Moss v Gonzalez [2026] QCAT 157

[3] By direction made 27 August 2025 the Contractor was put on notice that if he failed to comply with the direction to file a response Mr Moss may be entitled to a final decision. He did not file a response. By direction made 13 October 2025 the Contractor was put on notice that if he failed to comply with the direction to file a response Mr Moss will be entitled to a final decision. He did not file a response.

[4] This matter has been directed to be determined on the papers, without an oral hearing, on the basis of the documents forming the Tribunal record.[6]

[5] If the Tribunal considers a respondent in a proceeding is acting in a way that unnecessarily disadvantages the applicant by not complying with a Tribunal order or direction without reasonable excuse, the Tribunal may make its final decision in the proceeding in the applicant's favour.[7]

[6] Mr Moss filed an affidavit of service.[8] I am satisfied that the Contractor was personally given a copy of the Application. Copies of directions have been sent to the Contractor. The Contractor has failed to comply with any directions made by the Tribunal. I am satisfied that by failing to comply with Tribunal directions the Contractor has unnecessarily disadvantaged and continues to unnecessarily disadvantage Mr Moss because this has delayed Mr Moss' entitlement to have the matter heard and finally determined. I have considered the matters in section 48(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). The Contractor has failed to engage with this proceeding. In the absence of any evidence from the Contractor I am satisfied that he is acting without reasonable excuse and has deliberately failed to comply with the directions. I am satisfied that it is appropriate to proceed to finally determine the matter.

[8] The Application attaches a number of documents upon which Mr Moss relies. Mr Moss has filed some documents in response to directions to file a statement of evidence, most of which are the same documents previously attached to the Application. Mr Moss was directed to file a statement outlining various details of his case.[9] Mr Moss has not addressed most of those matters.

[9] The Tribunal has previously found that where damages are to be assessed on the papers in what is essentially a default judgment, it is a matter of the weight to be given to the applicant's statement and the various documents attached to the statement.[10] I have considered Mr Moss' supporting documents in reaching my decision.

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

[10] I find that this is a domestic building dispute within the Tribunal's jurisdiction.

[11] A person involved in a building dispute may apply to the Tribunal to decide the dispute[11] provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.[12] I am satisfied that the QBCC's dispute resolution process has been complied with, enlivening the Tribunal's jurisdiction.[13]

[12] A building dispute is defined to include a domestic building dispute.[14] Domestic building dispute is defined to include a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.[15] A domestic building dispute also means a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.[16]

[13] Reviewable domestic work[17] is defined to mean domestic building work under Schedule 1B s 4 of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act'), which includes the renovation, alteration, extension, improvement or repair of a home.[18]

[14] The evidence is that the painting works were performed on the roof of a detached dwelling.

[15] I am satisfied that the dispute is a domestic building dispute between a building owner and a building contractor relating to the performance of domestic building work. The Tribunal has power to award damages[19] and costs.[20]

(a) on or about 23 August 2022 he agreed with the Contractor that the Contractor would clean the roof then apply one coat of undercoat over the entire roof then apply three top coats for the sum of $4,500.[21]

(b) on 23 August 2022 he paid a deposit to the Contractor of $2,250.[22]

(c) work commenced on or about 28 February 2023.[23]

(d) on 10 April 2023 he noticed hundreds of bubbles under the paint on the roof. The next day he informed the Contractor of the issue and requested he address it.

(e) the Contractor finished work on or about 28 April 2023 and Mr Moss paid the Contractor a further $2,000.[24]

(f) on 30 June 2023 he wrote to the Contractor requiring him to rectify the work within 14 days.

(g) the Contractor did not rectify the work.

[17] The QBCC Inspection Report[25]states that the inspector considered the work was a non-structural defective for which the Contractor was responsible because:

(a) the product and method used did not meet the requirements outlined in the manufacturer's specifications;

(b) the works did not meet the requirements outlined in AS2311.

[18] A copy of an inspection report by C&K Auld Plumbing Service dated 10 January 2024 is before me. It contains various photographs of the roof after the Contractor had performed the work.

[19] In the absence of any evidence by the Contractor, I accept the evidence in the C&K Auld Plumbing Service inspection report and the QBCC Inspection Report. I find that the work was defective in that it was not performed to the standard of a reasonably competent contractor and requires rectification.

[20] An online QBCC search I conducted on 24 March 2026 shows that:

(a) the Contractor held a relevant QBCC licence at the time that the agreement was entered into in August 2022.

(b) at the time work commenced on 28 February 2023, and at the time the defective work was noticed by Mr Moss and the second payment was made in April 2023 the Contractor's licence was suspended for failure to pay the annual licence fee.[26]

(c) the licence was restored for the period 26 June 2023 to 23 February 2024 before being suspended again and then cancelled for non-payment of the annual licence fee.

What is the consequence of the Contractor's licence being suspended at the time the work was performed?

[21] I find that the amount of $4,250 must be repaid by the Contractor to Mr Moss.

[22] Section 42(1) of the QBCC Act provides that a person must not carry out, or undertake to carry out, building work unless the person holds a contractor's licence of the appropriate class under the QBCC Act. By s 42(3) of the QBCC Act, a person who performs unlicensed building work is not entitled to any monetary or other consideration for doing so. Any monetary or other consideration paid to an unlicensed builder must be repaid.[27]

[23] At the time the Contractor undertook to carry out the work by entering into the agreement with Mr Moss and received the deposit his licence was active. The Contractor was not in breach of section 42 of the QBCC Act at that time. The deposit was paid on account for the future performance of the work.

[24] Mr Moss paid $2,000 for building work performed by the Contractor when the Contractor's licence was suspended. During the suspension he was effectively unlicensed. He did not have an active current licence.

[25] There is no evidence that the Contractor performed any work during the period his licence was active. I find that the Contractor was not permitted to carry out the building work when he did nor was he entitled to any monetary consideration for doing so, including the amount paid on account.

[26] The Contractor has not participated in these proceedings and therefore there is no application before me under section 42(4) of the QBCC Act nor any evidence of the amount paid by the Contractor in supplying materials and labour for carrying out the work. The amount of $4,250 must be repaid to Mr Moss.

[27] I find that the informal agreement between Mr Moss and the Contractor is unenforceable.

[28] The partly written and partly oral agreement is a level 1 regulated contract because it was for more than $3,300 but less than $20,000.[28] By s 13 Schedule 1B of the QBCC Act the contract only has effect if it is in writing, dated and signed by or on behalf of each of the parties. Mr Moss is not entitled to sue on the warranties implied under the QBCC Act Schedule 1B in regulated contracts nor otherwise claim damages for breach of contract.

[29] Any claim Mr Moss has for damages must be based on a claim in negligence.

[30] I am not satisfied that Mr Moss has established his loss in negligence.

[31] A claim in negligence requires consideration of the Civil Liability Act 2003 (Qld) ('CLA'). The CLA applies to civil claims for damages for harm.[29]

[32] The CLA defines 'claim.'[30] It includes a claim for damages based on a liability for damage to property or economic loss, whether that liability is based in tort or contract or on another form of action, including breach of statutory duty. 'Harm' is defined to include damage to property and economic loss.[31] 'Duty' includes a duty of care in tort.[32] 'Duty of care' means a duty to take reasonable care or to exercise reasonable skill (or both duties).[33]

[33] The Tribunal has previously held that to establish an entitlement to damages for negligent building work the following elements must be present:[34]

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

(b) the duty of care was breached;[35]

(c) damage which is not too remote has been suffered by Mr Moss as a consequence;[36]

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

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

[34] The Tribunal has relatively recently considered the law of negligence in Australia in Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam[37] and found, and I agree, that a homeowner could bring an action in negligence against a contractor because it fell into one of the established categories of duty of care so that it was unnecessary for an applicant to prove the respondent owed a duty of care and the issue of vulnerability was not required to be established.

[35] I am satisfied that the Contractor owed Mr Moss a duty of care to take reasonable care and to exercise reasonable skill in the performance of the work to the standard of a reasonably competent contractor and therefore to take care to avoid causing Mr Moss loss. Having regard to the nature and extent of the defects identified in the QBCC Inspection Report, I find that the Contractor breached the duty of care to Mr Moss.

[36] I find that it is reasonably foreseeable that if the Contractor does not take care in performing work, Mr Moss, the homeowner, is likely to suffer loss and damage.

[37] Although the evidence could be clearer, and in the absence of any evidence to the contrary put forward on behalf of the Contractor, I find that the nature and extent of the defects are such that it is more likely than not that the reasonable and necessary method of rectification is that the works must be re-performed. I find that the Contractor's breach of duty caused harm or loss to Mr Moss, being the cost to re-perform the painting work, which was not too remote.

[38] As the Contractor has not participated in these proceedings there is no defence and no claim by him to apportion liability to others. There is no evidence before me upon which I could make any finding that liability should be apportioned to others.

[39] The Tribunal has previously found that:[38]

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

[40] Mr Moss has not provided any quotes to have the work rectified although he was directed to do so.[39] Mr Moss is the applicant and is required to establish his entitlement to orders on the balance of probabilities. The evidence is that Mr Moss paid $4,250. In view of my earlier finding that the amount paid must be repaid, I do not propose to award nominal damages.

[41] I find that there is insufficient evidence to assess damages in negligence in any particular amount.

[42] I find that the Contractor is to pay Mr Moss $398.70 for costs.

[43] The Tribunal has a broad general discretion to award costs in building disputes.[40] Mr Moss seeks $1,179.50 including the filing fee paid in the sum of $379.50. Mr Moss claims various amounts for his time, including in respect of his dealings with the QBCC prior to commencement of the Application.

[44] The Appeal Tribunal has previously found, and I agree, that 'a litigant in person can recover various costs, generally out of pocket expenses, but not compensation for the litigant's own time.'[41] He claims $19.20 for printing on the day he initially sought to file the Application and another unspecified amount on another day. No receipts are in evidence.

[45] I accept that the filing fee cost and the printing cost of $19.20 were reasonable and necessary to enable Mr Moss to pursue his successful claims. I fix costs in the amount of $398.70 being $379.50 for the filing fee and $19.20 for printing.

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

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

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

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

[48] I accept that this application and the on the papers hearing potentially impacts the parties' rights to a fair hearing and I considered them in conducting the hearing. Both parties were directed to file documents upon which they relied. In coming to my decision, I considered the documents filed.[46]

[49] I accept that these proceedings and my decision potentially impacts other rights, in particular property rights[47] and the right to privacy and reputation.[48] I have considered the parties' human rights and am satisfied that the decision is compatible with their human rights as any limitations on those rights are reasonable and justifiable.[49] Any limitation of the parties' human rights is consistent with the objects of the QBCC Act[50] and the objects of the QCAT Act.[51]

[5] Directions 27 August 2025, 13 October 2025.

[6] Directions made 13 October 2025, 4 December 2025.

[7] Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act') s 48.

[9] Directions 13 October 2025, 4 December 2025.

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

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

[21] QBCC Complaint form page 4 of 7 attached to Application.

[22] Receipt styled JM Roof Restorations attached to Application.

[24] Receipt dated 28 April 2023 attached to Application.

[25] Dated 7 February 2024 attached to Application.

[26] Suspended 27 February 2023 to 26 June 2023.

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

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

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

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

[35] CLA s 9.

[36] Ibid s 11.

[37] [2024] QCAT 476, [41].

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

[39] Directions made 13 October 2025, Direction 4 j iii or iv.

[41] Drane v Taylor (No 2) [2022] QCATA 157, [13]