Bunting v Jim's Fencing Springwood [2011] QCAT 411

CITATION: Bunting v Jim’s Fencing Springwood [2011] QCAT 411 PARTIES: Mr James Robert Bunting (Applicant/Appellant) V Jim’s Fencing Springwood Darren Hitchon as representative (Respondent) APPLICATION NUMBER: MCDO808-10 MATTER TYPE: Other minor civil dispute matters HEARING DATE: 23 June 2011 HEARD AT: Brisbane DECISION OF: Kate Buxton, Adjudicator DELIVERED ON: 29 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The respondent pay to the applicant the sum of $4,024.50 in claim and fees by 15 August 2011. CATCHWORDS: Damages for breach of contract – recovery for unlicensed building work Queensland Building Services Authority Act 1991, s 42 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Bunting in person RESPONDENT: No appearance REASONS FOR DECISION [1] In this application, Mr Bunting seeks to recover a total of $6,781.29 from the respondent, Mr Hitchon, for the following: a) $1,859 for damages for breach of contract equal to the sum quoted to repair gates installed by Mr Hitchon which are allegedly defective; and -- 1 of 3 -- 2 b) $4,922.29 by way of repayment of part of the amount paid to the respondent for fencing works in circumstances where Mr Bunting alleges that Mr Hitchon was unlicensed. [2] The first of those claims is relatively straight forward. Mr Bunting asserts that the motorised gate installed by Mr Hitchon is defective and has produced evidence of the need for and cost of replacement. Despite opportunities to attend and participate in this matter as it has progressed through QCAT, Mr Hitchon has declined to participate or to produce any evidence to the Tribunal in response to this claim. I am satisfied on the basis of the evidence before me that the sum claimed is reasonable, particularly when viewed in the context of the price for the original work. [3] I therefore allow the claimed sum of $1,859.00 in respect of the defective gate. [4] The second element to this application, being the claimed $4,922.29, was effectively amended during the hearing. Mr Bunting conceded that the cost of a labourer, at the estimated daily rate of $250, should be added to the costs claimable by the respondent under section 42(3) of the Queensland Building Services Authority Act 1991 (QBSA Act) and that his claim should reduce, accordingly, by $250.00. He has set out his calculations in attachment c item 2 to his application (referred to in the hearing as exhibit 2). In the alternative, he claims 20% of the total invoiced amount as those are the profits disclosed by the respondent in its promotional material (applicant’s submissions paragraph 47 to 51) and seeks to recover the amount of $2,075.58 to represent the percentage of the total amount which is unretainable profits. [5] Mr Bunting submitted that, when Mr Hitchon undertook the work of erecting the fencing and gates at his property, he was contracting building work for which a license from the QBSA was required and, without such a licence, ss 42(3) and (4) of the QBSA Act limit the way in which the respondent is entitled to be paid for those works. Mr Bunting’s allegation that Mr Hitchon was unlicensed is supported by the attachments to his application and has not been contraverted in any way by Mr Hitchon, despite the opportunity to do so. I therefore accept the submission that he was unlicensed when the fencing work was undertaken. [6] “Building work” is defined in schedule 2 to the QBSA Act to mean, amongst other things, “(a) the erection or construction of a building …”. A “building” is defined in schedule 2 to include “any fixed structure” and a permanent fence is included in the schedule as an example of such affixed structure.1 [7] I therefore accept Mr Bunting submission that ss 42(3) and (4) apply in this case to limit the respondent’s entitlement to be paid for the works. In this 1 See also Wayne Thomas Brady Pty Ltd v QBSA & Raco [2005] QCCTB 150. -- 2 of 3 -- 3 case, as the respondent has already been paid for the works, those provisions operate to limit the respondent’s entitlement to retain those monies. [8] The question which then arises is what, on the basis of the available evidence, is the proper calculation of those amounts to which the respondent who’s disentitled under ss 42(3) and (4). Subsection 42(3) takes as its starting point a disentitlement to be paid for any unlicensed building work. However, ss 42(4) goes on to provide that the respondent is entitled no more than the cost of materials and labour; and is not entitled to any allowance for the respondents:- a. Own labour; b. Profit; or c. Any unreasonable costs. [9] The applicant has made a valiant attempt at estimating the cost to the respondent of the materials used and has provided some estimates as to labour costs. However, there is no direct evidence of the actual amounts incurred by the respondent. Whilst the applicant’s efforts are to be appreciated in terms of the detail put in to the preparation of this claim and, in particularly, exhibit 2, the calculations in this exhibit do not represent a reliable estimate of the volume of materials, any wastage, an allowance for transport, the accuracy of costing of tradesmen’s labour and the like. [10] The alternative basis of the claim for 20% of the contract price (the sum of $2,075.50) is less problematic. It does not require estimates to be made. This methodology simply assumes an uncontroversial 10% builders margin together with the stated 10% uplift from company’s in the “Jims Fencing” franchise, as evidenced by the material referred to in the applicant’s submission. [11] I accept the proposition that 20% is a reasonable estimate of the permissible retained profits pursuant to section 42(4) of the QBSA Act and I allow the claim in the amount of $2,075.50. [12] The allowed claims of $1,859.00 for the gate and $2,075.50 for the profits total $3,934.50. I order that the respondent pay this amount in claim, plus $90.00 filing fee, totalling $4,024.50 by 15 August 2011. -- 3 of 3 --