Clark v Huang [2024] QCAT 282

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Clark v Huang [2024] QCAT 282 DARREN CLARK (applicant) v MAY HUANG (respondent) APPLICATION NO/S: BDL138-21 MATTER TYPE: Building matters DELIVERED ON: 4 July 2024 HEARING DATE: 19 March 2024 HEARD AT: Brisbane DECISION OF: Member Bertelsen ORDERS: Both the application and counterapplication are dismissed. Neither party shall have any further monetary recourse, one against the other, in respect of the matters the subject of the application and counterapplication. CATCHWORDS: CONTRACTS – RENOVATION AND BUILDING WORKS – where applicant claims monies owing in respect of two contracts at separate locations – where two contracts formed one ongoing train of events – where renovation/building work performed at one location since mostly destroyed and materials delivered to another location utilised by third party – where renovation/building work required to be done over again and part payment credited to materials delivered and paid for – approximate finality of both contracts. 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] By application filed 18 May 2020 Darren Clark (‘Mr Clark’) seeks $25,000.00 from May Huang (‘Ms Huang’) for building work carried out at unit 1 Trickett Street Surfers Paradise and building materials supplied to a 112/40 Cotlew Street East Southport, address for renovations to be effected. -- 1 of 8 -- 2 Background and evidence [2] According to Mr Clark he provided to Ms Huang a signed building contract for renovation/addition building work at 112/40 Cotlew Street East Southport on about 28 August 2019 for her signature. The contract provided for a new gable roof to the front of the dwelling, three concrete pavers and a shoe cupboard. The cost was $29,973.00 plus GST. Though produced to Ms Huang the contract was never signed. Rather, a text message was received indicating Ms Huang was happy to proceed. Due to a delay of some three weeks in the provision of roof trusses and engineer designed beams for the building work, Mr Clark was requested to provide a quote for kitchen renovation/building work at 1 Trickett Street Surfers Paradise, an old three level thirty-four-unit complex where Ms Huang was the premises manager. [3] Mr Clark stated the job would take about three weeks on the basis it was kitchen replacement only utilising a colour off-the-shelf benchtop from Bunnings. Ms Huang then requested that the bathroom and laundry be renovated as well as plasterboard sheeting applied to the lounge and dining room walls. Plasterboard sheeting of both kitchen and hallway walls was also requested. On 3 September 2019 and 6 September 2019 Mr Clark quoted for all kitchen, laundry and bathroom renovation work at $19,465.00 plus GST and to supply and install plasterboard to lounge area only including painting at $2,630.00 plus GST. Trickett Street renovation work commenced on 9 September 2019. [4] Issues arose along the way with Ms Huang supplying a kitchen sink incompatible with the counter mounted tap supplied; Ms Huang’s latter selection of a non-standard benchtop causing a two week delay; Ms Huang’s request for additional plastering to hallway and kitchen walls; Ms Huang’s request after arrival of benchtop for such to be 30 millimetres longer; subsequent impossibility of installing counter top mounted tap other than as installed at the back left hand corner of the sink; and suggestions that fixtures were not supplied despite selection of such fixtures by Ms Huang from an associated persons warehouse. As a result of these issues Mr Clark purchased the lighting fixtures and sanitary products. By 30 September 2019 Ms Huang’s tiler, whom she had employed independently and was responsible for paying, had not completed tiling. [5] During progress, a cistern to pan leak occurred requiring wing nuts to be tightened as well as a leak caused by the faulty connection of a washing machine. On 15 October 2019 Mr Clark invoiced Ms Huang for $20,077.00 as per quote including variations, items purchased and minor plumbing repairs. Ms Huang sought invoices for purchases, but Mr Clark said his work was a fixed price quote with a breakdown of works due to Ms Huang using her own tiler. In the meantime, Ms Huang sought manufacturers invoices for the trusses beams and posts delivered to site at Cotlew Street East after Mr Clark delivered two invoices, both dated 21 October 2019, for $8,640.85 and $760.00. [6] Subsequently Mr Clark and Ms Huang met on site at the Trickett Street unit on about 30 October 2019. There were eleven defects identified by Ms Huang and completed/rectified at Trickett Street. Mr Clark sought payment of his invoice. Ms Huang paid $8,030.80 of his $20,077.00 invoice leaving $12,056.20 (actually $12,046.20) owing. The Trickett Street unit had been reoccupied by the premises manager on 10 October 2019. Mr Clark said, despite numerous requests Ms Huang never stated that she was unhappy with the job. An onsite confrontation ensued with Mr Clark stating he would dismantle what he had installed if there was no payment -- 2 of 8 -- 3 and Ms Huang stating all materials on site were now her property because she had made a part payment. Mr Clark went on to state Ms Huang engaged a new builder for the Cotlew Street East property with that builder using all the trusses beams and posts supplied and paid for by him. [7] Ms Huang reported Mr Clark to the Queensland Building and Construction Commission (‘QBCC’) claiming defective works, unlicensed works, and non- payment of home warranty insurance. That resulted in a single cautionary letter for non-payment of home warranty insurance. Mr Clark went on to make the following claims. (a) Invoice 27 dated 16 October 2019 for $12,056.20 ($20,077.00 - $8,030.20 paid). (b) Invoice 22 dated 21 October 2019 for $8,640.85 for home warranty insurance Cotlew Street East ($359.65) and trusses and beams supplied ($8,281.20). (c) Invoice 24 dated 21 October 2019 for $760.00 for galvanised steel posts at Cotlew Street East. (d) Invoice 28 dated 30 October 2019 for $292.00 to supply and install oyster light fitting and to supply glue and grout to fix tiles to wall above vanity. (e) Loss of income $751.00 (f) Cost of QCAT application $2,500.00. [8] In her initial response filed 15 July 2020 Ms Huang stated she asked Mr Clark in August 2019 to do a roof extension for the premises 112/40 Cotlew Street East Southport. He gave her a quote, but she did not sign it. In early September 2019 she asked Mr Clark to start the more urgent renovation job at Trickett Street because he could start immediately and would be able to complete works in two weeks. In the meantime, roof truss material estimated to take three weeks to arrive was ordered by Mr Clark for Cotlew Street East. [9] Ms Huang said the Trickett Street work took two months, workmanship was of unacceptable quality, and non-compliant electrical and plumbing work carried out by Mr Clark himself. She said he sent her an invoice for completed works on 28 October 2019. However, because there were defects, he agreed to rectify. Ms Huang paid Mr Clark $8,030.80 on 30 October 2019 with balance payable after final inspection. Mr Clark notified Ms Huang on 31 October 2019 that all works were fully done and demanded immediate on the spot payment. Ms Huang attended site to find Mr Clark had started to dismantle the kitchen. At that point Ms Huang contacted the QBCC for advice. Mr Clark having left, did not return to collect his toilet, vanity or kitchen cabinet deinstalled. Photos of the disorderly state of the unit as at 31 October 2019 were produced. [10] From November 2019 to January 2020 Ms Huang said she had all works redone including electrical work and lighting, toilet and bathroom vanity, ordered a Bunnings’ kitchen and engaged a kitchen installer to install a new kitchen. She said she was willing to compensate Mr Clark for materials supplied to Cotlew Street East upon production of a supplier’s invoice even adding some mark up. Ms Huang was not willing to pay nearly $9,000.00 for those materials considering advice she received that such was worth only $1,500.00 to $3,000.00. Ms Huang said costings to have the Trickett Street renovation completed would be provided. She also claimed loss of rent and loss of time. She considered the payment of $8,030.80 to Mr Clark -- 3 of 8 -- 4 was enough for work completed at Trickett Street as well as cost of truss roof material. She asserted that Mr Clark should pay her back extra money spent to make the Trickett Street unit functional again. QBCC INVOLVEMENT [11] The QBCC interviewed Mr Clark in January 2020 and assessed there was no regulated contract in place with no home warranty insurance taken out. The Commission did accept there was a contract in place but kept and never returned by Ms Huang. The QBCC decided matters would be taken no further other than the issue to Mr Clark of a cautionary deterrent letter with Mr Clark to pay for home warranty insurance. FURTHER EVIDENCE [12] In accord with Tribunal directions Ms Huang filed her counter application on 6 February 2022. She sought dismissal of Mr Clark’s claim for payment in respect of Trickett Street and monetary compensation as follows. (a) Rent paid for onsite staff to stay due to delayed completion $760.00. (b) Extra money paid to get new kitchen, toilet and vanity installed; engaging licensed electrician and plumber to redo all work to meet compliance $12,453.20. [13] Ms Huang stated her counterclaim could be offset against Mr Clark’s cost of materials for the Cotlew Street East property provided a verified supplier invoice could be produced. Due to slow completion, poor quality work and Mr Clark’s dismantling of his own work Ms Huang said she was forced to replace all work step by step. Leaving delivered timber material on the ground at Cotlew Street East caused it to rot. Ms Huang attached a tax invoice from a Sam Alaia a licensed builder dated 29 January 2020 for building work completed at Cotlew Street East including the entrance and roof extension. The invoice referred to ‘partial use of material on site, some got damaged. Est. value $2000’. [14] On 31 October 2019 Jemstar Electrical Services (‘Jemstar’) provided a quote for $1,128.00 labour only ‘to disconnect and test the electricals in the [Trickett Street] unit and carry out work to bring it up to regulations and compliance and test’. The quote stated, ‘I have inspected the unit and there are so many defects that I have taken photos and did not touch anything’. On 8 November 2019 Jemstar provided its invoice for $1,942.39 broken down as follows, labour $1,128.00 and materials being spotlights, oyster lights and batten lights at $814.39. [15] Lay Plumbing provided its invoice for $616.00 dated 13 November 2019 for plumbing work carried out at Trickett Street. Its invoice stated Supplied and fit a new back to wall close coupled toilet suite and mini cistern cock. Fitted new cold water supply line. Capped off water lines to the laundry and hand basin. Capped off the water supply to kitchen and ran a new temporary cold water supply line under the bench to reinstate water to toilet and shower. [16] In an email of 14 January 2020 addressed to Ms Huang and titled ‘report on previous builders dodgie work’ Lay Plumbing stated, ‘I found several plumbing issues within the apartment at unit 1 Trickett Gardens’. These were as follows: (a) Coupled toilet suite poorly fitted not having correct pan connector to suit the copper base. -- 4 of 8 -- 5 (b) Basin installed sideways with hot and cold-water supply lines bent around and kinked then connected with flex tail extensions. (c) Shower taps removed and found hot and cold-water supply lines when flushed were blocked by what appeared to be silicone or tile adhesive. (d) A 40-millimetre riser servicing the washing machine cracked and broken off at ground level – unable to determine whether existing feature or added. Disconnect kitchen sink to find mains isolation valve crudely replaced with compression fittings and requiring replacement with press fittings. (e) In general, all the plumbing work carried out at the Trickett Street property was of a sub-standard nature. [17] Additional documents attached to Ms Huang’s counter application included: (a) a sales’ order payment for $363.00 from the Good Guys dated 3 October 2019 for the purchase of a 60-centimetre electric oven; (b) a GW Reno tax invoice dated 3 October 2019 for bathroom water proofing, floor and wall tiling and kitchen wall tiling in the sum of $5,720.00; (c) a tax invoice from Imperium Glass Group for $803.00 for shower screen and bedrooms 1 and 2 robe doors; (d) a measure and quote invoice from Bunnings dated 31 October 2019 for $99.00; (e) a Bunnings’ estimate for supply of kitchen cabinetry/benchtop for $5,169.96; (f) Trade Pro Installation Services invoices for kitchen installation 14 November 2019 and 16 December 2019 for a total of $2,118.78; (g) Harvey Norman tax invoice/receipt for Euromaid 60-centimetre ceramic cooktop dated 24 November 2019 for $342.00; (h) receipts for accommodation at Trickett Street in the period 11 September 2019 through 30 September 2019 for $1,390.00; and (i) tax invoice from Whitehead Crowther lawyers dated 19 July 2020 for $990.00. Photos produced confirmed newly completed renovation/building works. [18] On 10 February 2022 Mr Clark filed a statement in response. He reiterated his position that the Trickett Street job would take two to three weeks as long as bathroom and laundry were not included, and an off-the-shelf Bunnings’ benchtop was selected (otherwise there would be a two-week wait for manufacture). When bathroom and laundry were added as well as new plasterboard work, the original time frames ceased to have any bearing. Costings and their breakdown on the agreed quote enabled Ms Huang to use her own tiler. With respect to water leaks on three occasions, it was firstly because the tiler blocked the drain with bedding and glue, secondly because the manager incorrectly connected the washing machine, and thirdly because the water pipe to the toilet leaked. There was no resultant water damage. Ms Huang’s employed tiler took longer to do the tiling than had been allowed for the entire job. [19] Ms Huang’s complaint to the QBCC proved virtually irrelevant. It was Ms Huang who supplied the incompatible counter mounted tap with the kitchen sink that had no tap hole. Mr Clark only ever quoted to replace the kitchen benchtop not to extend or -- 5 of 8 -- 6 change it. Nonetheless the benchtop was extended at no cost to Ms Huang. The unit was reoccupied prior to the new benchtop being installed. The onsite manager would be called to confirm the date on which the unit was reoccupied. Ms Huang’s next- door neighbour would be called as a witness to confirm all building material delivered to Cotlew Street East was used in the renovation/building there. There was only ever a fixed quoted price for the unit and a fixed price contract for the home extension but never any cost-plus arrangement. [20] On 24 June 2022 the Tribunal directed both Mr Clark and Ms Huang to file further evidence on which they intended to rely and for Mr Clark to file a reply. Mr Clark filed his further evidence on 9 September 2022. He said he had invited Ms Huang to have the QBCC inspect his work at Trickett Street but that she had declined. Delays of approximately two and four weeks came about due to Ms Huang’s selection of a bench top colour not readily available in store and then a non-standard size benchtop. The tiler, Tom, employed separately by Ms Huang, took longer to complete his tiling than did Mr Clark completing the renovation. The text message trail produced by Mr Clark confirmed in particular: (a) Two-week time frame for completion of the Trickett Street works was subject to the use of off-the-shelf Bunnings’ kit kitchen and non-inclusion of any bathroom/laundry renovation work. (b) Ms Huang wanted to proceed with the Trickett Street renovation inclusive of bathroom and laundry renovation. (c) All tiling at Trickett Street was to be undertaken by Ms Huang’s separately employed tiler (Tom). (d) List of kitchen and bathroom tapware provided by Mr Clark for purchase through Ms Huang’s clients’ warehouse. (e) Mr Clark’s purchase of Bunnings’ benchtop with no wait time. Cotlew Street East trusses and beams ordered. (f) Tiler Tom’s tiling still not finished two weeks after starting impeding progress. (g) Mr Clark is given defects notice which he says he completes. (h) The bathroom was covered in the quote but fixing all dilapidated pipes was not. (i) Mr Clark’s licensed electrician refused to complete electrical works because the building wiring was so dilapidated that it was illegal to fit any new fixture to such wiring. It was electrically unsafe. Mr Clark did the electrical work himself. [21] Mr Clark produced a statutory declaration by Kuo-Jen Chung who declared: confirmed that Darren Clark contacted me in approximately the first or second week of October 2019 requesting if he may use my auntie’s driveway to store the timber trusses, engineered beams and steel posts that were to be used on my auntie’s neighbour’s extension. I can also confirm that all materials that Darren had delivered to the site have been taken and believe to be used by the other following builder The timber beams had “Clark’ painted on them by the trusses manufacturer. [22] On 3 October Ms Huang replied. She said that it was Mr Clark who got the benchtop measurements wrong, blaming her for changing her mind. The kitchen tap was installed in the wrong place. Mr Clark damaged tiles while installing a kitchen light -- 6 of 8 -- 7 and bathroom vanity requiring retiling by the tiler Tom. Kitchen cabinet doors would not close properly. There was no engagement of a licensed electrician or plumber. There was destruction by Mr Clark of his own work by dismantling the kitchen and disconnecting the toilet and washing machine taps after completion despite Mr Clark having been paid $8,030.80 being 40% of his final invoice. After Jemstar’s and Lay Plumbing’s advice about defective works, Ms Huang determined to start the Trickett Street renovations again except for plastering work and painting. Mr Clark was requested to remove what he had dismantled. He returned and took away a cooktop, some tools as well as dismantling some cabinets. Ms Huang proceeded to dismantle all Mr Clarks remaining kitchen, bathroom and laundry works giving time for collection by Mr Clark. Mr Clark did not collect any items and they were disposed of. CONCLUSIONS [23] Firstly, dealing with the trusses beams and posts portion of Mr Clark’s claim ($9,400.85) it appears all of such were utilised in the Cotlew Street East extension. Mr Kuo-Jen Chung was on hand to observe, at least to a fair degree, the utilisation of that material by the subsequent builder. Suggestions that this material may have rotted is unlikely where the photos produced depict those materials mostly covered in plastic and where they were exposed/in the open for a limited time. The subsequent builder’s estimation of $2,000.00 is vague, even open to be construed as possibly self-serving. It appeared to be suggested or at least implied by Mr Clark that where these materials were incorporated in a fixed price contract, that it was not necessary to have evidence of the cost of such materials, but rather, only his say so as to what the cost was. But Mr Clark claims the cost of $9,400.85 as stand-alone items and part of his claim of $25,000.00. In these circumstances it was incumbent for him to establish the quantum of those items as part of his claim. He did not, but clearly those materials had some beneficial utility for Ms Huang. [24] Mr Clark asserted he completed works at Trickett Street generally in accord with his quote and subsequent invoice for $20,077.00. Ms Huang paid $8,030.80 but Mr Clark demanded payment in full. It seems at this point Ms Huang may have had some legitimate concerns. She said Mr Clark got the benchtop measurements wrong. The text trail does not bear that out. Rather, Mr Clark acceded to changes that Ms Huang sought, not even charging, he asserted, for a subsequent benchtop. The kitchen tap being placed at the side of the kitchen sink came about when Ms Huang chose both items. That they were incompatible was not his fault. Nor was it incumbent on him to point out this oddity. The tap was installed to the side and was functional. Whether Mr Clark damaged tiles was disputed. Even if that was the case no evidence was produced to establish what extra cost, if any, that imposed on Ms Huang. Whether kitchen doors not closing properly was addressed or not was not clear. [25] A major point of concern for Ms Huang was no engagement of a licensed electrician or plumber. Ms Huang contracted with Mr Clark as a licensed builder in the reasonable expectation that all renovation work would be carried out by licensed tradespersons. If electrical fittings and plumbing/pipework were in such poor condition as Mr Clark said they were (and his photos would confirm that such was the case) then it was open to Mr Clark to take a different course of action on the basis his quoted works never included an overall repair/renewal of electrical connections to the unit but only the connecting of new light fittings and appliances within the unit. But Mr Clark instead performed electrical and plumbing work himself. The works performed by Jemstar and Lay Plumbing in terms of their invoices and comments -- 7 of 8 -- 8 suggested they may have gone further in ensuring electrical safety and functional plumbing. But overall, their criticisms of Mr Clark’s work are enough to conclude that electrical and plumbing work fell short of acceptable standards. [26] Mr Clark’s destruction of his own work in dismantling the kitchen and disconnecting the toilet and washing machine when not receiving immediate payment is confounding. Any further argument about whether Mr Clark’s work was performed by licensed persons or was of acceptable quality or was defective becomes unnecessary. The unit was left in a dismantled mess confirmed in photos produced. Mr Clark only ever returned to collect a cooktop, some tools as well as dismantling some cabinets. Ms Huang was left with no other option but to start again, salvaging only renovation plastering work and painting. Mr Clark’s claim for money owing in respect of Trickett Street is a contradiction in terms and not recoverable. [27] Renovation/building costs incurred by Ms Huang post Mr Clark’s involvement were necessary to complete the renovation/building works to an acceptable standard although some electrical and plumbing work beyond the scope of Mr Clark’s original quotes may have been necessary. It is reasonable here to offset Ms Huang’s payment of $8,030.80 against some plastering and painting at Trickett Street and the supply cost of trusses beams and posts (including home warranty insurance of $359.65, no evidence of payment of which was produced) at an asserted cost of $9,400.85 no evidence of payment of which was produced. [28] Given that some electrical and plumbing work performed post Mr Clark’s involvement may have exceeded that allowed for in Mr Clark’s quotes/invoices it is fair to say the cost incurred by Ms Huang calculated at $18,167.40 ($23,887.40 - $5,720.00) in accord with her attachments to her counterapplication was comparable to or less than Mr Clarks quotes/invoices. There is no identifiable increment in overall cost. Put alternatively, Ms Huang had the renovation/building work at Trickett Street completed in quick succession in the period November 2019 to January 2020 at pretty much the same cost. [29] Loss of accommodation income at Trickett Street is not recoverable. It was not a foreseeable consequential loss, particularly so as Ms Huang held management rights to the unit complex. If Ms Huang arranged for other persons to reside in the subject unit thereby deriving an income, that was her business. The delay in other persons residing in the subject unit was an issue between Ms Huang and those other persons. It had nothing to do with Mr Clark. The same applies to loss of time. What Ms Huang did in her other, apparently major occupation, was her business. If she chose to run two businesses that was her choice. Nor is there any basis for including legal costs. If parties wish to have independent recourse to legal advice that is their prerogative. That does not enliven a claim for legal costs. [30] Both the application and counterapplication are dismissed. Neither party has any further recourse, one against the other, in respect of the matters the subject of the application and counterapplication. -- 8 of 8 --