Dickson v AVPO Renovations Pty Ltd & Ors [2025] QCAT 349

(a) Extensive works to the main bedroom and hallway including the removal of tiles, carpeting of floors, built-in wardrobes and medicine cabinet to be supplied, electrical power points and other electrical work including downlights, sheeting, plastering and painting, removal of internal cupboard, cavity slider from bedroom to bathroom, frame, plaster and paint architraves, recess wall for shelving and cabinets, re-frame walls and sheet walls, plaster and paint recessed area;

(b) Renovation of bathroom including removal of walls, floors, fixtures and furniture, shut off entry from hallway, build niche in shower wall, plumbing rough in and fit off vanity, shower and toilet, build new toilet in bathroom, electrical work, sheet walls and floors, tiling and ramp for entry to ensuite, install all towel racks, towel ring, toilet paper holder, vanity with matching shaving cabinet, tapware and fixtures, waterfall spout for vanity and Caesar stone for vanity;

(c) Renovation of laundry area including shut off from hallway, main bathroom and laundry, frame, architraves and paint, cabinet with shaving cabinet, remove floors and walls, remove all bathroom/laundry furniture/fixtures, grind floors back to slab, all electrical work, plumbing rough in and fit off for shower, vanity and toilet, waterproofing and bedding, tile floor, walls in shower and skirting in bathroom, move laundry dryer next to washing machine, cupboards above and below bench and supply and install waterfall spout for new bathroom plumbing rough in and fit off for laundry tub.

• [8] Details of the works were included in an estimate from AVPO dated 11 July 2023, being a total of $99,800.00. There is no reference to GST.
• [9] It is unclear from the filed material when the works were commenced but according to the Applicant, week 15 commenced about 10 January 2024 and no tradesmen had been on site since 29 November 2023.
• [10] Multiple notices were provided by the Applicant to the Respondents to rectify the works which were defective and incomplete. No response was forthcoming from any of the Respondents.
• [11] On 12 January 2024, the Applicant filed an application with the Tribunal claiming from Aziz Povlakic of ACAB Tiling Pty Ltd ("ACAB") and AVPO Renovations Pty Ltd ("AVPO") the following relief as a result of the defective and incomplete work:-

(a) Return of the $99,800.00 paid to AVPO;

(b) Rectification costs;

(c) Damages for breach of contract and additional distress in the sum of $50,000.00;

(d) The cost owing to Affordable Wardrobes for the custom-made cabinetry for the Applicant's WIR and safe/medication cabinet.

• [12] The Applicant claims that AVPO carried out work as an unlicensed contractor and thus is not entitled to any payment with the Applicant entitled to the $99,800.00 paid during the project..
• [13] Attached to the application is a two page list of defects and incomplete works consistent with the defects identified in a report prepared by Ben Guthrie of ASBIR - All Suburbs Building Inspection Reports dated 9 January 2024.
• [14] Mr Guthrie carried out a building defects inspection at the property on 9 January 2024. He has a builder and site supervisor licence being QBCC licence no. 15267739. The ASBIR report contains an eight page summary of defects and incomplete works.

• [15] An application for a domestic building dispute was filed by the Applicant on 12 January 2024.
• [16] On 18 January 2024, the Tribunal made directions regarding the filing of material by each of the parties including ASIC searches of the companies named in the application and the delivery of material on which the parties would rely in the hearing of the dispute.
• [17] On 12 February 2024, the Tribunal directed that the Respondents, ACAB and AVPO, were to deliver their response to the application by 28 February 2024.
• [18] Further directions were made on 11 July 2024. The Tribunal made directions regarding the filing of material by the Applicant relating to both ASIC searches and QBCC licence searches of all the Respondents. This material was to be provided by 26 July 2024.
• [19] Pursuant to directions dated 16 October 2024, Avdulah Povlakic was directed to provide written submissions regarding the joinder of him as a Respondent to the dispute.
• [20] Directions dated 22 November 2024 required the Applicant to provide an amended application to ACAB and AVPO particularising the claim against Avdulah Povlakic, as Third Respondent and requiring the Third Respondent to deliver a response by 6 December 2024. The Tribunal further directed that in the event of non-compliance by the Third Respondent the Applicant would be entitled to a final decision.
• [21] Extensions of time were granted to the Applicant by directions dated 13 January 2025 and 10 February 2025 with the final directions on 12 March 2025 accepting the amended application filed by the Applicant and entitling the Applicant to a final decision in the event of non-compliance by the Third Respondent of the Tribunal's directions.

• [22] As no material has been submitted by the Third Respondent, in accordance with the directions of the Tribunal on 12 March 2025, the Tribunal proceeds to assess the Applicant's claim based on the material on which the Applicant relies.
• [23] The Applicant's evidence is uncontested despite the Respondents receiving all the material delivered by the Applicant to the Tribunal.
• [24] I am satisfied that the report prepared by Mr Guthrie of ASBIR identifies the unsatisfactory standard of workmanship provided by the Respondenst. Unfortunately, there is no photographic evidence to support any of the claims but the report of Mr Guthrie is thorough and consistent with the complaints made by the Applicant to the Respondents during the works.
• [25] In the circumstances, it is necessary for the Tribunal to assess the damages claimed by the Applicant.

• [26] From the outset, in assessing the damages to which the Applicant is entitled it is necessary to ensure that the Applicant is put into the same position she would have been had the contract been properly performed. The starting point therefore is that the Applicant would have incurred the sum of $99,800.00 (for the contract works) had the works been completed by a licensed contractor in a satisfactory manner in accordance with the contract.
• [27] The Applicant's claim for the refund of this amount is not warranted merely on the basis that the Respondent, with whom the Applicant entered into the written contract, was unlicensed.
• [28] The statutory framework of s 42(1) of the Queensland Building and Construction Commission Act 1991 ("QBCC Act") specifies that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work.
• [29] 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.
• [30] The prohibition in subsection (3) is subject to subsection (4) 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.
• [31] 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).
• [32] The onus of proving any entitlement rests solely on the unlicensed builder.
• [33] 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.
• [34] Keane J further says at paragraphs [40]-[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 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.

• [35] I am satisfied that the Respondent who entered into the contact, namely Avdulah Povlakic, was not a licensed builder licensed to perform the works the subject of the contract. The QBCC licensee search undertaken by the Applicant identifies that the licence number on the contract, being licence no. 15266242 was for ACAB Tiling Pty Ltd which was a licence to perform wall and floor tiling. Another licence number included in the contract was licence no. 15091803 which was a carpentry trade contractor licence, the licensee being a person named Safet Jasarevic.
• [36] Thus, the Tribunal is satisfied that the person who entered into the contract with the Applicant was an unlicensed contractor.
• [37] The Applicant has made a claim against both Avdulah Povlakic, trading as AVPO Renovations and Aziz Povlakic as a shareholder/director of ACAB Tiling.
• [38] 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.
• [39] Absent any claim by the unlicensed builder, the operation of s 42(3) is unaffected.
• [40] 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.
• [41] The entitlement of the Applicant to recover monies paid to an unlicensed builder is the reciprocal of the builder's disentitlement to receive payment.[1]
• [42] The Applicant is entitled to recover from the Respondent Avdulah Povlakic trading as AVPO the sum of $99,800.00.
• [43] In relation to the Applicant's claim for damages arising from the defective works performed by the Respondents, I am satisfied that it was necessary for the Applicant to engage another contractor to rectify the defective work performed by the Respondent.
• [44] The principals in relation to the assessment of damages in building disputes are clearly set out in Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 at 617:

The measure of the 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.

• [45] 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 completing building works in accordance with the building contract.
• [46] 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.
• [47] Despite the number of complaints which the Applicant has outlined in her material and in the ASBIR inspection report, it is not possible for the Tribunal to calculate the cost of rectifying the defective works. No material has been provided supporting the claims made. It is not even clear that the rectification works have been carried out or whether there has been a quotation obtained to identify the cost of carrying out the rectification works.
• [48] The Applicant claims a number of sums arising from the emotional stress incurred during the whole project and the cost of amounts due to Affordable Wardrobes for custom-made cabinetry items. Neither of these claims have been quantified or supported by material, including medical reports for the former and invoices for the latter. It is not possible for the Tribunal to quantify the probable or identifiable loss to the Applicant.
• [49] None of the ancillary claims have been proven by the Applicant both in quantification and as damages which would be foreseeable as arising from the Respondents' breach of contract. The claims have not been supported with adequate evidence to allow any entitlement as damages flowing from the breach.

• [50] The Respondent, Avdulah Povlakic trading as AVPO is to make payment to the Applicant the sum of $99,800.00 being the refund of the amount paid to the Respondent, Avdulah Povlakic on behalf of AVPO Renovations, 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.

[1] Marshall v Marshall [1999] 1 Qd R 173, 176 (McPherson J).

[2] Robinson v Harman [1848] Eng R 135.