McAllister v Smicklefritz Pty Ltd [2026] QCAT 114

Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B, s 1, s 5, s 6, s 7, s 14, s 30, Schedule 2

Queensland Building and Construction Commission Regulation 2018 (Qld), s 45

Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43

Cerda v Jacob [2020] QCATA 57

Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476

Dimov v The Owners - Units Plan No 2225 (No 2) [2025] ACTSC 446

Judd v McPhail [2022] QCAT 125

Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956

McSwan v Weaver [2023] QCAT 148

Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315

Tindall v Sky Unicorn Pty Ltd [2026] QCAT 37

Vietheer v Holstein [2025] QCAT 397

[1] By an Application for domestic building disputes filed on 5 April 2024 ('the Application'), the Applicant ('Ms McAllister') seeks relief in respect of work performed by the Respondent at Ms McAllister's property on the Gold Coast in the State of Queensland ('the Property'). The agreed work involved the demolition and removal of an existing (timber) retaining wall and fencing and the construction of a new (concrete) retaining wall and (Colourbond style) fencing (collectively 'the Works') at the Property. The Respondent held a licence issued by the Queensland Building and Construction Commission to carry out the Works.[1] The agreed price for the Works was $25,344.00.

(a) Move retaining walls and fences to the proper location, or

(b) Arrange to have the encumbrance permanently removed from the property title.

[3] Each of the orders is opposed by the Respondent.

[4] In considering the Application, it is first necessary to give consideration to the issue of jurisdiction.

[5] Subsection 77(1) of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act') provides that a person involved in a 'building dispute' may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('the QCAT Act'), to have the Tribunal decide the dispute.

[6] At the time of the filing of the Application, Schedule 2 to the QBCC Act provided, relevantly:

(a) that a 'building dispute' included a 'domestic building dispute';

(b) 'domestic building dispute' means, relevantly, 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;

(c) 'reviewable domestic work' means domestic building work under schedule 1B, section 4, except that for applying schedule 1B, section 4(8), the definition excluded building work under this schedule is taken not to mean anything mentioned in paragraph (b), (c) or (d) of that definition.

(a) the Works constituted 'domestic building work';[2]

(b) the Works were not 'excluded building work';[3]

(c) by reason of subparagraphs (a) and (b) above, the Works comprised 'reviewable domestic work';

(d) Ms McAllister is a 'building owner' being, relevantly, a person for whom domestic building work has been carried out;[4]

(e) the Respondent was a 'building contractor' being, relevantly, a person who then carried out domestic building work;[5]

(f) the present dispute is a dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work and comprises a 'domestic building dispute';

(g) by reason of subparagraphs (a) to (f) above, the dispute the subject of the Application is a 'building dispute' for the purposes of s 77(1) of the QBCC Act.

[8] A person may not apply to the Tribunal unless the person has complied with a process established by 'the commission' (the Queensland Building and Construction Commission ('the QBCC')) to attempt to resolve the dispute (see s 77(2) of the QBCC Act).[6] Ms McAllister made a complaint to the QBCC in relation to the work performed by the Respondent. By correspondence from the QBCC to Ms McAllister dated 4 September 2023, the QBCC advised, amongst other matters, that:

(a) the QBCC would not be issuing a direction to the Respondent to rectify the complaint items;

(b) the Queensland Home Warranty Scheme was unable to provide cover for any of the complaint items;

(c) the case had been finalised;

(d) the options for further assistance could include: 'Pursuing a building dispute case in the Queensland Civil and Administrative Tribunal (QCAT)';

(e) 'This correspondence serves as notification you have participated in the QBCC's dispute resolution as prescribed by legislation and your case has now been finalised.'

[9] I am satisfied that s 77(2) of the QBCC Act has been complied with.

[10] I find that the Tribunal has jurisdiction to hear and determine the Application.

[11] I now turn to the merits of Ms McAllister's claim.

[12] Many of the core facts in the matter are either not in dispute or not seriously in dispute.

[13] Prior to the Works being performed by the Respondent, the northern (side) boundary of Ms McAllister's property was retained by a timber retaining wall. A timber fence sat adjacent to the retaining wall. A timber fence also ran along the eastern (rear) boundary of Ms McAllister's property.

[14] Ms McAllister's northern boundary was abutted by a road reserve owned by the Council of the City of Gold Coast ('the Council').

[15] A dispute arose between Ms McAllister and the Council in relation to the retaining wall. It is unnecessary to canvass the details of that dispute. The upshot was that the Council contended that the retaining wall was constructed on the road reserve; it was not constructed by the Council (and, it was asserted, was an 'illegal' and 'unauthorised' structure); it was not a Council asset for the purposes of maintenance; and that the sole purpose of the retaining wall was to retain the land within Ms McAllister's property.

[16] The Council obtained a Plan of Identification Survey dated 31 January 2022 ('original survey plan') from John Walsh & Associates, Surveyors ('the Surveyors').[7] The original survey plan identified that the 'Wooden' retaining wall sat entirely within the road reserve. As I read the plan, it also showed that the initial section of the timber fence on the eastern boundary, returning off the retaining wall, was slightly within the adjoining Council land, being Lot 315 of SP 107094 ('Lot 315').

[17] Ms McAllister's material includes two photographs of the respective boundary pegs[8] which Ms McAllister states were marked by the Surveyors.[9]

[18] One photograph appears to be taken from the front of Ms McAllister's property showing the north-western corner immediately adjacent to the road reserve. It shows what appears to be a white painted dumpy peg driven into the ground with a nail in the centre of the top of it and, and immediately adjacent to it, a white painted stake with pink ribbon tied to the top.

[19] The other photograph appears to be taken from the rear of Ms McAllister's property showing the north-eastern corner of the property. It shows a white painted stake with pink ribbon tied to the top.

[20] Having regard to the original survey plan and the two photographs, I find that the location of the dumpy peg and the stake on the western side of the property and the stake on the eastern side of the property marked out the northern boundary of the property as indicated on the original survey plan.

[21] There is no dispute that the Works were performed by the Respondent and that it was agreed that the new retaining wall and fencing would be built within the boundary of Ms McAllister's property.[10]

[22] Following completion of the Works, the Surveyors carried out a further identification survey on 11 September 2022.[11] The survey plan ('the subsequent survey plan') identifies that:

(a) the concrete footings, the concrete retaining wall, and the metal panel fence built by the Respondent encroach on the road reserve along the entire length of the northern boundary of Ms McAllister's property;

(b) (as I read Sheets 1 and 3 of the subsequent survey plan, noting that Sheet 3 only includes a relatively short section along the eastern (back) boundary), there is a return section of retaining wall with two footings that encroach on Lot 315, and that the 'Metal Panel Fence' encroaches on that Lot for the large majority of the length of the eastern boundary.

[23] A letter dated 11 September 2022 was sent by the surveyor who conducted the subsequent survey to Ms McAllister.[12] The surveyor advised that the 'metal panel fence, the concrete footings and the concrete retaining wall' built for Ms McAllister's property 'encroach onto the road reserve (pathway) and [Lot 315]'.

[24] On 11 October 2022, the Council sent a letter to Ms McAllister stating, amongst other matters:

...

An inspection has been made and it has been confirmed that the recently installed colourbond fencing, retaining wall and concrete footings encroach onto land under the control of Council and a copy of the survey which clearly indicates the extent of the encroachment is enclosed for your information.

You are advised that it is the responsibility of an owner to ensure that any construction carried out on their property is fully contained within the boundaries of that land. It has been decided that at this stage Council will not be taking any action for the removal of the structure, however you should be aware that this may be required at a future date.

You are advised that an encumbrance will be placed against the property records which will be available to a prospective purchaser should a rates search be requested ...

(emphasis added)

[25] The statutory basis for the placement of the 'encumbrance' against the property records has not been identified in the material.

[26] I note that a Historical Title Search for Ms McAllister's property dated 27 February 2023 is in evidence before the Tribunal.[13] I cannot identify any encumbrance noted on the title as at that date which relates to the encroachment identified by the surveyor. For completeness, I note that there is an Easement in Gross burdening the land to the Council. However, it is noted that the Easement was lodged on 27 December 1995, and it is apparent from the original survey plan that it relates to a section of land that runs along the back of Ms McAllister's property, and that a similar easement is noted on the properties immediately to the north and to the south of Ms McAllister's property.

[27] I now turn to the potential bases of claim.[14] Ms McAllister's case is complicated by the nature of the (alternative) orders sought, neither of which involves a monetary claim. Having regard to Ms McAllister's case presented at hearing, I consider that the only potential claims to be considered are claims in contract or negligence.

[28] Before turning to those potential bases of claim, it is convenient to address the second of the orders sought by Ms McAllister.

Removal of 'encumbrance' from the property title

(a) the evidence suggests that the 'encumbrance' is not noted on the title to Ms McAllister's property;

(b) the statutory basis for the notation of the encumbrance has not been identified.

[30] In my view, the Tribunal has no power to make the order sought in this proceeding.[15] For completeness, I note that the Council is not a party to this proceeding and plainly it would have an interest in the order sought.

[31] No formal contract was signed by the parties.

[32] Identifying the timing of a concluded agreement between the parties having regard to the material is not straightforward. For example, the evidence includes a 'QUOTE' dated 23 February 2022[16] with an 'Expiry' of 1 December 2021. Further, the Quote includes a number of items, the last of which is framed in terms that some or all of the work the subject of that item had already been carried out. The item (in the amount of $2,100.00) is as follows:

Variations to the original agreed-upon design/quote as discussed with and confirmed by the client. As the wall has been moved back several hundred millimetres, additional time has been spent cutting back by machine and removing additional waste. Also, several stumps have been removed while the larger machinery was on site cutting back the new batter.

(emphasis added)

[33] Notwithstanding that part of the Works appears to have been carried out prior to the Quote in evidence, I am satisfied that there was a concluded agreement at common law that the Respondent would carry out the work the subject of the Quote for the price of $25,344.00. I would characterise the contract as being partly in writing (comprising the two texts (being the text from Ms McAllister in relation to bringing the wall and fence 'into boundary line' and the response that it 'would just be a little more in waste material but no drama at all') and the Quote) and partly implied by conduct (comprising the performance of the Works by the Respondent and the payment by Ms McAllister of the quoted price).

[34] However, the QBCC Act requires certain contractual formalities to be complied with. I am satisfied that the contract between the parties was a 'level 2 regulated contract' within the meaning of the QBCC Act,[17] being a domestic building contract with a contract price of greater than $20,000.00.[18] As a result, s 14 of Schedule 1B of the QBCC Act ('Section 14') required, relevantly, that the contract be in a written form, dated and signed by or on behalf of each of the parties to it.[19] Those formalities were not satisfied in the present case. The consequence is that the contract does not have effect.[20] This means that a contractual claim is not available to Ms McAllister against the Respondent.

[35] For completeness, I will address some matters that would have arisen had I considered that the formalities had been complied with by the parties.

[36] First, there would be an implied warranty under s 22 of Schedule 1B to the QBCC Act, that the Works would be carried out: (i) in an appropriate and skilful way; and (ii) with reasonable care and skill.

[37] Second, I would have found that the exercise of reasonable care on the part of the Respondent required that, relevantly, it take reasonable care to ensure that the Works were constructed within Ms McAllister's property. In this regard, in response to a question I put to Mr Thomas in respect of whether he disagreed with Ms McAllister in relation to the documents or dealings that formed part of the contract between the parties, Mr Thomas replied:[21]

No, no, I don't disagree with what Paula has said so, you know, in that way but we were asked to build a wall. We were asked to move it back within the boundary. We worked off the pegs that were there but we believe they may have been moved. It's a thoroughfare where people with dogs and kids and anything can walk past and move stuff. We completed the wall and it's been surveyed again and it turns out that it is not within the boundary so I do agree with what Paula is saying but ‑ ‑ ‑

[38] In response to a question I put to Mr Thomas as to whether he was personally involved in any of the work on site, Mr Thomas replied:[22]

Yeah, I came out on the site at the day 1, to check how everything was proceeding and everything seemed to be moving along nicely. That was part of the demolition when I was there but my job is primarily in the office.

[39] In the Respondent's statement filed on 1 April 2025, it was noted that:[23]

Survey pegs, confirming boundary lines, were installed by Council prior to construction.

[40] I note Mr Thomas' evidence that 'We worked off the pegs that were there but we believe they may have been moved.' However:

(a) no direct evidence was led by the Respondent in respect to the setting out the location of the retaining wall, including in relation to the location of the dumpy peg and the respective stakes at that time;

(b) the suggestion by the Respondent that the stakes may have been moved appears to be speculative; it seems inherently unlikely that some person removed the stakes their previous location and placed back into the ground in a different location. Further, there is no explanation as to how the dumpy peg was removed and moved;

(c) in any event, the unchallenged evidence of Ms McAllister was as follows:[24]

When the retaining wall and fencing was finished, the respondent backfilled against the inside with gravel. Recently, I began constructing a garden and removed the gravel in the back corner of the yard. Disturbingly, it became apparent that the respondent had not made an error but had intentionally build the structure outside my property. Where the old fence posts could be seen at ground level, they have been removed. But where the old fence posts were buried under gravel, they have just been snapped off, leaving a stump. Attachment 3 is a photo of the old post stumps with the new fence built on the outside.

[41] I have reviewed the photograph referred to which is consistent with Ms McAllister's statement (it is unnecessary to make any finding about whether the location of the wall outside of the boundary was done 'deliberately').

[42] Having regard to all of the material, I am satisfied that the Respondent failed to exercise reasonable care in the construction of the retaining wall and footings to ensure that they were placed within the northern boundary of Ms McAllister's property.

[43] Third, under s 77(3)(g) of the QBCC Act, the Tribunal may order rectification or completion of defective or incomplete tribunal work. The phrase 'tribunal work' is defined by reference to sections 75 and 76 of the QBCC Act. Section 75(1) provides, relevantly, that the following is 'tribunal work': ... (b) the renovation, alteration, extension, improvement or repair of a building; ... (e) any site work (including the construction of retaining structures, driveways, landscaping and the construction of a swimming pool) related to tribunal work of a kind mentioned in paragraphs (a) to (d). The definition of 'building' includes, relevantly 'generally, includes any fixed structure'. I consider that the Works, in particular, the concrete footings and the concrete retaining wall, comprise a fixed structure. I am satisfied that the Works comprised 'tribunal work'.[25]

[44] A question arises as to whether s 77(3)(g) of the QBCC Act, on its proper construction, encompasses the making of an order that (as here) would require the complete demolition/removal of work performed and the reconstruction of the work. I consider it unnecessary to reach a concluded view in this regard for the following reasons.

1. In my view, the concrete footings and the retaining wall constitute a 'fixture'[26] on the Council's road reserve (and the return section of retaining wall and the two footings constitute a fixture on Lot 315). In my view, the first order sought by Ms McAllister would, in terms, require the Respondent to go onto the Council's land and significantly disturb the land in removing the concrete footings and retaining wall.

[46] As noted above, the Council is not a party to the proceeding nor has any evidence been adduced as to whether it would be prepared to consent to this (and, if so, on what conditions). The Council previously advised Ms McAllister that it did not require the encroachment to be removed,[27] and there is no evidence that this position has changed since then.

[47] I consider that the Tribunal does not have power under s 77 of the QBCC Act to make an order which requires a party to go onto the land of a third party (who is not a party to the proceeding) and carry out work on that land. Even if I concluded that the Tribunal did have power to make such order, I consider that it would not be appropriate to do so in the present case having regard to first, the matters addressed above at [45] and [46] above, second, there is no evidence that the Works themselves are in any way defective, and, third, any order would likely require the imposition of conditions on the order (for example, that the Respondent reinstate the land following removal of the encroaching structures) with the prospect of the Tribunal undertaking a supervisory role in respect of such conditions.

[48] I conclude that Ms McAllister is not entitled to the relief sought in contract.

[49] Can Ms McAllister bring a claim in negligence?

[50] As to the availability of a claim in negligence where the formalities for a regulated contract have not been complied with, for convenience, I repeat the following observations I made in Tindall v Sky Unicorn Pty Ltd:[28]

There is a difference of opinion in the Tribunal as to whether a duty of care may be owed by a building contractor to a homeowner in circumstances where there is no effective contract between the parties by virtue of the operation of the QBCC Act.[29] In circumstances where this issue has not been revisited by the Appeal Tribunal or decided by the Queensland Court of Appeal, I maintain the view that a duty of care may be owed (and the reasoning in Mallonland[30] does not cause me to alter my view) ...

[51] It is unnecessary to further consider this issue in the present case having regard to the following matters.

[52] First, in my view, neither order sought is a remedy available in a negligence action.

[53] Second, proof of damage is a necessary element of the tort of negligence. In my view, in circumstances where the Council has not required the removal of the Works; where there is only a possibility of Ms McAllister being required to remove the Works in the future; where the 'encumbrance' is not recorded on the title to Ms McAllister's property; and in circumstances where Ms McAllister has not identified the particular nature of the 'encumbrance' that the Council has referred to, I am not satisfied that Ms McAllister has established any identifiable damage resulting from the construction of the Works by the Respondent.

[54] Third, the matters addressed above at [45]-[47] are also apposite in this context.

[55] I find that Ms McAllister has failed to establish an entitlement to the orders sought in negligence.

[56] For the reasons set out above, I find that Ms McAllister is not entitled to either of the orders sought and the formal order is that the Application for domestic building disputes filed on 5 April 2024 is dismissed.

[1] Written notification filed by the Respondent on 3 March 2026.

[2] See sch 1B, s 4(3)(b) and s 4(4) of the QBCC Act; Judd v McPhail [2022] QCAT 125, [1]-[4]; Lu v Emerson [2024] QCAT 249, [34].

[4] Ibid sch 1B s 1 (definition of 'building owner').

[5] See the definition of 'building contractor' in Schedule 2, which references, relevantly, the definition in Schedule 1B, s 1.

[6] Allen & Anor v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43 (Judge Allen QC, Deputy President, Member Traves (as Senior Member Traves then was)).

[7] Affidavit of Adam Turner, Exhibit 'AT-3'.

[8] Respondent's statement filed on 1 April 2025, p 17.

[9] Statement of Ms McAllister filed on 16 December 2024 (second dot point).

[11] Affidavit of Adam Turner, Exhibits 'AT-12' and 'AT-13'.

[12] I assume that a copy of the letter was sent to the Council.

[13] Affidavit of Adam Turner, Exhibit 'AT-1'.

[14] As to the need to identify the relevant cause of action, see Vietheer v Holstein [2025] QCAT 397, [36]-[38]

[15] I note that if any relief of this type (or similar relief) were available to Ms McAllister under Part 10, Division 2 of the Property Law Act 2023 (Qld), in respect of which I express no view, such relief may only be granted by the 'court', that is, the Supreme Court (see Schedule 2).

[16] A copy of which is attached to the Application.

[17] QBCC Act sch 2 (definition of 'level 2 regulated contract), sch 1B s 7.

[18] Ibid sch 1B ss 1, 5, 7; Queensland Building and Construction Commission Regulation 2018 (Qld) s 45.

[24] Statement of Ms McAllister filed on 29 September 2025.

[25] See Vietheer v Holstein [2025] QCAT 397, [26].

1. [26] See Dimov v The Owners - Units Plan No 2225 (No 2) [2025] ACTSC 446, [77]-[78] and the cases cited therein.

[28] [2026] QCAT 37, [106].

[29] Cases holding that a duty of care may be owed include Cerda v Jacob [2020] QCATA 57 ('Cerda'); Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315 (a decision of mine), and Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 ('Chau's'). Decisions to the contrary include McSwan v Weaver [2023] QCAT 148 and Vietheer v Holstein [2025] QCAT 397 ('Vietheer'). The decisions in Chau's and Vietheer were handed down subsequent to the High Court decision in Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956 ('Mallonland').

[30] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956.