Nagra v Mowen [2025] QCAT 336

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

Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75

• [1] On 17 April 2023 Ms Nagra ('the applicant') obtained a quotation from Conor Mowen ('the first respondent') trading as Optimal Landscaping Solutions for landscaping work to be performed at her property at Narangba.
• [2] The work involved building a steel post and sleeper retaining wall and a separate concrete block retaining wall, the laying of turf and the removal of certain structures in the yard.
• [3] The quoted cost of the work was $28,500.
• [4] The applicant paid a deposit of $8,000 on 19 April 2023 then further amounts of $6,250 on 22 April 2023 and $7,125 on 24 April 2023, in total $21,375.
• [5] The first respondent started work on the retaining walls with his brother, the second respondent, on 21 April 2023.
• [6] The applicant became concerned with the quality of the work being done including the depth of the galvanised posts and use of chipped, broken and cracked retaining wall blocks of inconsistent size and the wrong colour.
• [7] The first respondent was asked to adhere to the quoted work. In response the first respondent demanded payment of the balance of $7,125 not due until completion of the work. That money was not paid and the two respondents started removing retaining wall blocks and turf until police were called.
• [8] The respondents left the site and have not returned.
• [9] The applicant filed a domestic building dispute application against both respondents claiming $25,000 damages.

• [10] Neither respondent has engaged in the proceedings. Neither respondent filed a response to the claim served on them, took the opportunity to file material or attend the hearing.
• [11] The applicant served a copy of the application for building dispute on each respondent by sending a copy by post to each respondent's last known business address as permitted by r 39(2)(b)(i) of the Queens__land Civil and Administrative Tribunal Rules 2009 (Qld) ('the Rules') and item 13(a) of Practice Direction 8 of 2009.
• [12] Notice of Hearing was given to both respondents by the registry forwarding the Notice to the business email address of the first respondent.
• [13] Whilst by r 36(3) of the Rules the respondents' contact details set out in the Application for Domestic Building Dispute is taken to be the respondents' statement of address for service, and service at the postal address stated in that part of the Application for Building Dispute could have been utilised by the registry, it was not.
• [14] Instead Notice of Hearing was forwarded to the first respondent's last known email business address. The applicant had previously forwarded the Application for Domestic Building Dispute to that email address as well as forwarding the Application by way of service to the postal address of the business.
• [15] The quotation for building work on Optimal Landscaping Solutions letterhead contained the same business email address.
• [16] A screen shot of the website for the business, a copy of which is attached to the Application for Domestic Building Dispute shows the same email address. The names of both respondents appear on the website immediately above the email address.
• [17] I have made enquiries with the Registry and been informed there was no 'bounce back' from the email sent by Registry to the respondents at the business address concerned.
• [18] As such I am satisfied that the Notice of Hearing came into both respondents' possession on the date of the registry email of 4 July 2025 and such constitutes informal service of the Notice of Hearing pursuant to r 41 of the Rules.
• [19] The hearing proceeded in the absence of the respondents as permitted by s 93 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

• [20] I determine there is no claim available to the applicant against the second respondent on the evidence led. The first respondent is recorded as a sole trader trading as Optimal Landscaping Solutions. The quotation for the work was on letterhead of Optimal Landscaping Solutions, which is the first respondent's business.
• [21] The second respondent is the brother of the first respondent. The second respondent is a licensed contractor and whilst his licence number is noted on receipts for payments made by the applicant, and his name together with a mobile telephone number appears on the Optimal Landscaping Solutions webpage, I am not persuaded the second respondent was a party to the agreement for landscaping work to be performed by Optimal Landscaping Solutions.

Section 42 QBCC Act

• [22] At no material time was the first respondent a licensed contractor entitled to carry out or undertake to carry out building work. Section 42 of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act') provides in such circumstances:
  1. Unlawful carrying out of building work

(1) Unless exempt under schedule 1A, 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 this Act.

(3) Subject to subsection (4), a person who carries out building work in contravention of this section is not entitled to any monetary or other consideration for doing so.

(4) A person is not stopped under subsection (3) from claiming reasonable remuneration for carrying out building work, but only if the amount claimed -

(a) is not more than the amount paid by the person in supplying materials and labour for carrying out the building work; and

(b) does not include allowance for any of the following -

(i) the supply of the person's own labour;

(ii) the making of a profit by the person for carrying out the building work ....

• [23] Indeed the first respondent was sanctioned with a penalty infringement notice by Queensland Building and Construction Commission for that in the matter at hand.
• [24] By s 42(4) the first respondent may have been entitled to claim remuneration for the supply of materials and labour for work done but there has been no application by him in that regard and much of the work done was destroyed by the respondents before leaving site.
• [25] The applicant paid the first respondent $21,375. Pursuant to s 42 of the QBCC Act, the applicant is entitled to recover all the money paid.[1]

• [26] There is no contract in writing between the parties. It is a requirement imposed by the QBCC Act Schedule 1B s 14 that:
  1. Requirements for contract - level 2 regulated contract

(1) This section applies to a level 2 regulated contract.[2]

(2) The contract must be in writing and dated and signed by or on behalf of each of the parties to it.

(10) The contract has effect only if it complies with subsection (2).

• [27] There is no contract in writing between the parties and therefore none of the warranties implied into regulated contracts by Schedule 1B are available to the applicant.
• [28] The applicant complains about the quality of the work done. A claim in negligence falls for consideration.
• [29] In Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 there was no contract in writing in breach of the requirements of Schedule 1B s 14(2) and therefore no regulated contract. The Tribunal found the owner could in any case maintain an action in negligence against the contractor:

[39] The Court in Bryan v Maloney recognised that, in the context of domestic building work, the duty of care owed by a building contractor to the owner was concurrent in contract and tort:

Mr Bryan and Mrs Manion were the parties to a contract in relation to the building of the house. Whatever may have been the position in earlier times, the existence of such a contractual relationship between builder and client did not preclude the existence either of a relationship of proximity between them in relation to that work or of a consequent duty of care under the ordinary law of negligence.26

[40] While the High Court has, since Bryan v Maloney,27 made clear that proximity is no longer the guiding principle in determining the existence of a duty of care, the aspect of the judgement dealing with the relationship between a building contractor and a building owner for whom domestic building work has been undertaken has not been overruled.

[41] If the particular circumstances of a case fall into one of the established categories of duty of care it is unnecessary for an applicant to prove that the respondent owed a duty.28 This is what the High Court was referring to in Bryan v Maloney and the 'special categories of case'.

26 Bryan (n 9) [14].

27 Bryan (n 9).

28 Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649.

• [30] The applicant engaged a licensed landscaper to report on the work performed by the first respondent. Mr Williams, the landscaper concerned, described the work as defective and unsafe. Mr Williams provided photographs of the two retaining walls left unfinished at the property and summarised that, with respect to the concrete sleeper wall: the posts had varying heights; universal columns leaned away from materials to be retained; the posts were not installed plumb nor installed at correct centres which meant the sleepers were not locked in place; one sleeper bay was very unsafe with only 3-5mm of sleeper holding at each end; the bottom sleeper was incorrectly installed resulting in water being able to pass under the sleeper wall.
• [31] Mr Williams recommended the unsafe sleeper bay be demolished immediately for safety reasons.
• [32] With respect to the link block retaining wall: the footing had not been compacted properly and incorrect material used; footing levels were incorrect with the first course of blocks absent any consistent level or correct placement; different sized blocks had been used and corner blocks had been used at the front face of the retaining wall.
• [33] The photographs in the report confirm Mr Williams' observations. Mr Williams concluded that the walls were so poorly constructed they should be removed.
• [34] I accept the findings made by Mr Williams in his report. There is nothing in the evidence before me to contradict it in any way.
• [35] The first respondent owed the applicant a duty of care to use good material suitable for the agreed construction work and to exercise reasonable care and skill in performing the work. I determine the first respondent breached that duty and has caused the applicant economic loss in consequence. The measure of damages is the economic loss caused her by the applicant's negligent work.
• [36] There is a quotation from another landscaper, Duncan Alexander. That gentleman quotes the sum of $2,890 as the cost of clean up and dismantling the retaining walls and posts (referred to as beams). It includes supply of two 6 cubic metre waste bins, supply of an excavator to remove rubbish and remove beams and to trim and level the yard, as well as dismantling the sleepers and removing and disposing of the block wall.
• [37] There is no evidence led to challenge the reasonableness of that quotation and I accept it is a reasonable cost to put the applicant back into the position or near the position she would have been in had the first respondent's negligent work not intervened.
• [38] The first respondent must pay damages of $2,890 to the applicant.

• [39] The applicant is entitled to recover the money paid to the first respondent, $21,375 and damages for loss caused by the first respondent's negligence in the amount of $2,890. The total payable by the first respondent to the applicant is $24,265.
• [40] The applicant asks for costs limited to the filing fee for the application for domestic building dispute, $379.50, which is reasonable and allowed.

[1] Cook's Construction Pty Ltd v SFS 007.298.633 Pty Ltd [2009] QCA 75, [49] (Keane JA).

[2] A level 2 regulated contract is a domestic building contract for which the contract price is more than the regulated amount ($3,300).