Shi v Solar Power Nation Pty Ltd t/as Solar Power Nation [2025] QCAT 377

• [4] The Tribunal has jurisdiction to decide building disputes.[1] A building dispute may be a domestic building dispute or a commercial building dispute.[2]
• [5] A domestic building dispute is defined as:

(a) 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; or

(b) a claim or dispute arising between 2 or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work; or

(c) a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries; or

(d) a claim or dispute arising between a building owner or a building contractor and any 1 or more of the following relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work -

(i) an architect;

(ii) an engineer;

(iii) a surveyor;

(iv) a quantity surveyor;

(v) an electrician or an electrical contractor;

(vi) a supplier or manufacturer of materials used in the tribunal work.[3]

• [6] A commercial building dispute is defined in similar terms to a domestic building dispute other than using the phrase 'reviewable commercial work' in place of 'reviewable domestic work'.
• [7] 'Reviewable domestic work' means 'domestic building work' as defined in s 4 of sch 1B of the QBCC Act and includes: the erection or construction of a detached dwelling; the renovation, alteration, extension, improvement or repair of a home; removal or resiting work for a detached dwelling; the installation of a kit home at a building site.
• [8] 'Reviewable commercial work' means 'tribunal work', other than reviewable domestic work, as defined in s 75 and s 76 of the QBCC Act.
• [9] A 'building contractor':

(a) generally, means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor; but

(b) for sch 1B, see sch 1B, section 1.[4]

(a) generally, means a person for whom tribunal work is to be, is being, or has been carried out, but does not include a building contractor for whom tribunal work is carried out by a subcontractor; but

(b) for sch 1B, see sch 1B, section 1.[5]

(a) the erection or construction of a building; or

(b) the renovation, alteration, extension, improvement or repair of a building; or

(c) the provision of lighting, heating, ventilation, air conditioning, water supply, sewerage or drainage in connection with a building; or

(e) any site work (including the construction of retaining structures) related to work of a kind referred to above; or

(f) the preparation of plans or specifications for the performance of building work; or

(fa) contract administration carried out by a person in relation to the construction of a building designed by the person; or

(g) fire protection work; or

(ga) mechanical services work; or

(h) carrying out site testing and classification in preparation for the erection or construction of a building on the site; or

(i) carrying out a completed building inspection; or

(j) the inspection or investigation of a building, and the provision of advice or a report, for the following -

(i) termite management systems for the building;

(ii) termite infestation in the building;

but does not include work of a kind excluded by regulation from the ambit of this definition.

• [12] Whether Mr Shi is a building owner turns on whether the work undertaken by Solar Power Nation is tribunal work. I will address this issue later in the reasons.
• [13] In the originating application, Mr Shi says that Solar Power Nation is a building contractor. A search of publicly available records held by the Queensland Building and Construction Commission, the building industry regulator, indicates that Solar Power Nation is not the holder of a licence to undertake building work.
• [14] An individual is required to be licensed by the QBCC if they perform building work. I have referred to the definition of building work which does not include work of a kind excluded by regulation. Work that is not building work is found in the Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 1. Section 51 of schedule 1 provides:
  1. Installation of photovoltaic solar panels

(1) Installation, repair or maintenance of a photovoltaic solar panel if the work is carried out by a person who is the holder of an unrestricted electrical contractor licence.

(2) However, this exclusion applies only for the purpose of section 42 of the Act.

• [15] The effect of s 51 of schedule 1 of the Regulation is this: a person who carries out the installation of photovoltaic solar panels is not required to hold a QBCC licence, however the installation of photovoltaic solar panels is otherwise building work for the purposes of the meaning of that term in schedule 2 of the QBCC Act.
• [16] The corollary of the foregoing is this: a person who carries on a business that includes the installation of photovoltaic solar panels is a 'building contractor' within the meaning of that term in schedule 2 of the QBCC Act notwithstanding the person may not hold a QBCC issued licence to undertake building work.
• [17] It is not contentious that Mr Shi and Solar Power Nation entered into an agreement for the supply and installation of a solar energy system which included photovoltaic panels and an inverter. The installation of a solar energy system, including the installation of solar panels to the roof of Mr Shi's residence, involved the improvement of Mr Shi's home and was therefore domestic building work. 'Building work' as defined includes the renovation, alteration, extension improvement or repair of a building. As the installation of solar panels involves the improvement of a home, the business carried on by Solar Power Nation included building work with the result that Solar Power Nation is a building contractor.
• [18] 'Tribunal work' as defined in s 75 of the QBCC Act includes domestic building work.[6] It is also relevant to note that a person carries out tribunal work whether the person carries it out personally, or directly or indirectly causes it to be carried out.[7] The evidence suggests that Solar Power Nation may have engaged sub-contractors to undertake the installation of the solar panels and subsequent rectification work. Regardless, Solar Power Nation carried out tribunal work.
• [19] It follows from the foregoing that:

(a) The work undertaken by Solar Power Nation was domestic building work and therefore tribunal work;

(b) Mr Shi is a building owner for whom tribunal work was undertaken;

(c) Solar Power Nation is a building contractor.

• [20] The dispute between the parties is therefore a dispute between a building owner and a building contractor relating to the performance of domestic building work. The dispute between the parties is a domestic building dispute. The dispute is therefore about tribunal work.
• [21] I find that the requirements of s 77(2) of the QBCC Act have been satisfied.
• [22] The Tribunal has jurisdiction to decide the proceeding.

Did the parties enter into a contract having legal effect?

• [23] Where, as here, the contract price is more than $3,300 and less than $20,000 a contract for the performance of domestic building work must be in writing, dated and signed by the parties.[8] A contract only has effect if it meets these requirements.[9]
• [24] The parties have filed statements of evidence. Neither party addresses the issue of the application of schedule 1B of the QBCC Act. In evidence are the following documents:

(a) Solar Power Nation quotation for the installation of a solar energy system which is undated;

(b) Solar PV Sale and Installation Agreement which is unsigned and undated.

• [25] The documents do not, on their face, satisfy the requirements of schedule 1B of the QBCC Act. Nor is there any evidence from the parties which might be relevant to the application of the provisions of the Electronic Transactions (Queensland) Act 2001 (Qld).
• [26] I conclude on the evidence before the Tribunal that the parties did not enter into a contract satisfying the requirements of schedule 1B of the QBCC Act. There being no contract having legal effect, Mr Shi is unable to exercise any contractual rights and entitlements.

Is there an alternative basis for Mr Shi's claim against Solar Power Nation?

• [27] In Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam[10] I considered the issue of the liability of a building contractor to a building owner in the context of a claim about defective building where the parties were in a direct relationship.[11] I said the following:

While the High Court has, since Bryan v Maloney[12], 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.

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.[13] This is what the High Court was referring to in Bryan v Maloney and the 'special categories of case'. Where however a novel set of circumstances arises, it is necessary for an applicant to prove that the respondent owed a duty of care. In Caltex Refineries (Qld) Pty Ltd v Stavar it was stated:

This rejection of any particular formula or methodology or test the

application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.[14] (emphasis added)

The salient features approach to determining, in novel cases, whether a duty of care is owed by a potential tortfeasor was referred to by the High Court in the recent decision of Mallonland Pty Ltd v Advanta Seeds Pty Ltd [15]:

In Sullivan v Moody, the Court observed that "[d]ifferent classes of case give rise to different problems in determining the existence and nature or scope, of a duty of care ... The relevant problem will then become the focus of attention in a judicial evaluation of the factors which tend for or against a conclusion, to be arrived at as a matter of principle." Since Sullivan v Moody, other than in cases involving an assumption of responsibility, determining whether the relationship between the parties gives rise to a duty of care to avoid causing pure economic loss has been understood in Australia to involve such an evaluation. This "salient features" approach, as it is now known, has attracted significant academic and judicial criticism. (footnotes omitted)

The 'salient features' approach referred to in Mallonland involves a consideration of a range of matters in determining whether a duty of care arises. One of those matters is vulnerability to harm. Where however the relationship between the relevant parties is one involving an assumption of responsibility, the salient features approach to determining the existence of a duty of care does not arise for consideration.

In domestic building cases involving the original parties to the building work, as recognised in Bryan v Maloney, there is an assumption of responsibility on the part of the building contractor. Accordingly, consideration of the vulnerability of the building owner in determining the existence of a duty of care is not required. This was recognised by Edelmann J [sic] in Mallonland albeit in the context of a subsequent purchaser:

It suffices to say that if there were truly an assumption of responsibility in Bryan v Maloney, then any reference to "vulnerability" would be superfluous and confusing at best.

Edelemann [sic] J's comment has direct application in circumstances where the building contractor and the building owner are in a direct relationship.

• [28] I remain of the view I expressed in Chau's & Sons.
• [29] There is no dispute on the evidence that Solar Power Nation conducted itself in a way consistent with being a building contractor having expertise in the supply and installation of solar energy systems, including the installation of solar panels. I am satisfied on the evidence that the relationship between Mr Shi and Solar Power Nation was characterised by an assumption of responsibility by Solar Power Nation and known reliance by Mr Shi and falls within one of the special categories of cases in which a duty of care is owed.
• [30] Solar Power Nation owed to Mr Shi a duty to undertake the works in an appropriate and skilful way with reasonable care and skill and free from defects.

Did Solar Power Nation breach the duty of care owed to Mr Shi?

• [31] The parties have filed statements of evidence.
• [32] Mr Shi says that the solar panels were installed by Solar Power Nation on 8 February 2022. On 27 February 2022 Mr Shi says that the roof leaked severely and Solar Power Nation was notified. He says that on 24 March 2022 Solar Power Nation attended at the property to address the issue however one day later the roof was still leaking. On 28 March 2022 Mr Shi says that Solar Power Nation advised that the ongoing leaks were unrelated to the installation of the solar panels and it would not provide any further assistance.
• [33] Mr Shi complained to the QBCC about the installation of the solar panels. The QBCC commissioned a report from Darryl Beyer of Newsky Constructions Pty Ltd. Mr Beyer inspected the installation works and prepared a report dated 21 September 2022 which is relied upon by Mr Shi. The report is in evidence. Mr Beyer says the following:

(a) A visual inspection of the upper level of the house noted moisture ingress and discolouration to plasterboard and paint finishes in multiple areas;

(b) The moisture ingress starts at an exposed rafter to the raked ceiling of the upper living area then tracks down to the hallway ceiling into the walk in robe and finishes in the ensuite;

(c) All the plasterboard damage and discolouration is in the line of the exposed rafter over these areas;

(d) Discolouration markings were present to the kitchen ceiling and damage to an overhead cupboard was noted;

(e) It was not possible to confirm whether the damage to the kitchen was related to moisture ingress from the ensuite above;

(f) A roof inspection was undertaken;

(g) The roof appeared to have undergone a recent restoration and paint overspray was observed on some of the solar panels;

(h) Solar panel mounting brackets were observed in close proximity to the exposed rafter where the areas of moisture ingress have occurred;

(i) It was not possible to inspect the solar panel mounting brackets due to the number of panels at the exposed rafter location;

(j) A water test was conducted using a hand held hose to the solar panel mounting brackets in the area of the exposed rafter. Within a short time, moisture was evident within the ceiling space, tracking through the sarking and in and around one of the solar panel mounting brackets. Moisture was also evident tracking from the top of the ensuite window reveal and down the ensuite wall from the cornice line;

(k) Mr Beyer was unable to determine if there were any cracked and/or damaged roof tiles as a result of the installation of the solar panel mounting brackets;

(l) The installation of the solar panel mounting bracketry and the reinstallation of the surrounding roof tiles is allowing the ingress of moisture.

• [34] The evidence of Solar Power Nation is that Mr Shi suspected that a number of roof tiles had been broken at the time the solar panels were installed. Solar Power Nation says that an installer visited the property, undertook an inspection of the roof, repaired tiles with minor gaping and left the property with no further tile gaping or broken tiles evident. Subsequently, Solar Power Nation says, when it rained Mr Shi would contact it and report water ingress however this was not the result of any work undertaken, or not undertaken, by Solar Power Nation. Solar Power Nation says that Mr Shi complained about internal damage to the property and requested that this damage be repaired after the roof was fixed. Solar Power Nation says an installer attempted on a number of occasions to visit the property however Mr Shi did not permit an inspection to enable any identified issues to be addressed.
• [35] Solar Power Nation also relies upon the report of Mr Beyer as evidence that the installation of the solar panels was not causative of the water ingress through the roof.
• [36] There is an obvious dissonance between the evidence of Mr Shi and the evidence of Solar Power Nation regarding the complaints made by Mr Shi about water ingress and Mr Shi's willingness to have Solar Power Nation investigate the cause of the water ingress.
• [37] As this matter falls to be determined on the papers it is not possible to undertake an assessment of the demeanour of witnesses nor any opportunity for the evidence of the witnesses to be challenged under cross examination. Despite this, there are various documents in evidence that assist in determining the probable events that transpired after the installation of the solar panels.
• [38] On 27 February 2022 Mr Shi emailed Solar Power Nation and reported that the roof was leaking heavily at the site of the ensuite window frame and door frame. Mr Shi subsequently provided photographs of the water ingress. On 7 March 2022 Solar Power Nation emailed Mr Shi advising that the issue had been referred to a roofer and that once a date and time for an inspection had been confirmed, Mr Shi would be advised. On 15 March 2022 Mr Shi sent an email to Solar Power Nation querying when the issues would be investigated and addressed. On 17 March 2022 Mr Shi emailed Solar Power Nation requesting urgent assistance in addressing the water ingress through the roof. On 25 March 2022 Mr Shi emailed Solar Power Nation and advised that a tradesperson had inspected the roof and that misplaced or unaligned tiles were observed and that steps had been taken to realign the tiles. Later, on 25 March 2022, Mr Shi emailed Solar Power Nation and reported that the roof continued to leak following heavy rain. On 28 March 2022 Solar Power Nation emailed Mr Shi advising that it did not intend sending installers to inspect the roof every time it rained to address issues unrelated to the installation of the solar panels. On 31 March 2022 Mr Shi again emailed Solar Power Nation and requested that they arrange a further inspection of the roof. On 6 April 2022 Mr Shi emailed Solar Power Nation and advised that he had engaged a roofer to inspect the roof and advising that the roofer had identified a number of issues relating to the installation of roof clips and brackets and screws not affixed to rails/beams. Mr Shi reported that the roofer recommended Solar Power Nation undertake a full inspection of the installation of the solar panels. On 11 April 2022 Mr Shi spoke with a representative of Solar Power Nation regarding the ongoing water ingress issues. Mr Shi subsequently sent to Solar Power Nation further photographs of water ingress. On 19 April 2022 Solar Power Nation emailed Mr Shi advising that the photographs had been referred to their installer to (presumably thereafter) inspect the issue again. On 2 February 2023 Mr Shi emailed Solar Power Nation advising that a person had attended at the property without prior notice requesting to inspect the roof. Mr Shi advised that his wife was home alone, did not speak English, and that the person was not permitted to inspect the roof. Mr Shi requested Solar Power Nation make arrangements for any further inspection in writing.
• [39] The evidence does not suggest that Mr Shi refused on a number of occasions to permit Solar Power Nation to inspect the roof. Quite to the contrary, the evidence reveals only one such occasion and the refusal on that occasion does not appear to have been unreasonable. The evidence suggests that Mr Shi's ongoing complaints about water ingress were not treated by Solar Power Nation with the seriousness and urgency appropriate to the issues.
• [40] Where the evidence of Mr Shi and Solar Power Nation diverges or is in conflict relating to the chronology of events relevant to the installation of the solar panels and the subsequent problems as reported by Mr Shi, I prefer the evidence of Mr Shi which is supported by documentary evidence in the form of the various emails to which I have referred.
• [41] I accept the evidence of Mr Beyer, an independent qualified building contractor engaged by the QBCC to investigate Mr Shi's complaints and make findings in accordance with the matters referred to at paragraph [33] (a), (b), (c), (d), (h), (j) and (l) of these reasons. I accept the evidence of Mr Beyer that the installation of the solar panel mounting bracketry and the reinstallation of the surrounding roof tiles by Solar Power Nation allowed the ingress of moisture to Mr Shi's residence.
• [42] In order to determine whether Solar Power Nation breached the duty of care it owed to Mr Shi it is necessary to consider the relevant provisions of the Civil Liability Act 2003 (Qld) ('CLA').
• [43] A person does not breach a duty to take precautions against a risk of harm unless: the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); the risk was not insignificant; and in the circumstances, a reasonable person in the position of the person would have taken the precautions.[16] The Tribunal must consider the following (among other relevant things): the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; the social utility of the activity that creates the risk of harm.[17]
• [44] In this case the risk was that Mr Shi would suffer loss and damage if Solar Power Nation did not undertake the installation of the solar panels in an appropriate and skilful way and with reasonable care and skill, free from defects. The risk was not an insignificant one.
• [45] If Solar Power Nation failed to exercise care in installing the solar panels, Mr Shi would suffer loss in being required to have any resulting defects rectified at his cost. Mr Shi was likely to incur expense in addressing the consequences of Solar Power Nation's failure to exercise reasonable care and skill in installing the solar panels. There was no additional burden imposed upon Solar Power Nation to take precautions to avoid the risk of harm to Mr Shi. Solar Power Nation, as a competent and experienced building contractor, was required to undertake the installation of the solar panels appropriately and without defects.
• [46] But for the breach of duty by Solar Power Nation, the defects resulting from the installation of the solar panels would not have been apparent and Mr Shi would not have suffered loss in being required to expend monies in rectifying the defects.[18] The defects were the direct result of the way in which Solar Power Nation undertook the installation of the solar panels.[19]
• [47] I am therefore satisfied that Solar Power Nation breached the duty of care it owed to Mr Shi in undertaking the installation of the solar panels.

• [48] I turn now to the assessment of Mr Shi's damages.
• [49] Mr Shi is entitled to recover the cost of reasonable and necessary rectification work required to remedy the defective work undertaken by Solar Power Nation. Mr Shi has presented evidence in the form of quotes from licensed building contractors about the following:

(a) Kitchen cabinet replacement due to water damage - $3,000;

(b) Repairs to plasterwork in kitchen due to water intrusion - $5,100 plus GST;

(c) Internal painting to repair and repaint water damage - $4,800 plus GST.

• [50] The above amounts total $13,890.
• [51] I have taken into consideration the fact that there are no individual statements of evidence by the persons providing the quotes. As this matter is being determined on the papers, I do not consider this factor to adversely affect the weight that may be afforded to the evidence.
• [52] I have considered carefully whether the amounts claimed by Mr Shi as contained in the quotes reflect reasonable and necessary rectification work. I note that Mr Beyer was unable to confirm whether the damage to the kitchen was related to moisture ingress from the ensuite above. It seems to me highly likely that it was. I reach this conclusion based on the following: as Mr Beyer noted in his report, the kitchen is below the ensuite and it seems entirely conceivable that water tracking down would penetrate to the kitchen; Mr Shi complained about water penetration to the lower level of the house underneath the ensuite and provided photographic evidence of same to Solar Power Nation; Mr Shi specifically complained to Solar Power Nation about water penetration to the kitchen. I infer from the available evidence and my findings of fact, that the damage to the cupboard and the plaster in the kitchen is a direct consequence of the water ingress resulting from Solar Power Nation's defective building work.
• [53] I conclude that the rectification work identified in the various quotes relied upon Mr Shi is both necessary and reasonable and the direct consequence of the defective building work undertaken by Solar Power Nation. I allow the amount claimed of $13,890 in full.
• [54] Mr Shi claims an amount of $20,000 which presumably includes the amount above and a further award for compensation for stress as a result of the water ingress issues. No award of damages for stress is made for two reasons: first, a claim for stress is in the nature of a personal injuries claim and the Tribunal has no jurisdiction to make such an award; second, damages for disappointment are confined to claims for breach of a contract for enjoyment or relaxation (such as a holiday). Here, there is no enforceable contract and even if there was, it was not a contract for enjoyment or relaxation.

• [55] There will be a final decision for Mr Shi for $13,890. As this is a building dispute, the Tribunal may award costs. Mr Shi has been entirely successful in the claim. He should have his costs. Costs are fixed in the sum of $367 being the filing fee on the originating application.
• [56] I make orders accordingly.

[10] [2024] QCAT 476.

[11] As opposed to, for example, the subsequent purchaser of a property.

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

[15] [2024] HCA 25.