Hebbard v Pinn [2026] QCAT 75

[3] The written quotation (Invoice 140) dated 8 March 2023 in the sum of $6,576.04 related to works agreed between the parties including the installation of 49 square metres of plain concrete, acid wash, return of drains and purchase of a box drain under a strip drain.

[4] On 21 March 2023, a concrete variance in the sum of $599.50 was issued as invoice no. 142.

[5] A deposit of $3,025.00 was required with the balance of $3,630.00 to be paid on completion.

[6] The deposit was paid on 8 March 2023 and the final payment of $3,551.04 paid on 21 March 2023.

[7] Works were to commence after payment of the 50% deposit and were due to be completed in a few weeks with final payment due on completion.

[8] Works commenced on 14 March 2023 and ceased on 20 March 2023.

[9] The works were not complete at the time of payment of the final payment on 21 March 2023.

[10] On 4 July 2024, the Applicant filed an application for a domestic dispute claiming the following:

(a) the return of the amount of $6,576.04 paid to the Respondent on the basis that the Respondent carried out the works while unlicensed;

(b) the cost of removal of the defective work undertaken by the Respondent, two quotations for such being $11,176.00 or $13,150.50 respectively;

(c) the cost of removal and replacement of sleeper retaining wall damaged by the Respondent in the sum of $29,820.50;

(d) the cost of replacement sleepers in the sum of $3,055.00;

(e) the cost of repair of a damaged paling fence in the sum of $332.20.

[11] The total amount claimed by the Applicant is $51,017.30.

[12] An application for a domestic building dispute was filed by the Applicant on 4 July 2024.

[13] On 22 July 2024, the Tribunal made directions regarding the filing of an affidavit of service by the Applicant in accordance with QCAT Practice Direction 8 and the filing of a response to the application by the Respondent.

[14] No response was received from the Respondent on the due date of 19 August 2024.

[15] On 20 August 2024, further directions were made by the Tribunal including the vacation of the date of 22 August 2024 for the Directions Hearing.

[16] Further directions made on 20 August 2024 included the Applicant providing the following to the Tribunal by 3 September 2024:

(a) a QBCC licence search of the Respondent;

(b) evidence of payments made by the Applicant to the Respondent in respect of any building work the subject of the dispute.

[17] The Respondent was directed to provide a response to the application by 17 September 2024.

[18] The Applicant complied with the time for delivery of the material required to be filed. No material was filed by the Respondent by 17 September 2024.

[19] The Tribunal's directions of 20 August 2024 stipulated that in the event the Applicant complied with the directions and the Respondent failed to do so, the Applicant would be entitled to a final decision.

[20] On 20 March 2025, further directions were made by the Tribunal setting out the material required to be filed by the Applicant addressing the evidence required to support the assessment of damages claimed by the Applicant.

[21] The statement and supporting material required for compliance with the directions of 20 March 2025 by 2 May 2025 were filed by the Applicant on 12 June 2025, such date being extended by the Tribunal in directions dated 30 May 2025.

[22] On 15 August 2025, the Tribunal directed that the matter would be determined on the papers without an oral hearing on the basis of the documents forming the Tribunal record.

[23] As no material has been submitted by the Respondent, in accordance with the directions of the Tribunal on 20 August 2024, the Tribunal proceeds to assess the Applicant's claim based on the material on which the Applicant relies.

[24] The Applicant's evidence is uncontested despite the Respondent receiving all the material delivered by the Applicant to the Tribunal.

[25] As a result of complaints made by the Applicant in relation to the standard of work performed by the Respondent, and the Respondent's failure to attend to the Applicant's complaints, an inspection of the property was arranged with the Queensland Building and Construction Commission ("QBCC") and scheduled to take place on 2 January 2024.

[26] On or about 21 December 2023, the QBCC confirmed that the Respondent did not hold the required QBCC licence to carry out the work performed and advised the Applicant that the Respondent had been informed of the list of items of complaint and had been advised to attend at the inspection with a licensed contractor.

[27] The List of Complaint Items attached to the notice of 21 December 2023 included the following:

(a) Item 1 - 51 pre-existing concrete sleepers were scratched and chipped by the Respondent with the excavator during digging;

(b) Item 2 - 15 posts were scratched by the Respondent with the excavator during digging;

(c) Item 3 - 7 broken palings;

(d) Item 4 - drain not fitted properly;

(e) Item 5 - drain grates concreted over;

(f) Item 6 - the Respondent did not order enough concrete and had to wait 2 days for more concrete. The concrete colour does not match and the slabs are rough and do not meet;

(g) Item 7 - the concrete surface has waste concrete spilt over it in many spots;

(h) Item 8 - the concrete slab was meant for water management but has been left elevated which makes it impossible to bring the dirt back up to meet it while preventing water from running back towards the house creating a flood risk;

(i) Item 9 - the Respondent overfilled the retaining wall adjacent to the slab with rubble and dirt creating a flooding risk;

(j) Item 10 - dirt and rocks left on the lawn and large wheel dints from concrete truck.

[28] The Respondent failed to attend the inspection by the QBCC building inspector on 2 January 2024.

[29] A report identified as Resolution Services Initial Inspection Report was provided by Mr John Nave, QBCC building inspector, on 9 February 2024 ("the QBCC Report").

[30] On 12 February 2024, the QBCC issued a Direction to Rectify and/or Complete No. 0111939 ("Direction to Rectify") for building works at the property.

[31] On 19 March 2024, the QBCC notified the Applicant that the Respondent had not complied with the Direction to Rectify and identified the items which had not been completed satisfactorily.

[32] Of the 10 items on the list of items of complaint, items 1, 2, 3, 5 and 7 have not been completed satisfactorily. Other items were deemed to be contractual matters and therefore not the subject of the Direction to Rectify.

[33] I am satisfied, on the basis of the QBCC Report that the items which require rectification and for which the Respondent is responsible are those items listed as items 1, 2, 3, 5, 7 and 8 in the List of Complaints and the QBCC Report.

[34] 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 $6,570.04 (for the contract works) had the works been completed by a licensed contractor in a satisfactory manner in accordance with the contract.

[35] The Applicant's claim for the refund of this amount is not warranted merely on the basis that the Respondent was unlicensed.

[36] The statutory framework of s 42(1) of the Queensland Building and Construction Commission Act 1991 (Qld) ("QBCC Act") specifies that an unlicensed person is prohibited from either entering into a contract to perform building work or actually performing building work.

[37] 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.

[38] 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.

[39] 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).

[40] The onus of proving any entitlement rests solely on the unlicensed builder.

[41] 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.

[42] 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 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.

[43] I am satisfied that the Respondent was not a licensed builder licensed to perform the works the subject of the contract.

[44] 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.

[45] Absent any claim by the unlicensed builder, the operation of s 42(3) is unaffected.

[46] 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.

[47] 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]

[48] The Applicant is entitled to recover from the Respondent the sum of $6,576.04.

[49] In relation to the Applicant's claim for damages arising from the defective works performed by the Respondent, I am satisfied that the QBCC Direction to Rectify identifies the works which are defective.

[50] I have taken into account the detailed report dated 9 February 2024 provided by the QBCC building inspector.

[51] 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.

[52] 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 the building works in accordance with the building contract.

[53] 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.

[54] Items 1 and 2 of the QBCC Directions relate to the damage caused by the Respondent while carrying out excavation work causing damage to the eastern concrete sleeper retaining wall. These two items relate to Items 1 and 2 of the List of Complaint Items.

[55] The QBCC Report is very detailed providing photographic evidence of the alleged damage to the sleeper retaining wall. The report concludes that the damage has resulted in a visually displeasing and unsatisfactory look.

[56] It is noted that there are no photographs of the state of the retaining wall prior to the work being carried out by the Respondent, nor does the Tribunal have any evidence of the history of the structure including when it was erected and the anticipated lifespan of the structure.

[57] Whilst there is an obvious element of unsightliness in the appearance of the retaining wall, there is no evidence that the retaining wall is structurally unsound.

[58] No evidence has been provided indicating any option for repair of the damage other than demolition and rebuilding of the structure.

[59] Based on the principals outlined in Bellgrove v Eldridge, I have considered whether demolition and rebuilding of the retaining wall is both necessary and a reasonable course to adopt.

[60] I am not satisfied that the damage caused to the retaining wall is such that demolition is necessary. Whilst I have not been provided with another option, that fact does not detract from the fundamental premise that the retaining wall is structurally sound and an option to remedy the aesthetic quality of the retaining wall may be available.

[61] The Applicant has provided quotations from Bayside Gate Frames and Landscapers Plus to support the repair costs for the concrete sleeper retaining wall on the basis that the wall is to be demolished and rebuilt.

[62] The cost of the sleepers is included in a quotation dated 9 April 2024 from Bayside Gate Frames in the sum of $3,055.80. The cost of replacing the retaining wall and ancillary turfing and drainage is in a quotation dated 25 April 2024 from Landscapers Plus in the sum of $29,826.50.

[63] The scope of works identified in the quotation from Landscapers Plus includes items beyond the scope required to replace the existing wall. To that extent the quotation does not assist in calculating the cost of replacing the existing wall. In some cases, the works forming part of the proposed scope of work appear to address problems with the original wall which are unrelated to any damage caused by the Respondent.

[64] Given that the Tribunal does not have any material identifying the potential cost of addressing the aesthetics of the retaining wall, other than complete demolition and removal, it is necessary to consider a reasonable figure based on the figures provided in the Landscapers Plus quotation.

[65] For the purpose of providing a reasonable recompense for the damage caused, I have taken into account that a reasonable sum would be in the vicinity of the cost of the sleepers. Given that the cost of all the sleepers would be $3,055.80, a reasonable cost to repair the aesthetics of the sleepers would be a comparable amount.

[66] With respect to Item 3 in the QBCC Directions (being Item 3 of the List of Complaints), the Applicant has provided a quotation dated 16 April 2024 for the replacement of the timber palings which were damaged by the Respondent whilst carrying out the works. The quotation for the rectification works is $332.20.

[67] I am satisfied that the repair of the timber slat enclosure is both necessary and reasonable.

[68] There is no QBCC Direction relating to Item 4 of the List of Complaints.

[69] Item 4 and 5 of the QBCC Directions pertain to Item 5 and 7 of the List of Complaints.

The installation of the concrete slab in the rear of the property is defective as it has not been carried out in a tradesman like manner and has not been completed to a reasonable standard of construction or finish expected of a competent holder of a contractor's licence of the relevant class, in that excess concrete was not cleared off the channel drain grate, therefore blocking the drain slots, resulting in an unsightly finish appearance.

The installation of the concrete vehicle hard stand to the rear of the property is defective as it has not been carried out in a tradesman like manner and has not been completed to a reasonable standard of construction or finish expected of a competent holder of a contractor's licence of the relevant class, in that concrete splatter was not cleaned off resulting in an unsightly finish appearance.

[72] The description of the defects in Item 4 and 5 of the QBCC Directions seems to indicate that the resulting defect is an unsightly appearance. The photographic evidence provided in the QBCC Report supports the conclusion that the works carried out by the Respondent were defective and not to a reasonable standard expected from a licensed contractor.

[73] I am satisfied that the concrete slab erected by the Respondent is unacceptable. The workmanship is poor, the colour of the concrete is uneven because of the different batches of concrete poured on different days and the surface of the concrete is extremely poor. The area around the drain is poorly poured and finished and is not to a reasonable standard.

[74] I am satisfied from the photographic evidence in the QBCC Report that the colour of the concrete is not matching in a particular area. This issue was raised in Item 6 in the List of Complaints. The variation in colour because of the use of different batches of concrete is unacceptable.

[75] Two quotations have been provided by the Applicant for the replacement of the concrete slab and ancillary works as follows:

(a) Quotation dated 16 May 2024 from AJW Concreting in the sum of $11,176.00; and

(b) Quotation dated 17 May 2024 from PRO ONE Concreting in the sum of $13,150.50

[76] Based on the photographic evidence and detail in the QBCC Report, I am satisfied that a complete removal and replacement of the concrete slab is required to remedy the unsightly appearance of the slab.

[77] Whilst there is no suggestion that the slab is structurally unsound, I am satisfied that the removal and replacement of the concrete slab is the only method of remedying the aesthetic defect in the concrete surface. This solution is both necessary and a reasonable course to adopt.

[78] For this reason, the Applicant's claim for all the costs of replacement of the slab is allowed.

[79] There is no evidence on which to rely to address an alternative solution to remedying the aesthetic defect in the concrete and it is accepted that the solution to demolish and rebuild is both necessary and a reasonable course to adopt.

[80] In her statement, the Applicant claims the amount of $11,176.00 based on the quotation from AJW Concreting. The amount of $11,176.00 is allowed.

[81] Items 8, 9 and 10 in the Applicant's List of Complaints are addressed by the solution of removal and replacement of the concrete slab.

[82] Based on the reasons above, the Applicant is entitled to the amount of $21,139.24 as follows:

(a) Refund of the moneys paid to an unlicensed contractor - $6,576.04;

(b) Repair to damaged sleeper retaining wall - $3,055.00;

(c) Replacement of wooden palings - $332.20;

(d) Replacement of concrete slab - $11,176.00.

[83] The Respondent is to make payment to the Applicant:

(a) the sum of $6,576.04 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;

(b) the sum of $14,563.20 as damages for breach of contract resulting in the cost of repair works for damage caused by the Respondent.

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

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