Tindall v Sky Unicorn Pty Ltd [2026] QCAT 37

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

Cerda v Jacob [2020] QCATA 57

Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1

Mikita v Kontek Constructions Pty Ltd [2024] QCAT 315 Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476

Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; (2007) 233 CLR 115

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

Midson Construction (Qld) Pty Ltd v The Haggerty Group Pty Ltd [2021] QDC 280

McSwan v Weaver [2023] QCAT 148

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82

Vietheer v Holstein [2025] QCAT 397

[1] By an application for domestic building disputes filed on 11 April 2023 ('the Application'), the Applicants claim damages (both liquidated and unliquidated) from the Respondent as a result of building work performed by the Respondent at the Applicants' property in Brisbane in the State of Queensland ('the Property'). The agreed building work involved the construction of a granny flat, a carport, and other miscellaneous works including landscaping (collectively 'the Work') at the Property.

(a) liquidated damages in the amount of $43,350.00 calculated at $50.00 per day for 867 days;

(b) unliquidated damages in the amount of $92,280.50 for defective and incomplete work;

(c) interest; and

(d) costs.

[3] At the hearing, the parties were self-represented. Mr Andy Ng ('Mr Ng'), director of the Respondent, appeared on behalf of the Respondent

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

[5] Section 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, sch 2 of the QBCC Act provided, relevantly:

(a) that a 'building dispute' included a 'domestic building dispute';[1]

(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;[2]

(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.[3]

(a) the Work performed was 'associated work', being work associated with the renovation, alteration, extension, improvement or repair of a home,[4] including the construction of a building or fixture associated with the home,[5] and, consequently, was 'domestic building work';

(b) the Work was not 'excluded building work' (see sch 1B ss 1 (definition of 'excluded building work') and 4(8) of the QBCC Act);

(c) by reason of sub-paragraphs (a) and (b) above, the Work was 'reviewable domestic work';

(d) the Applicants were a 'building owner' being, relevantly, a person for whom domestic building work has been carried out;[6]

(e) the Respondent was a 'building contractor' being, relevantly, a person who then carried out domestic building work;[7]

(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 sub-paragraphs (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.[8]

[9] The Applicant made a complaint to the QBCC in relation to the work performed by the Respondent. By correspondence from the QBCC to the Applicants dated 23 February 2023, the QBCC advised, amongst other matters, that:

(a) the QBCC could not take any further action in the matter; it would not be issuing a direction to rectify and/or complete for any of the complaint items;

(b) the case had been finalised;

(c) 'If you wish to pursue the matter further, you may now apply to QCAT for assistance.';

(d) '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.'

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

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

[12] I now turn to the merits of the Applicants' claim.

[13] The Applicants bring their claim in contract. As will emerge, the contractual relationship for the performance of the Work is anything but straightforward.

What was the contractual relationship between the parties?

[14] On 11 May 2020, the parties executed a written agreement entitled 'Schedule for QBCC New Home Construction Contract' ('the Contract'). The Schedule referenced the accompanying consumer building guide and the 'General Conditions dated July 2018' ('the General Conditions').[9] I am satisfied that on the proper construction of the Contract, the General Conditions were incorporated into the Contract.

[15] The Contract identified that the Respondent held a licence, plainly a reference to a QBCC licence.[10]

[16] The Contract specified a 'Fixed Price Component' in the amount of $74,415.00 inclusive of GST which was also the specified 'Contract Price'. The brief description of the subject works was identified by the following notation: 'refer Quote email: 04/05/2020'.

[17] To understand what was agreed between the parties it is necessary to trace through the relevant facts leading up to the signing of the Contract. As I understand the Respondent's position, the underlying facts concerning the contractual arrangements are not in dispute.[11]

[18] I found the Applicants' material to be somewhat unclear, in that the Applicants did not include copies of email attachments immediately following the respective emails.[12]

[19] The Applicants' material included a 'Chronological Table' setting out a 'SERIES OF EVENTS'.[13] The Chronology included the following:[14]

(a) on 20 April 2020, the 'Applicant' (the Applicants) received the first (initial) quote from the Respondent who provided a quote to perform the Work at a cost of $152,650.00;

(b) on 27 April 2020, the Applicants had a further discussion with the Respondent who then amended the quote (the Applicants wanted to add a few items into the quote and emailed the Respondent to amend the quote);

(c) on 28 April 2020 the Applicants received the amended quote from the Respondent;

(d) on 4 May 2020, the amended quote was signed and emailed back to the Respondent but as the quote was missing the GST, the Applicants negotiated with the Respondent regarding the contract cost to be adjusted to reflect the inclusion of GST;

(e) on 11 May 2020, the amended quote, reflecting the inclusion of GST was received by email from the Respondent following the negotiation (the Respondent agreed to the amendment);

(f) the first entry for 11 May 2020 also included the statement that after negotiation, both the Respondent and the Applicants agreed to split the building price into 2 parts: the first part of the quote being $74,415 and the second part of the quote for $85,000. It was further stated that the Respondent promised the work to be completed would be the same as 'Quote-A' and that the Respondent also wrote into the building contract that it was subject to Quote-A;

(g) the second entry for 11 May 2020 stated: 'Agreed to the amended quotation and sign the contract.';

(h) the third entry for 11 May 2020 noted the Applicants received the deposit invoice and paid the Respondent (a total amount of $7,970.75 on 12 May 2020).

[20] It is unclear which quotation the Applicants refer to as 'Quote-A'.

[21] The Applicants have put into evidence a 'Quote' from the Respondent dated 20 April 2020 ('the Quote').[15] The Quote provided for a 'total construction price' (based on drawings and specifications provided to Mr Ng) of $152,650.00 plus GST. The Quote was signed by Ms Tindall, and was dated 28 April 2020. It is difficult to reconcile the content of the Quote with the events set out at paragraphs [19](c) to (e) above given that the Quote included GST and appears to have been signed on 28 April 2020.

[22] The Quote identified the address of the Property and contained the notation 'granny flat'. If an amount of GST is added to the quotation price, the GST inclusive price quoted was $167,915.00.

[23] Under the heading 'Footing and framing' for the scope of works in the Quote, various items were included and reference was made to 'as plan': demolition; supply and install concrete slab for new carport; supply and install steel post and beam; supply and install timber roofing framing and wall framing; supply and install gravel; supply and install roller door; supply and install walkway. The item 'supply and installation of concrete slab and footing' under the Footing and framing heading referenced 'for new house as plan 50 m²'.[16] Various other items were included under the following headings: wall cladding; roofing; eaves and soffits; internal wall; aluminium windows; entry door/internal door; thermal insulation; termite protection; landscape; tiling; internal floor; paint; ceiling; joinery; stormwater discharge; water; electricity; air-conditioning; and TV aerial. Various exclusions were also referred to.

[24] Mr Ng sent Ms Tindall, amongst others, the following emails:

(a) an email on 20 April 2020 which referred to an attached quote for 'new granny flat';[17]

(b) an email on 28 April 2020 which stated 'please find attached amend quote';[18]

[25] Ms Tindall sent herself an email on 4 May 2020 at 3:11pm. The copy of the email does not contain a message but does purport to identify that there was an attachment which is described as '2020-04-28 09-00.pdf.' I have been unable to identify that attachment in the material.

[26] Ms Tindall then forwarded this attachment '2020-04-28 09-00.pdf' to Mr Ng on 4 May 2020 at 3.14pm as one of three attachments. That email states 'Please the [sic] attachment below'. The two other attachments are described as 'Red-e-map Print 2 AKALA.pdf' and 'Red-e-map Print distance.pdf'. I have also been unable to identify those two attachments in the material.

[27] At the hearing, Ms Tindall gave the following evidence as to what occurred after receiving the original quote:[19]

So after that, because we tried to - um - ask Sky Unicorn to make the price - make it better, so we have kind of a negotiate and see what can we do. So Sky Unicorn send us back another quote, so if you can see the index 23, page 138, so we amend the quotation. That's the email.

[28] At page 138 of the Hearing Book, one of the emails is the email from Ms Tindall to Mr Ng described above at paragraph [23]. The other email on page 138 was sent by the Respondent to the Applicants on 11 May 2020 (at, seemingly, 12.26am) with the subject 'Re: amend contarct [sic]' containing two separate quotes as attachments.[20] The two attachments referred to in this email are described as 'Sky Unicorn Pty Ltd 2 akala place other work.pdf' and 'Sky Unicorn Pty Ltd 2akala place.pdf'.

[29] The first of the quotes ('the Contract Works Quote') was primarily concerned with the structural elements of the granny flat, including services such as stormwater, water and electricity. The construction price for the Contract Works Quote work was $67,650.00 plus GST. The GST inclusive price for the contract quote is $74,415.00. This amount tallies up precisely with contract price under the Contract.

[30] The second of the quotes which related to what Ms Tindall referred to as 'the variation works'[21] ('the Additional Works Quote') included the concrete slab for the new carport, gravel, roller door, landscaping together with what I would describe as the fit out of the granny flat (the items included tiling, internal floor, ceiling, joinery and air-conditioning). This Additional Works Quote provided for a contract price of $85,000.00 and included the notation 'not include GST'.

[31] The email from Mr Ng attaching the two quotes stated:

please find attached 2 work contract cheap one will put at application.

other one just for us review that 2 contract item same original one just make for 2

please check again detail if all good please signed [sic] and send back if any question can call me tmr.

[32] Whilst interpreting the meaning of the first two sentences is not an easy task, it appears that:

(a) Mr Ng referred to the quotes as a 'contract';

(b) Mr Ng's reference to the 'cheap one' is a reference to the Contract Works Quote;

(c) it was proposed that the Additional Works Quote was 'just for' the parties and, I infer, to be separate from the Contract Works Quote;

(d) the Contract Works Quote was to be the subject of the 'application'. The reference to 'application' is unclear, but I infer that it is a reference to the notification to the QBCC of the insurable value of the contract works for the purposes of the Queensland Home Warranty Scheme. The Applicants' expert witness, Mr Dixon, has extracted a notice of cover taken out by the Respondent which refers to an insurable value of $67,650.00 (with a premium paid of $488.40).[22] Mr Dixon also noted that there was no evidence of a Home Warranty Scheme insurance premium having been paid for the Additional Works Quote.[23]

[33] On the face of the evidence, the underlying agreement between the parties was that the Respondent would perform the work the subject of the Contract Works Quote and the Additional Works Quote. The Respondent would be paid the respective amounts of either $74,415.00 (inclusive of GST) plus $85,000.00 or $74,415.00 (inclusive of GST) plus $85,000.00 (plus GST of $8,500.00). However, the contract price specified in the Contract was $74,415.00 (inclusive of GST) which corresponds with the Contract Works Quote only. As noted below, there was no separate written signed contract in respect of the Additional Works Quote. Further, there is no evidence that the Additional Work Quote was dated or signed by the Applicants.

[34] This convoluted state of affairs raises the question of whether the works the subject of the Contract comprised the works the subject of the Contract Works Quote only or the entirety of the works the subject of both Contract Works Quote and the Additional Works Quote.

[35] If it is the former, then an issue arises as to whether any separate agreement to carry out the works the subject of the Additional Works Quote would be enforceable.

[36] Ms Tindall gave the following evidence (in response to questions by me) following the evidence extracted at [27] above:[24]

Yes?‑‑‑So Sky Unicorn split the quote to two quotation, so you can check the index 13 and 14 from page 35 to 41.

All right. So pages 35 to 41, two quotes. All right. Thank you. Yes?‑‑‑Yes. So he split two quote, so one is just, like, match the contract, and the other one we call it variation works.

Where do we see that, the ‑ ‑ ‑?‑‑‑We don't have a contract for the variation works, so we only have the contract to match this quote.

Sorry, which are the two quotes - does the contract match the one at 35, page ‑ ‑ ‑?‑‑‑So it would be the first one, the 67,650 plus GST.

Yes?‑‑‑That's the one should match the contract.

I see. Thank you. I understand that. So pausing there so I understand, so that's the quote referred to in the schedule, if I call it that?‑‑‑Yes.

Okay. So it didn't include things like the carport ‑ ‑ ‑?‑‑‑No.

[37] I consider that the final answer, 'Yes', is, in context, a positive response to the negative proposition that the quote referred to in the schedule did not include things like landscaping.

[38] Ms Tindall then gave evidence, in summary, that the Respondent prepared the contract which was handed to the Applicants by Mr Ng, and the contract was signed by both Applicants.[25]

[39] Ms Tindall then gave the following evidence (in response to questions by me):[26]

Thanks. And what was - was there any correspondence about the additional work that's not referred to in the schedule, or was there a conversation about that, or both?‑‑‑Ah - we don't have a conversation - ah - or any email, because - um - we only base on the quote and then Sky Unicorn's just like you see in the contract, so it say refer to the quote received on the 4th of May, that one.

Yes?‑‑‑So we do believe he will file the quote back, just split the - um - quote and sign the contract. Does that make sense?

Well, whether it makes sense or not ‑ ‑ ‑?‑‑‑'Cause I ‑ ‑ ‑

So at least as far as you were concerned, the reference to the quote email was a reference to the two quotes, not the one quote. Is that your evidence?‑‑‑The - the email reference should be one quote ‑ ‑ ‑

All right. So at the time that you and Mr Tindall signed the scheduled contract ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ if I call it that, what, if anything, had been agreed in relation to the works, the subject of the other quote for the 85,000, not including GST?‑‑‑I think it's only relied on the trust, 'cause - ah - um - we thought we had a contract so it should be, like, a safety guard, something, but - yeah - ah - so we just - we sign a contract with trust, yeah, like, we trust him, and then we sign a contract, yeah.

So when you're referring to the trust, is that trust to do the work ‑ ‑ ‑?‑‑‑To do the work.

‑ ‑ ‑ the subject of the other ‑ ‑ ‑?‑‑‑Yes, as well

[40] I consider that Ms Tindall's evidence is broadly consistent with the content of Mr Ng's email (as I have interpreted it) set out at paragraph [32] above.

[41] On the evidence as a whole and notwithstanding the reference in Item 3 of the Schedule to 'refer Quote email: 04/05/2020', I find that:

(a) the scope of works the subject of the Contract was that contained in the Contract Works Quote to be performed for the contract price of $74,415.00 inclusive of GST;

(b) there was a separate (informal) agreement that the Respondent would perform the works the subject of the Additional Works Quote for a price of $85,000.00 'not including' GST ('the Separate Agreement'). Leaving aside the question of whether the inclusion of Mr Ng's name constitutes a signing of the quote on behalf of the Respondent, the Additional Works Quote was neither dated nor signed by either Applicant.

[42] It follows that I reject the Applicants' submission, in their written closing submissions,[27] that the Quote was incorporated into the Contract and it was the scope of works the subject of that quote that comprised the scope of works under the Contract.[28] It is plain that neither party intended that the combined works, the subject of the Contract Works Quote and the Additional Works Quote, would be performed for the stated contract price of $74,415.00. Rather, the parties agreed that the Respondent would be paid $74,415.00 for performing the works the subject of the Contract Works Quote. The Applicants' evidence is that: 'After negotiation, both [the Respondent] and us agreed to split the building price into two parts. The first part of the quote being $74,415. The second part of the quote for $85,000.'[29]

[43] The QBCC Act requires certain contractual formalities to be complied with. A 'level 2 regulated contract' within the meaning of the QBCC Act,[30] is a domestic building contract with a contract price of greater than $20,000.00.[31] As a result, s 14 of sch 1B of the QBCC Act ('s 14') required certain formalities to be satisfied, most relevantly, that the contract be in a written form, dated and signed by or on behalf of each of the parties to it.[32] A level 2 regulated contract has effect only if it complies with those formalities.[33]

(a) the Contract satisfied the formalities under s 14 and is enforceable;

(b) the Separate Agreement did not satisfy those formalities with the consequence the contract does not have effect.[34] This means that a contractual claim is not available to the Applicants against the Respondent in relation to the works the subject of the Separate Agreement.

[45] I now turn to the respective claims. I will commence with the liquidated damages claim. Given the above findings, I consider it appropriate to deal with the claim in respect of incomplete work separately from the claim concerning defective work.

[46] Given my findings in relation to the unenforceability of the Separate Agreement, I consider that the issue of liquidated damages turns upon the application of the liquidated damages clause in the Contract by reference to the works the subject the Contract (that is, the works identified in the Contract Works Quote).

[47] General Condition 24.1 of the General Conditions to the Contract provides that if the Contractor [here, the Respondent] fails to achieve Practical Completion of the Works by the Date for Practical Completion, then the Contractor must pay to the Owner [here, the Applicants] liquidated damages calculated at the rate provided in Schedule Item 10.

[48] Item 10 of the Schedule provided for liquidated damages of $50.00 per day for each calendar day of delay in achieving Practical Completion.

[49] General Condition 24.1 is engaged if the Respondent failed to achieve Practical Completion by the Date for Practical Completion.

[50] The Applicants claim liquidated damages from 1 October 2020. I accept that, subject to any extension of time under General Condition 23, this date was the Date for Practical Completion pursuant to Item 7 of the Schedule (it was earlier than 120 calendar days after the Starting Date of 1 June 2020).

[51] The Applicants claim the sum of $43,350.00 by way of liquidated damages calculated from 1 October 2020 until the purported date of termination of the Contract on 15 February 2023. I will proceed on the basis of the claimed number of days (867 days).

[52] There is no evidence that the Respondent sought, much less obtained, an extension of time to the Date for Practical Completion.

[53] Practical Completion is defined in the General Conditions to mean the date upon which the Works are completed in accordance with the requirements of the Contract (including Condition 3 and Condition 28) apart from minor omissions and minor defects. The Respondent has not contended that it achieved Practical Completion of the works the subject of the Contract. Having regard to the report of Mr Dixon, and confining the incomplete works to those which I consider plainly within the scope of the Contract,[35] I find that the Respondent did not achieve Practical Completion of the works the subject of the Contract.

[54] The Respondent challenges the claim for liquidated damages on the basis that the delay to achieving Practical Completion was attributable either to delays caused by the Applicants or by the delay resulting from the impact on the building industry caused by COVID-19. As I understood the Respondent's case, the alleged delays attributable to the conduct of the Applicants comprised: first, a failure to provide plumbing approval; second, the need to relocate an overhead power cable to accommodate the new carport; and third, minor delays in relation to some changes in design of the changed materials.

[55] In my view, none of the matters raised by the Respondent provides an answer to the claim for liquidated damages.

[56] With respect to the delays allegedly attributable to the Applicants' conduct, I consider that the contentions face a threshold hurdle. The Respondent's argument in this regard raises what I consider to be the 'prevention principle', which, in essence, precludes a party from insisting on performance of a contractual obligation if that party is the cause of the other party's non-performance.[36] However, the operation of the prevention principle can be modified or excluded by contract.[37] In the context of liquidated damages clauses for delay, this may be done by extension of time provisions (including, in my view, an extension of time provision in the terms of General Condition 23).[38] I consider that the Respondent's failure to seek an extension of time for the Date for Practical Completion (if it was in fact entitled to an extension) precludes it from relying upon the prevention principle to deny the Applicants an entitlement to liquidated damages.

[57] For completeness, I observe that the above principle may be held not to apply, in some circumstances, where the relevant contract contains an additional provision providing for an unfettered discretionary extension of time.[39] No such provision is contained in the Contract.

[58] With respect to the alleged delay resulting from the impact of COVID-19, I am of the view that any proven delay may have founded a claim for an extension of time pursuant to General Condition 23.1(a)(iv) which provided for a cause of delay namely 'another cause of delay which is not reasonably foreseeable and beyond the reasonable control of the Contractor'. The Respondent did not seek an extension of time arising out of any delay caused as a consequence of the impact of COVID-19 on the building industry in Australia. The Respondent has not established that the purported impact of COVID-19 provides any defence to the claim for liquidated damages.

[59] For completeness, I am not satisfied the Respondent has quantified the periods of alleged delay to achieving Practical Completion said to result from each respective cause. Some of the alleged delay amounts to mere assertion. The Respondent does not address issues such as whether other work could be progressed notwithstanding the alleged delay. For example, the Respondent asserts that there was an 11 month delay in relation to the relocation of the power cable.[40] The Respondent has not provided evidence to demonstrate that any such delay (which is disputed by the Applicants in any event)[41] resulted in any delay to the Date for Practical Completion, much less an 11 month delay. The Applicants submit that the relocation of the power supply took only a few months and that the Respondent continued work during the period power supply work was undertaken as evidenced by photographs and text messages at Hearing Book pp 360 to 367.

[60] For the above reasons, I consider that the Respondent was contractually bound to achieve Practical Completion by 1 October 2020 and that, having failed to seek an extension of time, the Respondent is liable to pay the liquidated damages as calculated by the Applicants in the sum of $43,350.00.

[61] I now turn to the claim for unliquidated damages in respect of the incomplete work.

[62] In this component of the claim, the Applicants seek to recover the increased cost of completing the Works.

[63] For the reasons addressed above, I consider that the Separate Agreement is unenforceable. It follows that the Applicants are not entitled to claim damages for breach of contract, including for any increased cost of work in respect of the work the subject of the Separate Agreement.

[64] With respect to the Contract, the initial question is whether the Applicants validly terminated the Contract as at 15 February 2023.

[65] The Applicants submit that they were entitled to, and did, terminate the Contract pursuant to General Condition 26 of the Contract and/or at common law on the basis of repudiation of the Contract by the Respondent.[42]

[66] General Condition 26.1 provided that a party may terminate the Contract by written notice given to the party in breach if, first, the other party is in substantial breach of the Contract; second, the first party gives a notice to the party in breach identifying and describing the breach and stating the intention of the party giving the notice to terminate the Contract if the breach is not remedied within 10 business days from the giving of the notice; and, third, the breach is not so remedied.

(a) they emailed a notice of intention to terminate the Contract on 27 January 2023 ('the notice email');[43]

(b) the Respondent did not respond within the '2 week time period' and the Applicants purported to terminate the Contract by email sent on 15 February 2023.[44]

[68] The Respondent acknowledges receipt of the (termination) email sent on 15 February 2023 but, in relation to the notice email, Mr Ng stated that he thinks the Applicants sent it to the wrong address at Meadowbrook which he says was the 'old one' and that the Respondent changed the company address two years ago and gave notice to ASIC and the QBCC.[45] Mr Ng has not acknowledged receipt of the notice email.

[69] I consider the threshold question to be whether the notice email amounted to valid notice for the purposes of General Condition 26.

Any notice under this Contract must, unless otherwise stated, be given in writing and sent to the party to whom the notice is to be given at the address stated in the Schedule, or such other address as is subsequently advised in writing, in one of the following ways:

(a) delivered to the other party by hand; or

(b) delivered by prepaid post; or

(c) sent by facsimile; or

(d) sent by email.

[71] That provision is couched in mandatory terms.

[72] I consider that, on the proper construction of General Condition 30.1, notice may be given at one (or more than one) of the following addresses:

(a) the address stated in the Schedule; or

(b) such other address as is subsequently advised in writing (being one of the four ways identified).

[73] The Schedule to the Contract provides for the details of the Respondent and includes an 'Address' in respect of which was included an address at Meadowbank in the State of Queensland. A business phone number and an email were also included in the Schedule but neither was described as an 'address'. In my view, the only address stated in the Schedule was the Meadowbank address.

[74] I am further of the view that in order to rely upon an alternative address (relevantly here, an email address) the Applicants would need to establish that the Respondent advised them, in writing, of the email address for the purpose of giving notices under the Contract. I have not been able to identify any such evidence.

[75] I find that the giving of the notice by email was not valid notification for the purposes of General Condition 30.1 because the notice was not given at the address stated in the Schedule, and the email address to which it was sent was not notified in writing by the Respondent as an address for the giving of a notice under the Contract.

[76] It follows from the above that the Applicants were not entitled to terminate the Contract pursuant to General Condition 26 in reliance on the notice email.

[77] General Condition 26.2 provides that the right to terminate under that condition 'is in addition to any other powers, rights or remedies the terminating party may have'.

[78] In my view, the contractual mechanism provided for by General Condition 26 is not the sole mechanism for termination. I consider that termination may be justified in the event of, in this case, being satisfied that the Respondent had repudiated the Contract.

The Contractor must diligently carry out the work under this Contract and must not, except as permitted by this Contract, suspend, or fail to maintain reasonable progress in the performance of that work.

[80] The Applicants paid for the 'frame'(enclosed) stage on 25 February 2022.[46]

[81] On 11 October 2022 the Applicants texted the Respondent to follow-up progress; the kitchen benchtop had arrived, however the continuation of the construction had not progressed any further.[47]

[82] The Applicants sent follow-up text messages on 11 October 2022, 25 October 2022, 7 November 2022, 18 November 2022, 30 November 2022, 7 December 2022, 9 December 2022, 13 December 2022 and 15 December 2022.[48]

[83] The kitchen sink had been installed by 15 December 2022 but the vanity had not been installed.[49]

[84] On 30 November 2022, Mr Ng texted that he was '... on shop Centre work...'.[50]

[85] The Applicants made follow-up telephone calls, without receiving a response, on 16 December 2022, 19 December 2022, 20 December 2022, 21 December 2022 and 3 January 2023.[51]

[86] In the High Court decision of Koompahtoo Aboriginal Land Council v Sanpine Pty Ltd,[52] it was said by the plurality:[53]

... The term repudiation is used in different senses. First, it may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which evinces an intention no longer to be bound by the contract or to fulfil it only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it. (In this case, we are not concerned with the issues that arise where the alleged repudiation takes the form of asserting an erroneous interpretation of the contract. Nor are we concerned with questions of inability as distinct from unwillingness.) Secondly, it may refer to any breach of contract which justifies termination by the other party. It will be necessary to return to the matter of classifying such breaches. Campbell J said this was the sense in which he would use the word "repudiation" in his reasons. There may be cases where a failure to perform, even if not a breach of an essential term (as to which more will be said), manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.

[87] Having regard to the lengthy delay in failing to achieve Practical Completion in accordance with the Contract, including what I consider to be the Respondent's failure to comply with its further contractual obligation under General Condition 17.3 and having regard to the matters addressed in paragraphs [80] to [85] above, I find that the Respondent, by its conduct, evinced an intention to fulfil the Contract only in a manner substantially inconsistent with its obligations. Consequently, I find that the Respondent repudiated the Contract entitling the Applicants to terminate the Contract at common law, as they did.

[88] In my view, in calculating any damages for breach of the Contract, the amount that would have been payable by the Applicants to the Respondent had the Contract been performed must be taken into account.

[89] In Clark v Macourt,[54] Crennan and Bell JJ said:

The applicable principle, confirmed in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd and traceable to Robinson v Harman, is that damages for breach of contract are to put the promisee, so far as money can do it, in the same situation as if the contract had been performed as promised.

[90] Gageler J (as his Honour then was) said:[55]

The assessment of compensatory damages for breach of contract at common law is accordingly subject to the "ruling principle" that the injured party "is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed" as well as to its corollary that the injured party "is not entitled, by the award of damages upon breach, to be placed in a superior position to that which he or she would have been in had the contract been performed".

[91] The Respondent issued to the Applicants separate tax invoices in respect of the work the subject of the Contract and the work the subject of the Separate Agreement.

[92] The tax invoices for the former included the words '(granny Flat)' and referred to the 'New House Construction Contract (11-05-2020)'.[56] The tax invoices for the latter included the words '(Variation work)' and referred to 'Contract price $85,000 (11-05-2020)'.[57]

[93] Not all the tax invoices in relation to the Contract strictly follow the amounts payable in respect of the progress payments stages identified in Item 8B of the Schedule. The material discloses the following tax invoices in respect of the Contract:

(a) tax invoice dated 11 May 2020, for 'Deposit 5%' in the GST inclusive amount of $3,720.75;[58]

(b) tax invoice dated 6 August 2020, for '(sit [sic] work) 5%' in the GST inclusive amount of $3,720.75;[59]

(c) tax invoice dated 6 September 2020, for '(footing stage) 15% of $67,650 contract price' in the GST inclusive amount of $11,162.25;[60]

(d) tax invoice dated 4 November 2020, for '(frame stage) 25%' in the GST inclusive amount of $18,603.50;[61]

(e) tax invoice dated 20 February 2022, for '(enclosed stage) 25%' in the GST inclusive amount of $18,603.50.[62]

[94] I calculate the total amount of the above invoices to be $55,810.75.

[95] I note that the Applicants' material includes a 'Receipt' dated 6 August 2020, for '(sit [sic] work) 5%' in the amount of $4,250.00.[63] Although the Receipt refers to 'New House Construction Contract (11-05-2020)', given that 5% of $85,000.00 is $4,250.00 and that the material does not include a tax invoice for the site stage for the 'Variation work', I proceed on the basis that this receipt refers to works the subject of the Separate Agreement. A similar error appears to have occurred in relation to the tax invoice at page 184 of the Hearing Book which includes the same notation but the claim is for the '(footing stage) 15% of $85,000 contract variation work'.

[96] The Applicants' material identifies that the Applicants made the following combined payments in relation to the works under the Contract and the additional works under the Separate Agreement totalling $119,560.75:[64]

(a) $7,970.75 on 12 May 2020;

(b) $7,970.75 on 9 August 2020;

(c) $23,912.25 on 7 September 2020;

(d) $39,853.50 on 4 November 2020;

(e) $39,853.50 on 25 February 2022.

[97] The Applicants' material also identifies that the respective tax invoices and one tax receipt for the additional works under the Separate Agreement totalled $63,750.00.[65]

[98] It follows that the Applicants paid the full amount of the invoices in relation to the work under the Contract of $55,810.75. The balance of the contract price under the Contract that would have been payable upon completion of the work under the Contract but for the termination of the Contract was $18,604.25. This is the amount to be brought into account after assessment of any damages for incomplete work together with any damages for defective (including non-compliant) work under the Contract.

[99] Mr Dixon has addressed the issue of incomplete works on the basis that both the Contract Works Quote and the Additional Works Quote are relevant to the Respondent's scope of works at the property.[66] The incomplete works are set out at Sections 7.1 to 7.15 of the Report. Some components of the items do not appear to clearly fall within one or other of the quotes. I note that during the course of Mr Dixon's evidence, after cross-examination by Mr Ng, Mr Dixon proffered, unprompted, the following evidence:[67]

Ah - could I add, Member. As I said - um - this was - the costings that were done on this were some - yeah - two years ago, and - um - I would imagine that - um - those costings would now be a bit out of date, and - um - um - probably an additional 15 or 20 per cent would be - um - applicable, if costings are to be - ah - taken into consideration by the tribunal.

[100] Given the timing of this evidence, the generality of the evidence, and the fact that no application had been made to amend the Applicants' claim to increase the claim to that extent, I consider that it is not procedurally fair to the Respondent to take that evidence into account and I disregard it in the assessment of damages

[101] I consider that the items (and estimated cost) referred to in the following sections of the Report are referrable to incomplete work under the Contract totalling $6,784:

(a) Item 7.1 Granny flat - painting, 7.1.5 Cost estimate: $3,289.58;[68]

(b) Item 7.2 Granny flat - doors, 7.2.5 Cost estimate: $65.00;[69]

(c) with respect to Item 7.3 Granny flat - bathroom, and item 7.3.2 in particular, I consider that the item 'Complete plumbing sanitary drainage fit-off' to be referable to the Contract.[70] Mr Dixon has qualified that item at $300.00;[71]

(d) with respect to Item 7.4 Granny flat - kitchen and item 7.4.2 in particular, I consider that the item 'Complete sanitary drainage to sink' to be referable to the Contract.[72] Mr Dixon has qualified that item at $42.67;[73]

(e) Item 7.5 Granny flat - electrical fit off, 7.5.3 Cost estimate: $586.88;[74]

(f) Item 7.11 Stormwater drainage lines, 7.11.3 Cost estimate: $2,500.00.[75]

[102] Additionally, Mr Dixon has identified various 'Preliminaries' together with a Builder's Margin of 15%, GST of 10%, and the Queensland Home Warranty Scheme premium which items have been calculated having regard to what Mr Dixon has assessed in relation to all work performed by the Respondent. It is convenient to consider these items in conjunction with the issue of the defective (including non-compliant) work. I now turn to that issue.

Damages for defective (including non-compliant) work

[103] Unlike the claim for damages for incomplete work, I consider that an alternative claim is available in relation to the separate agreement insofar as defective work is concerned, notwithstanding that the Separate Agreement is not enforceable.

[104] With respect to the claim in contract, the Contract contained express warranties, which reflected warranties imposed by sch 1B of the QBCC Act:

(a) that the work under the Contract would be carried out in an appropriate and skilful way and with reasonable care and skill and reasonable diligence;[76]

(b) that the work under the Contract would be carried out in accordance with the plans and specifications and any other Contract documents described in Schedule Item 15.[77]

[105] With respect to work performed under the Separate Agreement, I note that the definition of 'domestic building dispute' in the QBCC Act includes, relevantly, a claim or dispute in negligence related to the performance of reviewable domestic work other than a claim for personal injuries.[78]

[106] 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.[79] 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[80] does not cause me to alter my view). Having regard to the reasoning in Chau's,[81] and that the Respondent held itself as a QBCC licensed contractor,[82] I find that the Respondent owed to the Applicants a duty of care (at common law) to exercise reasonable care in carrying out the work identified in the additional works quote to avoid economic loss to the Applicant, and that the discharge of the duty of care required the Respondent to carry out the work with reasonable care and skill and in an appropriate and skilful way (or in a proper and workmanlike manner), including in accordance with the approved drawings and the specifications ('the Duty of Care').

[107] As to the appropriate measure of damages in negligence, in Cerda v Jacob ('Cerda'),[83] the Appeal Tribunal said:

In an action in negligence, the claimant is entitled to damages to put the claimant into the position which the claimant would have enjoyed but for the commission of the negligent act. The measure of damages is the cost of the work necessary to remedy the defects. In Kirkby v Coote ('Kirkby') it was stated:

[46] In Bellgrove v Eldridge, the High Court affirmed the following statement of principle:

"The measure of the damages recoverable by the building owner for the breach of a building contract is ... the difference between the contract price of the work or building contracted for and the cost of making the work or building conform to the contract."

[47] One may pause here to observe that this is a case where the building owner claims in negligence rather than breach of contract, but neither party suggested that a different approach should be adopted to the measure of damages where the negligent breach of duty has produced a result which falls short of the result which reasonable skill and diligence would have produced.

[48] The High Court, having referred to authority for the proposition cited above, went on to say:

"In none of these cases is anything more done than that work which is required to achieve conformity and the cost of the work, whether it be necessary to replace only a small part, or a substantial part, or, indeed, the whole of the building is, subject to the qualification which we have already mentioned and to which we shall refer, together with any appropriate consequential damages, the extent of the building owner's loss.

The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.

As to what remedial work is both 'necessary' and 'reasonable' in any particular case is a question of fact. But the question whether demolition and re-erection is a reasonable method of remedying defects does not arise when defective foundations seriously threaten the stability of a house and when the threat can be removed only by such a course. That work, in such circumstances, is obviously reasonable and in our opinion, may be undertaken at the expense of the builder."

[108] I am of the view that, in the context of the present case, the respective measures of damages in contract and tort make no difference to the recoverable damages. Further, although Mr Dixon has separated various elements of the work into 'Departures from the contract' (Section 5) and 'Defective building work' (Section 6), it is convenient to treat the former (which can be characterised as non-compliant work) as a category of defective work. However, in circumstances where there is a question as to whether a duty of care may be owed in the circumstances where a regulated contract is of no effect, it is appropriate to address the issue of defective (including non-compliant) work within the separate categories of work under the Contract and work under the Separate Agreement.

[109] The Respondent has not filed any independent expert evidence. The only expert evidence is from Mr Dixon.

[110] Mr Ng's cross-examination of Mr Dixon was relatively brief.[84] The cross-examination appeared to focus on changes to the design or materials used that was said to have been agreed by text messages. The questions appeared to be directed to the section of the Report concerning departures from the contract. I did not understand any of the cross-examination to be directed to the defective work identified by Mr Dixon. Further, Mr Ng did not attempt to take Mr Dixon to specific items and attempt to demonstrate why the view expressed should not be accepted.

[111] I am not satisfied that any part of Mr Dixon's evidence should be rejected. I accept Mr Dixon's evidence.

[112] I will deal with the separate categories in turn. I consider it sufficient to summarise the findings of Mr Dixon given the absence of competing expert evidence. I also note that Mr Dixon has referenced the absence of any written variation to changes made by the Respondent (e.g. paragraph [56]). The material before the Tribunal does not contain evidence of any formal variation under the Contract. Whilst the Respondent has put in evidence of text messages between Mr Ng and Ms Tindall which appear to evidence an agreed change to the window in the bathroom,[85] leaving aside the lack of a formal variation, Mr Ng did not cross-examine Mr Dixon as to the respects in which that evidence impacted Mr Dixon's conclusion.

Defective (including non-compliant work) under the Contract

[113] Mr Dixon has identified the following items which I consider are attributable to the Contract. Mr Dixon has provided a breakdown of the cost to remedy such items.

[114] This item comprises unapproved departures from the contract documents resulting in an undersized roof (Sections 5.1 and 5.2)[86] together with defective work referred to in Sections 6.1, 6.2 and 6.3 of the Report,[87] with a cost estimate (excluding builder's margin, GST and home warranty premium) of $18,710.46.[88]

5.2 Granny flat covered walkways and steel support posts

[115] This item comprises alterations to the structural design (omission of P1 posts and roof beams) of the granny flat roof and forms part of the cost estimate of $18,710.46.[89]

[116] The bathroom floor has not been stepped down as indicated in engineering drawing #03 with a cost estimate of $90.00.[90]

[117] This item comprises changes to window and door sizes and location which would likely impact the calculations to assess the overall energy efficiency rating of the building with a cost estimate to rectify of $2,858.05.[91]

[118] This item comprises, first, approximately 50% of the roofing screws being over tightened, with many of the sealing washers having been damaged and, second, the corrugated profile roof sheeting has not been installed in accordance with the National Construction Code and the manufacturer's installation manual and the roof sheeting has not been installed in accordance with manufacturers published guidelines with regard to fasteners/fixings. This item forms part of the cost estimate of $18,710.46.[92]

[119] This item involves the installation of damaged barge capping contributing to a water penetration structural defect with consequential damage to the soffit lining and timber trims at the south-west corner of the building. This item forms part of the cost estimate of $18,710.46.[93]

[120] This item comprises an undersized roof gutter to the north elevation of the granny flat with provision for one downpipe rather than two downpipes. This item forms part of the cost estimate of $18,710.46.[94]

[121] This item comprises the hinges not being 'checked in' resulting in a clearance of up to 8 mm around the front entry door which is in excess of the acceptable tolerance. The cost estimate to rectify is $180.00.[95]

[122] This item comprises a bowed door. The cost estimate to rectify is $120.16.[96]

[123] Mr Dixon has identified three items under the heading 'Preliminaries' totalling $12,188.01 comprising:[97]

(a) cost of an engineer to prepare new drawings and certification of $1,909.60;

(b) cost of a private certifier of $2,251.01;

(c) cost of site supervisor of $8,027.40.

[125] As a very broad-brush assessment of the Preliminaries:

(a) I attribute 25% to the cost of incomplete work in respect of the work the subject of the Separate Agreement ($3,047.00) and disregard that component as it is not recoverable as part of the claim for damages for breach of contract;

(b) of the remaining 75% of $12,188.01, I would apportion 55% to the damages referable to the work under the Contract ($6,703.41) and 20% to the damages the subject of the negligence claim ($2,437.60).

Defective (including non-compliant work) under the Separate Agreement

[126] Mr Dixon has identified the following items which I consider are attributable to the Separate Agreement. Mr Dixon has provided a breakdown of the cost to remedy such items.

[127] In circumstances where the Separate Agreement is not enforceable, I consider that Item 5.6 which concerns a couple concrete slab is not an item which is recoverable as part of a claim in negligence. As I understand Mr Dixon's evidence,[98] the drawings show the surface finish should be 'aggregate concrete' whereas the Respondent provided a 'broom finish'. However, the amount allowed by Mr Dixon refers to a 'cost saving' by adopting a broom finish. In circumstances where there is no criticism of the quality of the slab in adopting a broom finish and where the allowance made by Mr Dixon purports to equate with a negative variation under the agreement for the amount of the estimated cost saving, I consider that this amount is not recoverable by the Applicants.

[128] Mr Dixon identified non-compliance with the architectural drawings for the carport roof.[99] Mr Dixon has identified that common custom orb profile (corrugated) metal roof sheeting has been substituted in lieu of pre-finished, insulated roof and ceiling 'EPS panels'; there is no roof sarking, nor insulation product installed under the roof sheeting.[100] Mr Dixon has estimated the cost to remedy of $11,636.88.[101]

[129] The waterproof membrane application in the granny flat bathroom does not meet the applicable standards for domestic waterproofing of wet areas and that amounts to a structural defect.[102] The estimated cost to rectify is $402.23.[103]

[130] The fall in the tiling to the shower in the granny flat does not comply with the applicable Australian standard for minimum full requirements and amounts to a structural building defect.[104] The estimated cost to rectify is $639.26.[105]

[131] Having regard to all of the evidence, including the evidence of Mr Dixon in particular, I find that:

(a) with respect to the work under the Contract, the Respondent breached each of the express warranties referred to in paragraph [104] above;

(b) respect to the work performed the Separate Agreement, in so far as the defective (and non-compliant) work is concerned, the Respondent breached the Duty of Care;

(c) the Applicants have suffered the loss and damage identified below.

[132] With respect to the damages for breach of contract, the damages total $26,656.48 and are calculated as follows:

(a) the cost to complete the work under the Contract referred to in paragraph [101] above: $6,784.13;

(b) plus the defective (including non-compliant) work identified in paragraphs [114] to [122] above: $21,958.67;

(c) plus the 'Preliminaries' attributable to (a) and (b) above (55%): $6,703.41;

(d) plus builder's margin on (a) to (c) above ($35,446.21) on 15%: $5,316.93;

(e) plus GST on (a) to (d) above ($40,763.14) at 10%: $4,076.31;

(f) plus 55% of Queensland Home Warranty Scheme premium ($766.14): $421.38;

(g) less $18,604.25 being the amount that would have been payable upon completion of the work under the Contract.

[133] With respect to the damages in negligence, the damages total $19,274.94 and are calculated as follows:

(a) the defective (including non-compliant) work identified in paragraphs [128] to [130] above: $12,678.37;

(b) plus the 'Preliminaries' attributable to (a) above (20%): $2,437.60;

(c) plus builder's margin on (a) and (b) above ($15,115.97) on 15%: $2,267.40;

(d) plus GST on (a) to (c) above ($17,383.37) at 10%: $1,738.34;

(e) plus 20% of Queensland Home Warranty Scheme premium ($766.14): $153.23.

[134] Given my conclusion that the Separate Agreement is unenforceable (thereby precluding claim for damages for breach of contract), I consider that any money that would otherwise have been payable under that agreement should not be brought into account in assessing damages in negligence.

[135] Having regard to the matters addressed above, I find that:

(a) the Applicants are entitled to recover liquidated damages in the sum of $43,350.00;

(b) the Applicants have suffered the following damages:

(i) damages for breach of contract in the sum of $26,656.48;

(ii) damages for negligence in the sum of $19,274.94.

[136] Pursuant to s 77 of the QBCC Act, I order the Respondent to pay to the Applicants the sum of $89,281.42 within one (1) month of the date of the decision being issued to the parties.

[137] On the question of interest, in Lohmann v Jaques,[106] Judicial Member D J McGill SC said:[107]

... The 1991 Act s 77 makes no provision for the Tribunal to include interest in any order it makes for the payment of money owing. There is a power in s 77(3)(c) to award interest on "damages" as prescribed under a regulation, but the builder's claims were not for damages, and this applies only to interest after the amount of the damages became payable. The QCAT Act provides a general discretionary power to award interest (except where interest is payable anyway) but only in minor civil claims, those for not more than $25,000, which was not this matter. The Civil Proceedings Act 2011 (Qld) s 58 confers a power similar to that in s 14 on a "court", but that means only the Supreme Court, the District Court or a Magistrates Court: s 4. I have not been able to locate any provision authorising the Tribunal to allow interest on the amount ordered to be paid in this matter. At common law there is no such discretionary power; either there is a contractual right to interest, or (in limited cases) interest can be awarded as a form of damages, or it is just not payable ...

[138] I respectfully adopt the Judicial Member's observations.[108] It follows that the Applicants are not entitled to the interest sought.

[139] The Applicants seek costs comprising the filing fee of $367.00 the respective amounts of $7,030.00 and $2,180.00 in respect of Mr Dixon's costs as referred to in paragraph 86 of the Applicants' Written Closing Submissions. In order to address the question of costs, I consider it appropriate to make the orders numbered 2, 3 and 4.

[140] For the reasons set out above, I order that:

1. Sky Unicorn Pty Ltd must pay to Byron Tindall and Monica Tindall the sum of $89,281.42 within one (1) month of the date of the decision being issued to the parties.
2. Byron Tindall and Monica Tindall must file in the Tribunal two (2) copies of, and give to Sky Unicorn Pty Ltd one (1) copy of, evidence that the costs referred to in paragraph 86 of the Written Closing Submissions of Byron Tindall and Monica Tindall were incurred (and, if paid, evidence of payment), by 4:00pm on 3 February 2026.
3. Sky Unicorn Pty Ltd must file in the Tribunal two (2) copies of, and give to Byron Tindall and Monica Tindall one (1) copy of, written submissions, no longer than five (5) pages, in response to the claim for costs (including payment of the filing fee of $367.00) by Byron Tindall and Monica Tindall, by 4:00pm on 17 February 2026.
4. The application for costs will be determined on the papers, without an oral hearing, after 17 February 2026.

[1] Queensland Building and Construction Commission Act 1991 (Qld) sch 2 (definition of 'building dispute' para (a)) ('QBCC Act').

[2] Ibid sch 2 (definition of 'domestic building dispute' para (a)).

[3] Ibid sch 2 (definition of 'reviewable domestic work').

[6] Ibid sch 1B s 1 (definition of 'building owner'), sch 2 (definition of 'building owner' para (a)).

[7] Ibid sch 1B s 1 (definition of 'building contractor' para (c)), sch 2 (definition of 'building contractor')

[8] Ibid s 77(2); see, e.g., Allen v Contrast Constructions Pty Ltd (No 2) [2021] QCATA 43 (Judge Allen QC, Deputy President, and Member Traves (as Senior Member Traves then was)).

[9] At the hearing of this matter, I directed the Applicants to file, and give to the Respondent, a copy of the General Conditions (in circumstances where the Applicant's material included a subsequent version of the QBCC general conditions). The Applicants complied with this direction.

[10] Hearing Book p 42 ('HB'); see also the Report of Mr Dixon, [32] (HB p 222).

[20] HB pp 35-41, 138; T1-11 lines 33-44.

[24] T1-11 line 37 - T1-12 line 20 (emphasis added).

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

[31] Ibid sch 1B ss 1 (definition of 'regulated amount'), 5(1)(a), 7(1)(a), (2); Queensland Building and Construction Commission Regulation 2018 (Qld)reg 45.

[35] See sections 7.1, 7.2, 7.5 and 7.11 of the Report at HB pp 275-280, 285-8, 298-302.

[36] Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82 ('Probuild'), [133] (McColl JA), citing Turner Corp Pty Ltd (rec and mgr apptd) v Austotel Pty Ltd (1994) 13 BCL 378, 385 .

[37] Ibid [117], citing SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VicRp 31; [1984] VR 391, 395.

[38] Ibid [117]-[118], citing SMK Cabinets v Hili Modern Electrics Pty Ltd [1984] VicRp 31; [1984] VR 391, 395, Turner Corp Pty Ltd (rec and mgr apptd) v Austotel Pty Ltd (1994) 13 BCL 378, 384-5; Midson Construction (Qld) Pty Ltd v The Haggerty Group Pty Ltd [2021] QDC 280 ('Midson'), [109]-[110] (Porter KC DCJ), citing Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd (No 2) [2012] WASCA 53; (2012) 287 ALR 360, 371-2 [50]-[55] (McLure P); Probuild Constructions Aust Pty Ltd v DDI Group Pty Ltd (2017) 95 NSWLR 82, [114]-[121].

[39] Probuild (n 38) 111-3 [122]-[128]; Midson (n 40) [111], [135].

[40] HB pp 329-330, paras 7, 8, 9, 14 and 15.

[41] Applicants' closing submissions, [93]-[97].

[42] Exhibit 3, [26]-[28], [37]-[52]

[52] [2007] HCA 61; (2007) 233 CLR 115.

[53] Ibid 135-6 [44] (Gleeson CJ, Gummow, Heydon and Crennan JJ) (citations omitted).

[54] [2013] HCA 56; (2013) 253 CLR 1, 11 [26] (citations omitted). See also Cessnock City Council v 123 259 932 Pty Ltd [2024] HCA 17; (2024) 281 CLR 39, 56 [6].

[55] Clark v Macourt [2013] HCA 56; (2013) 253 CLR 1, 19 [60] (citations omitted).

[59] Ibid p 181. The Contract provided for a 10% payment for this stage.

[60] Ibid p 183. The Contract provided for a 20% payment for the 'Base stage' of $14,883.00 (which amount is 20% of the total GST inclusive price).

[61] Ibid p 185. The Contract provided for a 20% payment for the 'Frame stage' of $14,883.00. I calculate 25% of the contract price to be $18,603.75.

[62] Ibid p 189. This accorded with the Contract save that the amount for this stage was $18,603.75.

[78] QBCC Act (n 1) sch 2 (definition of 'domestic building dispute' para (c)).

[79] 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 ('Makita') (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').

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

[81] Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476. See, in particular, [40]-[45] (Senior Member Brown).

[82] Cf the obiter dicta observations in Vietheer (n 76) [68]-[70] (Member Taylor).

[83] [2020] QCATA 57, [57] (citations omitted).

[106] [2021] QCATA 28.

[107] Ibid [93] (citation omitted). The reference to the '1991 Act' is a reference to the QBCC Act.

[108] I note that the relevant regulation is reg 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld).