Cameron v Guise [2019] QCAT 220

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Cameron v Guise [2019] QCAT 220 PARTIES: CRAIG CAMERON (applicant) V REECE BRIAN GUISE (respondent) APPLICATION NO/S: BDL321-18 MATTER TYPE: Building matters DELIVERED ON: 12 August 2019 HEARD AT: Brisbane DECISION OF: Senior Member Brown ORDERS: Reece Brian Guise must pay Craig Cameron SEVEN THOUSAND, FOUR HUNDRED AND SEVENTY-FIVE DOLLARS ($7,475.00) by 4:00pm on 9 September 2019. Reece Brian Guise must pay Craig Cameron’s costs fixed in the amount of THREE HUNDRED AND THIRTY-EIGHT DOLLARS AND TWENTY CENTS ($338.20) by 4:00pm on 9 September 2019. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – LEGALITY - where domestic building contract does not comply with Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) – whether a breach of contract can be established CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DAMAGES – MEASURES OF – where contract entered into for the performance of building work – where builder is unlicensed - where builder performs unlicensed building work – where builder not entitled to consideration for performing building work – assessment of damages Queensland Building and Construction Commission Act 1991 (Qld) s 77, sch 1B s 13(2), s 13(5), sch 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48 -- 1 of 7 -- 2 Bellgrove v Eldridge (1954) 90 CLR 613 Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75 Corporation of the City of Adelaide v Jennings Industries Ltd (1985) 156 CLR 274 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 Ventura v Svirac (1961) WAR 63 REPRESENTATION: Applicant: Self-represented Respondent: No appearance APPEARANCES: 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 Mr Guise contracted with Mr Cameron to complete an office fitout and a workshop fitout at Mr Cameron’s home. Mr Cameron paid the contract amount in full prior to the work commencing. Mr Guise failed to complete all of the work under the contract. Mr Cameron filed in the tribunal an application for a domestic building dispute. Mr Guise has not complied with any tribunal directions including failing to file a response to the application. Background to the dispute The parties entered into an agreement for the performance of building work on or about 27 July 2017. Mr Cameron says that the agreement was a verbal one. Mr Cameron says that the details of the building work Mr Guise agreed to undertake were contained in an invoice provided by Mr Guise to Mr Cameron on 27 June 2017. The invoice was not signed by either party. The invoice refers to “Office fitout” and “Workshop fitout”. In respect of each of the fitouts, the invoice contains particulars of the building works to be carried out. The total amount payable by Mr Cameron to Mr Guise for the building work was $7,475.00 inclusive of GST. Mr Cameron paid the invoice amount in two instalments. The first payment in an amount of $5,000.00, was made on 28 July 2017. The second payment in an amount of $2,475.00, was made on 29 July 2017. Mr Cameron says that Mr Guise did not complete the building work. Over a period of approximately one year, Mr Cameron made numerous attempts to have Mr Guise complete the work. When these attempts failed, Mr Cameron sent Mr Guise a letter of demand for $3,000 which was Mr Cameron’s estimate of the cost of completing the building work. -- 2 of 7 -- 3 Mr Cameron subsequently discovered that Mr Guise’s builder licence had been cancelled on 13 January 2017.1 Statutory framework – building disputes The relevant enabling Act in respect of the present dispute is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The tribunal has jurisdiction to hear and decide building disputes.2 A building dispute can be a domestic building dispute or a minor commercial building dispute or a major commercial building dispute.3 A domestic building dispute includes a dispute between a building owner and building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.4 ‘Building contractor’ and ‘building owner’ are defined in the QBCC Act.5 ‘Reviewable domestic work’ means domestic building work under s 4 of Schedule 1B of the QBCC Act. The renovation, alteration, extension, improvement or repair of a home is domestic building work.6 A home is a building or portion of a building that is designed, constructed or adapted for use as a residence.7 In deciding a building dispute the tribunal may order the payment of an amount found to be owing by one party to another.8 Statutory framework - bringing proceedings in the Tribunal to an early end Proceedings in the Tribunal may be brought to an early end in circumstances where the tribunal considers a respondent in a proceeding is acting in a way that unnecessarily disadvantages an applicant by not complying with a tribunal order or direction without reasonable excuse. In such circumstances, the tribunal may make its final decision in the proceeding in the applicant’s favour.9 Consideration I make the following findings: 1 QBCC licence search 11 May 2019, 2 QBCC Act, s 77. 3 Ibid, sch 2 (definition of ‘building dispute’). 4 Ibid, (definition of ‘domestic building dispute’). 5 Ibid, (definition of ‘building contractor; definition of ‘building owner’) 6 Ibid, sch 1B, s 4(1)(b). 7 Ibid, sch 1B, s 9(1). 8 Ibid, s 77(3). 9 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48. -- 3 of 7 -- 4 (a) Mr Guise agreed with Mr Cameron to undertake, and subsequently undertook, domestic building work; (b) Mr Cameron was a building owner and Mr Guise was a building contractor; (c) the dispute between the parties is a domestic building dispute; (d) the Tribunal has jurisdiction to hear and decide the dispute; (e) service of the application for domestic building dispute has been properly effected upon Mr Guise;10 (f) Mr Guise has failed to comply with any directions made by the Tribunal including failing to file a response to Mr Cameron’s application; (g) in failing to comply with Tribunal directions Mr Guise has unnecessarily disadvantaged, and continues to unnecessarily disadvantage, Mr Cameron. The disadvantage to Mr Cameron is that he is unable to progress his claim to final resolution. I have considered the matters at s 48(3) of the QCAT Act. Whether and to what extent Mr Guise is familiar with the tribunal’s practices and procedures and Mr Guise’s capacity to comply with tribunal directions are matters in relation to which I am unable to form a view given Mr Guise’s lack of engagement in the proceedings. Mr Guise’s failure to comply with directions would appear, in the absence of an explanation to the contrary, to be a deliberate act. I am satisfied that it is appropriate to exercise my discretion and make a final decision in the proceeding in favour of Mr Cameron. Breach of Contract Mr Cameron says that Mr Guise partially completed the work associated with the “Office fitout” and failed to complete any of the work associated with the “Workshop fitout”. Mr Cameron’s claim for $3,000 is based upon his assessment of the value of the work yet to be completed by Mr Guise less an allowance for some additional work that Mr Guise completed. Ordinarily the failure by a building contractor to complete works without reasonable excuse is a substantial breach of contract, constituting repudiatory conduct, and giving rise to an entitlement to terminate the contract by the building owner. In such event, the building owner is entitled to claim damages for the builder’s breach. Where a building owner sustains a loss by reason of a breach of contract by a builder, the 10 Affidavit of Service of the applicant filed 7 December 2018. -- 4 of 7 -- 5 building owner is, so far as money can do it, entitled to be placed in the same situation, with respect to damages, as if the contract had been performed.11 The measure of damages recoverable by a building owner for breach of a building contract is the difference between the contract price for the work and the cost of making the work conform to the contract, subject to undertaking the work necessary to achieve conformity being a reasonable course to adopt.12 In assessing the building owner’s damages, the builder must be given credit for any unpaid part of the contract sum.13 The QBCC Act provides that a domestic building contract for an amount more than $3,300 and less than $20,000 is a level 1 regulated contract.14 By s 13(2) of Schedule 1B of the QBCC Act, a level 1 regulated contract, inter alia, must be in writing and signed by the parties in order to have effect. Indeed, by s 13(5) of Schedule 1B, a level 1 regulated contract only has effect if it complies with s 13(2). Mr Guise provided to Mr Cameron a quote dated 27 June 2017. It is not signed by either of the parties. The quote does not comply with the requirements of the QBCC Act in relation to level 1 regulated contracts. As I have observed, unless a level 1 regulated contract is in writing, dated and signed by the parties it is of no effect. The failure by a building contractor to comply with a requirement under the QBCC Act in relation to a domestic building contract does not make the contract illegal, void or unenforceable unless the contrary intention appears in the Act.15 Section 13(5) is expressed in clear and unequivocal words. A contract that is not in writing, signed by the parties and dated is of no effect. A contract that has no effect is void and cannot be enforced. Mr Cameron cannot rely upon the agreement to make a claim against Mr Guise. Claim in negligence A domestic building dispute may include a claim or dispute in negligence relating to the performance of reviewable domestic work.16 A building owner, in order to establish negligence by a builder, must prove that: the builder owed to the owner a duty of care; the builder breached the duty; as a result of the breach of duty, the owner has suffered loss. 11 Robinson v Harman (1848) 1 Ex 850; 154 ER 363. 12 Bellgrove v Eldridge (1954) 90 CLR 613. 13 Ventura v Svirac (1961) WAR 63 cited with approval in Corporation of the City of Adelaide v Jennings Industries Ltd (1985) 156 CLR 274. 14 Queensland Building and Construction Commission Act 1991 (Qld), sch 1B, ss 1 (definition of ‘regulated amount’), 6(1)(a), 7(2); Queensland Building and Construction Commission Regulation 2018 (Qld) s 45. 15 Ibid, sch 1B, s 44. 16 Ibid, sch 2 (definition of ‘domestic building dispute’) -- 5 of 7 -- 6 Generally speaking, a builder owes to an owner a duty to perform building works in an appropriate and skilful way and with reasonable care and skill. Mr Cameron has not framed his claim in negligence. He does not assert that the building work performed by Mr Guise was not carried out appropriately and skilfully. Rather, Mr Cameron say that Mr Guise did not complete the agreed works. That is a contractual issue and as I have found, Mr Cameron is not entitled to pursue any contractual remedies against Mr Guise. I am not satisfied that Mr Cameron has established a breach of duty by Mr Guise. Unlicensed Building Work By s 42(1) of the QBCC Act, a person must not carry out, or undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under the Act. By s 42(3) of the QBCC Act, a person who performs unlicensed building work is not entitled to any monetary or other consideration for doing so. Any monetary or other consideration paid to an unlicensed builder must be repaid.17 It is clear from the provisions of the QBCC Act that the prohibition on unlicensed building work is in respect of: (a) An unlicensed contractor agreeing to perform building works; (b) An unlicensed contractor performing building works; (c) An unlicensed contractor receiving payment for performing building works; (d) An unlicensed contractor retaining any payment received for performing building works. I find that at the time Mr Guise entered into the agreement with Mr Cameron, at the time Mr Guise performed the building work, and at the time Mr Cameron paid Mr Guise, that Mr Guise was not a licensed contractor. I find that Mr Guise was in breach of s 42(1) of the QBCC Act when he undertook to carry out the building work in September 2017 and when he subsequently performed the building work. I find that Mr Guise was not permitted to carry out the building work nor was he entitled to any monetary consideration for so doing. I find that, pursuant to s 42(3) of the QBCC Act, Mr Guise was not entitled to the payment of $5,000.00 that he received on 28 September 2017 and was not entitled to the payment 17 Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75.. -- 6 of 7 -- 7 of $2,475 he received on 29 September 2017. Mr Guise has no entitlement to retain the money he was paid by Mr Cameron. There is no application before the Tribunal by Mr Guise pursuant to s 42(4) of the QBCC Act. Mr Guise must therefore pay to Mr Cameron the amount of $7,475.00. Costs The tribunal may award costs in building disputes.18 The discretion to award costs is a broad general one which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation. I find Mr Cameron is entitled to recover the filing fees on the application. This cost was reasonable and necessary to enable Mr Cameron to pursue his legal entitlements. I fix the total costs payable by Mr Guise in the amount of $338.20. Orders There will be a final decision for Mr Cameron as follows: (a) Claim $7,475.00 (b) Costs $ 338.20 18 QBCC Act, s 77(3)(h). -- 7 of 7 --