Pointon v Holstein [2026] QCAT 386

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Pointon v Holstein [2026] QCAT 386 PARTIES: DANNY POINTON AND SUZANNE POINTON (applicants) v NATHAN PAUL HOLSTEIN (respondent) APPLICATION NO/S: BDL285-25 MATTER TYPE: Domestic Dispute DELIVERED ON: 10 August 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member S M Burke ORDERS: The Respondent, Nathan Paul Holstein, is to make payment to the Applicants in the sum of $64,350.00 on or before 21 September 2026. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – MEASURE OF DAMAGES – where builder performed unlicensed building work – where builder did not complete the works – where defective works – where home-owner entitled to recover money paid under agreement and damages to rectify and complete works – failure of party to comply with Tribunal directions – failure of party to deliver any evidence before the Tribunal Queensland Building and Construction Commission Act 1991 (Qld), s 42, s 77 Bellgrove v Eldridge (1954) 90 CLR 613 Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75 Marshall v Marshall [1999] 1 Qd R 173 Robinson v Harman [1848] Eng R 135 APPEARANCES & REPRESENTATION: 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 [1] The Applicants, Danny and Suzanne Pointon, are the registered owners of a property at 3 Miriam Court, Woolmar Queensland (‘the property’). -- 1 of 6 -- 2 [2] The Respondent, Nathan Holstein, carries on a business called NPH Concrete at 17 Cradle Court, Daguilar. [3] On or about 17 January 2025, the Respondent provided to the Applicants a quotation number 000388 for the installation of a plain grey concrete driveway including the following works (‘the concrete works’):- (a) Minor earthworks; (b) F72 steel mesh sheets; (c) 32MPA concrete; (d) Ableflex expansion foam; and (e) Concrete expansion cuts (if needed). [4] The quotation for the works was $19,250.00. [5] The Respondent confirmed the agreement was reached between the parties for the concrete works requesting a deposit of 50% and the balance on completion. [6] On 21 January 2025, the Applicants paid the deposit in the sum of $9,625.00. The balance of $9,625.00 was to be paid on completion of the concrete works on 8 February 2025. [7] Works were to commence on 3 February 2025. [8] The works were completed by the Respondent on or about 22 February 2025. [9] After a complaint on 19 March 2025 by the Applicants to the Queensland Building and Construction Commission (‘QBCC’), the QBCC advised the Applicants on 28 April 2025 that the Respondent did not hold a QBCC licence for the work performed and that the Respondent had been provided with the complete list of complaints filed by the Applicants. The QBCC advised that the Respondent was aware of the items which would be assessed at an inspection of the property on 19 May 2025. The Respondent had been invited to attend the inspection. [10] On 20 May 2025, a decision by QBCC inspector Mr Ferguson was made to issue a direction to rectify in relation to 25 of the 26 complaints which were itemised in a document headed ‘List of Complaint Items’. [11] Mr Ferguson had carried out an inspection of the property in relation to the items in the complaint on 19 May 2025. [12] On 21 May 2025, the QBCC issued to the Respondent Direction to Rectify or Remedy No. 0114174 (‘the Direction to Rectify’) requiring that the Respondent immediately action the rectification work to be carried out by a licensed contractor. [13] Attached to the Direction to Rectify was a Defective Work List which itemised 6 defects with the installation of the concrete driveway which were required to be rectified and comply with Australian Standard AS 3727. [14] On 21 May 2025, the QBCC advised the Applicants that their complaint had progressed and that the Respondent had been issued with a Direction to Rectify with the works to be completed by 25 June 2025. -- 2 of 6 -- 3 [15] On 21 July 2025, the QBCC confirmed that the Respondent had not complied with the Direction to Rectify and listed the items of the Direction which had not been rectified. This list related to all the items in the original Direction to Rectify. [16] The Applicants have provided two quotations addressing the rectification of the defective works: (a) a quotation no.1113 dated 16 January 2026 from JuddCrete in the sum of $45,100.00 for the rectification of the defective concrete driveway; and (b) a quotation dated 23 January 2026 from JC Tech air-conditioning/electrical for the decommissioning and reconnecting of an outdoor air-conditioning unit in the sum of $900.00. Directions [17] The application for a domestic building dispute was filed 7 August 2025 in which the Applicants sought recompense for the defective works allegedly carried out at the property by the Respondent which involved a defective concrete driveway and surrounding area. [18] Directions were made by the Tribunal in relation to the filing of material and evidence required by the Applicants and the Respondent on 27 August 2025. [19] The Tribunal made further directions that in the event the Applicants complied with the directions and the Respondent failed to comply with the directions, including not filing a claim pursuant to s 42(4) of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) by 24 September 2025, then the Applicants would be entitled to a final decision in the proceeding. [20] By direction dated 22 October 2025, the parties were advised that the application would be determined on the papers regardless of compliance with the directions dated 27 August 2025. [21] The Applicants have complied with the directions of the Tribunal dated 27 August 2025. No material has been filed by the Respondent and in particular no claim has been made by the Respondent regarding any entitlement to payment pursuant to s 42(4) of the QBCC Act. [22] As no material has been submitted by the Respondent, in accordance with the directions of the Tribunal on 27 August 2025, the Tribunal proceeds to assess the Applicants’ claim based on the material on which the Applicants rely. [23] The Applicants’ evidence is uncontested despite the Respondent receiving all the material delivered by the Applicants to the Tribunal. [24] In the circumstances, it is necessary for the Tribunal to assess the damages claimed by the Applicants. Damages [25] From the outset, in assessing the damages to which the Applicants are entitled it is necessary to ensure that the Applicants are put into the same position they would have been had the contract been properly performed. The starting point therefore is that the Applicants would have incurred the sum of $19,250.00 had the works been completed by a licensed contractor in a satisfactory manner in accordance with the contract. -- 3 of 6 -- 4 [26] The Applicants’ claim for the refund of this amount is not warranted merely on the basis that the Respondent was unlicensed. [27] The statutory framework of s 42(1) of the QBCC Act specifies that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work. [28] Section 42(3) is said to sterilise any claim which might otherwise be made under the contract or under common law by an unlicensed builder. It provides that a person who carries out building work in contravention of s 42 is not entitled to any monetary or other consideration for doing so. [29] The prohibition in subsection (3) is subject to subsection (4) of s 42 which provides that a person is not prevented from claiming a reasonable remuneration for carrying out the building work, but only if the amount claimed is no more than the amount paid by the person in supplying material and labour for carrying out the building work and does not include an allowance for the supply of the person’s own labour and the making of a profit. [30] Section 42(4) imposes a limitation upon the right of action at common law which it preserves against the sterilising effect of s 42(3). Without subsection (4), an unlicensed builder’s right to payment of any amount is defeated by sections 42(1) and 42(3). [31] The onus of proving any entitlement rests solely on the unlicensed builder. [32] The rights and liabilities of the parties to a contract which involves the performance of building work carried out whilst a builder is unlicensed have been addressed fully in Cook’s Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75. Whilst the burden of proving any entitlement to payment rests on the builder, s 42(4) of the QBCC Act does provide an unlicensed builder with an avenue to claim some compensation for works performed under the contract. [33] Keane J further says at paragraphs [40] and [42]: [40] …Rather, s 42(4) assumes the existence of a common law right to remuneration which it preserves against the operation of s 42(3) while at the same time imposing conditions upon the availability and extent of that right. Unless the builder has a good claim conforming to these conditions, the builder’s right to reasonable remuneration cannot avail the builder against the operation of s 42(3). [41] It is true that, as the appellant argues, the operation of s 42(3) of the Act is qualified by s 42(4). But it is also clear that s 42(4) permits an unlicensed builder to claim “reasonable remuneration for carrying out building work, but only if the amount claimed” satisfied the criteria in paragraphs (a) to (d). It is only the amount of the claim so quantified that the builder may recover despite s 42(3). Absent a good claim so quantified, the operation of s 42(3) is, for practical purposes, unqualified by s 42(4). If the legislature had intended that s 42(3) as amended should read “Subject to the absence of any claim under subsection (4), so as to cast the burden of disproof of any claim for reasonable remuneration on the other party to the contract, it could easily have said so. [42] In my respectful opinion, it is important that the concern of the courts to avoid an unjust outcome in a particular case should not distort the operation of a statute intended to encourage the licensing of builders by -- 4 of 6 -- 5 disadvantaging unlicensed builders and advantaging consumers of building services at their expense. It is hardly surprising that the legislature should have left the burden of proving a claim for reasonable remuneration on the builder. What would have been surprising would have been a provision which cast the burden of proof of an unlicensed builder’s claim on the consumer of building services. What is most surprising, of course, is the failure of the builder in this case to adduce evidence capable of proving a claim for an amount of reasonable remuneration in conformity with s 42(4) of the Act. [34] I am satisfied that the Respondent was not licensed to perform the works the subject of the agreement. Thus, the Tribunal is satisfied that the work undertaken was carried out by an unlicensed contractor. [35] The Respondent has only a statutory entitlement to make a claim for works carried out within the parameters of s 42(4) of the QBCC Act. The onus is on the Respondent to not only make such a claim but to prove any, or the extent of, such entitlement. [36] Absent any claim by the unlicensed builder, the operation of s 42(3) is unaffected. [37] No statutory claim has been made by the Respondent. The Respondent has taken no part in the proceeding and has failed to comply with any Tribunal directions. In the circumstances, the Respondent is not entitled to any remuneration for the building work carried out. [38] The entitlement of the Applicants to recover monies paid to an unlicensed builder is the reciprocal of the builder’s disentitlement to receive payment.1 [39] The Applicants are entitled to recover from the Respondent the sum of $19,250.00 [40] In relation to the Applicants’ claim for damages arising from the defective works performed by the Respondent, I am satisfied that it was necessary for the Applicants to engage another contractor to rectify the defective work performed by the Respondent. [41] The principles in relation to the assessment of damages in building disputes are clearly set out in Bellgrove v Eldridge (1954) 90 CLR 613 at 617: The measure of damages recoverable by the building owner for the breach of the building contract is …the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract, with the addition, in most cases, of the amount of profits or earnings lost by the breach. [42] Damages for defective work are generally the amount necessary to make the work conform with what the contractor was required to provide under the contract and thus in accordance with the plans and specifications which formed part of it.2 The basic purpose of an award of damages is to restore the aggrieved party to the position which would have been obtained had the wrongful act not occurred. In the case of incomplete and defective work the usual remedy will be the cost of rectifying and completing the building works in accordance with the building contract. 1 Marshall v Marshall [1999] 1 Qd R 173, 176 (McPherson J). 2 Robinson v Harman [1848] Eng R 135. -- 5 of 6 -- 6 [43] The qualification outlined by the High Court in Bellgrove v Eldridge is that, not only must the work undertaken be necessary to produce conformity, but that also it must be a reasonable course to adopt. [44] I am satisfied that it was necessary for the Applicants to demolish and re-build the works performed by the Respondent in order to gain conformity with the agreement. I accept the quotation provided by JuddCrete dated 16 January 2026 in the sum of $45,100 including GST. [45] I am unable to decipher the relevance of the quotation from JCTech dated 23 January 2026, in the absence of evidence from the Applicants for the necessity for the works. Orders [46] The Respondent is to make payment to the Applicants in the sum of $45,100.00 including GST as rectification costs incurred by the Applicants resulting from the unsatisfactory and incomplete work provided by the Respondent. [47] The Respondent is to make payment to the Applicants in the sum of $19,250.00 being the refund of the amount paid to the Respondent for works carried out whilst the Respondent was unlicensed and with respect to which the Respondent has failed to prove any entitlement in whole or in part pursuant to s 42 of the QBCC Act. -- 6 of 6 --