Dias & Butcher v Dale Hassam trading as Richters Kitchen and Glass [2026] QCAT 113

Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99

Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303

Hooker Constructions Pty Ltd v Chris's Engineering Co [1970] ALR 821

Walsh v Australian Building and Construction Group [2016] QCAT 187

Introduction and the scope of the issues for determination

[1] The applicants entered into a Master Builders QLD - Basic Works Contract - Residential) (the contract) with the respondent, who operated a cabinet making business called Richters Joinery (Richters) and traded as Richters Kitchen and Glass. The contract provided for the construction and installation of a kitchen in their home in Agnes Waters. The price for the works was $38,220.67.

[2] There were some irregularities in relation to who the proper parties were to the dispute, and which I drew to the attention of the parties. They included that in fact, only the female applicant was named on the contract, and the party named as the builder was identified as something suggesting it was a corporation not a natural person. I was told by the parties to proceed on the basis that the parties to the contract were the parties to this proceeding and I have done so.

[3] The applicants seek remedies that arise out of the way in which that contract was performed, or rather not performed. During the course of their opening, the applicants made clear that their claim was for 3 forms of relief. Other various claims were not pressed or were abandoned so I will not refer to them.

[4] The first was that they ought to be given the benefit of an order or declaration that they were relieved from payment of the balance due under the contract of $10,235.29.

[5] Secondly, they sought an order by way of damages or compensation for the yet to be expended cost to replace the partially built kitchen put in by the respondent on the basis that the only appropriate remedy for the defective and incomplete works was a complete replacement.

[6] After initially, articulating a claim that they be entitled to interest on the amount that they had already paid under the contract, the applicants elected not to prosecute that claim because they were not pressing for recovery of the costs they had already paid to this respondent for the cabinet work. They instead sought damages reflecting the cost that they would have to pay to someone else to complete the kitchen and since that cost had not yet been incurred no claim for interest upon it would lie.

[7] In relation to whether a replacement kitchen was appropriate as distinct from either permitting the respondent to complete the kitchen or incurring the cost to make good what was there, the applicants relied upon the professional opinion of an experienced builder Leonard Smith.

[8] The applicants contend that three independent contractors were engaged solely to inspect the existing kitchen, as left by the respondent, and to provide professional advice and quotations on either completing the works or undertaking a full replacement. The applicants contend that all three advised that, given the extent of the defects, it would be more appropriate to remove the existing kitchen entirely and start afresh. In fact, the quotations they provided to replace the kitchen do not specifically say that although there is a report from a builder who does.

[9] They put into evidence three quotes from other suppliers to install a replacement kitchen. None of those suppliers was the subject of any cross-examination by the respondent to challenge the reasonableness of the estimates. The applicants elected to submit that the quotation to perform the works which sat between the other two quotations, was the one that they relied on in seeking an order for damages or compensation. That quote was for an amount of $34,450 and was from an organization called Cabinet Connections. Again, there was no submission made by the respondent to mount any challenge to this as a reasonable assessment of the cost to replace this kitchen. Instead, the respondent placed his emphasis on the contention that it was unfair or unreasonable, not to permit them to go back to complete this kitchen. He did not articulate a contractual or other legal basis upon which it contended that it should be allowed to do that, or was legally entitled to do so. He did mount a case as to why he thought that should occur.

The chronology of the parties' dealings and progress of the works

[10] The contract provided for a construction period of 30 days, but with the specified commencement date under item 8 of 26 June 2023 with practical completion required by 7 August 2023. Despite practical completion being required by 7 August 2023, the contract was associated with a document that provided for an "anticipated project timeline for (the) kitchen renovation" in these terms;

TASK ANTICIPATED DATE

Electrical Pre-Wire 13/11/2023 - 21/11/2023

Plumber Rough-In 13/11/2023 - 21/11/2023

Kitchen Install 22/11/2q23 to 24/11/2023

Stone Bench Installation 04/12/2023 - 08/12/2023

Stainless Steel Bench Installation 04/12/2023 - 08/12/2023

Plumbing Hook-Up 11/12/2023 - 15/12/2023

Tiled Splashback 11/12/2023 - 15/12/2023

Electrician Hook-Up 11/12/2023 - 15/12/2023

[11] All those dates post-date the agreed practical completion date. Whatever inconsistencies are to be found in those documents, it is clear that all of the parties had as a common understanding and expectation that this kitchen to be completed and in use by Christmas 2023.

[12] The first 2 substantial payments to be made under the contract were made. The 3rd instalment of $11.466.20 for stage 3 of the works being the 3rd of 4 scheduled payments was made on 3 August 2023, so when no work had been done on site to install any of the kitchen. That left only one last payment of $7,644.13 being 20% of the contract price on practical completion. Practical completion has never been achieved.

[13] The respondent's workers first attended the property to commence work in mid-November 2023. By then the date for practical completion had passed 3 months earlier, and it was only 6 weeks till Christmas. There was no usable kitchen in the house once work commenced. Work commenced on 15 November 2023 when cabinetry and the applicants' appliances were delivered. The installation did not start until 2 weeks later.

[14] Precisely why it was that although the contract was entered into in December 2022, the date for practical completion was allowed to pass in August 2023 without the works having been performed is not fully explained in the material. It is not however critical to the issues to be decided.

[15] In April 2023 the respondent was still doing arrangements for a check-measure. On 15 May 2023 the applicants first received the CAD design to approve.

[16] In September 2023 the applicants tried on numerous occasions to call Richters and email them however the message bank was full and some emails were bouncing back. The respondent himself would not respond. The applicants had concerns that they had closed down leaving them feeling panicked as they had a large amount of their money plus their appliances and kitchen sink and accessories. They did a 3 hour return trip into Bundaberg twice to find the respondent's front shop door open but no one present.

[17] In October 2023 one of the applicants called and spoke to the respondent himself, and expressed concerns that the kitchen hadn't started and they had family staying for Christmas and needed the kitchen to be completed before their arrival. The respondent said with a jovial laugh ..." oh it will be in well before Christmas". It wasn't.

[18] On 31 Oct 2023 the applicants emailed the following to Richters;

Hi team, I'm following up on our kitchen install. Do we have a date as yet?

I am quite concerned about the length of time it is taking. We are entering into November and it has now been 12 months since we started this process. Is there anything we can do this end to make this happen? We would appreciate an update.

[19] The works did commence with the delivery of materials to site on 15 November 2023, some 3 months after the date for practical completion was required, but shortly after the works commenced, the respondent's staff left the site saying they were finished for Christmas.

[20] On 20 Nov 2023 the applicants emailed asking again for an install date and noted they hadn't received any contact from an electrician or plumber and asked if there needed to be holes cut through the floor for the plumbing before the cabinetwork installation. They asked this question a few times as they were concerned that the respondent had said that his plumber was sick and that the plumbing roughing in can be done after the kitchen is installed. He was thought to be reluctant to send out trades and wouldn't use local trades, apparently preferring his own form elsewhere.

[21] On 22 Nov 2023 the respondent returned with a tradesperson to start the kitchen install. At that time there was a cabinetry mountain in the middle of their loungeroom creating a safety issue. They only managed to re-sheet one wall and did not place the insulation back in the wall. When they were about to leave for the day, one of the applicants asked why the insulation was over the other side of the room in which they replied "we thought it was industrial waste". They also said that they didn't really need it.

[22] Little else then happened to progress the work, until on 12 Dec 2023 there was a meeting to discuss timelines. There was work on the site in the week before Christmas but by now the applicants were noticing defective work and one particular matter was that with the electrician on site he had to cut the rear of the board that divided the two ovens in the oven tower cabinetry as there was no vent allowance as per the oven supplier's requirements and the Building Code, so Ms Butler believed. She raised this as a concern. As was that the cabinetry was out of alignment. There were visible glue lines on edges of cabinetry and tape mark lines. At one point a visitor pulled at the top oven handle and the whole oven slid out towards him.

[23] Next in January 2024 they were advised by email from Richters that Wide Bay Stone was supposed to be on-site to measure up for Ceasar Stone bench. That did not occur.

[24] At this stage it had been observed that there was a defect in the cabinet doors supplied to the respondent by its contractor Polytec. I will describe that problem later, but it was a problem that belonged to the respondent not the applicants.

[25] Virtually nothing more then happened to advance the works for months.

[26] In March 2024, the applicants sent three notices to remedy breach, respectively on the 11th, 19th and 21st March 2024.

[27] The 11th of March notice came with a letter that said that they were concerned over the delayed completion of the kitchen and insisted on a timely and expeditious completion of the installation in accordance with the contract. It mentioned that they were being subjected to considerable inconvenience and disruption. They said that they had chosen the respondent based on its reputation for delivering high quality craftsmanship, but the prolonged delay was causing them undue, stress and had financial implications for them. They emphasised the importance of adhering to the contractual obligations and requested that the respondent provide a detailed explanation for the delay and a revised timeline to complete the works. It attached a report identifying what was required to be rectified and invited him to treat the matter with utmost urgency and take immediate steps to rectify the position to ensure prompt completion. It attached a document described as a breach of contract Notice number 2. This contract had terms that permitted such notices to be given to invite remedial activity. There was no response offering to perform.

[28] The next notice was 8 days later, on the 19th of March 2024, which referred to the 11th of March email and again requested an immediate response, because none had been received. It noted that they had since spoken to the foreman who had confirmed that the respondent had received the 11th of March email but that he had said that there would be delays due to the absence of one of the office staff. The letter complained that there had been delays ongoing since June 2023 and then sought confirmation about various aspects of the state of the works, including requesting an indication of whether the overhead cupboards, stonework, kickboards, bins and other hardware was ready to be installed. There was no response to this notice offering to perform either.

[29] The letter of 21 March 2024 was not in evidence, and could not be located it was said, but was said to be to similar effect.

[30] None of these notices was responded to either by a responsive letter or other communication, or by a response which actually led to the performance of the works.

[31] Some activity resumed in April 2024. On 8 April 2024 the respondent's workers arrived at 10.30am and departed at 6.45pm. The workers arrived in the rain and the overhead cabinetry, being the oven tower, bottom board above fridge, overhead cabinetry and new oven were strapped down on the back of a long flatbed trailer covered with a tarp. When they carried in the wall oven tower inside and turned it upright, water from inside it spilled out onto the floor. The applicants raised concerns about things being wet but were told the panels were made quite well and not to worry. The respondent ended up pulling all the cabinetry out at various stages as nothing was fitting effectively or lining up.

[32] The bins and hidden drawer they were given were again the wrong ones therefor the respondent left an empty cabinet space until next the visit. The applicants could not use the cooktop as they now had to wait for electrician to return to install power points etc. They removed glue from floor so that they could then remove Texta markings off the tile floors.

[33] There was more work later in April 2024, but the applicants were not getting responses to their requests to know what was going on. Richters sent them a variation after the respondent itself could not find an electrician to do the works and they were told to find their own electrician at their own expense, even though it was part of the Richter contract to supply and oversee the electrical work.

[34] On 23 April 2024, upon calling Mariah Robinson (the sales and design consultant) asking when Richters would return on site to complete defects, Ms Butcher was told that she would no longer help them or answer questions and everything had to be referred to the respondent himself.

[35] On 9 May 2024 the Nikpol overhead cupboards were removed and taken back to Richters. On 21st May Mr Dias called the respondent because they had received no contact since they removed the Nikpol overhead cabinet on 9th May.

[36] A litany of problems was emerging concerning the work which had been carried out. By 7 June 2024 the applicants were trying to get the regional manager from Master Builders Queensland to assist, but not intervene, to get something to happen.

[37] On 18 July 2024 Polytec was due to be back to do the cupboard warranty re-installation. But when they got there, they found that Richters had changed the measurements for the work and failed to update Polytec of the new measurements for the overhead cupboards above the fridge and therefore they were not replaced and to this day are missing.

[38] For all practical purposes, all work on-site ceased from July 2024, and no further work of any kind was done on the site again.

[39] The last occasion on which any representative of Richters attended the property to undertake work was on 12 July 2024. On that date, the overhead cabinetry was removed for a third time, as it continued to be incorrectly constructed and remained unfit for purpose.

[40] Subsequently, 3 weeks later, on 5 August 2024, the applicant Mr Dias, contacted the Richters' site foreman, to enquire as to when the tradesmen would next return to the property to continue and complete the outstanding kitchen works. The site foreman responded with words to the effect that "unfortunately it won't be for a while," citing his being away on holiday and advising that the other Richters tradesmen were presently engaged on new kitchen installations elsewhere in Agnes Waters.

[41] The applicants say that this response, coupled with the lack of any further attendance or communication from Richters, reinforced their understanding that completion of their kitchen was not being prioritised. It further exacerbated their frustration, distress, and the ongoing disruption caused by the prolonged and incomplete state of the works.

[42] The applicants say that by this point, they had already given Richters numerous opportunities over many months to rectify and complete the kitchen. It was at this stage that they decided that they had been more than reasonable, that Richters had failed to meet their obligations despite repeated assurances, and that they could no longer rely on them to finish the job. Accordingly, they determined that they did not want Richters to return to their property and that the matter would need to be resolved through legal proceedings.

[43] I find that this decision, albeit not communicated in precisely those terms, was communicated and constituted an election to terminate the contract and proceed with a legal remedy

[44] A dispute application was lodged with the Queensland Building and Construction Commission (QBCC) on 5, August 2024. The applicants then formally lodged a claim with the QBCC on 2 September 2024. It was a Residential and Commercial Construction Complaint Form. It set out 53 complaint items and said access would be permitted to the site. It said that;

Various defects throughout the construction of our new kitchen have been on-going since the installation began on the 15th of November 2023. Therefore, we have numerous email responses and phone call responses over the previous 11 months. On 23 April 2024, upon calling Mariah Robinson (sales and design consultant) asking when Richters would return on site to complete defects, I was told by Mariah that she would no longer help us or answer questions and everything had to be referred to Kent.

[45] On 17 Sept 2024 Polytec had been again booked in to reinstall the cabinets involved in the warranty claim for the under-sink cabinetry, and above oven cabinetry.

[46] Eventually nearly 3 weeks later, on 4 Oct 2024, Polytec completed the warranty claim installation work.

[47] A notice was sent by the applicants to the respondent on 8 October 2024. In that letter the applicants said inter alia;

We are writing to formally address the ongoing issue regarding the incomplete kitchen build at our home that was contracted over 12 months ago.

We are absolutely disgusted and appalled at how we have been mistreated and treated with contempt by your company. We contracted your company in good faith and expected the agreed kitchen build to be carried out in a timely and professional manner. None of which have occurred.

Our kitchen build should have been completed well over 12 months ago, as yet we still have an unfinished and non-functioning kitchen.

No one from your company has bothered to contact us for over one month. To make matters worse, we have been made aware that your company has been in Agnes Waters completing kitchen builds for a local building company. Yet at no time did anyone from your company come to our property to complete our kitchen build from a contract that was signed in 2022.

Our contracted agreement stipulated a completion timeline that has not been honoured. Despite numerous discussions and reassurances regarding the project's progress, the work remains unfinished. This delay has not only caused significant inconvenience but has also resulted in emotional distress for my family, hindering our ability to undertake further renovations.

We have now begun the escalation process as advised by our solicitor and have commenced action with the Queensland Building and Construction Commission.

Please consider this letter as commencement of formal proceedings with which to resolve the matter. We appreciate your immediate attention to this issue and look forward to your prompt response

[48] On the 15th of October 2024, the respondent sent an email describing his version of what had been occurring and seeking to excuse what had happened as beyond his control. The respondent's email asked when they could return to install overhead cabinetry. By this stage he was obviously aware that the applicants were dealing with the QBCC and the email felt to the applicants like he sent it to make it look like he was trying. The email failed to address the remainder of the works such as tiling, electrician fit-off, finding a solution to the island bench which still has no pop-up GPO or power that they could plug into, that the cabinets above fridge need replacing, that the push to open catches required removal, there were drill holes in cabinetry and other issues.

[49] The applicants decided to not respond to his email as they considered that they would be "fools to continue to allow access to their property to cause more damage" and to not have the works completed or "achieve anything". It had been almost 2 years since they had signed the contract with them and 11 months since they had started any works onsite.

[50] There appears to have been some negotiation conducted between the respondent and someone within the QBCC in which, as between the 2 of them, they came to the view that the matter could be resolved by the respondent agreeing to go back to site to complete the works. But there is no evidence that the applicants were a party to those negotiations or that outcome. However, on the 8th November 2024, the QBCC wrote a letter to both parties purporting to confirm that there had been agreement reached and that no direction to rectify would be issued. But then, months later, on the 14th January 2025, the respondent emailed, asking for access to the site. The applicants did not reply to those requests for access. Tacitly they were refusing it because they had decided to seek alternate remedies.

[51] On or about 4 February 2025, the applicants brought the present application constituting an application for domestic building dispute, identifying 61 separate complaints of defective or incomplete work.

[52] Although there is some ambiguity in the correspondence as to whether and if so, at what specific date the applicants elected to terminate the contract based upon non-performance and its breach, I find that at the very latest that occurred when this proceeding was commenced. I find that it was probably effectively an election made and communicated when they made complaint to the QBCC and thereafter refused access to Richters to return to site to do whatever work it was proposing to do thereafter, as evidenced by their letter of 8 October 2024.

[53] In cross-examination, Ms Butcher made clear that they had entirely lost faith and any confidence in the respondent's willingness or capacity to perform under the contract and their decision not to respond to the request to allow further access when the applicant requested it in vague terms on 15 October 2024 constituted the making of that election and the communication of it to the respondent.

[54] Sections 77 (1) and 77 (2) of the Queensland Building and Construction Commission Act 1991 (Qld), (the QBCC Act) are as follows:

77 Tribunal may decide building dispute

(1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute.

(2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute.

[55] In Walsh v Australian Building and Construction Group [2016] QCAT 187 Senior Member Brown ruled at [12]:

Section 77(2) QBCC Act is expressed in clear and unequivocal terms. A person may not apply to the tribunal to decide a building dispute unless the person has complied with a process established by the QBCC to attempt to resolve the dispute. Compliance with the section is a precondition to the jurisdiction of the Tribunal being enlivened.

The provision is not merely procedural; it is mandatory and has substantive effect. The Tribunal cannot exercise the powers conferred by s 61 QCAT Act to waive compliance with s 77(2) QBCC Act.

[56] I am satisfied that the Tribunal has jurisdiction although I should say that this dispute had a unique element, the provenance of which was never properly identified, in that in the process of the complaint the applicants made to the QBCC being dealt with, the QBCC notified both parties that the dispute had been resolved, the respondent thinking it was resolved by it agreeing to return to site to complete the works, but with the applicants knowing nothing of any such resolution, not having agreed to it and thinking a letter sent to them to tell them it had resolved being treated by them as evidencing that they had complied with the process established by the commission to attempt to resolve the dispute and could then bring their application in this Tribunal.

[57] Under section 77(3) of the QBCC Act, QCAT is empowered to make a wide range of orders to resolve building disputes. Section 77 (3) of the QBCC Act states:

(3) Without limiting the tribunal's powers to resolve the dispute, the tribunal may exercise 1 or more of the following powers -

(a) order the payment of an amount found to be owing by 1 party to another;

(b) order relief from payment of an amount claimed by 1 party from another;

(c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;

(d) order restitution;

(e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice;

(f) avoid a policy of insurance under the statutory insurance scheme;

(g) order rectification or completion of defective or incomplete tribunal work;

(h) award costs.

Domestic Building Work and warranties under the QBCC Act

[58] Domestic Building Work includes[1];

(i) the erection or construction of a detached dwelling (and any associated work);

(ii) the renovation, alteration, extension, improvement or repair of a home (and any associated work);

(iii) removal or resiting work for a detached dwelling (subject to some exclusions);

(iv) the installation of a kit home at a building site; and

[59] This work involved the renovation, alteration, extension, improvement or repair of a home (and any associated work). This was a level 2 contract involving $20,000 and above. That means it was required to contain a provision that states the date for the start of the subject work at the building site, or how the date is to be determined and a provision that states the date for practical completion or how the date is to be determined, and a statement of each of the statutory warranties that apply to the subject work[2].

[60] For Domestic Building Work the QBCC Act[3] sets out the mechanism for varying the work under a contract and obtaining an extension of time to the date for practical completion. It is necessary that a builder/contractor follow these procedures in order to validly vary the works or extend time. A failure to do so can result in the contractor not being paid for work they have done or being liable for liquidated damages if the date for practical completion is not validly extended.

The scope of the warranty that work will be carried out with reasonable diligence.

[61] Part 3 of The QBCC Act 1991 (Qld) sets out statutory warranties. The warranties mentioned in Part 3 Division 2 are part of every regulated contract. They include that the building contractor warrants the subject work will be carried out with reasonable diligence. The "diligence" of a builder in performing works has been said to include not only "personal industriousness" but also efficiency by the builder and the builder's employees; Hooker Constructions Pty Ltd v Chris's Engineering Co [1970] ALR 821, 822;

[62] In Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303 the NSW Court of Appeal said;

[169] It might be accepted that the appellant's failure to complete the Works by the date for practical completion might be some evidence of delay (see Westminster Corporation v J Jarvis & Sons Ltd and Another [1970] 1 WLR 637 at 643 per Lord Hodson, at 645 per Viscount Dilhorne). However, whether delay is of itself sufficient to raise an inference of lack of due diligence must depend on the circumstances.

[170] Despite the prevalence of clauses in building contracts requiring the work to be performed with "due diligence", defining the nature of that obligation has proven elusive.

[171] In Re Stewardson Stubbs & Collett Pty Ltd & Bankstown Municipal Council, Moffitt J observed (at 1675-1676) that:

... [T]he question of what precisely constitutes a failure to proceed with reasonable diligence is a matter of some difficulty. However, it is an allegation of a general failure to proceed with that degree of promptness and efficiency that one would expect of a reasonable builder who has undertaken a building project in accordance with the terms of the contract in question.

[172] In Hounslow London Borough Council v Twickenham Garden Developments Ltd Megarry J considered a requirement that a building contractor "proceed regularly and diligently with the works" and said (at 269):

[W]hat is the meaning of the words 'regularly' and 'diligently'? These are elusive words, on which the dictionaries help little. The words convey a sense of activity, of orderly progress, and of industry and perseverance: but such language provides little aid on the question of how much activity, progress and so on is to be expected. They are words used in a standard form of building contract in relation to functions to be discharged by the architect, and in those circumstances it may be that there is evidence that could be given, whether of usage among architects, builders and building owners or otherwise, that would be helpful in construing the words. At present, all that I can say is that I remain somewhat uncertain as to the concept enshrined in these words; and this necessarily increases the task of Mr Harman in establishing a strong case that the contractor has failed to proceed regularly and diligently with the works, so that the architect's notice is good.

[173] In Hooker Constructions Pty Ltd v Chris's Engineering Co [1970] ALR 821 at 822-823, Blackburn J considered whether a head contractor had validly terminated a building sub-contract on the basis that the sub-contractor had failed "to proceed with the works with reasonable diligence" as required by the contract. After observing that the "onus is on the plaintiff to show the [sub-contractor] was in default in a way ... caught by this provision", his Honour said (at 822) that he had "not found it easy to construe this phrase 'reasonable diligence' in the context of this case". He concluded that "a sensible construction of the phrase is that the actual extent of work completed is of some significance" and that "'diligence' in the contract means ... not only the personal industriousness of the defendant, but his efficiency and that of all who worked for him".

[174] He also said (at 823) that he was entitled to accept as evidence that the defendant had not displayed reasonable diligence, "evidence that the work was, at the material time, seriously incomplete together with evidence that there were no circumstances preventing the defendant from overcoming this situation".

[175] In Hooker the plaintiff led evidence that at the time it purported to terminate the sub-contract, the defendant's work was "seriously behind what could reasonably be expected [and] that the situation was not due to anything which was beyond the defendant's control". Although the defendant adduced evidence to show that "through no fault of his own, he was unable to get the necessary material to bring the work to the stage where it should have been at the material time", this did not convince Blackburn J who held the plaintiff had proved the contract was validly terminated.

[176] In Australian Development Corporation Pty Ltd v White Constructions (ACT) Pty Ltd (1996) 12 BCL 317 Giles J (as his Honour then was) accepted that "where there was a specified future date for practical completion, whether [the builder] was prosecuting the project diligently was a question of fact, substantially determined by whether it was proceeding at a rate of progress according to which practical completion would be achieved by the specified date but with regard also to whether accelerative measures could bring achievement of completion by the specified date." His Honour considered competing expert evidence as to the time required to complete the building work but concluded it was unnecessary in the circumstances of that case to resolve the difference between those views.

[177] As each of these cases demonstrates, "you cannot have diligence in the abstract. It must be related to the objective": Greater London Council v Cleveland Bridge and Engineering Co Ltd (1986) 34 BLR 50; see also Hick v Raymond & Reid [1893] AC 22 at 29 per Lord Herschell LC ("there is no such thing as reasonable time in the abstract"); Maynard v Goode [1926] HCA 4 ; (1926) 37 CLR 529 at 538 per Isaacs J ("[t]he question of what is 'reasonable time' is always relative; that is, it means 'a reasonable time under the circumstances' ").

[178] There were, in my view, in the context of the Contract, at least two ways the respondent could have established that the appellant had failed to perform the works with due diligence.

[179] First she could have proved:

(a)the work the appellant was required to carry out under the Contract; as events transpired this included the original contract works and the rectification work;

(b)what, in addition to the contract period, was a reasonable time within which the appellant ought to have executed the original contract works and the rectification work;

(c)that the appellant had failed to execute the work within that reasonable time;

(d)that, to the extent the appellant proffered explanations of why the work had not been executed within that reasonable time, those explanations were unacceptable.

[180] As I shall explain, the appellant's case was, essentially, that this was the way the respondent was required to prove her case and that she had failed to do so.

[181] Secondly, in my view, the respondent was also entitled to seek to prove lack of due diligence by establishing a case of delay in progress during construction. This appears from both Stubbs and Hooker. On this basis she could have established a failure to carry out a reasonable amount of work by a given time; that that period of time be measured by reference to all the work to be performed under the Contract or, in absolute terms, by reference to a lack of activity on site over a significant period that could not be satisfactorily explained. The onus of proving lack of due diligence was on the respondent. If the facts established by the respondent are capable of giving rise to an inference of lack of due diligence, the appellant may discharge any evidentiary onus that may pass to it, by explaining why the work progressed at that rate: see Hobbs. That evidence should be "sufficient ... to turn the scale": Brady v Group Lotus Car Cos plc [1987] 3 All ER 1050 at 1059 (CA) per Mustill LJ

[63] These principles have been regularly considered and applied by the Courts and this Tribunal.

[64] Dealing with a lack of due diligence based on delay in the progress of construction, an owner might successfully terminate a residential building contract by demonstrating that at the time the notice to remedy breach is served, the building works are seriously incomplete; and there are no circumstances preventing the builder from having performed the works at a more rapid rate; Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 3) [2012] VSC 99, [439]; Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303, [199].

[65] Essentially the applicants' case was that there was a failure by the respondent to deliver a kitchen of acceptable quality within a reasonable period of time and that its attempts to improperly shift blame onto the applicants or other contractors it had engaged were misplaced.

[66] At every point on the journey to this matter coming on for a hearing and for a large part of the hearing, neither party was focused upon what, if any, legal foundations the applicants' case had, the terms of any statutory warranties or what foundation any defence or resistance to it had. The arguments put up for the respective sides involved, suggesting that one should have regard to the fact that the respondent claimed always to be willing to complete the works or at the very least at some point, made clear that it was willing to do so, but was not permitted to do so. It also suggested there were variations, and changes being made to the design, the finishes and other aspects of what was to be constructed, and that somehow or other this ought to be brought into consideration in deciding the outcome.

[67] Neither party focussed upon the terms of the contract between them. As an obvious example, the contract provided for a date for practical completion, but also made provision for extensions in certain circumstances where there were variations and other matters, which had occurred, which entitled the builder, an extension of that date. Despite that, neither party apparently adopted or took advantage of the procedures or scheme that was set out in the contract to accommodate those changes.

[68] Neither party addressed whether the contract had been terminated by one or other of them or whether there was in fact an entitlement based on what had occurred, to do so. Neither party addressed the legal foundation for an award of damages by reference to the contract or legal principle.

[69] Initially, the applicants were seeking a declaration to the effect that the contract was no longer on foot, but the legal and factual foundation for that was not identified. And seeking that relief was, in the end, not pressed. I have made a finding of fact on this issue

[70] What that left was for the Tribunal to focus upon what legal foundations might exist for the claims and as to their merit, having regard to those legal foundations.

[71] The applicants made reference in their final address to the statutory warranties under the QBCC Act, but I was not taken to what particular warranties were referred to or how it is said that they were not met in this case or addressed or what consequences flowed from that.

[72] The statutory warranties which are implied in this contract are as follows:

The building contractor warrants that all materials to be supplied for use in the subject work - (a) will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used; and (b) unless otherwise stated in the contract, will be new.

The building contractor warrants the subject work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975;

The building contractor warrants the subject work will be carried out - (a) in an appropriate and skilful way; and (b) with reasonable care and skill.

[73] Clause 5.1 of the contract itself provided that the respondent will carry out the Works;

a) in an appropriate and skilful way;

b) with reasonable care and skill;

c) in accordance with the Drawings and the Specifications:

d) with reasonable diligence; and

e) in accordance with all relevant laws and legal requirements. including, for example, the Building Act 1975 and the National Construction Code.

[74] Clause 5.4 of the contract itself provided that;

Subject to Clause 5.5, the Contractor warrants that all materials to be supplied by the Contractor for use In the Works:

a). will be good and having regard to generally accepted practices or standards applied in the building industry for the materials, or the specifications. instructions or recommendations of manufacturers or suppliers of the materials, suitable for the purpose for which they are used:

Findings in relation to the incomplete and defective state of the works

[75] I do not propose to traverse the 61 defective or incomplete items listed in the application, and the applicants' evidence. I accept that the defective and incomplete work listed there is accurately described. In my view it is clear that the work has not been carried out in an appropriate and skilful way; and with reasonable care and skill. The kitchen is all but unusable, not just because it is incomplete. I will give some examples. I accept that the Nikpol overhead is not onsite nor installed. The integrated rangehood is still sitting in pieces potentially unusable.

[76] No tiling has been carried out to make the splash backs. The electrical finishing off has not been done. The overhead front boards above the fridge need to be replaced as the grain on them runs in a direction different to the grain in the remainder of kitchen. These doors also sit ajar due inoperable push to open catches. These doors also have unsightly glue lines and tape marks.

[77] The respondent attempted to remove the existing window architraves to fit larger architraves to try and hide the unsightly installation of his work The architraves are not properly fitted. The gyprock sheeting behind the cooktop is yet to be tiled flexes causing concern that tiling on it will not be effective as a splashback.

[78] The existing cabinetry is not flush on the wall, and one can see daylight or the back wall between the items of cabinetry. The cabinetry is not level, and the drawers do not close flush. The cabinetry does not marry up.

[79] The pantry is sitting on about 3cm of glue and the top is not flush or level.

[80] There are structural integrity issues with Caesarstone Island bench. There is no support board under the 2m length of bench top, and there is a gap so large that one can fit half a hand through it.

[81] The LED strip lighting does not work and there is no functioning LED strip lighting.

[82] The applicants have never used the ovens as no inspection has confirmed whether they are legally compliant. The top oven slid out of the oven tower for 3 months before the applicants discovered why. The top oven could not be opened for the first few months as jamming against the bottom board. The bottom oven may not have the required ventilation.

[83] The respondent asserts that the Polytec warranty process contributed to the delay in completing the kitchen. The applicants reject this assertion and say that after the cabinetry was initially installed, they discovered that the surface panels were visibly defective. Even gentle contact would leave smudges and fingerprint marks which could not be removed, despite multiple cleaning attempts. This issue was later verified by representatives from Polytec, who acknowledged that the panels were defective and would need to be replaced under warranty. While the applicants appreciated Polytec's willingness to honour their warranty (and it is not clear what that warranty was), the applicants were nevertheless dismayed that Richters, -whom they had trusted to build their "dream kitchen", had installed visibly defective cabinetry in the first place. This caused them to lose confidence in their professionalism and judgment, and it marked an early turning point where their trust in their ability to deliver a high-quality kitchen began to erode.

[84] On 4 August 2025, Polytec's Warranty Manager, Mr Dale Powell asserted in writing that Polytec had never required or instructed Richters to cease or delay their works due to the warranty claim. Mr Powell said that while Polytec's preference is that works be completed before they are engaged, they certainly didn't look to delay works. The applicants had prior phone discussions with a Mr Brookes of Polytec, who had similarly advised that the warranty process relating to panel defects did not prevent Richters from proceeding with the remainder of the kitchen works.

[85] The response to that by the respondent was to say it was preferable for all such cabinet work to have gone in and be rectified if the subject of a warranty claim, before they came to complete the kitchen. Preferable or not, that did not justify the delay.

[86] The respondent asserts that delays occurred because the applicants had not selected tiles for the kitchen splash back. The applicants categorically reject this assertion. I accept that the applicants selected and purchased three boxes of 'Natura Artico' tiles from Linda's Tiles in Bundaberg on 15 March 2024. The three boxes of tiles remain on site to this day, completely unused, as the kitchen has never reached a stage where tiling could be undertaken.

[87] There was a period of delay, but this was not due to any indecision on the applicants' part. Rather, it arose solely because the respondent Mr. Hassam believed that the thickness of their chosen tiles might prevent General Power Outlets (GPOs) from being installed over them. He engaged his tiler, "Felix," to investigate the issue. While the applicants waited for this to be resolved, the applicants also undertook their own enquiries and contacted Clipsal, who confirmed there would be no issue installing GPOs over the selected tiles provided that a standard mounting box frame was used. This resolved the matter, and no change to the chosen tiles was ever required.

[88] This alleged cause for delay was inconsistent with the respondent's own communications. In an email dated 5 June 2023 from Ms. Mariah Robinson, Design Consultant at Richters Joinery, she advised them that:

"We've had plenty of clients over the years who cannot decide on a splashback, and our advice is to wait until the kitchen is installed. There is no need to rush these things, especially if you're more of a visual person. We're more than happy to leave the tiled splashback selection until after the kitchen is installed."

[89] That statement implies that tiling is commonly left until the end of a kitchen build and does not prevent the works from otherwise progressing. I accept the applicant Ms Butcher's evidence that their tiles were selected and purchased well in advance, and any brief pause was caused entirely by the respondent's misunderstanding about GPO installation, not by any indecision or delay on their part.

[90] I find that the suggestion that tile selection contributed to justifiable delay is without foundation.

Delays Due to Changing the Overhead Cabinet Design and ducting issues

[91] The respondent contends that there were also justifiable delays caused by the applicants repeatedly changing their minds about the overhead cabinetry. There were photos before me that show that even to this day there are no overhead cabinets installed. The respondent says they are built and sitting in its factory ready to be installed.

[92] I find that the overhead cabinetry was long ago removed completely and remains in the respondent's possession, leaving an empty space and a large open untiled and unfinished space where the functioning cabinets should be.

[93] I find that the overhead cabinetry was installed but then removed from the kitchen on three separate occasions due to multiple design and installation faults identified by the respondent's own team, including problems with its size and positioning, the ducting for the exhaust fan, the method of opening the cabinet doors, and the installation of the undermounted strip lighting.

[94] The respondent also contends that the provision of ducting was "never included in the contract." I find that the applicants contracted with Richters to supply and install a fully functioning kitchen, and ducting forms an essential and integral component of a functional overhead exhaust system but even if it was not included, there is no basis to conclude that any dispute about who was responsible for it explains to failure to construct and install the kitchen agreed on .

[95] The applicants contend that due to the number of times this cabinetry has been removed, transported, altered, and reinstalled, they had lost and have still entirely lost confidence in its structural integrity and safety and no longer wish to have it returned or installed in their home. The need to remove it arose from workmanship and design issues, not from any change of mind on their part.

[96] I accept the evidence of the applicant Ms Butcher's that at no time did they request unnecessary alterations and that the removal of these cabinets was entirely initiated by the respondent in attempts to correct his own work.

Allegations that the applicants improperly engaged outside contractors

[97] One of the contentions made by the respondent was that somehow, he was relieved of his responsibilities to perform these works was because the applicants engaged outside contractors to complete, alter, or rectify the kitchen works, and that doing so constituted a breach of contract.

[98] This assertion was denied by the applicants in their evidence and submissions, and they contend that the only outside party used was a plasterer and he was the respondent's plasterer anyway.

[99] I find that following the respondent's prolonged failure to complete the works, they sought independent assessments from licensed cabinet makers to obtain professional opinions and written quotations regarding possible rectification however, these attendances were strictly limited to inspection and assessment only. No work, modifications, or interference with the existing installation were carried out by those parties. I accept the evidence to that effect.

[100] I find that the kitchen remains in precisely the same condition as it was left on the last occasion that representatives of the respondent attended the property, which to in or about July 2024. Since that time, no physical works, alterations, or repairs have been undertaken and the applicants deliberately preserved the site in its incomplete state.

[101] When challenged on this issue, it was in effect conceded by the respondent that he could point to no evidence that such contractors had been engaged.

[102] The respondent alleges that the applicants refused access to the property or otherwise obstructed the completion of the contracted works. I have already partly dealt with this issue and will deal with whether the respondent was entitled to insist on being permitted access to return to site to perform his obligations under the contract in what follows. In my view, even if he was refused such access, it does not affect the outcome of the proceeding.

[103] I reject the respondent's claim that he was "always been willing to complete the contracted works" as contrary to the objective documentary record. The applicants have, on multiple occasions and over an extended period, provided genuine opportunities for the respondent to complete and rectify the works. On each such occasion, the respondent either failed to attend, or continually delayed the work for no lawful reason, and as the applicants say did work of a substandard quality, or introduced additional defects requiring further correction.

[104] The only refusal was implicit and arose when the point had been reached when the contract had been terminated.

Given the extensive history of unrectified defects, unfulfilled assurances, and disregard for professional standards, the applicants have entirely lost confidence in the respondent's capacity to safely or competently complete the works. The respondent's professed "willingness" is, at this stage, irrelevant and immaterial - the time for voluntary completion has long since passed, and the matter now properly falls within the jurisdiction of this Tribunal for determination.

Findings in relation to fundamental breach and the right to terminate the contract for demonstrated lack of due diligence

[106] I find the conduct of the respondent in breaching both the implied and express contractual warranties in relation to the quality of the work and the materials to be supplied were serious breaches. These were important, indeed essential terms or conditions of the contract, and the breaches which occurred were great in number, extended over a long period and were not accompanied by any genuine or actual manifest intention to remedy those breaches by providing work and materials which complied with those warranties. Notices requiring them to be remedied were all but ignored.

[107] Secondly, although time was not of the essence of the contract, having regard to what I have identified earlier as to what is required to perform work with reasonable diligence there has been a demonstrated lack of due diligence by establishing a case of delay in progress during construction. The applicants have shown a failure to carry out a reasonable amount of work by a given time with that that period of time being measured by reference to all the work to be performed under the contract or, in absolute terms, by reference to a lack of activity on site over a significant period that could not be and has not been satisfactorily explained.

[108] At the times notices to remedy breach were served, as well as later, the works were and even now are seriously incomplete and there were and are no circumstances preventing the respondent from having performed the works at a more rapid rate.

[109] In my view, this was a manifest example of a party that not only by its conduct over time in failing to meet deadlines, or agreed timelines, but by his failure to respond to invitations to improve performance , showed a flagrant and intentional disregard for the times upon which the parties had agreed for the performance of these works, but also a manifest and repeated unwillingness to acknowledge that works should be performed in some timely way. This was after all, an expensive kitchen, which was intended to be the heart of residential activity in this house, including obviously for the preparation and cooking of meals but also all the ancillary activities that go on in what is typically the hub of a household. Some elements of what were installed were actually or potentially electrically unsafe and undermined the applicant's sense of security in their own home.

[110] The applicant was sent three or more notices effectively calling upon him to affirm his responsibilities under the contract and indicate how it was that he intended to meet his obligations under it, but no useful response was ever received. Excuses came instead. In my view, that in itself is capable of being treated as repudiatory conduct, or at least conduct, which was in fundamental breach of the terms the parties had agreed upon.

[111] In those circumstances, I find the applicants were entitled to and did terminate the contract and are relieved from any further burden under it to pay any further sums. In fact, only the last payment, which was due under it might have become outstanding had the contract works been completed, but they were not.

[112] I order that the applicants are relieved from payment of any further sum which might have fallen due under the contract, if any, and declare that there is no further payment due.

[113] The next question is what damages or compensation they ought they receive arising out of the respondent's breach of the contract. The relevant test is to identify that which would put the applicants in the position they would have been had the respondent performed according to his obligations under the contract and to give them that which they bargained for under that contract.

The expert evidence and the solution to the defective and incomplete state of the works

[114] Mr Leonard Smith has provided a report in relation to the quality of the work and what is the appropriate way to deal with the works as they stand and what solutions present. He is a licensed builder with approximately 57 years of experience in the building industry. That includes residential construction, renovations and kitchen installations. He has experience with removal of existing kitchens, coordination and supervision of plumbing and electrical preparation, structural works were required, and re-sheeting and reinstatement prior to new kitchen installations.

[115] The opinions in his report are not challenged except to suggest that he may not be impartial, or to suggest that the respondent should be allowed to rectify the work and complete it. I accept that he is impartial.

[116] His opinions are based on what he observed on site, his experience in the trade, and normal building practice, and are not influenced by his personal acquaintance with the owners. He was the original builder of the house in question, but not for these owners. He inspected the kitchen area on multiple occasions including prior to installation, during installation, arid following.

[117] His evidence, which I accept is that the preparation works carried out prior to installation were of a poor standard. Gyprock sheeting appeared to have been partially removed and reinstalled rather than replaced with full sheets; In moisture-prone areas, water-resistant board was not installed; These are not the sort of preparation practices he would expect to see in a properly prepared kitchen.

[118] During installation, cabinetry was not installed so as to be level or plumb, with inconsistent margins and gaps. These issues are consistent with an inaccurate or poorly executed site check-measure.

[119] As for the Polytec panels that were identified as defective and replaced by Polytec, from his experience, selectively replacing cabinetry components in this situation is not appropriate. Full removal is required to ensure consistency of finish, alignment, and quality. He also observed inconsistent grain orientation in cabinetry panels, which is unacceptable workmanship.

[120] His evidence, which I accept is that the preparation and installation of the kitchen were not done to an acceptable standard. There were ongoing issues with fit, finish, and coordination that should not occur in a properly planned and installed kitchen. In his experience, trying to fix these issues bit by bit would be difficult and unlikely to produce a satisfactory result. In his view, taken together, the defects and incomplete items mean the kitchen is not suitable for normal day-to-day use. Until these issues are properly addressed, the kitchen can't be considered finished or usable as intended.

[121] He has safety concerns arising from the way the kitchen has been left incomplete. This includes unfinished cabinetry, areas where components were not properly supported, and electrical wiring and ventilation components that were not properly finished or built into the kitchen. In his opinion, using the kitchen in this condition creates a real risk of damage, component failure, or unsafe use until it is properly rectified.

[122] His evidence, which I accept is that the Caesarstone bench top has not been provided with a full support board beneath it, as would normally be expected. In his experience, stone bench tops rely on proper support to prevent movement over time. He has already observed signs of bowing, and without adequate support, there is a real risk that the benchtop may continue to move and potentially crack in the future.

[123] He concludes and I accept that there are only two practical options to resolve the situation. Trying to fix the issues bit by bit in a situation like this usually leads to more problems including further defects and poor alignment. He says the only real solution is to remove the kitchen and start again.

[124] As I observed earlier, the applicants elected to submit that the quotation to perform the works which sat between the other two quotations they obtained, was the one that they relied on in seeking an order for damages or compensation. That quote was for an amount of $34,450 and was from an organization called Cabinet Connections. There was no submission made by the respondent to mount any challenge to this as a reasonable assessment of the cost to replace this kitchen. I find that a payment to them of that about would appropriately compensate them for the respondent's breaches of contract.

[125] It must follow that the application is upheld.

[126] I order and declare that the applicants are relieved from payment of any further sum which might have fallen due under the contract, if any, and declare that there is no further payment due.

[127] I order that the applicants be awarded damages or compensation for breach of contract in the sum of $34,450 against the respondent, with such sum to be paid within 30 days of the making of these orders.

[128] I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.