MA & SK Jokovich Pty Ltd v Garland [2025] QCAT 191

Queensland Building and Construction Commission Regulations 2018 (Qld), s 54

Boys v Imperial Homes [2024] QCATA 35

Munro v Camdun Pty Ltd t/as Asset Carpentry & Building Supplies [2024] QCAT 452

MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd [2024] QCA 94

Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509

Peak Construction (Liverpool) Ltd v McKinney Foundation Ltd (1970) 1 BLR 114

Penfold v Firkn & Balvius [2023] QCATA 11

Thallon Mole Group Pty Ltd v Morton [2022] QDC 224

• [1] The applicant (Jokovich) built a house for the respondents (the Garlands). The original contract sum was paid in full. The dispute that brought the parties to this Tribunal is one over a claim for payment of what was said to be variations to the contract works. It was a claim first presented to the Garlands after the house was completed.
• [2] Jokovich's claim as pressed in this proceeding was $85,070.89 as a claim in contract. Whilst, in filing its originating application commencing this proceeding, it vaguely expressed its claim in the alternative as being one in restitution, that was not the manner in which it particularised its claim nor ran its case in the hearing. Accordingly its case was considered by me as being one in contract only. It also claimed interest thereon, calculated to be $13,517.35 to the date of its application to this Tribunal.
• [3] In opening its case in the hearing, Jokovich relied on the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) Schedule 1B s 44 which states that the failure of a building contractor to comply with a requirement under the Act in relation to a building contract does not make the contract illegal, void, or unenforceable.
• [4] In presenting its case in that manner, the inference could readily be drawn that it was aware and conscious of Schedule 1B s 40, that provision requiring a contractor to put variations into writing, and more particularly in the absence of an owner having agreed to the variation in writing the contractor must not have started to carry out the work the subject of the asserted variation. Yet, Jokovich conceded it did not put the variations into writing, and did proceed with the work in the absence of a written agreement, presenting its case as one framed in an 'element of trust' that the Garlands would pay it for the work.
• [5] The Garlands defended the claim in its entirety. They also counterclaimed against Jokovich in the amount of $7,050 as liquidated damages for late completion; for an unspecified amount in restitution of what they say are 'credits' for prime cost materials not supplied under the contract; and an unspecified amount for cost of rectification of defective work.
• [6] The first respondent, Ms Garland, appeared at the hearing. The second respondent, Mr Garland, did not. Accordingly, as the respondent's case was presented to me it was that which came only from Ms Garland, it being:

(a) A reduction of the claim for liquidated damages to $5,150.00 plus interest thereon;

(b) The claim for restitution of the 'credits' quantified at $3,771.95 but without any claim for interest thereon; and

(c) An abandonment of the claim for cost of rectification.

• [7] In pressing her defence of the claim for payment of variations, having noted the provisions of s 40 of Schedule 1B, Ms Garland relied on the provisions of s 108D of the QBCC Act, such which prohibits contracting out of the Act, in particular subsection (2) therein which states a domestic building contract is void to the extent it is contrary to the Act. The premise of her argument was that in the absence of the variations being put into writing and agreed to by her in writing, then the variations are void and so not enforceable as a debt owing in contract.
• [8] For the reasons I discuss herein each party ultimately failed in their claims against the other. Whilst I made findings that an amount was payable by each to the other, the net effect was that only for a very small difference that on the calculations as I discuss them herein would be payable to Jokovich, I considered that the appropriate and proper outcome of the entire proceeding is that the Garlands be relieved on the burden to make this small payment. This was because Jokovich did not proceed as it should have done both under the contract and the QBCC Act in its dealings with the Garlands.

• [9] In November 2019, the parties entered into a contract under which Jokovich, as contractor, would construct for the Garlands, as owners, a house, such evidenced by a QBCC New Home Contract document. (the Contract) [2]
• [10] The following relevant terms were expressed therein:
  1. Definitions

(e) "Completion Period" means the Completion Period stated in Schedule Item 6

(bb) "Starting Date" means whichever of the following dates occurs the latest:

(i) the Starting Date stated in Schedule Item 5; or

(ii) the day which is 10 business days after the issue of the plans duly approved by the Assessing Certifier; or

(iii) the day which is 10 business days after the Owner has satisfied its obligations under Condition 5.1.

(v) "Practical Completion" means the date upon which the Works are completed in accordance with the requirements of this Contract, including Condition 3 and Condition 28, apart from minor omissions or minor defects.

1. Payment

19.1 The Owner must pay the Contractor the Contract Price for the Works calculated and adjusted as provided by this Contract in accordance with the following provisions:

...

(b) The Contractor is entitled to claim a Progress Payment when the Contract has achieved completion of each of the stages set out in Schedule Item 8A or 8B which claim shall consist of the percentage of the Contract Price applicable to that stage as set out in Schedule Item 8A or 8B, subject to the following adjustments:

(i) an adjustment for any Prime Cost Item ... such adjustment being an increase or decrease to the relevant stage payment ...

(ii) an adjustment for the value of any Provisional Sum item completion to that stage and not included in a previous Progress Payment, such adjustment being an increase or decrease to the relevant stage payment ...

(iii) an increase to the relevant stage payment in respect to an amount payable under a Variation Document where the work the subject of the variation and has been completed and for which payment has not previously been made; and

(iv) a decrease in the relevant stage payment in respect to a variation which reduces the Contract Price.

...

1. Variations

21.1 The work under this Contract may be varied by way of an increase, decrease, or substitution of work under this Contract agreed between the Contractor and the Owner provided that, before work commenced and before any additional payment is required, the details of the variation are put in writing in a Variation Document agreed in writing by both parties.

1. Time for Practical Completion

The Contractor must achieve Practical Completion of the Works by the Date for Practical Completion stated in or calculated in accordance with Schedule Item 7 or any extended date under Condition 23.

1. Extension of time

23.1 ... the Contractor may only claim and is entitled to a reasonable extension of the Date for Practical Completion if:

(a) ...

(b) the claim is made to the Owner in writing ... with the particulars, including the cause of the delay and the extension of the Date for Practical Completion claimed, completed; and

(c) the claim is given to the Owner within 10 business days of the earlier of the Contractor become aware of the cause and extent of the delay and when the Contractor reasonable ought to have become aware of the cause and extent of the delay; and

(d) ...

1. Liquidated Damages

24.1 If the Contractor fails to achieve Practical Completion of the Works by the Date for Practical Completion, then the Contractor must pay to the Owner liquidated damages calculated at the rate provided in Schedule Item 10.

24.2 If Schedule Item 10 is left blank, a default amount of $50 per day shall be deemed to supply.

24.3 Liquidated damages may only be deducted by the Owner from the amount payable to the Contract in respect of the Practical Completion Stage. If the Owner's entitlement to liquidated damages exceeds the amount payable to the Contractor for the Practical Completion Stage, the excess may be recovered by the Owner as a debt due to the Owner by the Contractor.

1. Practical Completion

...

28.2 ... if the Contractor produces to the Owner satisfactory written evidence that all relevant inspections and approvals required under the Sustainable Planning Act 2009 and the Building Act 1975 ... the Contractor must:

...

(b) give the Owner a completed and signed QBCC Form 7 - Certificate of Practical Completion stating that as the Date of Practical Completion; and

(c) hand over the Works to the Owner.

Schedule

Item 6 Completion Period 105 days

Item 7 Date for Practical Completion[3] Date ___ / ___ / __

Completion Period of ____ days (see Schedule Item 6) from the Starting Date of the date on which the work under this Contract is commenced, whichever is the earlier.

Item 10 Liquidated Damages $ ____ per day for each calendar day if delay in achieving Practical Completion

(Note to Owner and Contractor) If this space is left blank, a default amount of $50/day shall apply

• [11] On 1 April 2020 work under the Contract commenced.[4]
• [12] On or around 26 October 2020, the Garlands moved into the house even though it was not completed.
• [13] On 27 November 2020, a Final Certificate for the house was issued (the Final Certificate).[5]
• [14] On 22 December 2020, Jokovich received payment of the final progress claim under the Contract.[6]
• [15] On 6 January 2021, Jokovich issued an invoice to the Garlands described as being "list of extras associated with construction of your new home". That invoice was in the net amount of $81,685.95, made up as follows: (the Variations Invoice) [7]

(a) List of asserted extras (separately detailed therein) $85,457.90

(b) Building & P.C. Credits

(c) Total $81,685.95

• [16] It was common ground that the variations the subject of the Variations Invoice were not put into writing as an agreement signed by the Garlands.[8]
• [17] The Variations Invoice was not paid, and ultimately on 9 September 2022 Jokovich commenced this proceeding seeking payment of:

(a) $85,070.89 as "a debt due and owing" said to be for the "Outstanding Variations and Prime Cost Items";

(b) $81,685.95 as payment of "the Variation Invoice";

(c) Interest said to be "pursuant to clause 20.1 of the Contract" from 13 January 2021 to the date of payment, also quantified therein as being $13,517.35 from 13 January 2021 to 8 September 2022;

(d) Costs.

• [18] As the application document was completed and presented to the Tribunal, in answer to the question 'What are you seeking?' as it appears in Part B of the QCAT Form 26, the boxes were ticked as being 'Payment of an amount owing', 'An award for damages and interest on the damages', and 'Restitution'.
• [19] On 3 November 2022, the Garlands filed their Response and Counter-application. They defended the claim in its entirety, also raising a counterclaim for:

(a) payment of $7,050 as liquidated damages for late completion, as a stand-alone claim or alternatively a set-off against any amount this Tribunal may find is payable to Jokovich as part of its claim;

(b) restitution of what they say are 'credits' for prime cost materials not supplied under the contract, but without specifying a quantum of such, also as a stand-alone claim or alternatively a set-off;[9] and

(c) cost of rectification of defective work, once again without specifying a quantum of such, also as a stand-alone claim or alternatively a set-off.

• [20] It is against this set of relevant facts and circumstances that the proceeding came before me for hearing in November 2024. Regrettably, since then a substantial number of issues have arisen for me severely restricting my time and thus my availability to attend to considering the issues as they arose in this proceeding and in turn make my decision and write these reasons. I offer my sincere apologies to the parties for that unfortunate and unexpected delay.

• [21] The contest between the parties can be put into three issues:

(a) Is Jokovich entitled to its claim for payment of variations under the Contract in the absence of any written agreement for same?[10]

(b) Are the Garland's entitled to restitution for prime cost materials not supplied under the Contract?; and

(c) Is Jokovich liable to the Garlands for liquidated damages under the Contract?

• [22] A total of four (4) witnesses gave evidence during the hearing, each presented for cross-examination.
• [23] A considerable amount of the evidence, particularly that arising from the extensive cross-examination by Mr Randall, Counsel for Ms Garland, of both Mr and Mrs Jokovich, went to issues concerning each of the variation claims in detail. As I discuss it later in these reasons, in my opinion such was not necessary given the presentation in the hearing of Jokovich's claim as being one arising under contract. As I understood the manner in which Mr Randall approached the cross-examination, it going beyond what might ordinarily be thought necessary to meet a claim in contract, it was because of the manner in which Jokovich had presented its claim as I noted it in paragraph [18] herein as seemingly one in the alternative as restitution. I do not criticise Mr Randall for taking such an approach. It was entirely appropriate given the presentation of the case by way of the application as filed that he was briefed to meet.
• [24] For that reason, to the extent I refer herein to any specific parts of the evidence as presented, I have limited that reference to only what I considered to be relevant and probative to the case in contract. If it was Jokovich's intention to have presented a case for restitution when it first presented its claim to this Tribunal, ultimately that was not the case it presented in the hearing.
• [25] That being said, I now turn to identifying what I considered to be the relevant evidence from each of the witnesses.

• [26] Mrs Jokovich identified herself as one of the two directors of Jokovich, the other director being her husband Mr Mark Jokovich. A written statement in her name dated 6 November 2024 was tendered as her evidence-in-chief.[11]
• [27] A large portion of it was objected to on the basis of that having been referred to therein not being that which was Mrs Jokovich's first-hand-knowledge, but rather effectively hearsay. Following discussion of same during the hearing, this was ultimately struck out from her statement.[12]
• [28] The cross-examination of Mrs Jokovich was extensive. In my opinion it was not necessary for me to layout herein the detail of same because in my opinion only the following was the directly relevant part. It concerned the issue of the variation items not at any time having been put into writing as an agreement signed by or for the Garlands. Therein, Mrs Jokovich accepted that the express terms of the contract required variations to be put in writing, and that she was aware of this during the course of the Contract. She also accepted that she authored the following statement which appears in an e-mail shown to be from Mr Jokovich to Ms Garland on 8 January 2021 at 7:58 am in response to an e-mail from Ms Garland which was in turn in response to the e-mail by which the Variations Invoice was sent on 6 January 2021.[13]

... We don't do written variations with people we know, as we feel that clients feel that we don't trust them. ...

• [29] Mr Michael Jokovich is the son of Sheree and Mark Jokovich. He provided a brief statement that was tendered as part of Jokovich's evidence. It was received in its entirety save only for two paragraphs which were struck out on objection of same by Mr Randall.[14]
• [30] The cross-examination of Mr Michael Jokovich was short. There was nothing of substance arising from it.

• [31] Mr Mark Jokovich described himself as a Director of Jokovich. He had given two written statements for use in this proceeding, each tendered as his evidence in chief, the second being in response to a statement given by Ms Garland.[15]
• [32] Each of those statements was substantial in its content, the first particularly so. It was in narrative form by which, on my reading, Mr Jokovich sought to explain how the work the subject of the variations came about on each occasion, he seemingly seeking to justify his company's claim for payment by reference to supplier's invoices identified in and annexed to his statement.
• [33] One particular aspect of his first statement which I considered probative as to the manner in which Jokovich had approached the performance of its work in terms of the variations, such being the primary issue in this proceeding, was as follows:[16]

Relationship with the Garlands

I had known the Garlands as friends for a number of years prior to entering into the Contract. During the development of our friendship, and throughout the construction works, I believe that we had a great level of mutual trust between us. The factors surrounding the foundation of this relationship and mutual trust are as follows:

...

1. Most (if not all) of the variations under the Contract were given and approved by Lucy to me verbally on site or over the phone, as I trusted the Garlands.

• [34] As to his second statement, as I noted it earlier herein it was in response to Ms Garland's statement. The majority of it was effectively Mr Jokovich's assertions directly in response to assertions made by Ms Garland. There was however one aspect of what he had to say therein which I considered probative in terms of the issue arising in this proceeding as to whether Jokovich is liable for liquidated damages, such said to be in response to paragraph 37 of Ms Garland's statement. He states:[17]

(c) In relation to the conversation that occurred when the Garlands were due to move in:

(i) the Garlands never indicated to me that they wanted to move into the property when they did;

(ii) I was not aware the Garlands had moved into the property until I returned to the site on Monday 29 October 2020 (sic). The Garlands moved in over the weekend when no one was around. This caused issues with contractors completed (sic) the remaining works and caused further delays; and

(iii) Any initial discussion between myself and Lucy was relating to the use of the house to store boxes in the garage only and not moving into the house while it was incomplete.

• [35] Mrs Jokovich, in conducting her company's case as its advocate, also sought to lead evidence from Mr Jokovich of a text message thread between he and Ms Garland, that thread having been compiled into a document by Mr Michael Jokovich.[18] This was objected to. Ultimately the issue of admissibility of this as evidence was dealt with on a voir-dire, with the objection being upheld.
• [36] Similar to Mrs Jokovich, the cross-examination of Mr Jokovich was extensive. Again, much of it was not ultimately directly relevant and probative in terms of the issues for determination in this proceeding. As I listened to that cross-examination and observed Mr Jokovich, I considered the following exchanges between Mr Randall he to be probative:[19]

Mr Randall Lucy Garland asked you at various times to be given variations in writing.

Mr Jokovich Yes.

Mr Randall You did not provide them.

Mr Jokovich Yes.

Mr Randall You knew you were supposed to put them in writing.

Mr Jokovich Yes.

Mr Randall Under contract and the QBCC Act you need to have put them in writing.

Mr Jokovich Yes.

Mr Randall You say in your statement that you were not required to put in writing - you accept that this is incorrect.

Mr Jokovich Yes - it is incorrect.

• [37] Mr Randall later referred Mr Jokovich to Clause 19 of the general conditions of the Contract, with this exchange then occurring, in part involving me asking Mr Jokovich some questions arising from Mr Randall's questions and the answers given:

Mr Randall In entering into the contract you knew the Garlands had to pay as per this clause.

Mr Jokovich Yes.

Mr Randall It sets out the process.

Mr Jokovich Yes.

Mr Randall This is the only clause in the contract that gives your company a right to payment.

Mr Jokovich Yes.

Mr Randall You put the amounts of each payment in Item 8A of the Schedule.

Mr Jokovich Yes.

Mr Randall You knew that there were six payments only including the deposit.

Mr Jokovich Yes.

Mr Randall You knew that under Clause 19.1 you were allowed to adjust the amounts claimed.

Mr Jokovich We leave it until the end to make the adjustments.

Me When is the end?

Mr Jokovich We wait until all the invoices from the suppliers and subcontractors have been received.

Me This could be after practical completion and the owner has moved in.

Mr Jokovich Yes.

Mr Randall The end is the practical completion stage.

Mr Jokovich Yes.

Mr Randall After the practical completion stage your company had no contractual right to claim further payment.

Mr Jokovich Yes.

• [38] Ms Garland filed two statements in this proceeding. Both were tendered as her evidence-in-chief.[20] They were relatively succinct. The first of the two statements contained the following, such which I considered probative:[21]

Variations to the Contract

As noted above, barring one exception, at no stage did the Applicant provide us with, or did we agree to, written variation documents setting out the nature of the variations alleged by the Applicant ....

If the Applicant had provided us with written variation documents setting out the nature and additional cost of the variations alleged, we would have carefully considered those variations and the additional expense to which the variations would put us and would not have proceeded with the variations ... .

Liquidated Damages

We have not received nor withheld any sum associated with the liquidated damages payment by the Applicant under the Contract.

• [40] Mrs Jokovich undertook a relatively extensive cross-examination of Ms Garland. Almost all of it was directed towards the formulation of the Contract and the specific items claimed as variations. The line of question was that which one might expect for a case run as a claim in restitution, not one in contract. For this reason, save only in regard to one item claimed as a variation by Jokovich and in terms of which the cross-examination drew out an admission from Ms Garland, the cross-examination was of little assistance to me and I did not consider it necessary to identify within the reasons any other part of the exchange between Mrs Jokovich and Ms Garland.
• [41] That one issue concerned that which Jokovich described in its claim as the 'Back Retaining Wall' for which it made a claim for payment of $9,288 incl GST. In that regard the exchange between Mrs Jokovich and Ms Garland commenced with Ms Garland being referred to an e-mail which was Annexure MJ-58 to Mr Mark Jokovich's second statement.[22] It was an e-mail from Mr James Mogford of a business named 'Moggy's Group' sent to Mr Mark Jokovich in which the following statement appears:

Lucy Garland got us to price the retaining wall, plus other works for her when completing her pool.

Once we showed her the pricing to sign a variation to the works, she said it was too expensive and she was going to get it done herself.

• [42] The exchange which then followed was this:

Mrs Jokovich You agree with the content of that e-mail.

Ms Garland Yes.

Mrs Jokovich Did you ask Mark to construct the rear retaining wall ?

Ms Garland Yes.

Mrs Jokovich You said it had to be done quickly because the pool was to be installed next week.

Ms Garland No - I do not believe there was the need for a rush.

Mrs Jokovich You agree this was not part of the contract.

Ms Garland Yes.

Mrs Jokovich You agreed to have the work done on a cost plus 10% arrangement.

Ms Garland I don't remember that.

Mrs Jokovich How do you think it would be costed?

Ms Garland We had discussions as to options discussing materials and suppliers. He gave me an estimate of $7,000 to $9,000 for fencing and retaining walls on the block. Ultimately I said go ahead.

• [43] Mr Randall presented both a written and an oral closing. The written was in two parts, the first presented prior to the hearing,[23] the second one during the hearing.[24]
• [44] The essence of the closing was a reliance on the QBCC Act Schedule 1B, s 40 and s 42, each requiring Jokovich to have put the relative claim for a variation or an extension of time in writing, neither of which is said to have occurred. For that reason, save only for one concession, he submitted that nothing was payable to Jokovich. That concession was for two prime cost items (said to be insurance and a front entry door) for which it was said $833.30 was payable.[25]
• [45] The substance of his submission was that there was no contractual entitlement to payment in the absence of any variations having been issued consistent with the requirements of the Contract terms.[26]
• [46] As to the Garland's claim for liquidated damages, he noted that it was common ground the start date was 1 April 2020, and that it is said practical completion occurred on 27 November 2020, which after allowing for the stated number of construction days under the Contract it resulted in a delay period of 103 days, thus meaning a claim of $5,150.[27] He also submitted that interest should be paid thereon reliant on s 77(3) of the QBCC Act and s 54 of the Queensland Building and Construction Commission Regulations 2018 (Qld) (QBCC Regs), which he calculated at $2,041.71 up to the first day of the hearing.[28]
• [47] As to the claim for restitution of the credit due, he submitted this was the amount shown in the Variation Invoice, being $3,771.95. He stated that Ms Garland did not press a claim for interest on this amount.
• [48] In his 'Addendum' written submissions,[29] Mr Randall referred me to the then relatively recent decision of this Tribunal in Munro v Camdun Pty Ltd t/as Asset Carpentry & Building Supplies [2024] QCAT 452, and the related decisions in Boys v Imperial Homes [2024] QCATA 35 and Thallon Mole Group Pty Ltd v Morton [2022] QDC 224, each of those matters dealing with the application of QBCC Act Schedule 1B s 40 and the QBCC Act s 108D. He submitted that I should find that the decisions in Munro and Boys were both wrong, the correct reasoning and conclusion as to the operation of these provisions being found in the decision of Muir J (as her Honour then was) in Thallon Mole.

• [49] Jokovich did not present any written closing, its closing being entirely oral presented by Mrs Jokovich.
• [50] The essence of her closing submissions was a reliance on the QBCC Act Schedule 1B s 44 which she submitted meant that notwithstanding the absence of compliance with s 40 of that Schedule 1B, which required variations to be put in writing and agreed to in writing by the Garlands, her company remained entitled to be paid.
• [51] She also submitted that I should not accept the evidence of Ms Garland because many of the answers she gave under cross-examination were not correct, submitting in essence that her company would not have performed the additional work if it were never requested.
• [52] As to the issue of liquidated damages, she took time to highlight that the Garlands had moved in early and thus if there was to be any damages payable, the last date for such damages should be the date on which they moved in.
• [53] Finally, after being pressed on the point by me to obtain clarity as to what the claim was her company was pressing and asking me to decide on, she confirmed it was a claim in contract.

• [54] Whilst there was not any challenge raised in this proceeding as to this Tribunal's jurisdiction to determine the matters as they arise herein, there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies before it.[30] Accordingly, for completeness I make these few brief observations as to the jurisdictional basis upon which I proceeded.
• [55] The work the subject of this proceeding falls within the definition of 'domestic building work' under Schedule 1B s 4 of the QBCC Act, and in turn is 'reviewable domestic work' as that term is defined in Schedule 2 of that Act. The proceeding concerns a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work, and accordingly it is a 'domestic building dispute', which in turn is a 'building dispute', as those terms are defined in Schedule 2 of that Act. This Tribunal is given jurisdiction to hear and decide a domestic building dispute under s 77 of that Act.

• [56] In Neil v Nott¸ the High Court observed:[31]

A frequent consequence of self‑representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.

• [57] That observation, whilst expressed in reference to a Court, equally applies to this Tribunal. Jokovich's claim, as it was presented, was in some respects one of these sorts of matters. As originally and ultimately pressed, it was a claim in contract. Yet, as the evidence was presented it was more akin to a claim in restitution reliant on some form of estoppel to support a claim in quantum meruit.
• [58] Whilst Mrs Jokovich must be commended for the admirable effort she made to present her company's case, it was fundamentally flawed from the beginning. It cannot be overlooked that when her company commenced this proceeding, it had engaged a solicitor, nominated in this proceeding as its representative. But by the time of the hearing it was self-represented.
• [59] It also cannot be overlooked that its originating application was supported by a very detailed Annexure A document which, as drafted, was akin to pleadings in a statement of claim presented in commencement of a court proceeding. I infer this document was produced by Jokovich's then solicitor. I draw that inference from an answer given to me by Mr Jokovich whilst he was under cross-examination as to whether the content therefore was all in accordance with his instructions, which he responded to in the affirmative. Therein, the following foundational statement appears:[32]

From on or about 6 January 2020, the Respondents requested for variation additional items to be added to the contract (the "Variations") referred to in paragraphs 3, 4, and 5 herein.

• [60] Under the heading 'Orders Sought' within that Annexure A, Jokovich sought relief as a 'debt due and owing' together with 'interest ... pursuant to clause 20.1 of the Contract'.
• [61] That being so, Jokovich's claim was cast solely as a claim in contract. Thus, notwithstanding the burden being assumed that the High Court spoke of in Neil v Nott, whilst by the time Jokovich came before the Tribunal in the hearing as a self-represented litigant it was not for this Tribunal to enter the fray and make the Jokovich's case for it in terms of its apparent alternative case seeking restitutionary relief. Jokovich embarked on the course of pressing a claim against the Garlands and accordingly held the responsibility of demonstrating at the very least a basic premise for such a claim, upon which the Tribunal may have then embarked on a process of working out the parties' respective right in connection therewith. However Mrs Jokovich did not do that in any way that supported any restitutionary relief. Thus her company's claim as it was before me for final determination was a contractual claim only.
• [62] It was not, as I have noted it, a case run outside of the Contract seeking restitution by way of a quantum meruit whereby Jokovich should be paid a fair and reasonable value for the work performed at the request of the Garlands, which the Garlands knew either actually or constructively was not being provided ex-gratia, and for which the Garland's received a benefit.
• [63] That being so, save only for one part of the claim for which Mrs Jokovich was effectively able to obtain an admission from Ms Garland, an issue to which I return shortly later in these reasons, the balance of the claim failed. This was because the overwhelming state of the evidence was that Jokovich did not put any of the variations into writing as a Variation Document, such being an express requirement of the terms of the Contract. Whilst such is also a contravention of the QBCC Act Schedule 1B s 40, ultimately that does not matter in the circumstances of this case. It was properly one dealt solely within the confines of the Contract given that the case run and the relief sought by Jokovich is within those confines.
• [64] A short reference to a decision of the Alberta Supreme Court some 70 years ago is helpful in understanding why that is so. In Chittick v Taylor (1954) 12 WWR (NS) 653, the Court set out the following guidelines in terms of variations to a contract:[33]

Rule 1. An item specifically provided for in the contract is not an "extra."

Rule 2. When the [contractor] supplied material of a better quality than the minimum quality necessary for the fulfilment of the contract, without any instructions, express or implied, from the [owner] to do so, he is not entitled to charge the extra cost as an "extra."

Rule 3. When the [contractor] did work or supplied materials not called for by the contract ... without instructions, express or implied, from the [owner] or the consent of the [owner], he is not entitled to charge this additional work or materials as an "extra." ...

Rule 4. When the [contractor] did work or supplied materials not called for by the contract on the instructions, express or implied, of the [owner], he is entitled to charge for additional work or materials as an "extra."

• [65] Other than the exceptions to which I referred earlier, Jokovich's claims fell within one or more of Rules 1 to 3. That being so, in the absence of compliance with the contractual regime for putting variations into writing, and in turn becoming entitled to claim payment for same, and moreover in the absence of having made the claim for payment of variation in accordance with the regime laid out under Clause 19.1 of the express terms of the Contract, Jokovich's entitlement to payment under contract never arose. Such is a construction of Clause 19.1 that is consistent with Clause 21.1 of the terms of contract, it expressly providing that before any additional payment is required the Variation Document, that is the signed written agreement, must be produced.
• [66] This is seemingly a fact and understanding of the relevant law that was overlooked, or possibly not even identified, by the solicitors for Jokovich when the Annexure A document was drafted.
• [67] For this reason, Jokovich's claim for payment for the variations must fail save only to the extent of the concession made by Ms Garland, namely $833.30 for adjustment against two Prime Cost allowances, and in terms of the issue for which Mrs Jokovich extracted an admission about from Ms Garland. That issue was the 'Back Retaining Wall' as I referred to the evidence drawn under cross-examination in paragraphs [41] and [42] herein.
• [68] As Ms Garland admitted and to me seemingly readily accepted:

(a) the back retaining wall was not part of the Contract;

(b) she requested Mr Mark Jokovich to construct it;

(c) she was given an estimate by him for the work at between $7,000 and $9,000; and

(d) she directed Mr Jokovich to go ahead.

• [69] In my opinion that exchange and admission was sufficient for me to reach a finding, such which I did, that it was accepted by her as a variation to the Contract. It is an item of work that fell within the Chittick v Taylor Rule 4. Accordingly, it seemed to me that there was no reason why, save only for the absence of it being put into writing, that Jokovich should not be entitled to payment for same. That being said, it is here that the provisions of the QBCC Act Schedule 1B s 44 came into play. In terms of that provision and its reference to 'the contract', which as relevant here is the variation itself, remains enforceable even though it is not in writing. As such, it was open for Jokovich to press the claim once those admissions were given by Ms Garland.
• [70] What however remained was the question of the value of that work.
• [71] Ms Garland's evidence was that she directed the work to be done based on an estimate of $7,000 to $9,000. Mr Mark Jokovich's evidence on this issue is that his company paid $9,288 incl GST to have this work done.[34] However his evidence was effectively nothing more than the bare assertion his company paid it, with him providing only a copy of an invoice shown to have been produced by a third party. That of itself is insufficient as evidence of the value of the work.
• [72] The only probative evidence at best is Ms Garland's as to the estimate given. I accept that as being indicative of the value of the work she agreed to. On that basis I find the value to be attributed to this work is the lower end of that range, such being $7,000. I allow such as being an amount payable by the Garlands to Jokovich for the performance of this work under contract.
• [73] For completeness I should also say this to the extent it appeared to have been considered that there might have been some entitlement to restitutionary relief. The manner of drafting the Annexure A document, seemingly intended to convey the relevant material facts to be proven on the evidence, and in turn the evidence as it was presented by way of statements filed in advance of the hearing and then presented at the hearing, failed to rise to the level necessary to support a claim in restitution. In particular, it was absent any independent evidence of the reasonable value of the work and the benefit obtained by the Garlands of such work. For this reason alone had it been pressed in the hearing it would have failed.

• [74] Turning firstly to the claim for liquidated damages, in my opinion it can be disposed of with limited discussion.
• [75] It was common ground that the start date was 1 April 2020. It may also be accepted the Date of Practical Completion was 27 November 2020, such being the date on which the Final Certificate was issued. There was nothing contained in the presentation of Jokovich's case that supports any entitlement to an extension of time beyond the date for practical completion which was 105 calendar days after the start date. At its highest its case was that because of the variations it was delayed in completion. However in the absence of any entitlement to a variation, such never having been reduced to writing and signed as agreed to by the Garlands, it was absent any entitlement to an extension of time.[35]
• [76] However I accepted Jokovich's argument that the extent to which it may be held liable for liquidated damages should be reduced for the period during which the Garlands were in occupancy of the house prior to practical completion. As I noted it in paragraph [34] herein, the evidence of Mr Mark Jokovich is that this early occupancy caused issues completing the remaining works and contributed to further delays. Such evidence was uncontested. On that basis I accepted it as being correct.
• [77] Whilst not expressed as such by Mrs Jokovich in her closing submissions, such is sufficient to be an act of prevention which denied the Garlands any entitlement to liquidated damages during this period of occupancy.[36] It does not matter, as Mr Randall submitted, that Jokovich could have required the Garlands to vacate, but that it did not do so.
• [78] On the strength of Mr Jokovich's evidence as I have also noted it in paragraph [34] herein, I proceeded on the basis that the occupancy date was 24 October 2020. This meant a construction period of 207 calendar days, which after allowing for the contracted construction period of 105 calendar days it leaves a delay of 102 days. At the prescribed rate of $50/day it calculates at $5,100 as being the amount recoverable in liquidated damages. This is the amount I allowed the Garlands as their claim for s[37]h damages.37

• [79] I thus turn to the Garland's claim for restitution of the amount paid which was the subject of the credit given by Jokovich in the Variation Invoice.
• [80] In their Counterapplication, it was expressed in this way:

The Respondents are also entitled to credits of $3,771.95 which were agreed by the Applicant.[38]

• [81] It was not presented in any manner which indicated why they should be entitled to payment of this amount. It was simply a bare assertion of an entitlement to a credit, not a claim for payment. Nor was it expanded on in any way by way of either written or oral closing submissions. At its highest, Mr Randall stated in oral closing that the amount pressed was the credit presented by Jokovich initially. He did not explain or identify for me any basis in law, such as a claim for money had and received paid under mistake, as to why I should make an order for payment of this amount by Jokovich to Ms Garland.
• [82] Notwithstanding the absence of this information, the asserted entitlement was not challenged in any way by Jokovich in the hearing, and thus I infer it is a credit to which Jokovich agreed the Garlands were permissibly entitled to under the Contract. It seemed to me that if the credit and thus the restitution of same was not allowed, Jokovich would have been left unjustly enriched.
• [83] For this reason I allowed the claim in restitution, finding that Jokovich should pay to the Garlands the $3,771.95.

• [84] In presenting their respective claims when filing their originating documents:

(a) Jokovich sought an order for payment of interest under the Contract;[39]

(b) the Garlands did not seek any relief in terms of interest.

• [85] However, notwithstanding it was not raised in the counter-application, Mrs Garland, via her Counsel's written Outline of Argument filed in advance of the hearing, she sought an order for interest payable on the liquidated damages claim.[40] The same was pressed in oral closing submissions, in doing so referring me to the QBCC Act s 77(3) and the Queensland Building and Construction Commission Regulations 2018 (Qld) s 54. However he submitted that interest was not sought on the restitution credit.
• [86] Given I reached a conclusion that a payment was to flow in each direction as between the parties, as Mr Randall properly identified in his submission to which I just referred, it is within this Tribunal's jurisdiction to order payment of interest in such circumstances. That being so, I found an amount of interest to be so payable based on the following reasoning.
• [87] In terms of Ms Garland's claim to the extent she succeeded as one of the respondents:

(a) As for the counterapplication filed, it being the claim which Jokovich came to the hearing to meet, there was no claim for interest expressed. For this sole reason she should now not be permitted to raise such a claim by way of closing argument; and

(b) Moreover, under the Contract the Garlands had the entitlement to deduct liquidated damages from the practical completion payment,[41] yet they did not do so. This was either a conscious decision made at that time thus leaving it to be dealt with by way of recovery action at a later time should they choose to pursue same, or because they did not know that they could do so. Either way, given the entitlement that they were seized of then, it is entirely at odds with that entitlement and the reason for not exercising it then to now seek a payment of interest within this proceeding from the date Ms Garland says the liquidated damages was first payable.

(c) For these reasons, my finding was that there was no interest payable by Jokovich to the Garlands.

• [88] In terms of Jokovich's claim to the extent it succeeded, as I noted it earlier herein it did not have any contractual entitlement to be paid that which it sought payment for in this proceeding, thus there cannot be any entitlement to payment of interest under the Contract.
• [89] But notwithstanding that, to the extent it had succeeded it was in one part on the basis of a concession made by Mrs Garland in terms of two allowances, such being in the sum of $833.30, the other being the admission drawn from Ms Garland under cross-examination in terms of the Back Retaining Wall, such which I placed a value on of $7,000 based on the evidence as it was before me. As to the interest to be calculated thereon, in my opinion at best Jokovich was entitled to interest on the aggregate thereof:

(a) from the day which was 5 business days after the Garlands presented their defence in this proceeding,[42] such being 3 November 2022 which in turn made the due date for payment 10 November 2022; such being because the Garlands should have realised at that point in time the concession / admission that was necessary and so then promptly made payment to Jokovich;

(b) up until the first day of the hearing, namely 13 November 2025, being when at the latest the Garlands should have paid it as a result of this proceeding.[43]

• [90] That is a period of 735 days which at the rate of 10% per annum,[44] calculated to $1,575.53, such being the amount of interest I found was payable to Jokovich.

• [91] Relatively recently, speaking in terms of the Building Industry Fairness (Security of Payment) Act 2017 (Qld), Dalton JA expressed this observation in MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd:[45]

As a general proposition, I observe that the two sets of documents (one sent 30 June 2023 and the other sent 17 July 2023), show a confusion on the part of the builder between the concept of a payment claim under the BIFA and a progress claim under the contract. As the case law referred to at [7] shows, if a builder wishes to take advantage of the provisions for statutory payment claims under the BIFA, it is incumbent on the builder to set up an accounting system which conforms to that Act, with professional advice if necessary.

• [92] Whilst that statement was made in terms of a piece of legislation that is not applicable as between Jokovich and Garland, in my opinion the sentiments expressed by her Honour are equally applicable to any builder contracting to perform works to which the provisions of Schedule 1B of the QBCC Act apply. It is incumbent on any such builder to set up its administration and accounting systems for the purposes of presenting its claims for payment under a contract which conforms with the requirements of not only the contract but the strict requirements of the QBCC Act.
• [93] But here, Jokovich did not do so. It is quite possible that it proceeded as it did with a great degree of an element of trust in the Garlands. But that does not matter when it comes to the need for compliance with legislation. Jokovich did so at its peril and has now seemingly paid an expensive price for approaching the Contract in the manner it did, whether it be out of naivety or ignorance. That naivety or ignorance seemingly gave rise to a relatively substantial discussion in the hearing on the application and interpretation of the QBCC Act Schedule 1 B s 40 and related provisions, together with s 108D of the QBCC Act. Whilst I touched on this argument briefly earlier in these reason, in my opinion there was no need for me to enter the fray on the issues that those provisions ordinarily might have otherwise given rise to nor engage in any discussion as to the caselaw to which Mr Randall referred me, nor consider whether his submission that at least two of those cases were wrongly decided. It was not properly an argument arising on the factual, nor the legal, dispute that was before me.
• [94] Ultimately, each party partially succeeded and partially failed in pressing their respective claims. For the reasons I have given herein in terms of my consideration of the evidence and argument as it was presented to me, the relevant calculation is as follows:

(a) The Garlands should pay to Jokovich $ 9,408.83, being the aggregate of:

(i) $833.30 as conceded in terms of allowance for insurance and a front entry door adjustment;

(ii) $7,000.00 for construction of the Back Retaining Wall; and

(iii) $1,575.53 as interest on the aggregate of these two amounts.

(b) Jokovich should pay to the Garlands $8,871.95, being the aggregate of:

(i) $5,100.00 as liquidated damages for late completion; and

(ii) $3,771.95 as the restitution credit.

• [95] Setting one off against the other, the net result is that the Garlands should pay to Jokovich $536.88.
• [96] However, given the circumstances of how this proceeding came about, such being the failure by Jokovich to have complied with the statutory and contractual requirement to put all variations into writing and have them agreed to in writing by the Garlands, and in particular Jokovich not raising its claim for payment of variations until after it had raised its final progress payment claim under the Contract and receiving payment of same from the Garlands, it seemed to me that the proper outcome is that nothing further was payable by the Garlands to Jokovich. It was open for it to be said that as a home owner the Garlands should have been entitled to assume that they had paid all that was required to be paid when they made that final payment. Whilst I do not make any finding as to whether the Garlands held that assumption, in all the circumstances of the issues as they arose in this proceeding, it was my opinion that such an outcome of no further payment was an appropriate exercise of the discretion afforded this Tribunal under the QBCC Act s 77(3)(b) to order relief from payment of an amount claimed by one party from another.
• [97] For all of these reasons, the outcome in this proceeding was that each claim be dismissed. My orders reflected that.

• [98] Given this outcome, subject to any submissions the parties wish to make to the contrary, in my opinion it should follow that an order be made that each party bear their own costs of the proceeding. However I will give the parties the opportunity to make any contrary submissions should they consider it appropriate within a specified period of time, failing which it will follow that an order is triggered that each party bears their own costs.

[1] This information is drawn from the documentary evidence as it was before this Tribunal. The relevant Exhibit received during the hearing is footnoted.

[3] This is at appears in the Contract document - the date and completion period being left blank.

[4] This is common ground. It was also common ground that this was in turn the 'Starting Date' for the purposes of the Contract. Ex 1 para 9. Ex 6 para 11. Ex 7 para 12. Ex 10 para 17.

[5] There is inconsistency within the Jokovich's filed statement as to the date of completion. In Mr Mark Jokovich's first statement, he gives the date of 27 November 2020 - Ex 6 para 13. In his second statement he gives the date of 6 November 2020 subject only to minor works remaining - Ex 7 para 13(d). In Mrs Sheree Jokovich's statement, his wife and co-director, she asserts that the 'Final Building Certificate' was received and e-mail to the Garlands on 18 November 2020 - Ex 1 para 19. Ms Garland gives the date of 27 November 2020 - Ex 10 para 18. In Ms Garland's second statement she says she received an e-mail from the Jokovich's on 30 November 2020 with a 'Form 21 Final Inspection Certificate', a copy of which is annexed thereto as LG-2 - Ex 11 para 7. That certificate is dated 27 Novembe 2020. Given the certificate was in evidence and unchallenged I proceeded on the basis that this was the date of the Final Certificate.

[8] The statements given by Mr and Mrs Jokovich are silent on the issuing of any written agreement recording the variations. In her evidence Ms Garland states that "barring one exception, at no stage did the Applicant provide us with, or did we agree to, written variation documents" - Ex 10 para 31. She does not however identify that one exception. In his second statement, given in response to Ms Garland's statement, he did not deny this as a fact - Ex 7 para 20, nor did he identify that exception.

[9] During the hearing Ms Garland's Counsel informed me that the 'credits' to which this part of the counterclaim referred was that which were stated in the invoice Jokovich sent to the Garlands when it first claimed payment for variations. That credit is shown thereon as $3,771.95.

[10] I pause here to observe that the manner in which Jokovich presented its claim was one as being entirely as 'variations' to the Contract, notwithstanding that on one reading some of it was detailed as being the difference between a prime cost / provisional sum allowance and that ultimately expended. But, to the extent any part of it might have been the latter, Jokovich did not present its evidence in a manner which supported the claim as merely the adjustment, instead presenting its evidence as being one seemingly in support of a variation claim.

[12] Even though this Tribunal is not bound by the rules of evidence, and so it is permissible for hearsay evidence to be presented, its probative value is limited at best. In the present circumstances the nature of the evidence was such that I formed the view it had no probative value and thus was appropriate for it to be struck out. These parts were para's 8, 10 to 18, 21, 22, and 24. The paragraphs were not numbered in the written document, these paragraph numbers being as counted with paragraph 1 being the first paragraph in the document after the words 'STATEMENT OF SHEREE JOKOVICH'.

[14] Ex 5. The struck out paragraphs are - that on page 2 starting with the words "Lucy Garland would often attend site ..." up to and ending with the words " nature of these meetings", leaving the last part of the last line starting with the words "however conversations with Nicholas ..." remaining; and on page 3 being the entirety of the second last paragraph thereon starting with the words "It is very important to note ...." ending with the words " ... dishonourable and disgusting".

[17] Ex 7 para 24. The underlining emphasis is as it appears in the original. There is an error in this statement as to the date, the Monday in October 2020 to which he refers being 26 October.

[18] During the hearing, this document was marked for identification and recorded as 'MFI - I'.

[19] The words stated here as attributed to individual persons is not taken from a transcript and so is not to be read as being verbatim. It is as per the notes I took during the hearing. Wherever similar references are made in these reasons the same applies.

[28] MFI 'E' para's 64 to 66, supplemented with oral submissions.

[30] Penfold v Firkn & Balvius [2023] QCATA 11 at [37] per Judicial Member Forrest SC.

[31] [1994] HCA 23; (1994) 68 ALJR 509, 510.

[32] Annexure A to the Application for domestic building dispute' - para 7. See Document MFI 'A'. The reference to 'paragraphs 3, 4, and 5' therein is to the earlier paragraphs which described the Contract.

[33] Chittick v Taylor (1954) 12 WWR (NS) 653 per Egbert J at [6]-[9], as recorded in The Laws of Australia - Thomson Reuters Westlaw at TLA [8.3.300].

[35] This is so even though I found Jokovich had an entitlement to be paid for the Back Retaining Wall.

[36] Such as an application of the 'prevention principle' which has its foundations in the English decision of Peak Construction (Liverpool) Ltd v McKinney Foundation Ltd (1970) 1 BLR 114. This conclusion and the reasoning that led to it is a manifestation of that burden cast upon this Tribunal by way of that laid down by the High Court in Neill v Nott to which I referred earlier herein.

[37] I pause here to note that this is almost the same amount Mr Randall submitted I should find as being payable, however his method of calculation to get to that date was different to mine which I calculated on the basis of what I read as being in the Contract terms.

[38] Document MFI 'D' Annexure A para 11.

[39] See document MFI 'A' Annexure A para 137.C.

[40] See document MFI 'E' para's 65 and 66.

[42] I allow that 5 business days for payment being such consistent with the period for payment under Clause 19.1(g) of the Contract terms. The period for payment arising because of this period satisfies the requirement of s 54(2) of the Queensland Building and Construction Commission Regulation 2018 (Qld).

[43] Such an approach to calculating interest is consistent with that submitted by Mr Randall for Ms Garland in his written closing submissions - see document MFI 'E' para 65.

[44] The rate is consistent with s 54(1)(c) of the Queensland Building and Construction Commission Regulation 2018 (Qld).

[45] MWB Everton Park Pty Ltd as trustee for MWB Everton Park Unit Trust v Devcon Building Co Pty Ltd [2024] QCA 94;[21].