Gilby v Holstein [2025] QCAT 417

Is this a domestic building dispute within the Tribunal's jurisdiction?

• [10] I find that this is a domestic building dispute within the Tribunal's jurisdiction.
• [11] A person involved in a building dispute may apply to the Tribunal to decide the dispute[11] provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.[12] I am satisfied that the QBCC's dispute resolution process has been complied with, enlivening the Tribunal's jurisdiction.[13]
• [12] A building dispute is defined to include a domestic building dispute.[14] Domestic building dispute is defined to include a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.[15] A domestic building dispute also means a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.[16]
• [13] Reviewable domestic work[17] is defined to mean domestic building work under Schedule 1B s 4 of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act'), which includes the renovation, alteration, extension, improvement or repair of a home[18] or associated works[19] but does not include excluded building work.[20] Associated work includes paving and landscaping.[21]
• [14] The evidence is that the concreting works were improvements in respect of a detached dwelling.
• [15] I am satisfied that the dispute is a domestic building dispute between a building owner and a building contractor relating to the performance of domestic building work. The Tribunal has power to award damages and interest on damages.[22]

• [16] Mr Gilby's evidence is, and I accept, that:

(a) the agreement was partly in writing and partly oral and made on or about 28 August 2023 and varied on or about 30 August 2023.

(b) the Contractor was to complete 52 sqm of concrete down the side of Mr Gilby's residence including a pathway and a shed slab.

(c) the amount initially agreed was $6,000 cash.

(d) the Contractor represented to Mr Gilby that he was licensed.

(e) after the initial work was completed on 30 August 2023 Mr Gilby identified that the shed slab had been put in the wrong location and agreed with the Contractor that the Contractor would rectify this work in exchange for a further $395.

(f) Mr Gilby paid the Contractor $6,395 in respect of the work.

(g) on 16 April 2024 a QBCC inspector attended site. The Contractor did not attend the inspection. The QBCC inspector found that the concreting work was defective in a number of respects e.g. fall of concrete towards the house allowing water to pond next to the house contrary to the National Construction Code, the edges of the concrete were breaking away, there were holes in the concrete and the surface was chalky such that the work did not meet the reasonable standard of finish expected of a competent contractor, there were no control joints and no isolation joints contrary to relevant Australian Standards, and there was consequential damage to Mr Gilby's property in the form of splatter such that the after cleaning finish did not meet the reasonable standard expected of a competent contractor.[23]

(h) in 2024 Mr Gilby obtained three quotes to rectify the defective work which range in price from $14,482-$19,283 (incl GST).

(i) Mr Gilby paid a filing fee of $379.50.

(j) the work had not been rectified nor any amount paid.[24]

What is the consequence of the Contractor being unlicensed?

• [17] I find that the amount of $6,395 must be repaid by the Contractor to Mr Gilby.
• [18] Section 42(1) of the QBCC Act provides that a person must not carry out, or undertake to carry out, building work unless the person holds a contractor's licence of the appropriate class under the QBCC Act. By s 42(3) of the QBCC Act, a person who performs unlicensed building work is not entitled to any monetary or other consideration for doing so. Any monetary or other consideration paid to an unlicensed builder must be repaid.[25]
• [19] The only evidence before me shows, and I accept, that the QBCC has no record of the Contractor holding a licence either in his own name or the name NPHCONCRETE, which appears to be a business name associated with the Contractor as it is used on the Contractor's website. I find that Mr Gilby paid for building work performed by the Contractor when the Contractor was unlicensed. I find that the Contractor was not permitted to carry out the building work nor was he entitled to any monetary consideration for doing so. The Contractor has not participated in these proceedings and therefore there is no application before me under section 42(4) of the QBCC Act nor any evidence of the amount paid by the Contractor in supplying materials and labour for carrying out the work. The amount of $6,395 must be repaid to Mr Gilby.

• [20] I find that the informal agreement between Mr Gilby and the Contractor is unenforceable.
• [21] The partly written and partly oral agreement is a level 1 regulated contract because it was for more than $3,300 but less than $20,000.[26] By s 13 Schedule 1B of the QBCC Act the contract only has effect if it is in writing, dated and signed by or on behalf of each of the parties. Mr Gilby is not entitled to sue on the warranties implied under the QBCC Act Schedule 1B in regulated contracts nor otherwise claim damages for breach of contract.
• [22] Any claim Mr Gilby has must be based on a claim in negligence.

• [23] I find that the Contractor is to pay Mr Gilby the amount of $14,482 (incl GST) for damages in negligence.
• [24] A claim in negligence requires consideration of the Civil Liability Act 2003 (Qld) ('CLA'). The CLA applies to civil claims for damages for harm.[27]
• [25] The CLA defines 'claim'.[28] It includes a claim for damages based on a liability for damage to property or economic loss, whether that liability is based in tort or contract or on another form of action, including breach of statutory duty. 'Harm' is defined to include damage to property and economic loss.[29] 'Duty' includes a duty of care in tort.[30] 'Duty of care' means a duty to take reasonable care or to exercise reasonable skill (or both duties).[31]
• [26] The Tribunal has previously held that to establish an entitlement to damages for negligent building work the following elements must be present:[32]

(a) a duty of care owed by the Contractor to Mr Gilby;

(b) the duty of care was breached;[33]

(c) damage which is not too remote has been suffered by Mr Gilby as a consequence;[34]

(d) any defence to the claim has been rebutted; and

(e) the proportionate liability sections of the CLA have been applied.

• [27] The Tribunal has recently considered the law of negligence in Australia in Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam[35] and found that a homeowner could bring an action in negligence against a contractor because it fell into one of the established categories of duty of care so that it was unnecessary for an applicant to prove the respondent owed a duty of care and the issue of vulnerability was not required to be established.
• [28] I am satisfied that the Contractor owed Mr Gilby a duty of care to take reasonable care and to exercise reasonable skill in the performance of the work to the standard of a reasonably competent contractor and therefore to take care to avoid causing Mr Gilby loss. Having regard to the nature and extent of the defects identified in the QBCC Report, I find that the Contractor breached the duty of care to Mr Gilby.
• [29] I find that it is reasonably foreseeable that if the Contractor does not take care in performing work, Mr Gilby, the homeowner, is likely to suffer loss and damage.
• [30] Although the evidence could be clearer, and in the absence of any evidence to the contrary put forward on behalf of the Contractor, I find that the nature and extent of the defects are such that it is more likely than not that the reasonable and necessary method of rectification is that the works must be demolished and replaced. I find that the Contractor's breach caused harm or loss to Mr Gilby, being the cost to demolish and replace the concreting work, which was not too remote.
• [31] As the Contractor has not participated in these proceedings there is no defence and no claim by him to apportion liability to others. There is no evidence before me upon which I could make any finding that liability should be apportioned to others.
• [32] The Tribunal has previously found that:[36]

The object of an award of damages in tort is to restore a party ... to the position they would have been in if the negligently performed building work had not occurred. Damages may include the cost of rectification.

• [33] Mr Gilby has presented three quotes which were obtained in July 2024 which range in price from $14,482-$19,283 (incl GST). As the Contractor has not participated in these proceedings, those quotes were not challenged by him. I find that the reasonable cost of rectification is at least $14,482 (incl GST), the amount of damages sought by Mr Gilby.
• [34] The Tribunal has previously decided, and I accept, because section 42 of the QBCC Act operates for the benefit of homeowners and in the absence of a claim to recover monies under section 42(4) of the QBCC Act, that the amount to be repaid is in addition to any assessed damages in respect of the claimed defective work.[37]
• [35] I find that the Contractor is to pay damages assessed at $14,482 (incl GST).

• [36] I find that Mr Gilby is entitled to be paid interest on $14,482 (incl GST) at the rate of 10% per annum on and from 21 November 2025 until and including the day the amount is paid.
• [37] Mr Gilby seeks interest to allow for any cost inflation related to material cost increases to be calculated from the initial notification of defective works being 28 October 2023 until 9 April 2025, the date of his statement of evidence.
• [38] The Tribunal has power to award interest on damages at the rate and calculated in the way prescribed under a regulation.[38] The regulation provides:[39]

(1) For section 77(3)(c) of the Act, interest is payable on the amount of damages awarded -

(a) if the parties have entered into a contract - at the rate provided under the contract; or

(b) at the rate agreed between the parties; or

(c) otherwise - at the rate of 10%.

(2) The interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid.

• [39] There is no evidence before me that the informal agreement contained a term as to the payment of interest on amounts owing between the parties. In any event the contract is unenforceable for the reasons outlined earlier.
• [40] I find that interest at the rate of 10% on damages becomes payable from the day after the date the Tribunal orders that damages are payable. No amount is payable until the Tribunal assesses the damages and makes an order as to when the damages are payable.[40]

• [41] I find that the Contractor is to pay Mr Gilby $379.50 for costs.
• [42] The Tribunal has a broad general discretion to award costs in building disputes.[41] Mr Gilby seeks the filing fee paid in the sum of $379.50. This cost was reasonable and necessary to enable Mr Gilby to pursue his successful claims. I fix costs in the amount of $379.50.

Human Rights Act 2019 (Qld) ('HR Act')

• [43] The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.[42] A human right may only be subjected to reasonable limitations.[43] Mr Gilby who was not legally represented did not make any submissions about the application of the HR Act. The Contractor did not participate in the proceedings at all.
• [44] In deciding this application:

(a) I am not acting as a public entity because I am not acting in an administrative capacity;[44] and

(b) I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with the parties' human rights.[45]

• [45] I accept that this application and the on the papers hearing potentially impacts the parties' rights to a fair hearing and I considered them in conducting the hearing. Both parties were directed to file documents upon which they relied. In coming to my decision, I considered the documents filed.[46]
• [46] I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[47] and the right to privacy and reputation.[48] I have considered the parties' human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[49] Any limitation of the parties' human rights is consistent with the objects of the QBCC Act[50] and the objects of the QCAT Act.[51]

[4] Initial direction made 30 July 2024.

[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 48.

[10] Singh v The Dirt Guys Pty Ltd [2019] QCAT 85, [25].

[11] Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act') s 77(1).

[23] Initial Inspection Report dated 3 May 2024.

[24] Request for a decision by default filed 29 August 2024.

[25] Cook's Construction P/L v SFS 007.298.633 P/L (formerly trading as Stork Food Systems Australasia P/L) [2009] QCA 75.

[26] QBCC Act sch 1B s 6; Queensland Building and Construction Commission Regulation 2018 (Qld) s 45.

[27] Civil Liability Act 2003 (Qld) ('CLA') s 4(1).

[32] Knox v Bellamy [2021] QCAT 192, [87].

[33] CLA s 9.

[34] Ibid s 11.

[35] [2024] QCAT 476, [41].

[36] Atkinson & Anor v Van Uden [2020] QCAT 259, [61].

[37] Bocquee v Baltus [2019] QCAT 280; Stevanovic & Anor v Kirby [2020] QCAT 428.

[39] Queensland Building and Construction Commission Regulation 2018 (Qld) s 54.

[40] Miller v Lida Build Pty Ltd [2015] QCATA 137, [37]; Worthington v Ryan; Ryan v Worthington [2021] QCATA 138, [74].