Catania & Anor v Jolley & Anor [2021] QCAT 429

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Catania & Anor v Jolley & Anor [2021] QCAT 429 PARTIES: DAVID CATANIA (applicant) CHRISTOPHER CATANIA (applicant) v MARK IVAN JOLLEY (respondent) BRISBANE TIMBER FLOORS PTY LTD (respondent) APPLICATION NO/S: BDL019-19 MATTER TYPE: Building matters DELIVERED ON: 15 December 2021 HEARING DATE: 3 March 2021 19 July 2021 HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: 1. Mark Ivan Jolley and Brisbane Timber Floors Pty Ltd must pay Christopher Catania the sum of $13,770 (incl GST) by 4.00pm on 21 January 2022. 2. The Counter-application is dismissed. 3. David Catania and Christopher Catania must file two (2) copies in the Tribunal and give to Mark Ivan Jolley and Brisbane Timber Floors Pty Ltd one (1) copy of any submissions and evidence in support of any application for costs by 4.00pm on 21 January 2022. 4. Mark Ivan Jolley and Brisbane Timber Floors Pty Ltd must file two (2) copies in the Tribunal and give to David Catania and Christopher Catania one (1) copy of any submissions and evidence in response or in support of any application for costs by Mark Ivan Jolley and Brisbane Timber Floors Pty Ltd by 4.00pm on 11 February 2022. 5. David Catania and Christopher Catania must file two (2) copies in the Tribunal and give to Mark -- 1 of 24 -- 2 Ivan Jolley and Brisbane Timber Floors Pty Ltd one (1) copy of any submissions and evidence in reply by 4.00pm on 25 February 2022. 6. Unless otherwise directed any application for costs will be determined on the papers and without an oral hearing not before 4.00pm on 25 February 2022. 7. Unless otherwise directed, if no application for costs is made by any party in accordance with these directions, there shall be no order as to costs. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – where domestic building contract does not comply with Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) TORTS - NEGLIGENCE - ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – OTHERS – where homeowner owed a duty of care by licensed contractor – whether homeowner owed a duty by director and nominee of licensed contractor personally - homeowner vulnerable – loss and damage reasonably foreseeable – causation – whether any contributory negligence of homeowner – whether proportionate liability – whether concurrent tortfeasors - application of the Civil Liability Act 2003 (Qld) RESTITUTION – CLAIMS ARISING OUT OF INEFFECTIVE CONTRACT – MEASURE OF RECOVERY FOR CLAIMS FOR REASONABLE VALUE OF SERVICES – where benefit accepted only up to an agreed amount Civil Liability Act 2003 (Qld), s 4, s 9, s 11, s 23, s 24, s 28, s 29, s 30, s 31, Schedule 2 Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B s 4, s 6, s 13, s 20, s 21, s 22, Schedule 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38, s 97, s 100, s 102, s 105 Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5, s 8 Atkinson & Anor v Van Uden [2020] QCAT 259 Brett & Anor v Manson t/as Manson Homes [2020] QCATA 122 Bryan v Maloney (1995) 182 CLR 609 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258 Canavan v Sutton [2020] QCAT 374 -- 2 of 24 -- 3 Ghama v Crew & Anor [2020] QCAT 149 G Rocca Pty Ltd v Timetrex Pty Ltd (Building and Property) [2017] VCAT 261 Hadgelias Holdings Pty Ltd v Seirlis [2015] 1 Qd R 337 Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd [2013] QSC 319 Knox v Bellamy [2021] QCAT 192 Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246 Tracey and Anor v Olindaridge Pty Ltd and Ors [2014] QCAT 617 Wilmar Sugar Australia Limited v Queensland Sugar Limited [2019] QSC 116 APPEARANCES & REPRESENTATION: Applicant: David Catania Respondent: Mark Jolley REASONS FOR DECISION [1] This dispute relates to floor sanding and floor staining work performed in July 2018 at a house in Queensland owned by Mr Christopher Catania, who resides in Melbourne. Mr David Catania, Mr Christopher Catania’s brother, lives at the house and is the person who arranged for the work to be performed. The work was performed on the upper floor of the house, consisting of three bedrooms (the main bedroom having a walk-in robe) and a lounge room and on the staircase leading to the upper floor. [2] Mr Jolley is the director of Brisbane Timber Floors Pty Ltd (BTF) and was the person with whom Mr David Catania spoke and who attended the premises to perform the work along with two other workers. Neither of the two other workers, one of whom was apparently Mr Jolley’s son, gave evidence in the proceeding. He says he didn’t ask the other workers to give statements because the dispute was ‘not important’. [3] The Catanias claim1 that the work performed is defective, as it is not up to industry standard, and breaches the implied warranties2 and seek: (a) rectification of the defects as identified in the ATFA3 report4 or damages; (b) filing fee in the amount of $338.20; (c) costs of the ATFA report in the amount of $1,000.5 1 Application for domestic building disputes, filed 23 January 2019, Exhibit 1. 2 Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1 B, s 22 (QBCC Act). 3 Australian Timber Flooring Association. 4 Exhibit 5. 5 Exhibit 2, attachment DC6. The invoice is for $1,089 (incl GST). -- 3 of 24 -- 4 [4] Mr Jolley and BTF deny that the work performed is defective and to the extent that the finish has imperfections they are so minor as to be trivial or are caused by others and to the extent it is not a consistent colour throughout they are not responsible for that issue. [5] It is not disputed that the floor had previously been sanded by another contractor and that before the work, the subject of this dispute, was performed the floor in one of the bedrooms was cupped and an area of one of the bedrooms had a test stain strip. [6] Towards the end of the first day of hearing, Mr Jolley indicated that a counter- application was pursued. The Response and/or counter-application was filed 6 March 20196 but no filing fee had been paid. Mr Jolley claimed he was not aware that the failure to pay the filing fee meant that the counter-application was not before the Tribunal.7 As the Catanias submitted they had been proceeding on the basis that the Counter-application was not being pursued, and none of the Respondents’ evidence had been confirmed such that a second hearing day was required, I made directions allowing a short period of time for the relevant filing fee to be paid.8 I also made directions allowing the parties to file statements of evidence to address the issues raised in the Counter-application. [7] The prescribed filing fee was paid in accordance with the directions. Mr Jolley’s and BTF’s original counter-application9 sought some orders that were not within the Tribunal’s jurisdiction. These were not pursued at the hearing. The orders pursued were for: (a) the balance owing of the itemised list of work performed in the amount of $10,720;10 and (b) costs. [8] The parties, who were not legally represented, did not clearly state the legal basis for their claims. The work performed is domestic building work.11 A Queensland Building and Construction Commission (QBCC) dispute resolution procedure was undertaken enlivening the Tribunal’s jurisdiction to hear and determine this matter.12 Claim in contract [9] I find the informal contract entered into between BTF and Mr David Catania, as undisclosed agent for Mr Christopher Catania, did not comply with the minimum requirements under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) and is, therefore, of no effect and is unenforceable.13 6 Exhibit 8. 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 38(2) (QCAT Act); Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 5 and s 8 (QCAT Regulation). 8 Direction 4 made 3 March 2021. 9 Exhibit 8. 10 Exhibit 2, attachment DC1 2/2. 11 QBCC Act, Schedule 2: “building dispute”, “domestic building dispute”, “reviewable domestic work”: Schedule 1B, s 4: domestic building work includes work associated with the renovation or improvement of a home. 12 QBCC Act, s 77(2); Exhibit 2, attachment DC9. 13 Canavan v Sutton [2020] QCAT 374. -- 4 of 24 -- 5 [10] The evidence is, and I accept, that: (a) there were a number of telephone calls between Mr David Catania and Mr Jolley during which the scope of work and the price for the work was discussed. (b) a few days later when Mr Jolley attended at the premises Mr David Catania and Mr Jolley held further discussions relating to the scope of work and the price for the work. The scope of work was varied during those discussions and the agreed price was increased to $14,000. (c) prior to the work being undertaken there was no written quote provided by the contractor to the Catanias. (d) no written contract was sent to the Catanias and no written contract was signed. [11] Mr Jolley contends that Mr David Catania refused to enter into a written contract. This is denied. Mr Jolley says that he referred Mr David Catania to BTF’s website, for a copy of the terms of their standard contract.14 There is no evidence before me that Mr Jolley or BTF attempted to document the transaction prior to commencing the work. [12] As there was no written contract and no written quote, which was subsequently accepted, there has been some confusion as to the parties to any such informal agreement. [13] The requirement in the QBCC Act15 for such contracts to be in writing is, at least in part, to avoid the inevitable different recollections as to what was agreed. Unsurprisingly, there are differences in the evidence of recollections of what was said and the order in which matters unfolded. [14] There is a ‘draft quote’ in evidence before me. It is uncontentious that it was sent after most of the work had been performed.16 It is also uncontentious that $14,000, the agreed sum, was paid in cash. [15] Mr David Catania’s oral evidence is that the renovations he arranged were at his brother’s cost and that he was arranging the renovations on his brother’s behalf. There is no evidence to the contrary. I accept that evidence. [16] The evidence is that Mr David Catania made telephone contact with Mr Jolley after locating a business called ‘Floor.com.au’ on the ATFA website. The Catanias originally commenced this proceeding solely against Mr Jolley under the belief that he personally carried on business under that name. [17] During the hearing I conducted an online business name search. It revealed that BTF was, at the time of the events the subject of this dispute, and remained the registered owner of the business name ‘Floor.com.au’. 14 Exhibit 9, attachment MJ2. 15 QBCC Act, Schedule 1B. 16 Exhibit 2, attachment DC1. -- 5 of 24 -- 6 [18] BTF holds a QBCC licence.17 Mr Jolley is a licensed contractor and is also director, secretary and the nominee of BTF. Mr Jolley contends that although he is separately licensed, he only contracts work through BTF. The ‘draft quote’ is on BTF’s letterhead. [19] I find that it is more likely than not that Mr David Catania entered into an informal oral contract with BTF as undisclosed agent for Mr Christopher Catania, the home- owner. [20] A contract for domestic building work with a price of $14,000 is a level 1 regulated contract.18 Such a contract only has effect if it is in writing, dated and signed by or on behalf of the parties.19 I find the informal contract did not comply with the minimum requirements and is, therefore, of no effect and is unenforceable.20 [21] The Tribunal has previously found that a party to such a contract cannot maintain a claim for damages for breach of contract but a claim for damages for work negligently performed may be available.21 [22] I invited the parties to make oral submissions about whether the claim for damages should be regarded as a claim in negligence. The Catanias submitted that I should regard it as a claim in negligence if a claim in contract was not available. [23] I find that the claim described in the Application22 and the statements of evidence filed by the Catanias is arguably a claim for damages for negligently performed work.23 Claim in negligence [24] For the reasons set out below, I find that Mr Jolley and BTF are liable to Mr Christopher Catania for damages for defective work negligently performed in the sum of $13,770 (incl GST). [25] The analysis of whether either of or both Mr Jolley and BTF are liable for damages for defective work negligently performed must be undertaken within the framework of the Civil Liability Act 2003 (Qld) (CLA) and to the extent that it is not modified, the common law. [26] Essentially the Catanias claim that Mr Jolley and BTF breached their duty of care. They claim damages for harm suffered as a consequence of the claimed breach.24 The object of such an award of damages is to put the homeowner in the position which he would have been in if the negligent acts had not occurred.25 Such damages may include the cost of rectification. 17 Ibid, attachment DC9, 14/24. 18 QBCC Act, Schedule 1B, s 6. A level 1 regulated contract is a contract for more than the regulated amount of $3,300 but less than the amount prescribed for a level 2 contract of $20,000. 19 Ibid, s 13(5). 20 Canavan v Sutton [2020] QCAT 374. 21 Ibid, Ghama v Crew & Anor [2020] QCAT 149; Atkinson & Anor v Van Uden [2020] QCAT 259; Knox v Bellamy [2021] QCAT 192. 22 Exhibit 1. 23 Thompson and Anor v Jedanhay Pty Ltd [2012] QCATA 246, [22]. 24 Civil Liability Act 2003 (Qld), s 4 (CLA). 25 Knox v Bellamy [2021] QCAT 192. -- 6 of 24 -- 7 [27] The Catanias must establish: (a) a duty of care owed by BTF to Mr Christopher Catania; (b) the duty of care was breached;26 (c) the damage suffered by Mr Christopher Catania as a consequence of the breach is not ‘too remote’;27 (d) any defence to the claim has been rebutted; (e) the proportionate liability sections of the CLA have been applied. [28] To the extent that a claim in negligence is against Mr Jolley personally the same matters must be established against him personally. [29] I deal with the claim against BTF first. Was a duty of care owed? [30] I find that BTF owed Mr Christopher Catania, the homeowner, a duty of care to avoid harm28 by undertaking the work in compliance with all relevant laws and legal requirements, with reasonable care and skill and supplying materials which are suitable for their purpose. Relevantly these are the warranties, which would have been implied into such a regulated contract for domestic building work, if it had effect as a contract.29 [31] The Courts and the Tribunal have long recognised that a licensed builder or contractor owes a homeowner a duty of care because it is reasonably foreseeable that if the contractor does not take reasonable care that the homeowner will suffer loss. It is also well established that ‘more than foreseeability is required to raise a duty of care to prevent economic loss.’30 [32] Unless there is evidence to the contrary, a homeowner is usually assumed to rely upon the contractor to perform the work with reasonable care and skill.31 The evidence before me is that at the time the work was performed the Catanias had no specialist knowledge or skill in relation to it. Mr David Catania and his partner and carer, Ms Johanson, who were arranging for the work to be done for Mr Christopher Catania, both gave evidence that they did not have knowledge of floor sanding and finishing. I accept that evidence and find that the Catanias relied upon BTF and did not have the knowledge to protect themselves from the consequences of a lack of 26 CLA, s 9, Schedule 2 (definitions of ‘duty’ and ‘duty of care’); “duty” means a duty of care in tort; “duty of care” means a duty to take reasonable care or to exercise reasonable skill (or both duties). 27 Ibid, s11. 28 Ibid, Schedule 2 (definition of ‘harm’), “harm” relevantly means harm of any kind, including damage to property and economic loss. 29 QBCC Act, Schedule 1B, s 20, s 21 and s 22. 30 Wilmar Sugar Australia Limited v Queensland Sugar Limited [2019] QSC 116, [140] citing Caltex Oil (Australia) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 per Gibbs J (as his Honour then was) at 555 and Stephen J at 574 and 576; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Bryan v Maloney (1995) 182 CLR 609; Brookfield Multiplex Limited v Owners Corporation Strata Plan 61288 & Anor (2014) 254 CLR 185. 31 Bryan v Maloney (1995) 182 CLR 609, [6], [14], [18], [19] per Mason CJ, Deane and Gaudron JJ; Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258, [102] – [103]. -- 7 of 24 -- 8 reasonable care by BTF such that there was a degree of vulnerability to harm from BTF’s conduct. [33] Mr Jolley does not expressly dispute that BTF owed such a duty rather he denies that any such duty was breached. Did BTF breach of the duty of care? [34] I find that BTF breached its duty of care to exercise reasonable care and skill. [35] Section 9 of the CLA provides that: (1) A person 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); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) – (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. [36] Section 11 of the CLA provides that: (1) A decision that a breach of duty caused particular harm comprises the following elements – (a) the breach of duty was a necessary condition of the occurrence of the harm (factual causation); (b) it is appropriate for the scope of the liability of the person in breach to extend to the harm so caused (scope of liability). [37] The Catanias rely upon the evidence of Troy Abbott32 and Bronwyn Harmer.33 Both Mr Abbott and Ms Harmer were available to give oral evidence and be questioned by Mr Jolley and the Tribunal on the first day of the hearing. BTF relies upon Mr Jolley’s evidence as well as the QBCC’s report.34 Mr Jolley points to the QBCC’s decision not to issue a direction to rectify the work. No application for an order requiring the QBCC inspector to attend and give evidence was sought despite it being foreshadowed by Mr Jolley towards the end of the first day.35 32 Exhibit 6. 33 Exhibit 5. 34 Exhibit 2, attachment DC 9. 35 QCAT Act, s 97. -- 8 of 24 -- 9 [38] The QBCC’s decision not to issue a direction to rectify does not of itself exclude the Tribunal making a finding that BTF breached its duty of care. The Tribunal has received additional evidence and may make findings having regard to all the evidence as to which party is responsible for the alleged defects. [39] Although I recognise that Mr Jolley has relevant experience, he is clearly not independent. I take that into account in weighing the evidence and generally place less weight on it. [40] At the commencement of the second day of the hearing I refused Mr Jolley and BTF leave to file a statement by James Brownlea Hilston.36 Mr Hilston’s statement was not responsive to the directions made allowing further evidence to be filed.37 It was directed to whether Ms Harmer had appropriate expertise and experience to be regarded as an expert and whether the work was defective. Those issues do not arise out of the counter-application. [41] Mr Jolley and BTF failed to persuade me that leave should be granted to permit them to file new evidence at such a very late stage of the proceedings, particularly when they had been previously directed to file any such evidence on more than one occasion.38 Mr Jolley stated that leave was sought as a result of seeking legal advice after the first hearing day. I accept there may have been a financial reason for not doing so earlier but that was a decision taken by Mr Jolley and BTF in conducting their case. As noted earlier in these reasons, Mr Abbott and Ms Harmer had given their evidence on the first day of the hearing and were not in attendance on the second day to be able to be easily recalled. If leave had been granted a further adjournment would have been required to allow the Catanias to seek Ms Harmer’s and Mr Abbott’s response to it. The Tribunal’s resources are limited. A further delay would not only have affected the Catanias, it would have also caused delay to other parties awaiting a hearing date. [42] Mr Jolley criticises Ms Harmer’s expertise and experience compared with his own. I accept that Ms Harmer’s experience is not overly extensive. Her evidence is that she had undertaken a report writing course allowing her to be a flooring inspector for AFTA and had inspected about 350 floors in that capacity. She conceded that she had no personal experience in performing sanding work and no experience with the particular stain used by BTF. I take her limited experience into account in weighing the evidence. Her evidence is essentially that the stain had not been applied properly. The evidence is that she attended the site once, shortly after the work had been performed.39 [43] Mr Abbott has experience as a timber flooring installer and sander and has experience in finishing timber floors. His evidence is that he inspected the works in about August 2018, not long after BTF performed the work and has not reinspected since. His evidence is also that the stain had not been applied properly. [44] Mr Jolley sought to diminish Mr Abbott’s relevant experience by contending he was primarily experienced in timber installation and not sanding and finishing. Mr Jolley 36 Filed 28 April 2021. 37 3 March 2021. 38 15 April 2019, 12 September 2019, 25 August 2020. 39 Exhibit 5. Report states date of inspection as 30 July 2018. -- 9 of 24 -- 10 did not point to any documents in evidence before me to support his submission. Mr Abbott’s evidence was that he has some but not extensive experience with the particular stain used by BTF and that he had made enquiries with the manufacturer of the stain. [45] The Catanias say there are shoe prints in the lounge floor and in the main bedroom/walk in robe floor, drip marks on the stairs, the edges of the bedroom floors are patchy, there is a noticeable colour difference between most of the upper floor and one bedroom and the stairs, there are various other marks including an arc, which they contend is a container mark. Overall, they contend the finish is not to an unacceptable standard. [46] Mr Jolley says variously that the marks are minor, the shoe prints will self-rectify given time, some imperfections are caused by the floor having been previously sanded by others poorly, and the darker colour is because of decisions of Mr David Catania. [47] I consider each of the complaints. Shoe prints in lounge/bedroom [48] I find that the shoe prints are a defect for which BTF is responsible as they were caused by BTF exercising a lack of reasonable care and skill. [49] There is conflicting evidence in relation to who is responsible for the prints. Mr Jolley contends that someone other than BTF employees walked on the floor before it was dry and that the stain does not necessarily dry in the order in which it is applied. He says it may have been someone in the Catanias’ household or other tradespeople attending to finish the renovations. Mr David Catania and Ms Johanson deny that anyone went upstairs. Mr Jolley admitted he wears the type of shoe with the same distinctive tread pattern as appearing in the shoe prints while working. He says that he sands back the tread of his shoes to avoid such prints. [50] Mr Jolley also says that upon arriving at site one morning Mr David Catania excitedly denied that anyone had walked on the floors. This is denied. Mr Jolley’s evidence is that he turned to his son and said words to the affect ‘some moron has walked on the floor’. As observed earlier no statement of evidence by others to support Mr Jolley’s evidence has been filed. [51] Mr Jolley says the shoe prints will fade in time and are minor imperfections. Ms Harmer’s evidence is that the shoe prints are unlikely to completely disappear and require remedial work. Her evidence was that she clearly recalled that Mr Jolley admitted to her, during a telephone conversation leading up to her preparing her report, that the shoe prints were his or his employees. Mr Jolley denies he admitted to Ms Harmer that BTF caused the shoe prints. [52] The QBCC inspection report based on an inspection on 12 November 2018 notes that:40 (a) the shoe prints were ‘easily viewable from the normal viewing position as detailed in the QBCC Standards and tolerances guide.’ 40 Exhibit 2, attachment DC9, 5/24. -- 10 of 24 -- 11 (b) it is reasonable to expect that the marks were placed in the stain at a time when the stain was still quite wet. (c) the inspector could not determine which party was responsible. (d) there was insufficient evidence to determine defective construction practices by BTF. [53] Although the QBCC inspector was not called by either party to confirm his report and answer questions I place reliance upon his report as he is independent of both parties. I accept the inspector’s finding in paragraph (a) above. I find the shoe prints are not minor imperfections. The shoe prints constitute defective work because the finish is not acceptable in accordance with the QBCC Standards and tolerances guide. [54] Mr Abbott’s evidence was essentially that a reasonably competent flooring contractor could and should have buffed out the shoe prints, whether they caused them or did not cause them. Mr Jolley’s evidence is that most but not all shoe prints are able to be buffed out. I accept Mr Abbott’s independent evidence. [55] I prefer the evidence of Mr David Catania, Ms Johanson, Ms Harmer and Mr Abbott to that of Mr Jolley on this item. The weight of evidence is that the shoe prints are a defect for which BTF was responsible. [56] I find that BTF as an experienced flooring sander and finisher ought to have known and did know that leaving shoe prints in the stain would affect the finish of the floor. I also find that the risk of an unacceptable finish if shoe prints were made in the stain or not buffed out and the need for rectification was reasonably foreseeable. I find that the risk of an unacceptable finish was likely to occur if care was not taken and the risk was not insignificant. In the circumstances a reasonable contractor in BTF’s position would have taken precautions against the defect occurring. [57] I find that the shoe prints more likely than not were caused by BTF breaching its duty to Mr Christopher Catania to exercise reasonable care and skill and more likely than not the shoe prints remained in the finish because BTF breached its duty to Mr Christopher Catania to exercise reasonable care and skill to buff them out. [58] I find that BTF’s failures were a necessary condition of the occurrence of the harm suffered as contemplated by section 11(1)(a) of the CLA. The harm is the need to expend money for rectification to achieve an acceptable finish. [59] In considering whether it is appropriate for the scope of BTF’s liability to extend to the harm to Mr Christopher Catania I consider the remoteness of damage and whether there is a break in the chain of causation.41 The costs of rectification were reasonably foreseeable flowing from BTF’s work performed with a lack of reasonable care and skill of a competent contractor. I find there is no reason to limit the scope of BTF’s liability for the harm caused and I find that, on the balance of probability in view of the weight of evidence, there was no break in the chain of causation. 41 CLA, s 11(1)(b) and (4). -- 11 of 24 -- 12 Colour difference [60] I find that the colour difference is a defect for which BTF is responsible as it was caused by BTF exercising a lack of reasonable care and skill. [61] The Catanias say the floor colour in bedroom 342 and the stairs are noticeably darker than the other adjoining areas. [62] The Catanias point to one container of stain used being out of the manufacturer’s recommended storage stability date as a possible reason for the difference in colour.43 Mr Jolley denies this would affect the colour. Copies of messages in evidence before me from the manufacturer’s representative support Mr Jolley’s evidence.44 I accept that evidence. [63] There is insufficient evidence to find that the materials supplied by BTF were not suitable for their purpose causing or contributing to the colour difference. I am not satisfied that BTF breached their duty to supply materials suitable for their purpose. [64] The evidence is that the reason for this colour difference is that stain applied on the first day was insufficient to complete all areas and the remainder was applied a couple of days later after additional stain was purchased by BTF. [65] Ms Harmer’s evidence is that the areas stained later are considerably darker. Mr Jolley says that the variation when seen in person is not as great as contended. He also says the stairs look darker because there is less light on them than other areas. [66] Ms Harmer’s evidence is consistent with the QBCC inspection report which notes that:45 (a) the stain was noticeably darker in bedroom 3 and on the stairs than the adjoining living area floor; (b) the inspector determined that this was a contractual issue which the QBCC was unable to adjudicate upon. [67] I accept Ms Harmer’s and the QBBC inspector’s evidence that the stain in bedroom 3 and on the stairs is noticeably darker than the adjoining living area floor. [68] There is conflicting evidence in relation to this issue. Mr Jolley says that he warned Mr David Catania and Ms Johanson that due to their decision to use a straight brown stain rather than a red/brown stain as discussed over the phone there may be insufficient stain to complete all the areas. He says he warned them that all the areas should be stained at the same time and that BTF should return after more stain had been purchased. Mr Jolley says despite his warning he was instructed to proceed. As observed earlier no statement of evidence by others to support Mr Jolley’s evidence has been filed. 42 Exhibit 2, attachment DC9, 10/24. 43 Ibid, attachment DC7, 1/5. 44 Ibid, attachment DC4, 2/2. 45 Ibid, attachment DC9, 10/24, 11/24. -- 12 of 24 -- 13 [69] Mr David Catania and Ms Johanson deny they were warned and say that they agreed to proceed as they asked whether there would be any colour difference and were told there would not be. [70] The manufacturer’s technical information sheet states that ‘if more than one container is being used for large areas, the total quantity must be mixed before work commences in a large container.’46 Mr Jolley says he follows that recommendation and did so in respect of the five tins of stain used on the first day. [71] Mr Abbott gave evidence that he takes extra stain so that there is sufficient stain for a job to be done in one application and that a reasonably competent flooring contractor would not have commenced to stain the area if he considered there may not have been sufficient stain to blend together to achieve a consistent colour or would have put the warning in writing and obtained the client’s written consent. [72] Mr Jolley’s evidence is that he had taken more stain than he expected to use if a red/brown stain was used as discussed over the phone. He says Mr Abbott’s course of action was unrealistic due to the verbal altercation between him and Mr David Catania and his son. I do not accept Mr Jolley’s evidence in this regard. [73] The undisputed evidence is that the verbal altercation occurred early afternoon. The evidence is that the decision to proceed with the straight brown colour was likely made at or about 8.00am when the test strip was performed.47 This was well before the verbal altercation. [74] Mr Jolley says that the Catanias breached their ‘duty of disclosure’, which is denied. He says that the area to be stained was larger than discussed on the phone and the floor was in a worse condition than he was led to believe. His evidence is that such floors will absorb more stain. I accept that Mr Jolley is an experienced contractor. As an experienced contractor, it must have been clear to him shortly after arriving when his son measured the area and upon viewing the state of the floor and staircase how much stain would be required. Once the Catanias decided that they preferred the straight brown colour I find it highly unlikely that Mr Jolley would not have known that there was a considerable risk that BTF had brought insufficient stain to complete the whole area that day in straight brown. If such a warning was given it is likely that it would have been given well before the verbal altercation and therefore, I am not satisfied that BTF could rely upon the altercation as a reasonable excuse for not obtaining written consent. [75] Mr Jolley accepted that Mr David Catania stated, ‘he wanted the best’. In those circumstances, I am not satisfied, on the balance of probability, that Mr David Catania gave informed consent to proceed following a clear warning. I prefer the evidence of Mr David Catania, Ms Johanson and Mr Abbott to that of Mr Jolley on this item. [76] I find that BTF as an experienced flooring sander and finisher ought to have known and did know that applying stain to a large contiguous area ought to have been performed in one application and performing it on two occasions would result in noticeable differences in colour affecting the finish of the floor. I also find that the 46 Ibid, attachment DC7, 3/5. 47 Exhibit 7, attachment DC14, 1/1. -- 13 of 24 -- 14 risk of an unacceptable finish if stain was applied on different occasions and the need for rectification was reasonably foreseeable. I find that the risk of an unacceptable finish was likely to occur if care was not taken to ensure sufficient stain was mixed together and applied to a large contiguous area in one application and the risk was not insignificant. In the circumstances, a reasonable contractor in BTF’s position would have taken precautions against the defect occurring. I find it was unreasonable and not the actions of a competent contractor to not provide a written warning of the likely noticeable colour difference and obtain informed written consent before proceeding. [77] I find that it is more likely than not that the difference in colour is due to a breach of BTF’s duty to Mr Christopher Catania to exercise the degree of skill and care expected of a reasonably competent contractor. [78] I find that BTF’s failures were a necessary condition of the occurrence of the harm suffered as contemplated by section 11(1)(a) of the CLA. The harm is the need to expend money for rectification to achieve an acceptable finish. [79] In considering whether it is appropriate for the scope of BTF’s liability to extend to the harm to Mr Christopher Catania I consider the remoteness of damage and whether there is a break in the chain of causation.48 The costs of rectification were reasonably foreseeable flowing from BTF’s work performed with a lack of reasonable care and skill of a competent contractor. I find there is no reason to limit the scope of BTF’s liability for the harm caused and I find that on the balance of probability there was no breach in the chain of causation. Patchy stain around edges [80] I am not satisfied that the Catanias have proven on the balance of probability that the patchy stain around the edges are defects for which BTF is responsible. [81] Ms Harmer’s report notes that the stain is patchy around the edges in the middle bedroom and other locations. She also notes that the swirl marks are darker. She is of the opinion that this appearance relates to the stain application technique. Her oral evidence was that she did not have any issues with the sanding performed. She contends remedial work is required to address this. [82] Mr Abbott also gave evidence that he did not have any issues with the sanding performed. He is of the opinion that the patchy stain around the edges was caused by the stain not being properly applied. [83] The QBCC inspection report notes that in respect of bedroom 2:49 (a) the stain to the perimeter was observed to be patchy and that the sanding swirl marks to the perimeter were observable from the normal viewing position, the sanding to the corners and edges of the floor were not the same quality as the body of the floor. (b) the floor finish did not meet a reasonable standard as it was not performed in accordance with the relevant Australian standard.50 48 CLA, s 11(1)(b) and (4). 49 Exhibit 2, attachment DC9, 8/24. -- 14 of 24 -- 15 (c) as some areas of the floor had been previously sanded by another contractor the inspector was unable to determine responsibility. (d) there was insufficient evidence to determine defective construction practices by BTF. [84] Mr Jolley contends that whilst sanding bedrooms they noticed that there was ‘minor builder’s damage across the floor’ and noticed drips and spills of ‘unknown substances’ and whilst the majority sanded out when the stain was applied some of these were highlighted. [85] His evidence is also that the previous floor sander’s machine when attempting to level the floor had ‘dug in’ in some areas, which contributed to the dark staining around the edges, and that BTF had been unable to repair the damage. [86] Mr Jolley’s evidence, which was not disputed, is that the floor sanding performed by the previous contractor was poor. I accept Mr Jolley’s evidence that it is more difficult to achieve a good finish around the edges when the floor had previously been poorly sanded. [87] Mr Jolley’s evidence and the evidence of the QBCC inspector is consistent with Ms Harmer’s report where it recognises that ‘even sanding’ is necessary to ensure even absorbency of stain and that patchy stain is often the result of differences in absorbency and also recognises that floors are likely to contain some minor sanding marks particularly around the edges.51 [88] I am not satisfied that the poor finish at the edges is only an application issue. I am not satisfied this is a defect for which BTF is responsible. Circular marks in main bedroom [89] I am not satisfied that the Catanias have proven on the balance of probability that the circular marks are defects for which BTF is responsible. [90] The QBCC inspection report notes that:52 (a) it was observed that there were darker circular marks in the form of partial rings consistent with container marks. (b) the inspector could not determine whether the marks were the result of excess stain or imperfections in the substrate, which only become visible after stain has been applied. (c) there was insufficient evidence to determine defective construction practices by BTF. [91] The undisputed evidence is that the stain’s container was rectangular. The Catanias point to photographs of a round yoghurt tub used by BTF. Mr Jolley’s evidence is that on the first day BTF mixed the five containers of brown stain in a large tub and that a small round container was not used on the floor upstairs. He specifically 50 AS 4786.2 – 2005. 51 Exhibit 5, p12. 52 Exhibit 2, attachment DC9, 6/24. -- 15 of 24 -- 16 denies that the yoghurt tub was used upstairs. The only photographic evidence of this tub being used is while the stairs were being stained. The undisputed evidence is that the staircase stain was not applied on the first day when stain was applied to the main bedroom. There is no evidence by Mr David Catania or Ms Johanson that they saw BTF with such a container upstairs. [92] Ms Harmer is of the opinion that the marks are likely to have been made by stain on the bottom of a container and not from a pre-existing stain or damage, which she would expect would have been sanded out. Ms Harmer conceded she had no prior experience with this particular product. I place limited weight on her evidence on this aspect. [93] Mr Jolley contends that this mark was most likely caused by pre-existing damage to the floor, for example a score mark from a door jamb having been kicked out and the staining has highlighted the damage. Mr Abbott conceded that he had seen such damage in other floors and confirmed that a deep cut will be darker as open grain will absorb more stain. [94] There is insufficient evidence for me to be satisfied that the circular marks are defects caused by BTF’s lack of reasonable care and skill. Drip marks on stairs [95] I am not satisfied that the Catanias have proven on the balance of probability that the drip marks are a defect for which BTF is responsible. [96] The Catanias say that there are four treads with stain/drip marks. Their evidence particularly focussed on two treads because they could point to photographs.53 [97] The QBCC inspection report notes that:54 (a) there were darker stain marks on many of the treads and darker marks which looked as though stain had been dripped onto the stair surface and had not been feathered/blended into the surface. (b) there was insufficient evidence to determine defective construction practices by BTF. (c) photographs had been provided to QBCC dated at the time of the staircase staining which showed that the marks only became evident during the staining process indicating the presence of inclusions/imperfections in the substrate, which were unable to be feathered. [98] The photographs referred to by the QBCC are not in evidence before the Tribunal. Mr Jolley says that he deleted many photographs after the QBCC decided not to issue a direction to rectify. He says that the Catanias had not ensured the stairs were properly protected prior to sanding and staining by BTF. [99] The evidence is that the stairs had been installed some time prior to BTF’s engagement and any protective covering had been removed to allow the previous flooring contractor to carry out its work. There is no evidence that the stairs had 53 Exhibit 2, attachment DC 9, 12/24, photo 6 and Exhibit 2, attachment DC 10, 1/1. 54 Ibid, attachment DC9, 11/24. -- 16 of 24 -- 17 been protected in the intervening time. Mr Jolley says BTF sanded the stairs twice, including once immediately prior to applying the stain on the stairs. He says he noticed after he had stained two treads that the stain appeared to grab an unknown substance which would not wipe off and that he took photographs as this was happening and sent it to the QBCC. The QBCC report is consistent with Mr Jolley’s evidence. [100] Mr Abbott’s evidence is that he would not have expected a pre-existing substance on the stairs to react in the way suggested by Mr Jolley and he considered the drips on the stairs were likely caused by concentrated stain not properly applied. He gave evidence that the only way to know was to have a sample sent away to a laboratory to be tested. There was no evidence that this had been done. [101] Ms Harmer’s evidence is that the drip marks on the stairs are likely to be from poor application and that they should have been wiped away and feathered into the surrounds. Ms Harmer conceded she had no prior experience with this particular product. I place limited weight on her evidence on this aspect. [102] Ms Harmer also gave evidence that she understood the staircase had been rectified and this had confirmed her opinion. Mr David Catania and Ms Johanson shook their heads and Ms Harmer then confirmed that she had not re-attended the premises since her initial inspection so was unable to say whether the stairs had been rectified or not. [103] Mr Jolley contends that Mr David Catania had previously advised the Tribunal at a directions hearing that the stairs had been rectified. He pointed to the lack of evidence as to what was done to rectify the stairs. [104] After the hearing I listened to the recording of the directions hearing held on 25 August 2020. At that directions hearing Mr David Catania sought a direction allowing further evidence to be filed in the form of an updated report from Ms Harmer. He informed the Tribunal that he was seeking such a direction as they had got the stairs redone and all the stains were gone. He told the Tribunal that this would prove that Mr Jolley’s evidence as to the cause of the marks on the stairs was untrue. He clearly informed the Tribunal that the staircase had been redone but that the floor had not been rectified. Ms Johanson was also in attendance at the directions hearing, conducted by telephone, assisting him to communicate with the Senior Member as to the directions sought and why. A direction allowing further evidence was made but no further evidence was filed in response to it. [105] An inference which could be drawn is that any evidence which might have been filed was not supportive of the Catanias’ position contrary to what was said at the directions hearing or that Ms Harmer was not able to give supportive evidence in an updated report, including because she did not carry out or witness the rectification work. Mr David Catania maintained at the hearing before me that the work on the staircase had not been performed but did not seek to explain the inconsistent position taken at the directions hearing. [106] In view of the state of the Catanias’ evidence, I am not satisfied on the balance of probability that the drip marks are defects caused by BTF’s lack of reasonable care and skill. The stairs had been installed and unprotected for some time prior to BTF performing its work. I prefer the evidence of Mr Jolley, which is supported by the QBCC Inspector’s report. -- 17 of 24 -- 18 Scratch marks [107] I am not satisfied that the Catanias have proven on the balance of probability that the scratch marks are a defect for which BTF is responsible. [108] Ms Harmer’s report noted that there were scratch marks of varying degrees and that where the marks are extensive or highly noticeable then re-sanding would be required to address them. There is insufficient evidence before me to make findings in relation to the extent of highly noticeable scratches. [109] There is insufficient evidence for me to be satisfied that any ‘highly noticeable’ scratch marks are defects caused by BTF’s lack of reasonable care and skill. Claim in negligence against Mr Jolley [110] I find that Mr Jolley breached his duty of care to exercise reasonable care and skill. [111] Mr Jolley contends any claim should only be against BTF as he and the other two workers were at the site in their capacity as employees of BTF. There is no evidence to the contrary. I accept that each of the workers were performing work as employees of BTF. [112] The law recognises that a company is a separate legal entity, which exists separate from its directors and shareholders. In a limited category of cases individuals associated with a company may be held personally liable to another party but it is necessary to show more than that a person was a director or a shareholder of an entity with whom the party has contracted.55 [113] In G Rocca Pty Ltd v Timetrex Pty Ltd (Building and Property)56 the relevant Tribunal acknowledged that in certain circumstances a director may be personally liable for the wrongs of the company and that it was necessary to distinguish between the conduct of the director in his capacity as a director, and his conduct alleged to have been in a personal capacity.57 [114] Mr Jolley is the director and nominee of BTF and personally performed some of the work and claims to be ‘a world class, industry leading expert in floor sanding and finishing.’58 Mr Jolley gave evidence of his extensive experience in floor sanding and finishing. There was no specific evidence as to the experience of the other two workers. One of the workers was Mr Jolley’s son. It is likely that Mr Jolley has significantly more experience in sanding and finishing floors than his son. There is evidence before me that Mr Jolley’s occupation in 1992 was ‘floor sander.’59 [115] Mr Jolley was the person who negotiated the informal contract. In doing so he did not ensure that the Catanias knew they were dealing with him in his capacity as director and nominee of BTF by documenting the agreement before commencing. 55 Tracey and Anor v Olindaridge Pty Ltd and Ors [2014] QCAT 617. 56 [2017] VCAT 261. 57 Ibid, [39]. 58 Exhibit 9, page 2, last paragraph. 59 Ibid, attachment MJ3. -- 18 of 24 -- 19 [116] The evidence is that Mr Jolley was the person who directed the work being performed on site and was the decision maker. He was the person who gave the third co-worker permission to leave on the first day. [117] As noted above, Mr Jolley was named as the initial respondent in the mistaken belief that he personally as distinct from BTF was trading as ‘Floor.com.au’. The Catanias thought they were dealing with Mr Jolley personally. [118] I find through a combination of these factors Mr Jolley assumed responsibility to the Catanias to take reasonable care to avoid causing the homeowner, Mr Christopher Catania, loss through defective work. The Catanias were ‘vulnerable’ in their dealings with Mr Jolley in view of the high degree of control exercised by him. I am satisfied that Mr Christopher Catania was unable to adequately protect himself from the consequences of Mr Jolley’s lack of reasonable care. [119] I find that Mr Jolley owed Mr Christopher Catania a duty personally to take reasonable care to prevent foreseeable loss being suffered when sanding and finishing the flooring and stairs. The nature of the duty is the same as that owed by BTF. [120] For the reasons set out above in respect of BTF, I find that Mr Jolley breached the duty of care owed. Was there contributory negligence? [121] I find there was no contributory negligence by Mr Christopher Catania. [122] The CLA requires me to consider whether the person who suffered harm, Mr Christopher Catania, has been guilty of contributory negligence in failing to take precautions against the risk of the harm applying the same principles as are applicable in deciding whether BTF or Mr Jolley breached their duty.60 If there has been contributory negligence then I am to decide the extent to which a reduction in damages is just and equitable.61 [123] There is no sufficient evidence upon which I could find that Mr Christopher Catania or his agent, Mr David Catania, failed to take precautions against the risk that BTF or Mr Jolley would carry out the sanding and finishing work to an acceptable standard. The evidence is that the Catanias had no particular knowledge of sanding and finishing work and were reliant upon the skills and experience of BTF and Mr Jolley to perform the work with reasonable care and skill. Proportionate liability [124] I am not satisfied that proportionate liability applies to this claim. [125] The CLA requires the Tribunal in an apportionable claim62 to apportion the loss between concurrent wrongdoers reflecting the proportion of loss or damage 60 CLA, s 23. 61 Ibid, s 24. 62 Ibid, s 28, s 29. -- 19 of 24 -- 20 considered to be just and equitable having regard to their responsibility for the loss or damage.63 Are BTF and Mr Jolley concurrent wrongdoers? [126] I find that BTF and Mr Jolley are not concurrent wrongdoers. It is unnecessary to make a finding whether this is an apportionable claim and whether Mr Christopher Catania is a consumer.64 [127] Where there are two or more persons whose acts or omissions caused, independently of each other, the loss or damage claimed they are regarded as concurrent wrongdoers.65 [128] The acts or omissions of Mr Jolley as director, controlling mind and employee of BTF constituted the conduct of BTF of which the Catanias complain. There was no separate or discrete acts or omissions by Mr Jolley and BTF which caused the loss.66 What award of damages would put Christopher Catania in the position which he would have been in if the negligent acts (shoe prints and colour differences) had not occurred? [129] I find that Mr Jolley and BTF are to pay Mr Christopher Catania the sum of $13,770 (incl GST) as damages. [130] Ms Harmer’s evidence is that to address all the concerns it would likely necessitate sanding back the floor to bare timber and to repeat the stain and coating process. She does not give evidence of the cost of such rectification. [131] Mr Abbott also gave evidence that in his opinion the whole floor and staircase needs to be sanded back to raw timber and coating re-applied. He provided a quote to perform such work in the amount of $18,900 (incl GST). The work quoted includes the removal of the stair balustrades from the handrails and the stair treads and includes the application of a different coating product to that used by BTF. [132] Mr Jolley contends that it is unwise to sand the floor a third time for these minor imperfections as another sanding would reduce the lifespan of the floor. Mr Jolley contended that individual floorboards and stair treads could be replaced for a much lesser cost and that he has never removed balustrades to re-sand a staircase. Mr Jolley did not include in his filed statements any evidence of what he says the reasonable method of rectification is in the event of a finding of defective work and therefore did not include any evidence as to its costs. [133] Mr Abbott’s evidence is that: (a) it is possible to replace floorboards but as the colour is inconsistent throughout the upper level it would be necessary to re-do the entire area to create an acceptable finish; 63 Ibid, s 31. 64 Ibid, s 29. 65 Ibid, s 30. 66 Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd [2013] QSC 319; Hadgelias Holdings Pty Ltd v Seirlis [2015] 1 Qd R 337. -- 20 of 24 -- 21 (b) he did not consider that it would be possible to replace the affected treads in the absence of dismantling the staircase; (c) it may be necessary to remove the stair balustrade to ensure the current stain could be completely removed from the stairs. If it was not necessary to perform that work to remove the stain, then he estimated the costs to rectify would be reduced by approximately $1,500 (excl GST); (d) he did not have his paperwork with him, but he estimated the cost of rectification would be approximately $90 per m2 (for sanding and coating approximately $75 per m2 and for colour approximately $15 per m2). [134] Mr Abbott did not clearly indicate if the rate was GST inclusive or exclusive. The BTF itemisation of work indicates a rate of $140 per m2 (incl GST) for the 153 m2 floor work.67 Mr Jolley gave evidence that BTF usually charged more than other contractors and that the stain BTF applied was a more premium product than that quoted by Mr Abbott. [135] Although not all complaints were made out, I accept Mr Abbott’s independent evidence that the upper floor would need to be re-sanded and re-coated to achieve an acceptable finish given my findings in relation to the shoe prints and the colour differences. The undisputed evidence is the upper floor measured 153m2. On my calculation, on Mr Abbott’s evidence, which I accept, it would cost in the order of $13,770 (incl GST) to re-sand and finish the upper floor to an acceptable finish to put Mr Christopher Catania in the position which he would have been in if the negligent acts had not occurred. [136] Having regard to Mr Abbott’s written quote,68 this leaves approximately $5,130 (incl GST) for rectifying the stairs or approximately $3,480 (incl GST) if it was not necessary to remove the balustrades. The BTF itemisation of work sets out $3,300 (incl GST) for the stair work.69 I am not satisfied that the reasonable costs of rectification should include what is essentially a contingency amount for work on the stairs, which might or might not be required to put Mr Christopher Catania in the position he would have been in if the negligent acts had not occurred. [137] As mentioned earlier in these reasons, there was conflicting information before the Tribunal as to whether or not the staircase had been rectified. Mr David Catania failed to explain the conflicting information. In these circumstances, I am not satisfied that any amount should be awarded for the staircase work. Counter-application [138] I find that the counter-application should be dismissed. [139] Mr Jolley says that Mr David Catania and his son ‘assaulted’ him. The evidence shows, and I accept, that there was a heated verbal exchange with raised voices and swearing. Mr Jolley also contends that following ‘the assault’ he agreed to perform varied work for an additional $1,000, so that the total price was $14,000. He says that the value of the work performed was $24,720 (incl GST) and that BTF is 67 Exhibit 2, attachment DC1, 2/2. 68 Exhibit 6. 69 Exhibit 2, attachment DC1, 2/2. -- 21 of 24 -- 22 entitled to be paid the balance of $10,720 (incl GST) on the basis that the agreement to perform the additional work was made under ‘duress’ and should be set aside. [140] As stated earlier in these reasons, any such agreement is ineffective as it does not comply with the QBCC Act. [141] Where a contractor cannot seek payment under an ineffective contract, a contractor may make a claim in restitution or unjust enrichment, which is sometimes referred to as a quantum meruit claim for the reasonable value of the work performed. [142] Whilst BTF claimed the agreement should be set aside for ‘duress’ it was essentially claiming it should be paid the reasonable value of the work performed. In circumstances where the informal agreement is ineffective for different reasons, I am satisfied that having regard to the documents filed by BTF that a claim in restitution or unjust enrichment or quantum meruit is open. [143] The Appeal Tribunal has recently considered the nature of claims in quantum meruit and stated:70 [30] There is support for the proposition that the basis for a claim in quantum meruit is the acceptance of benefit and the claim does not rest on any implied contract theory. As stated in Halsbury’s: The rule is based on the view that there must be evidence justifying the inference of a fresh contract to pay for the work done. However, because the implied contract theory of restitution has been rejected, an inability to imply a contract is no longer conclusive and, under the guidance of unjust enrichment, acceptance of benefit or incontrovertible benefit are the proper bases for quantum meruit claims in relation to a benefit conferred by way of partial performance by a plaintiff in breach. [31] This analysis recognises that a claim in quantum meruit can refer to different types of claims. The High Court in Mann recently outlined the history of a claim in “quantum meruit”: [150] The issues on this appeal, as at first instance and before the Court of Appeal, were described in terms of “quantum meruit“, sometimes on the assumption that the phrase identifies a species of restitution for unjust enrichment. But the Latin may mislead. It means only “as much as he deserved”, and as such refers to a sum certain which represents the benefit of services. As is explained in what follows, it was a label given to a form of action which fell into desuetude, superseded by counts in indebitatus assumpsit, even before the abolition of the forms of action. In its historical use, the form of action was truly contractual, describing an implied price of a reasonable sum for work done. To plead a claim today merely by reference to that language of the form of action tells a lawyer very little, and a layperson nothing at all, as to (i) whether the cause of action is one to enforce the contract, seeking payment of a reasonable price implied into the contract, (ii) whether it is an asserted claim for a restitutionary remedy for breach of contract, or (iii) whether it is a remedy arising by operation of law in that category of actions concerned with restitution in the category of unjust enrichment. This litigation has only ever been concerned with the final category. The 70 Brett & Anor v Manson t/as Manson Homes [2020] QCATA 122, [30]-[32] (references omitted). -- 22 of 24 -- 23 issue therefore appears to involve other considerations including, for instance, whether there was acceptance by the applicants of the respondent’s work, and is not confined to whether the respondent was in breach. [32] Similarly, in this case, we are concerned with the latter category and are too, focused on acceptance of the respondent’s work and not merely whether he was in breach. [144] BTF did not file any independent evidence of the reasonable value of the work performed by it. Mr Abbott’s independent evidence as to the costs of rectification to essentially re-perform BTF’s work, although using a different product, was in the order of $17,250 (incl GST).71 As mentioned earlier in these reasons, Mr Jolley contended the product used by BTF was a more expensive product than that proposed by Mr Abbott. There is no documentary or other evidence before me supporting this part of Mr Jolley’s evidence. He also conceded during the oral hearing that BTF usually charged more than other contractors. Even if I were to accept Mr Jolley’s evidence that the reasonable value of the work performed was $24,720, which I do not, and I accept that the Catanias voluntarily accepted the benefit of the work performed, I am only satisfied they accepted the work up to the price agreed, being $14,000. [145] Mr Jolley conceded that when he gave a ballpark figure of $19,000 - $20,000 on the phone prior to attending site Mr David Catania told him that he could not afford that much and ‘to forget about it’. [146] The undisputed evidence is that when Mr Jolley attended to inspect the floor, which was a Saturday, the price discussed and orally agreed was $13,000. Mr Jolley concedes Mr David Catania informed him before attending the premises that he only had $13,000 for the work and that the floor had been previously sanded. Mr Jolley inspected the floor and formed the view that it was in a poor state. He also inspected the stairs and decided to proceed with that work. Mr Jolley says that he told Mr David Catania that ‘it needed the full job’ and that Mr David Catania agreed for it to be done. Mr Jolley essentially says he thought Mr David Catania knew that meant the cost would be more than the ball-park figure of $19,000 - $20,000, which was a price which did not include the stairs. Mr David Catania says he did not agree to pay more and relies on the fact he had told Mr Jolley he only had $13,000 for this work and essentially says he did not agree to pay whatever Mr Jolley decided to charge. [147] The undisputed evidence is that: (a) during the first day the scope of work was varied, and it was orally agreed that an additional $1,000 would be paid for the work. (b) of the $14,000, the amount of $5000 was paid on the Saturday with a further $5000 being paid on the Tuesday and the balance $4,000 on the next day, being Wednesday. Mr Jolley’s email of Tuesday evening confirms that the agreed total price is $14,000 and that he had at that time received $10,000.72 71 Exhibit 6. $18,900 (incl GST) less $1,650 (incl GST) for removing balustrades equals $17,250 (incl GST). 72 Exhibit 2, attachment DC1. -- 23 of 24 -- 24 [148] I am not satisfied that the claim in quantum meruit for an amount in excess of the amount agreed and paid is made out. It should be dismissed. Costs [149] The Catanias sought costs in the sum of $1,338.20. It is appropriate to make directions to allow submissions as to whether or not a costs order should be made having regard to the decision and these reasons, in circumstances where no party proved the entirety of their claims.73 This will also allow any additional evidence as to costs incurred and sought to be claimed to be filed and served together with any evidence as to any relevant offers to settle which may have been made to be brought to my attention along with any other relevant matters. 73 QCAT Act, s 100, s 102, s 105; QBCC Act, s 77. -- 24 of 24 --