Byrne v Holford t/a Queensland House Restumping [2020] QCAT 530

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: PARTIES: Byrne v Holford t/a Queensland House Restumping [2020] QCAT 530 CHRISTOPHER BYRNE (applicant) v ADAM HOLFORD T/A QUEENSLAND HOUSE RESTUMPING (respondent) APPLICATION NO/S: BDL184-19 MATTER TYPE: Building matters DELIVERED ON: 22 December 2020 HEARING DATE: 25 November 2020 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: Mr Holford pay Mr Byrne the sum of $210.50 within 14 days of the date of order. Each party bear their own costs. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where a builder was engaged to perform building work – where there was no contract in writing signed by the parties in breach of s 13(2) of Sch 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where the builder is entitled to claim under quantum meruit – where the builder failed to obtain or use foundation data before contracting – where the lack of foundation data made the estimated cost of foundations work fall far short of actuality - where the builder was thereby disqualified from claiming undisclosed reasonably ascertainable charges for foundation work by s 31(8) of Sch 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – where the owner was entitled to recover for damage caused by the builder on site Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B s 13(2), s 31(2), s 31(8) -- 1 of 9 -- 2 Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40 Classic Deco Pty Ltd v Fine Touch Pty Ltd [2020] ACTSC 209 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 Suncorp-Metway Ltd v Nagatsuma [2019] QSC 16 Westpac Banking Corporation v Cockerill [1998] FCA 43 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Self-represented REASONS FOR DECISION [1] Mr Byrne engaged Mr Holford to restump his house. [2] Mr Holford prepared two separate documents describing the work entailed before commencing. One document was designated a quote for restumping the rear portion of the house (‘the Quote’). The other was entitled Provisional Sum Notification for the earthworks associated with that. [3] The price given in the Quote was $6,006 (including GST) and in the Provisional Sum Notification, $11,649 (including GST). Both documents were dated 2 May 2019. [4] The Provisional Sum Notification contained the following qualification: “This is not a quotation and therefore the actual cost may differ from the amount set out above.” [5] Under the heading Description, the price was a provisional sum for earthworks “to leave the slab level”, though there does not appear to have been any existing slab in place nor concreting work to be done by Mr Holford. [6] Not referred to in the documents but agreed between the parties was that Mr Byrne would pay a deposit of $1,000 for the restumping1 and then the balance after all the work was completed. The documents were not signed by the parties save that Mr Holford signed the Provisional Sum Notification. [7] Work commenced on 13 May 2019 and continued, slower than anticipated, through to 31 May 2019. According to Mr Holford, in the course of the earthworks he discovered that there was hard rock on site and as a result he had to do far more work and use much larger equipment than originally anticipated. [8] During the work Mr Holford’s employee caused some damage to the property with machinery. [9] Mr Holford invoiced Mr Byrne for the earthworks. It was for far more than the estimate in the Provisional Sum Notification. He in fact issued three invoices for earthworks: the first on 17 May 2019 for $13,400.75 discounted to $12,060.67; the 1 Ex 1 page 88. -- 2 of 9 -- 3 second on 24 May 2019 for $8,723; and the third on 4 June 2019 for $5,043.50, all of which totalled $25,827.17. [10] He completed most of the restumping work and issued an invoice for $2,998 on 3 June 20192 representing half the value of the work described in the Quote. The invoice noted Mr Byrne was to withhold the other half pending Mr Holford’s rectification of kitchen tiles damaged during minor raising of the house. [11] Mr Byrne paid the deposit of $1,000 for the restumping and the first and second earthworks invoices totalling $21,783.67. He refused to pay the third invoice. [12] By email dated 5 June 2019 Mr Byrne effectively excluded Mr Holford from site. [13] Mr Byrne commenced building dispute proceedings in the Tribunal, initially seeking recovery of $12,667.15 (plus costs of $2,000), but which subsequently increased in the course of the litigation to $15,532.95 in total. [14] Mr Holford has made a counter application seeking a balance due under the contract of $7,539.50. [15] The matter came on for hearing on 25 November 2020. The contract [16] Despite the absence of formal contract, Mr Holford’s engagement by Mr Byrne was an engagement by a home-owner of a building contractor to carry out domestic building work.3 The engagement evidenced by the Quote and the Provisional Sum Notification constituted a domestic building contract between the parties.4 [17] The Quote for the restumping work was $6,006 and Provisional Sum Notification was for $11,649 and therefore the cost of the work was for more than the minimum regulated amount ($3,300). Given that, the contract was a regulated contract under the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).5 It was for a total of $17,655 which was less than $20,000 and therefore it was a level 1 regulated contract.6 [18] Section 13(2) and s 13(3) of Schedule 1B of the QBCC Act impose certain requirements on owners and builders entering into a level 1 regulated contract. Section 13(2) requires, at minimum, that the contract be in writing, dated and signed by both parties. [19] The requirements of s 13(2) were not met here. Neither the Quote nor the Provisional Sum Notification were signed by Mr Byrne. The Provisional Sum Notification was signed by Mr Holford but he did not sign the Quote. [20] The legislation imposes a considerable sanction on both parties if the requirements of s 13(2) are not complied with, namely that the contract is of no effect.7 The contract 2 Ex 1 page 26. 3 The renovation, alteration, extension, improvement or repair of a home is domestic building work – QBCC Act, Sch 1B s 4(1)(b). 4 QBCC Act, Sch 1B s 3(1)(a). 5 QBCC Act, Sch 1B s 5. 6 By QBCC Act, Sch 1B s 11 where there are multiple contracts for the same domestic building work the separate contracts are taken to be a single contract for the sum of the contract prices. 7 QBCC Act, Sch 1B s 13(5). -- 3 of 9 -- 4 here (consisting of the Quote and the Provisional Sum Notification) is void and it cannot be enforced by either party. Quantum meruit [21] Though the contract is of no effect and the builder cannot sue on it, that does not prevent Mr Holford claiming for the reasonable value of his work done on the basis of a claim in quantum meruit. The work has been done and Mr Byrne has accepted the benefit of it and it would be unjust if Mr Holford was not paid a reasonable amount for it. A claim in quantum meruit is available in circumstances where a contract is rendered unenforceable by statute,8 as is the case here. It is not a claim based on the contract. [22] I quantify Mr Holford’s entitlement in quantum meruit below. Before that can be done however, a matter of foundations data must be addressed. Foundations data [23] By s 31(2) of Sch 1B of the QBCC Act, before entering into a contract a building contractor must obtain foundations data appropriate for the building site. [24] By s 8 of Sch 1B, foundations data is information about a building site a building contractor, exercising reasonable care and skill, would need to have to prepare appropriate footings designed for the site and to enable the contractor to give an adequate estimate of the cost of constructing footings. [25] If the building contractor enters a regulated contract before obtaining foundations data, he cannot seek an amount from the building owner which is not already provided for in the contract if the need for an additional amount could reasonably have been established and calculated by complying with s 31(2).9 [26] The term “footings” referred to in the definition of foundations data is not defined in the QBCC Act but the general dictionary definition is, as relevant: The basis or foundation on which anything is established; The part of the foundation of wall, column etc., that is in direct contact with the ground.10 [27] I determine the work excavating beneath the house to allow restumping and putting in bored piers for the stumps was footings work for the dwelling. [28] There was a retaining wall intended to be built at the dwelling though not by Mr Holford. Mr Holford was supposed to dig bored piers for the retaining wall but that was not done because of the huge “blow out” in the excavation work in the course of the construction. [29] Mr Holford gave evidence that after striking rock he had had to dig bored piers for each house stump being installed which had not been in his “contemplation” when he gave the Provisional Sum Notification. 8 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221. 9 QBCC Act, Sch 1B s 31(8). 10 Macquarie Online Dictionary. -- 4 of 9 -- 5 [30] Mr Holford said in a statement of evidence: The additional time related to not only the excavation of the area to be removed for the carport, but also to the digging of the holes for the new stumps to be erected in respect of the restumping component of the job. The Provision Sum (sic) did not contemplate this extra work.11 [31] He went on to say: The effect of the earth not being coffee rock, meant that the work performed by QHR was at least 50% more than what was contemplated in Provisional Sum (sic).12 [32] Coffee rock is soft and easily dug and excavated as opposed to granite and hard shale. Mr Holford said Mr Byrne told him it was coffee rock and the: … Provision Sum (sic) was based on the assumption earth being excavated and removed, was coffee rock (being a soft and brittle type of rock that is easier excavated). QHR issued the Provision Sum (sic) on the assumption earthworks involved the excavation of coffee rock, because during my initial discussions with Mr Byrne during the process of quoting and estimating the job (that is, during the period before issuing the Provision Sum (sic)), Mr Byrne told me that the earth below the house was coffee rock. [33] Mr Holford further claimed Mr Byrne told him that Mr Byrne had a soil test confirming the rock under the house was coffee rock and that Mr Byrne was supposed to send him a copy but Mr Holford did not “recall” receiving the report. [34] Mr Byrne denies that. Mr Byrne said he provided a copy of a soil survey of the site dated 8 November 2018 to Mr Holford when entering into the contract. Mr Holford’s evidence was vague on this point. He said he cannot recall receiving it, but if he did, he got it after he quoted.13 [35] I prefer the evidence of Mr Byrne who was adamant that he provided a copy to Mr Holford before contract. The soil survey in question clearly showed rock at 500mm. [36] An independent house stumping contractor, Mr Simpson, gave evidence for Mr Holford. Mr Simpson said that Mr Holford’s charges for the work done were reasonable. He also said however that a soil test was always necessary before doing work in jobs such as the one here. [37] But whether Mr Holford was provided with a copy of the existing soil survey obtained by Mr Byrne (given the survey confirmed the existence of rock 500mm beneath the surface) or not, the obligation is placed on a contractor by s 31 of Sch 1B of the QBCC Act to obtain, and of course utilise, foundations data before contracting and pricing a contract. [38] Mr Holford breached the s 31(2) requirements and by s 31(8) he is not entitled to claim for more than the cost of the foundation work provided for in the contract. [39] The statutory prohibition in s 31(8) denies an offending contractor any right to “seek from the building owner an amount not already provided for in the contract”. The 11 Ex 8 [12(a)]. 12 Ex 8 [13]. 13 Ex 8 [8]. -- 5 of 9 -- 6 prohibition is general, not limited to actions on the contract. It extends in my opinion to all claims howsoever raised, including a claim in quantum meruit. [40] There is very limited information available about the additional unexpected and therefore undisclosed cost of the foundation work that eventuated. I take into account what Mr Holford said about the hard rock adding a factor of 50% to the excavation work generally. I take into account the additional expenses of digging and concreting five bored piers. Doing the best I can on the limited evidence to hand I assess the undisclosed extra cost of the foundation work that could have been estimated prior to contract had foundations data been utilised and the cost of the work increased accordingly was $1,000 per stump making a total of $5,000. [41] The calculation of Mr Holford’s entitlement under quantum meruit is not straightforward. He billed Mr Byrne $31,823.17 all up for his work. [42] Mr Simpson, the house stumping contractor who gave evidence for Mr Holford, said Mr Holford’s charges for the work done (which comprised the work set out in the Quote and the Provisional Sum Notification) were very reasonable. I accept that. Mr Simpson seems to have taken a measured approach in reaching his conclusion. I find Mr Holford’s costs claimed for the work done on site were reasonable at $31,823.17. [43] He was paid a deposit of $1,000 and then was paid $21,783.67 in progress payments, which leaves a balance of $9,039.50 outstanding. [44] His claim in quantum meruit must then be reduced by $5,000 pursuant to s 31(8). That leaves a balance due him of $4,039.50 as the reasonable price of work done and unpaid. Money paid [45] Mr Byrne says he paid Mr Holford more than the original cost estimate for the job. He wants to recover the difference between what he has paid and the original cost estimate. [46] As stated, by s 13(8) of Sch 1B QBCC Act, the contract has no effect. It cannot be enforced. Monies claimed as an overpayment on the contract price cannot be pursued as a breach of the terms of the contract. [47] Nor in any case, given my determination that Mr Holford has a claim in quantum meruit and he is due money from Mr Byrne on that basis, can Mr Byrne claim he has paid too much. [48] I address his claim of payment of money under duress however as a matter of completeness. It is not made out regardless of Mr Holford’s claim under quantum meruit. [49] Duress, like undue influence, focuses upon the effect of pressure upon the quality of the consent or assent of the pressured party rather than the conduct of the party against which relief is sought.14 The pressure must be in some way illegitimate.15 14 Westpac Banking Corporation v Cockerill [1998] FCA 43. 15 Suncorp-Metway Ltd v Nagatsuma [2019] QSC 16, [69]; Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40. -- 6 of 9 -- 7 [50] Here the evidence does not show that Mr Holford pursued a demand for payment in knowing defiance of the legal entitlement of Mr Byrne not to pay more than the price stated in the Quote and Provisional Sum Notification.16 Mr Holford thought he was entitled to charge more, largely the result of the poorly documented arrangements made between the parties, though he was in error in thinking that. [51] Further Mr Byrne offers no evidence why he could not have refused to pay the additional monies claimed and then engaged other contractors to complete the work. He made a decision to pay Mr Holford as a matter of his own convenience. Damage done [52] During the construction Mr Holford’s worker caused damage to the house. Mr Byrne claims a total of $5,374.38 for repairs of such. [53] I accept work was carried out by Mr Holford’s employee without the appropriate degree of care and skill shown. The claim is able to be pursued as breach of a duty of care owed Mr Byrne outside the terms of contract. Mr Holford concedes damage was done by his operator on site and accepts responsibility to rectify the damage caused but suggests he could have repaired the damage for much less than third party contractors have quoted. Mr Holford said: The reasonable costs to repair the damage caused by QHR, approximately total about $4,200. If Mr Byrne had allowed QHR to fix some of the damage, then these costs would have been reduced to $1,800.17 [54] Mr Byrne lists the damaged items and their costs of repair as follows: Repair broken bottom rail of fence $ 468.38 Replace damaged cladding $ 545.05 Repair damage to joist $ 259.60 Repair leaking copper pipe $ 288.75 Adjust doors $1,062.60 Retiling $2,750.00 Total $5,374.38 [55] He provides a handwritten tax invoice/statement for the cost of tiling work done of $2,750.18 There was clear evidence of damage to tiles with the lifting of the house and Mr Holford does not contest that the tiles had to be replaced.19 Tiles are hard to match and replacement of the entire area concerned (the kitchen) was most probably the only course. I accept the cost of re-tiling has been incurred by Mr Byrne, it was necessary and the charge is reasonable. [56] Mr Holford suggests Mr Byrne agreed to pay for half the cost of tiling, however Mr Byrne denies that20 and even if the offer was made there was no consideration for that 16 Classic Deco Pty Ltd v Fine Touch Pty Ltd [2020] ACTSC 209, [111]. 17 Ex 8 [19c]. 18 Ex 1 page 31. 19 Ex 5 “Notes” [4]. 20 Ex 2 page 2. -- 7 of 9 -- 8 concession, and Mr Byrne is not bound by it and is entitled to recover the costs of rectification in full. [57] The values of the remaining items of claim are derived from a quotation given by a firm called Hire a Hubby. The quotation lacks letterhead and is not signed but there is a short statement filed by a person from Hire a Hubby which confirms the damaged items sighted. The statement of evidence does not say anything about the reasonableness of the proposed charges, however. [58] Mr Byrne said at hearing that none of the work quoted on by Hire a Hubby has in fact been done by that firm. It seems none of the work quoted on has been done by anybody yet save for one item fixed by Mr Byrne himself, the leaking copper pipe.21 [59] Mr Byrne claims the amount Hire a Hubby was going to charge to repair the pipe. Given Mr Byrne did the work there is no evidence that the repair cost anything. It was most probably a trivial matter if Mr Byrne, who is not a plumber, was able to fix the leak. Whether he should have done so given it was a plumbing issue is another question. I conclude there should be no amount allowed for this item. [60] In respect of the other items set out in the Hire a Hubby quote, the costs seem somewhat excessive in the absence of adequate explanation. [61] The damage to the joists appears to have been cosmetic only, certainly not structural. Very minor surface splintering of a couple of timber joists from contact with a machine can be seen in photographs. [62] There was also a broken fence rail and a piece of damaged “cladding” (from the photographs, a weatherboard) and the costs of adjusting doors inside the house. [63] Concerning the fence rail, the Hire a Hubby quotation talked of clearing away soil in front of the fence and replacing the existing timber slats with new. One might ask why new timber slats were necessary. [64] The charge of $1,062 to “adjust” two doors seems expensive for the task described. [65] The Hire a Hubby claim seems generally overweighted. I allow an amount of $1,500 for all items referred to in the Hire a Hubby quotation as the reasonable cost of repair. [66] In a late statement of evidence Mr Byrne added a claim for what he said was the cost of obtaining a Form 16 certificate, $400. There is also a receipt attached to the same statement of evidence for the cost of an extension of building approval dated 12 November 2019. It is not entirely clear whether that second cost is also claimed. [67] Both claims are based on effecting the contract terms (such as they are though there is no mention of these matters in either the Quote or the Provisional Sum Notification) and as such they cannot be recovered in light of s 13(8) of Sch 1B of the QBCC Act. [68] Similarly, Mr Byrne brings a claim for incomplete work under the contract which must fail for the same reason. He seeks $1,320 for the cost of completing bracing between stumps and $1,430 for the cost of digging holes for the retaining wall. He also seeks to recover the cost of QBCC statutory home warranty insurance which he says was never obtained by Mr Holford. None of these items of claim which are 21 Ex 3 page 4. -- 8 of 9 -- 9 referrable to the terms of the contract can be recovered because the contract is of no effect. [69] I find that Mr Byrne is entitled to recover $2,750 for the cost of retiling and $1,500 for the repair of the damages itemised in the Hire a Hubby quotation, which totals $4,250. Conclusion [70] Mr Byrne succeeds on his claim in the amount of $4,250. Mr Holford succeeds on his counter application in the amount of $4,039.50. That means Mr Holford must pay Mr Byrne the balance of $210.50. [71] It is not an appropriate matter for an award of costs. Both parties succeeded in part and both were unsuccessful in part. The usual rule in the Tribunal under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that each party bear their own costs should apply. -- 9 of 9 --