluded the building contractor had breached the duty of care owed by it to the building owner but dismissed the proceeding on the ground the claims were statute barred. [62] With respect, I agree with, and adopted, the reasoning of the Tribunal in Chau’s. As the High Court made clear in Bryan, in the ordinary relationship between a building contractor and the first building owner, there is an assumption of responsibility on the part of the building contractor and a consequent duty of care in respect of pure economic loss. [63] So here, the relationship between Ms Dvorak and Mr Jensen was one in which Mr Jensen assumed responsibility for the building work and Ms Dvorak relied on Mr Jensen. Mr Jensen, I find, owed Ms Dvorak a duty of care. The duty, as was said by the Tribunal in Chau’s, was ‘... to undertake the works in an appropriate and skilful way, with reasonable care and skill and free from defects.’ Breach of the duty of care [64] Ms Dvorak states that on 14 December 2021 Mr Jensen used a mini excavator to remove the pavers from the concrete driveway being replaced when it was agreed between the parties they would the removed manually so that they might be reused on the new concrete driveway. The pavers removed were broken and scratched and could not the 13 [2014] HCA 36. 14 Ibid, per Mason CJ and Deane and Gaudron JJ at [14]. -- 11 of 14 -- 12 reused. [65] I accept Ms Dvorak’s evidence. Mr Jensen does not contest it. [66] The new concrete driveway was poured on 23 November 2021. However, the pour did not allow for the laying of the new pavers and was removed on 4 March 2022 and re- poured on 12 March 2022. However, the re-poured concrete driveway was defective and required rectification as described in the All Inspect report. [67] I accept the evidence. Once again, Mr Jensen did not contest it. [68] In his closing submissions, Mr Jensen asserts: (a) some of the building work carried out by him did not require a contractor’s licence; (b) he is entitled to the amount paid by him in supplying materials and labour; and (c) he incurred costs in supplying materials and labour to complete and rectify the building work. [69] He further asserts Ms Dvorak’s claim is overstated and again asserts he did not owe her a duty of care. [70] Subject to exclusions of civil liability irrelevant in the circumstances here, the Civil Liability Act 2003 (Qld) (‘CL Act’) applies to any civil claim for damages for harm.15 Harm is defined to include economic loss.16 [71] A person, by virtue of section 9(1) of the CL Act, does not breach a duty to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); (b) the risk was significant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions . [72] The effect of the subsection is to draw the Tribunal’s attention to the level of risk needed to be guarded against when considering whether a building contractor has breached its duty of care. It requires an objective enquiry.17 [73] Here, the risk of harm to Ms Dvorak was that she would suffer loss and damage if Mr Jensen did not remove the pavers and the old concrete driveway, pour the new concrete driveway and relay the pavers, and otherwise carry out the building work agreed between the parties, to adopt the language used by the Tribunal in Chau’s, ‘… in an appropriate and skilful way, and with reasonable care and skill, free from defects.’ [74] The risk of harm, I find, was significant. The probability that harm to Ms Dvorak would occur if Mr Jensen did not take care is readily apparent as was the likelihood of Ms Dvorak incurring significant cost and expense if Mr Jensen did not remove the pavers and the old concrete driveway and pour the new concrete driveway and relay the pavers, and otherwise carrying out the agreed building work, with reasonable care and skill. 15 CL Act, s 4(1). 16 Ibid, sch 2. 17 Fangyuan v Stockwell [2024] QDC 200, per Rosengren DCJ at [90]. -- 12 of 14 -- 13 Plainly, Mr Jensen taking precautions to avoid the risk of harm to Ms Dvorak imposed no additional burden on him. [75] I accept the evidence of Ms Dvorak and All Inspect. The pavers and old concrete driveway were not removed, the new concrete driveway was not poured, and other agreed building work was not carried out, with reasonable care and skill. Mr Jensen, I find, breached the duty of care owed by him to Ms Dvorak. [76] In building cases, compliance with the Australian Standards and building codes are an important indicator of whether building work has been carried out with the requisite standard of care. Here, the new concrete driveway did not comply with AS 3727.1. The departure from the standard, in the absence of any rational explanation, supports the conclusion Mr Jensen was negligent in carrying out the building work. Loss and damage [77] The loss suffered by Ms Dvorak is that caused by Mr Jensen’s breach of duty. Generally, the loss must be reasonably foreseeable and not too remote, and there must be a causal link between Ms Dvorak’s loss and Mr Jensen’s negligent act. [78] Ms Dvorak claims $24,992.60, calculated as follows: Refund of the money paid by her to Mr Jensen $13,983.80 Replacement concrete driveway (Grimezys Contractors Pty Ltd) $ 6,215.00 Pavers (tile stone paver) $ 3,423.80 Garage door (SprayTech Aus) $ 990.00 Porch titles (M & R Holec) $ 230.00 Neighbour’s ramp $ 150.00 $24,992.60 [79] Ms Dvorak is not entitled to a refund of the part of the contract price paid by her to Mr Jensen, $13,983.80, and the cost to rectify the defective building work and other losses, $11,008.80. She has not lost both amounts; her loss, subject to what is said below, is the cost to rectify the defective building work. Cost to remove and replace the defective concrete driveway [80] The cost to remove and replace the defective concrete driveway, $6,215.0018, was caused by Mr Jensen’s breach of duty. It was reasonably foreseeable and there was a causal link between the loss and Mr Jensen’s negligent act. [81] The claim will be allowed. Pavers [82] The parties agreed the existing pavers would be removed manually so that they might be reused. Instead, Mr Jensen removed the pavers with a mini excavator. They had to be replaced. [83] To the extent additional pavers were necessary to rectify the defective building work, 18 The amount claimed is less than the amount quoted. The reason for the difference is not explained. -- 13 of 14 -- 14 they are accounted for in the adjustment to the damages awarded to Ms Dvorak referred to below. [84] Ms Dvorak, in my opinion, and subject to the adjustment referred to below, is entitled to the cost of the pavers, $3,423.80. Garage door, porch titles and neighbour’s ramp [85] I accept Ms Dvorak’s evidence the garage door was damaged by the mini excavator while the pavers and old concrete driveway were being removed. Mr Jensen did not contest the evidence. Likewise, I accept Mr Jensen damaged the porch tiles. The cost to rectify the damage to the garage door and porch tiles, in my opinion, were caused by Mr Jensen’s breach of duty. The loss was reasonably foreseeable and the necessary causal link between the loss and Mr Jensen’s negligent act or acts is present. [86] The total of the loss in respect of the two items, $1,220.00, will be allowed. [87] The claim by Ms Dvorak for her contribution to the cost to repair her neighbour’s ramp, $150.00, was withdrawn. Adjustment [88] The total cost to rectify the defective building work allowed is $10,858.80. However, the contract price for the building work was $18,983.80, and the amount paid by Ms Dvorak to Mr Jensen was $13,983.80. [89] It follows Ms Dvorak’s actual loss is the cost to rectify the defective building work, $10,858.88, less the difference between the contract price for the building work, $18,983.80, and the amount paid by Ms Dvorak to Mr Jensen, $13,983.80. The difference is $5,000.00 and therefore Mrs Ms Dvorak’s actual loss is $5,858.88. Summary [90] In summary: (a) the contract between the parties did not comply with section 13(2) of schedule 1B to the QBCC Act and therefore had no effect; (b) Mr Jensen owed Ms Dvorak a duty of care in carrying out the building work; (c) Mr Jensen breached the duty of care; and (d) Ms Dvorak is entitled to damages in the sum of $5,858.88 consequent on Mr Jensen’s negligent acts. Costs [91] Under section 85 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), the Tribunal may order a respondent to pay to an applicant the prescribed filing fee on filing the application if the Tribunal makes an order against the respondent. The prescribed filing fee paid by Ms Dvorak was $367.00. [92] Ms Dvorak has been partly successful. In the exercise of my discretion, I will order that Mr Jensen pay to Ms Dvorak the fee paid by her. Order [93] The order of the Tribunal is that Mr Jensen pay to Ms Dvorak $6,225.88 within 14 days of this order. -- 14 of 14 --