Dowdle v Petts [2011] QCAT 597

CITATION: Dowdle v Petts [2011] QCAT 597 PARTIES: Mr Patrick Terrence Dowdle v Mr Wayne Howard Petts APPLICATION NUMBER: BDL124-10 MATTER TYPE: Building matters HEARING DATE: 9 November 2011 HEARD AT: Brisbane DECISION OF: Mr Paul McGrath, Member DELIVERED ON: 29 November 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. That the applicant pay to the respondent the sum of $42,232 within 60 days of the date of this order. 2. That both parties be permitted to make submissions in writing in relation to costs within 21 days of the date of judgment. CATCHWORDS: Purported building contract – No written contract – Whether builder was licensed to perform work – Quantum meruit claim by builder for incomplete work APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Pat Dowdle represented by Ms Muir of Counsel RESPONDENT: Mr Wayne Petts represented by Mr Keane of Counsel REASONS FOR DECISION [1] The applicant filed an application in the Tribunal on 29 April 2010 seeking payment of an amount owing of $103,915 being monies owning for work and labour done and goods and materials supplied in relation to the erection of a dwelling house by the applicant for the respondent at Rosevale Station in Central Queensland. -- 1 of 13 -- 2 [2] The applicant also sought approval of variations totalling $57,385 in accordance with section 84 of the Domestic Building Contracts Act 2000 (“the DBCA”). [3] On 1 July 2010 the respondent filed a response and counter claim seeking the following orders: 1. that the application filed by the applicant on 28 April 2010 be dismissed; 2. that the applicant pay to the respondent the sum of $108,845.62; and 3. that the applicant pay the further sum to the respondent of $151,000 being a refund of the amount already paid by the respondent to the applicant as a result of the applicant not holding the licence of the appropriate class under the Queensland Building Services Authority Act 1991 (“the QBSA”). [4] The facts of the matter are that around about the beginning of 2009 the respondent approached the applicant and asked whether he could erect him a new home at his property, Rosedale Station via St Lawrence in the State of Queensland. The applicant indicated he could, and asked the respondent to draw a rough diagram as to what he wanted. The owner scribbled a rough outline of a simple 3 bedroom house on the back of an envelope and gave it to the builder that is the applicant. The applicant said he would get plans drawn up and give a quote for the construction of the new home. [5] In February 2009 the applicant supplied a quote to the respondent for the construction of the dwelling on the property for a total sum of $222,528 which was based upon the size of the dwelling being as calculated by the applicant 146.4 square metres at $1,520 per square metre. The quote, inter alia, specifically stated that it was to supply all materials, labour, and scaffolding to build a dwelling at Rosedale Station. The respondent relied on the applicant to do what was ever necessary to organise and carry out the construction of the new home. [6] As part of the original building agreement it was agreed that the owner of the property, that is the respondent, would supply his own post hole digger to dig the post holes for the concrete stumps for the house to be on, and that the owner would do his own painting at the end of the job. [7] On 1 March 2009 the applicant stated he required that the respondent pay an upfront payment of $100,000 to cover all the materials for the job, so that the materials could be delivered on site prior to the beginning of the work and money would also be required to cover some work. The respondent paid the applicant the initial payment of $100,000 on or about 2 March 2009. [8] After this payment the applicant then told the respondent instead of the house being constructed with concrete stumps it should be constructed with steel stumps and he arranged for the respondent to purchase the steel directly at his expense and there was to be a reduction in the originally quoted works in respect of the payment of the monies for the replacement stumps. -- 2 of 13 -- 3 [9] The construction of work for the dwelling of the house started on or about 12 March 2009. There were various payments made by the respondent to the applicant and were made as follows:  2 March 2009 $100,000  10 June 2009 $ 8,000  7 August 2009 $ 8,000  7 September 2009 $ 15,000  24 September 2009 $ 15,000  19 November 2009 $ 5,000 Total $151,000 [10] According to the respondent the applicant had represented to him that the construction of the house would be completed within 3-4 months and that he had experienced workers in helping with this construction. It appears that the applicant mostly used his son Ben Dowdle to assist him in regard to the work and he had other assistance from time to time. The respondent also assisted on occasion, and one of his employees Mr Sergio Marsi assisted on occasion although he did other work for the respondent on his cattle property. [11] The respondent states, and it is clear from the evidence, that the applicant did not work continuously on the house and indeed did other work both on another dwelling as well as working on his own dwelling during the time between March and November 2009. There was no work done on the property between on or about 24 September 2009 and 20 November 2009. It appears that during this time whilst there was sufficient material on the site to complete a large amount of the work the applicant decided not to do any work at that time as he said he wanted time to work on his own property. [12] In mid November 2009, the applicant returned to the property and sought a further payment of $20,000 from the respondent in respect of work to be done. The respondent objected to this as he had previously paid two amounts of $15,000 in September 2009 and no work had been done on the premises since that time. The respondent states that the applicant returned to the job for one day and he paid him an amount of $5,000 by cheque on 19 November 2009. The applicant informed the respondent on or about 21 November 2009 that he could not continue working on the house as he was unable to do so and would not finish the job. The applicant then left the site with the work unfinished. [13] Approximately one week or so later the applicant sent the respondent invoices dated 21 November 2009 and 27 November 2009 seeking payment of a total sum of $108,913. There had been no invoices sent prior to this time. [14] In respect of the variations claimed by the applicant, the respondent states that none of the variations were agreed to in writing and no quotes or estimates for the costs was given to the respondent by the applicant. The alleged variations which are sought by the applicant are as follows: 1. a variation of $21,010 for a front veranda; -- 3 of 13 -- 4 2. a variation of $12,660 for covering the rear veranda; 3. a variation of $3,025 for the bathroom; 4. a variation of $2,473 for window hoods; 5. a variation of $1,148 for flashing; 6. a variation of $5,038 for posts; 7. a variation of $440 for a kitchen window; 8. a variation of $7,564 for bedroom windows; 9. a variation of $1,937 for water proofing; and 10. a variation of $2,090 for the kitchen. [15] The applicant gave evidence, he stated that he was a qualified carpenter and operated a business known as Pat Dowdle alterations and additions. He held a QBSA license and it was subsequently ascertained from Mr Hulme, a QBSA inspector, who gave evidence that the license that the applicant held was a carpentry and joinery license. [16] The applicant indicated that at the time he agreed to build the premises for the respondent that he said he would need to get Council approval once the plans were drafted. The applicant said that the respondent stated he did not want Council approval because he wanted a frame house which was on his property. Plans were drawn and the applicant told the respondent that he would need to get an estimator to quote the materials for the job. The applicant asked Mr Bob Kemp from Dale and Meyers to provide a quote for the materials. [17] The applicant told Mr Kemp that the respondent would be organising his own plumbing and electrical painting and adding kitchens and bathrooms so these items did not need to be included. [18] After the quotes were received from Mr Kemp the applicant stated that he contacted the respondent and gave him a verbal price to build the home. The respondent said it was too high so he changed it to a three bedroom house, and subsequently Mr Kemp drew up plans for a three bedroom house and arranged a meeting to discuss materials and requirements. In March 2009 the respondent reviewed the quote for materials and requested the various items be removed and he said that he would provide these himself, such things as doors, locks, roofs, screws and various other items. A revised quote was provided. [19] According to the applicant Mr Kemp mentioned to the respondent that the plans needed to be certified by an engineer before being submitted to Council. The respondent replied that it did not require Council approval and Mr Kemp indicated that he should get Council approval prior to the building being commenced. [20] In February 2009 the applicant prepared a two page written quote and provided it to the respondent in an amount of $222,528. There was some concern over the quote and the respondent subsequently gave evidence that he did not receive the second page of the quote at any stage. -- 4 of 13 -- 5 [21] The applicant stated that he carried out his last work on 19 November 2009 but he did not finish all the work he had agreed to do. He says that he did not complete the following: a) finish off screwing down the roof; b) installing the gutters; c) putting the down pipes in place; d) sheeting the inside of the house, ceilings and walls; and e) applying sealant to the bathroom floor. [22] The applicant says that he did not finish all the work and he is deducting the amount of $20,000 off the original quoted figure to allow for the balance of the work to be undertaken by an alternate contractor. The applicant says that all materials were on site for the final works to be carried out. [23] The applicant says that he spent in excess of $90,000 for materials and he has also had to pay wages to employees. He still owes wages to some of his employees and it appears from the evidence that only his son Ben was paid at the time of the work being done. [24] The applicant says he told the respondent of his license requirements before commencing the job but he also requested that the respondent sign a BSA contract. According to the applicant he says that the respondent only said that he didn’t want a written contract in place and was only engaging him to perform certain carpentry works. [25] Mr Hulme, a QBSA Inspector, gave evidence. He stated that the applicant had the right license to be giving a quote for the erection of a dwelling and that the QBSA had found that there was not sufficient evidence to prosecute the applicant for doing works outside his license. Things like footings are included in the carpentry and joinery works. It appears that the applicant had told Mr Hulme that he was assisting Mr Petts, the respondent in building a house and he was only doing certain carpentry and joinery work and that Mr Petts was providing electrical and other works at the completion of the erection of the dwelling. Mr Hulme gave evidence that plumbing and welding work was outside the scope of the license of the applicant and the applicant couldn’t engage any other trade contractors. He said that the applicant did not take out insurance on the property and has been breached pursuant to section 68 of the QBSA Act. [26] Mr Robert Kemp gave evidence; he stated that he didn’t recall discussing the issues of footings with either the builder or the owner. He stated that he drew plans for the house from sketches and based on the materials necessary to build the house. He stated that he told the respondent in March 2009 that he would need Council approval and apparently the respondent replied, “I am not going through Council I am saving money”. He was aware that the applicant was not going to do the plumbing, cabinet work or painting on the premises. [27] The applicant was called to give evidence. He stated that his tradesmen wouldn’t be paid at the completion of the contract by Mr Danny Greaves and was owed $25,000 and of the labourer $10,000-$15,000 and his son Ben -- 5 of 13 -- 6 who was the only tradesmen that was paid $500 per week during the construction period. He stated that the job lasted from 25 March to November including two months of down time although he did not keep a diary of days that he worked on the site. [28] In cross examination, the applicant admitted receiving $151,000 in various payments from the respondent. He said that he thought that the respondent would be an owner builder and that after November, when he ceased work, he sent a number of invoices to the respondent. In relation to the alleged variations, he stated that there were never any written variations and the variations orally agreed and they were not constant at the time. In relation to the quotes for finishing the work on the house he said he didn’t have any quotes but he didn’t agree with the assessment of C Mr Lewis of Costplan Services Pty Ltd (“Costplan”), of the cost to rectify and the cost to finish the dwelling. [29] Mr Russell Newport gave evidence. He stated that he did not recall ever working with the applicant on a new home. He said that the applicant mainly worked on renovations. He said he had difficulties with the respondent when working with him, that he was hard to get on with. There was some issue about payment and that he was subsequently paid following the installation of electrical work. The respondent in cross examination of evidence stated that he recorded some hours on a piece of ply at the dwelling of the $100,000 initial payment received by him about $90,000 went on materials. He said that he regrets not having a written contract with the respondent and it was not his usual practise. [30] Ben Dowdle was called to give evidence. He said he worked at the premises until about November 2009. He stated that Danny Greaves worked on the job for about three months then he had to return to his other job. He was unable to comment on the plans or the quote. He stated that he had assisted his father with other premises prior to the respondent’s house; he also worked on his father’s house during downtime at the respondent’s house. [31] He stated that he was a qualified carpenter and that in his opinion approximately $20,000 to finish the house would be a reasonable amount. [32] In re examination he stated that he never saw the quote until it was attached to his statement of evidence and that he had nothing to do with giving of the invoices that were sent out. [33] The respondent’s case commenced with the evidence of Mr Sergio Marsi. He said that he did some work on behalf of the respondent in relation to welding posts and his son Peter helped him out. He stated that the applicant paid him in cash on one occasion and that the respondent paid him for various work done as farm work such as fencing on a daily or hourly basis. He stated that he was owed no money by the applicant having been paid for the work that he did. [34] The respondent was called to give evidence. -- 6 of 13 -- 7 [35] He stated that in relation to the quote for the erection of the dwelling, he only received the first page of the quote and that this is the page that he gave to the QBSA when he lodged a complaint about the applicant. It was agreed that he would supply the concrete and the steel posts. When Mr Hulme inspected the property he told him what he would be responsible for but these were not exclusions in relation to the variations. [36] He stated he agreed to certain variations but not all of them. He was asked as to whether or not the plans for the property should have been approved by the local Council. He stated that he thought that as it was outside the town limits he didn’t know whether or not Council approval was required. He stated that he was not shown a QBSA contract by the applicant for him to sign and that the work that the applicant wants to do was to build a new house as per the quote and plan. [37] He stated that the applicant took certain posts from the site as well as certain decking which he used for his own purposes. The respondent states that he provided the iron, the posts, the flooring and the iron bark trims for the front veranda and he dug three holes with his post hole digger for the erection of the posts. In relation to the rear veranda he said there was not a veranda at all, but merely a landing that required a roof placed over it. [38] There is an issue in respect of certain purchases by the respondent such as the vanity units. [39] He said that he was told by the applicant to purchase his own vanity, shower and bathtub which he subsequently did. [40] Mr Ken Lewis from Costplan gave evidence and provided a statement to the Tribunal. He says the report was not prepared directly by him but in consultation with one of his associates, Janet Cullen, who inspected the premises and prepared a report which Mr Lewis verified. The report stated the cost to complete the dwelling was some $154,297. [41] He stated that the variation items wouldn’t normally be costed the same as the rest of the house and tradesmen wouldn’t normally charge $50-$55 an hour but between $25-$30 an hour in the area in which the applicant and his tradesmen worked. [42] The respondent in his submissions referred to the claim brought by the applicant pursuant to a contract on a quote to build a dwelling. It had been conceded at the start of the hearing by Counsel for the applicant that a claim could not be brought on the contract about the quote was not in accordance with the provisions of the Domestic Building Contracts Act 2000 (“the DBC Act”). The applicant’s only entitlement is pursuant to a quantum meruit pursuant to section 30 of the DBC Act. The respondent submitted that the applicant has not given any evidence to support the quantum meruit. [43] There was no evidence put forward by him as to the value of the dwelling as constructed and there was no figure as to what an appropriate quantum meruit must be. The respondent submitted that pursuant to section 84 of the DBC Act, the claim variations must also be treated as a quantum meruit. -- 7 of 13 -- 8 [44] The respondent in his submissions referred to a counter claim for overpayment and for defective building works. The counter claim relies on: a) for unjust enrichment pursuant to section 42 of the QBSA Act; b) defective works; c) contested variations; and d) the value of the work actually constructed on site. [45] It was submitted and the Tribunal finds that there are significant factual controversies between the parties and the resolution to these controversies is made more difficult by the absence of written documents or paperwork regarding the dealings between the parties. The evidence of the parties was on some occasions not convincing and the Tribunal has had to sift through the evidence as to the likely scenario that occurred during the course of the construction of the dwelling. [46] It is submitted on behalf of the respondent that there are a number of undisputed facts, these are: a) that the applicant does not and did not have a builder’s license from the QBSA; b) that the applicant holds a carpentry and joinery license; c) that there was no written contract; d) that there was no Council approval for the dwelling; e) that the dwelling was not completed. [47] The submissions of the respondent are that the quote provided by the applicant of $222,528 was “to build a dwelling”. This quote was accepted and the respondent was required to pay an up front payment of $100,000 before completed. This was done on 2 March 2009, it was only following that payment that the applicant advised the respondent that the dwelling should be constructed with steel stumps. He requested that the respondent arrange for the steel himself so that the construction could commence and the respondent obtained the steel stumps at a total cost of $21,729.85. [48] Construction commenced on or about 12 March 2009. The respondent paid for concrete and builders mix in an amount of $2,686.75 and some other materials were purchased directly by the respondent. [49] It is clear that by the text previously referred to, the respondent paid to the applicant the sum of $151,000 between 2 March and 19 November 2009. [50] The submissions refer to the invoices that were received by the respondent for the first time following the applicant walking off the site. None of the invoices which claim for a number of variations in the final account are noted as tax invoices and accordingly are not tax invoices for the purpose of collecting GST. [51] The respondent submits there was a general agreement and any variations will be charged on an hourly basis but there is a dispute as to the value of -- 8 of 13 -- 9 the variations and as to whether they are indeed variations as there was no written quote for any of the variations. [52] It is submitted that the applicant took materials from the site during the course of the work and used them on his own premises. He has included the cost of these materials in the invoices he has provided to substantiate his allegations of the value of materials purchased for the dwelling. It was submitted that as the applicant engaged another builder, Mr Ingledew, to inspect the dwelling, there should have been a report provided or evidence obtained from Mr Ingledew as to the costs involved to complete the dwelling however the applicant chose not to obtain a report from Mr Ingledew and there was no evidence produced from him. [53] The submission of the respondent is that Ken Lewis of Costplan provided a report which found the costs to complete the construction works on site were $154,297, that construction work as completed by the builder including GST was $128,007, that the amount supplied and paid for by the respondent was some $27,885, that the amount in respect of the variation of works was some $9,988 and the cost to rectify the defects approximately $29,227. [54] It is submitted by the respondent that the applicant was engaged to build a dwelling or a completed house. It is clear that this did not occur. It is clear the respondent submits that the Tribunal should find that the applicant pay an amount of $77,806 exclusive of GST for materials and labour and to the extent the variations should have any value they should be valued in accordance with the report of Mr Lewis as should any defects that should be allowed. [55] The submissions further state that the value of work constructed on site should be valued in accordance with the report of Mr Lewis and in fact it is doubtful whether or not the applicant performed all the work as assessed. [56] The respondent submits that the applicant bears the onus of proof in proving his claim either pursuant to section 42 of the QBSA or pursuant to quantum meruit. Section 42 of the QBSA Act provides for unlawful carrying out of building work, and states: (1) A person must not carry out, or undertake to carry out, building work unless that person holds a contractor’s licence of the appropriate class under this Act. (3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so. (4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed— (a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and (b) does not include allowance for any of the following— (i) the supply of the person’s own labour; (ii) the making of a profit by the person for carrying out the building work; -- 9 of 13 -- 10 (iii) costs incurred by the person in supplying materials and labour if, in the circumstances, the costs were not reasonably incurred; and (c) is not more than any amount agreed to, or purportedly agreed to, as the price for carrying out the building work; and (d) does not include any amount paid by the person that may fairly be characterised as being, in substance, an amount paid for the person’s own direct or indirect benefit. [57] The Council for the respondent referred to the decision of Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd (formerly trading as Stork Food Systems Australasia Pty Ltd) [2009] QCA 75 (Cook’s Construction). In that case the Court of Appeal held that the correct construction of section 42 of the QBSA meant that an unlicensed builder was not entitled to recover any sum for its work outside of that which is authorised in section 42(4) of the QBSA. The claimant has an obligation to plead and prove its case in accordance with section 42(4) of the QBSA if it otherwise not in a position to claim for work due to being unlicensed. In relation to the operation of section 42 of the QBSA Keane JA (with whom Daubney J agreed) set out in paragraphs 37 to 62 of Cook’s Construction it is submitted by the respondent that it is essential for the applicant to succeed to plead a claim pursuant to section 42 of the QBSA and as he has not done so he can not succeed. It was submitted that the Tribunal should find that the applicant did not have an appropriate license and was not entitled to remuneration other than “reasonable remuneration” under section 43(4) of the QBSA. That he is not entitled to any such remuneration unless such remuneration is claimed. The applicant has not sought to claim any remuneration on that basis before the Tribunal as he has no evidence of any amounts paid to his staff. [58] The respondent submits that the applicant should be ordered to refund to the respondent the sum of $151,000 as money hadn’t received as the applicant has no entitlement to payment at all. Alternatively if the Tribunal were to find that the applicant had properly asserted a claim for damages under section 42 that he would be entitled to obtain a sum of $7,806.33 exclusive of GST and the balance of the $151,000 mainly the sum of $73,913.67 should be refunded to the respondent. [59] Alternatively if a quantum meruit were allowed pursuant to section 30 of the DBC Act then it is up to the Tribunal to determine the value of the work completed and it is appropriate to take into consideration the cost of rectification of defects when assessing the total value. [60] In his submissions the respondent referred to the decision of Pavey and Matthews Pty Ltd v Paul, a decision of the High Court of Australia reported at 162 CLR at 221. In that decision Justice Deane commented “what the concept of monetary restitution involves is the payment of an amount which constitutes, in all the relevant circumstances, fair and just compensation for the benefit or enrichment actually or constructively accepted”. Ordinarily that would correspond to the fair value of the benefit provided (e.g. remuneration calculated at a reasonable rate for work actually done or the fair market value of materials supplied). -- 10 of 13 -- 11 [61] The respondent submits that an allowance for the cost of rectification of defective work must be made as a part of an assessment on the basis of quantum meruit of construction cases. It was further submitted that for the purposes of quantum meruit the value is to be assessed by what was received by the owner, in this case, the respondent rather than the cost to the builder, that is the applicant. In the absence of any other expert evidence the findings of Mr Lewis would appear to be an appropriate assessment of a quantum meruit as submitted by the respondent. The respondent submits that the works valued by Mr Lewis are as follows: a) work completed by a builder $128,007 b) less variations $ 9,988 c) less costs to rectify defects $ 27,885 d) Total $108,768 [62] On this basis the respondent submits that the sum of $42,232 should be ordered to be paid by the applicant to the respondent. [63] The applicant, through his Counsel, made further submissions to the Tribunal. It was submitted that whilst there was no formal agreement signed by both parties in relation to the work to be carried out by the applicant, the two page quote provided by the applicant to the respondent in late February 2009 in the amount of $222,528 was calculated using a rate of $1,520 per square metre which was verbally accepted by the respondent. [64] The applicant’s claim as submitted is as follows: a) amount of contract $222,530 b) less discount for incomplete works $ 20,000 c) less total late payments made by the respondent $151,000 d) plus orally agreed variations $ 57,385 e) total $108,915 [65] The Tribunal, it is submitted by the applicant, is being asked to determine the following: a) the terms of the agreement between the applicant and the respondent for the building work to be carried out at the property; b) whether the only version of the quote was doctored by the applicant as alleged by the respondent; c) whether there were ten oral variations to the original agreement which entitled the applicant to a payment of a further sum of $57,385; d) the circumstances in which the contract was terminated; e) whether there are defective works and if so, the quantum of such $20,848 for the incomplete works; f) whether the applicant had the required building license for the work; and g) if not, what amount the applicant is entitled to be paid pursuant to section 42(4) of the QBSA Act. [66] It was submitted that the respondent’s reference to the fact that he considered the quote included “everything necessary for a dwelling house” is irrelevant and not consistent with the evidence. It is submitted by the -- 11 of 13 -- 12 applicant that the agreement between the parties was, that the applicant was not responsible for the supply of: a) all electrical work; b) concrete or steel posts or bracing; c) plumbing works, gaps and piping (interior and exterior); d) taps, vanity, toilet, shower, base or splashback; e) doors (exterior and interior locks); f) kitchen sink or cabinets; and g) machinery to dig holes for posts. [67] It is submitted that the applicant contends that he was unable to finish all of the work in particular: a) finishing screwing off the roof; b) putting the gutters in place; c) putting the downpipes in place; d) sheeting the inside of the house (ceilings and walls); and e) applying sealant to the bathroom floor. [68] The respondent has deducted an amount of $20,000 off the original quote to allow for the balance of this work to be undertaken by an alternative contractor. This amount of $20,000 it is submitted is consistent with the estimate cost plan for this work. [69] It is submitted by the applicant that the Tribunal ought to find: a) the agreement between the parties was an oral one for a frame house including walls and roof for the scope of works being as per the quote of February 2009; and b) contrary to what the respondent says the agreement does not include the matters contained on page 2 of the quote. [70] It was further submitted that the Tribunal ought in this instance to approve the amount claimed for variations in the sum of $57,385 as being justifiable in the circumstances in that: a) there are both exceptional circumstances as to the conduct of the respondent in the circumstances; b) the building contractor will suffer unreasonable hardship as a result of not complying with the other provisions of the Act; and c) it would be unfair to the respondent in this instance given that he has received the benefit of the variations. [71] It is submitted that the applicant is entitled to a quantum meruit claim against the respondent and leaving aside the issue of the variations the applicant seeks any submissions that the respondent pay to him an amount of $46,530 less the sum of $5,500 to be allowed for defects totalling $41,030 by adding back the sum of $5,000 being the discrepancy between the parties in relation to the amounts paid, the applicant having stated that the respondent pay him $156,000 therefore the amount claimed is an amount of $46,030. That the applicant also seeks that the respondent pay interest on -- 12 of 13 -- 13 the total sum of $103,415 together with interest, together with costs of and incidental to the proceedings. [72] The Tribunal finds that there was an oral agreement entered into between the applicant and the respondent to build a dwelling namely a completed house at the respondent’s property and that the amount quoted by the applicant of $222,528 was accepted by the respondent. [73] The Tribunal finds that the respondent paid the applicant the sum of $100,000 on or about 2 March 2009 and a further $51,000 between June and November 2009. [74] The Tribunal finds that the applicant did not have the appropriate builder’s license from the BSA to complete the premises, that there was no written contract, that there was no Council approval for the dwelling and that the dwelling was not completed. [75] The Tribunal finds that in walking off the site in November 2009 the applicant terminated the oral agreement that he had with the respondent to build the dwelling house and that any claim by the applicant for monies owed to him in connection with work done on the dwelling must only relate to a quantum meruit. This may include of course any variations that the parties agreed to. [76] In relation to the variations and in relation to the work completed by the applicant and in relation to the costs to rectify the defects which were required to be rectified owing to be work done or not done by the applicant, the Tribunal accepts the evidence of Ken Lewis of Costplan in a report provided by him. It is unfortunate that there is no contrary expert evidence from the applicant but the Tribunal must accept the expert evidence as provided to it. [77] In his report he indicates that the work completed by the applicant, total sum of $128,007 that the variations as allowed by him some of which were not able to be costed total $9,988.00 less the costs to rectify the defects of $27,885 making a total of $108,768. [78] The applicant having received an amount of $151,000 from the respondent has therefore been enriched to the extent of $42,232. [79] The order of the Tribunal will be: 1. that the applicant pay to the respondent the sum of $42,232 within 60 days of the date of this order. 2. that both parties be permitted to make submissions in writing in relation to costs within 21 days of the date of judgement. -- 13 of 13 --