Vietheer v Holstein [2025] QCAT 397

• [8] The applicant is a homeowner. The respondent held himself out as a concreting trade contractor. On 20 December 2023, the parties reached an agreement under which the respondent would carry out certain concreting works for her at her house. She says the agreement was made by way of an exchange of e-mails between her and the respondent. No written contract document was dated or signed by the parties.
• [9] Upon reaching the agreement the applicant paid to the respondent a 'deposit' of $2,475. (the Deposit Paid)
• [10] The work was performed from 6 to 8 January 2024. Shortly thereafter the applicant contacted the respondent raising a complaint about the quality of the work done. Despite the respondent having invoiced what is said to be all the works completed, she did not make any further payment.[2]
• [11] Ultimately, that complaint led her engaging with the Queensland Building and Construction Commission (the QBCC) seeking assistance to have the work rectified. By way of a letter dated 26 April 2024, the QBCC directed the respondent to have certain works rectified. He did not satisfy that direction. Notwithstanding that fact, the QBCC notified the applicant on 10 June 2024 that it could not assist her further given the work was not covered by the Queensland Home Warranty Scheme.
• [12] It was thus on 28 October 2024 that the applicant commenced this proceeding seeking relief in this Tribunal against the respondent. Her complaint was that the concrete work is substantially defective, and that in the course of the concreting work being done damage was caused to other building elements of her house. When filed, her claim totalled $25,638.59 which included recovery of the Deposit Paid together with interest. By the time she filed her statement in this proceeding that claim had increased to $38,719.55 to rectify, being what she asserts is to "remove, dispose of, and replace entire concrete works" and to repair the damage which she says has occurred to brickwork, paint, and the existing patio floor, to which she again added the claim for return to her of the Deposit Paid, plus interest thereon. In both instances she sought an order that she be relieved of paying any amount to the respondent.
• [13] As I noted it earlier, the respondent did not file any documentation in this proceeding meeting the claim against him.[3] Thus, what was before this Tribunal was the applicant's material, namely a statement by her dated 17 February 2025 together with documents as attached to it, in total traversing ninety-three pages.
• [14] By a Directions given by this Tribunal on 11 February 2025, the applicant's claim was to be determined on-the-papers. It is against this background that the matter came before me for determination.

• [15] In Neil v Nott¸ the High Court observed:[4]

A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy.

• [16] This proceeding I such a case. But, whilst the applicant's lack of legal and procedural knowledge is undoubtedly a misfortune in her effort to conduct her case, it should not be considered by her, nor otherwise seen nor treated, as a privilege which affords her some benefit over the respondent. Nor should it afford the respondent a benefit over the applicant. The issues raised by the applicant in pressing her claim must still be decided by this Tribunal according to the prevailing law, even if it was not known to either or both of the parties at the time they engaged with each other.
• [17] The issues in this dispute are narrow. They can be considered as three questions:

(a) Was the concreting work, as constructed, defective such that it requires demolition and reconstruction?

(b) Was consequential damage caused to other building elements during the concreting works that requires remediation?

(c) What relief is the applicant entitled to?

• [18] Whilst narrow, and thus open to be perceived as a relatively straightforward one to be resolved, the resolution of these questions is complicated by the fact that there was no written contract document executed by the parties, the existence of such being a statutory requirement imposed on not just the respondent but also the applicant. Consequently, by operation of legislation, notwithstanding the extent to which the applicant relies on an exchange of e-mails to evidence a contract, the contract was of no effect. Thus, the relief open to the applicant is severely restricted, such which is addressed by asking a fourth question - what is the cause of action the applicant has against the respondent?
• [19] In assuming that burden to which the High Court referred, in the paragraphs that follow here I have identified the relevant law as it applies to the facts and circumstances presented by the applicant. I then turned to discussing the application of that law to the facts and identify the cause of action open to the applicant and the outcome that arises from it.

• [20] The work in question is the concreting work to a house in which the applicant resides. Thus, it is 'domestic building work' as that term is used in the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[5] Accordingly, the applicant's engagement of the respondent fell within the ambit of a 'domestic building contract' under that legislation.[6] In turn it was a 'regulated contract',[7] more specifically a 'level 1 regulated contract'.[8]
• [21] As such, the contract was required to have been in written form, dated, and signed by or on behalf of each of the parties to it.[9] In the absence of it being so, the contract was of no effect.[10] The consequence is that neither the applicant nor the respondent are unable to enforce any rights or obligations arising from the agreement for the works even though the parties could show a contract had formed.[11]
• [22] This is an impediment to the applicant in being entitled to the relief she seeks in terms of the alleged cost of remediation.

The Respondent was not licenced under the QBCC Act

• [23] For the same reasons as I have just given in terms of identification of the nature of the work, it is 'building work' as that term is used in the QBCC Act beyond merely the reference to 'domestic building work'. That being so, under s 42 of the QBCC Act the respondent was prohibited from carrying out that building work unless he held a licence of the appropriate class under that Act.
• [24] He did not hold such a licence, nor any licence permitting him to undertake any building work.[12] What this means is that subject to the limited provisions of s42(4) therein, under s 42(3) he was not entitled to be paid for carrying out the work he did. Those limiting provisions are such that he may only be entitled to payment for costs incurred in supplying materials and/or labour (excluding his own labour) unless it is shown that the costs were not reasonably incurred.
• [25] This provision, although not expressly relied on by the applicant, is a benefit to her in being entitled in part to the relief she seeks.

• [26] The jurisdiction of Tribunal to consider and decide this proceeding arises under the QBCC Act Part 7. The concreting work in issue is a fixed structure, and thus for the purposes of the QBCC Act it is work which falls within the definition of a 'building',[13] and in turn 'tribunal work' under the Act.[14] Moreover, because the nature of the work is domestic building work, it is reviewable domestic building work and thus the substance of a building dispute that the Tribunal may decide.[15]
• [27] Under the QBCC Act s 77(2), the entitlement to apply to the Tribunal does not exist absent compliance with a process established by the QBCC to attempt to resolve the dispute. Such process is the QBCC Early Dispute Resolution process (EDR Process).
• [28] If completed without resolution the parties are provided a letter from the QBCC evidencing the fact that they have participated in the EDR Process, and as such enabling either of them to proceed with action in this Tribunal having satisfied the requirements of s 77(2) of the QBCC Act, the letter being proof of same that may readily be given to the Tribunal.
• [29] Within the applicant's statement of evidence, she provided a copy of such a letter dated 10 June 2024. It informs her of the respondent's failure to have complied with a direction to rectify, but that the QBCC is unable to assist her further given that the work does not fall within the ambit of the Home Warranty Scheme, with the following notation appearing at the end of the letter:

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.

• [30] It is thus an expression that she has complied with the EDR Process and accordingly excludes what might otherwise be an impediment to her. However, notwithstanding that fact, I offer the following comments for completeness given the discussion on this issue in earlier decisions of this Tribunal, including by me, part of which I repeat here.[16]
• [31] Save only for that comment in the QBCC letter, there was no evidence before this Tribunal that the parties have engaged in an EDR Process. The evidence was that the applicant has engaged in a process with the QBCC to have the concreting work rectified. Whilst such is a process provided for under the QBCC Act, in particular s 72(6) therein, it is not a process for the purposes of s77(2) of the Act. This is because it is not a process to resolve the 'dispute' but rather a process to resolve the 'matter', the matter being the asserted existence of defective work.[17] Accordingly, it seemed to me that there has not been any compliance by the applicant in satisfying the requirements of s 77(2) of the QBCC Act and so it would, save only for what I say next, an impediment to her proceeding in this Tribunal against the respondent.
• [32] That saving point to which I just referred is that the requisite EDR Process is only engaged when the contract between the parties remains on foot. It does not have any application when the contract is completed.[18] Nor would it have any application in the circumstances that, as is the case here, the contract between the parties is of no effect.
• [33] The QBCC's administration of this aspect of the legislation is confused and lacks clarity. The requisite 'process' should be defined with certainty and consistently administered by the QBCC's officers. This is but one example of a lack of consistency.
• [34] For all these reasons, in my opinion there was not any jurisdictional barrier to me considering the applicant's Application that was before this Tribunal. I thus turned to the relevant law under which the application was to be determined.
• [35] But before doing so I make this brief observation in answering the first of the two questions posed. On the documentary material that was before this Tribunal I accepted at face value the work was defective and that consequential damage had occurred, all such requiring some degree of remediation. Such is the finding of the QBCC that gave rise to the direction to the respondent requiring him to rectify the work. That being said, in effect the singular issue in this proceeding was the question of the relief the applicant was entitled to. That required identification of a cause of action upon which any relief could be granted.

• [36] The applicant's claim was to be paid an amount of money which she asserted was required to be expended to put her into the position she would have been in had the concreting work not been defectively constructed, nor the consequential damage having occurred, such that it requires demolition, reconstruction, and remediation. This is the essence of damages for breach of contract or a breach of warranty.[19]
• [37] But, in the absence of an effective contract, breach of contract, including breach of the warranties under the QBCC Act,[20] such which would have been incorporated into the contract had it been a contract of effect, is not a cause of action open to her.[21]
• [38] That being so, if the applicant was to be entitled to relief for a wrong committed by the respondent, it required identification of an available cause of action. Later in these reasons I return to her claim for return of the Deposit Paid such being relief to which she was entitled, here offering some observations on that which the applicant expressed as her claim for the asserted cost to rectify the defective work and remediate the consequential damage. In that regard, potential causes of action, are:

(a) Breach of s 60 of the Australian Consumer Law (ACL), and in turn an action in damages as permitted under s 267 therein;[22] or

(b) Negligence.

• [39] However, there were more challenges placed in front of her being able to press a claim reliant on either of these causes of action. I discuss those briefly here.

• [40] To the extent the applicant intended to pursue a claim against the respondent in this Tribunal reliant on the ACL, such would invoke the operation of Part 3 of the Fair Trading Act 1998 (Qld) (FT Act), which is more properly referred to as the Australian Consumer Law (Queensland) (ACLQ). This Tribunal's jurisdiction to hear and determine any claim under the ACLQ is found in s 50(1)(a) of the FT Act to the extent it would be a claim to recover damages because of a failure to comply with a guarantee.[23]
• [41] But critically, such is limited to a proceeding which would be a minor civil dispute within the meaning of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). As provided for in Schedule 3 of the QCAT Act, such is limited to a claim arising out of a contract between a consumer and a trader for payment of money of a value not more than $ 25,000. Because the applicant's claim as originally made, and more importantly as ultimately pressed in her statement filed, exceeded this amount, it is not a claim that she may raise for determination in this Tribunal.
• [42] If however she sought to limit her claim to the monetary jurisdiction of this Tribunal, there was one other reason for her not being able to do so as a claim under the ACLQ. As noted in the QCAT Act Schedule 3, any such claim can only be one "arising out of a contract between a consumer and a trader". There should be no debate that the applicant is a consumer, and the respondent is a trader, for the purposes of that provision,[24] but the issue remains as to whether the agreement the applicant says was formed was a 'contract' for the purposes of pursing a minor civil dispute.
• [43] Within Schedule 3 of the QCAT Act, a 'contract' is defined to include "all agreements, whether written or oral". Prima-facie the contract the applicant says was formed between her and the respondent would fit within this definition. However, because of the operation of s 13(5) of Schedule 1B to the QBCC Act, as I discussed it earlier herein, the 'contract' was of no effect. Thus the question that arises - whilst the applicant is effectively prohibited from pursuing an action for breach of contract in the absence of an effective contract, can she pursue an action for breach of a guarantee under the ACL as a minor civil dispute under the ACLQ and the QCAT Act, being one which arises out of a contract, but it being contract which by virtue of the QBCC Act was of no effect.
• [44] In my opinion, the two pieces of legislation must be considered together. By expressing an intention under the QBCC Act that a contract only had effect in certain circumstances, where a contract that was the basis for an action under the ACLQ did not meet those circumstances and so was of no effect, parliament could not have intended that such a party could still pursue a claim arising out of the same contract as a minor civil dispute under the ACLQ and the QCAT Act. There is no suggestion that can be found on the simplistic text of each piece of legislation that the FT Act, and in turn the ACLQ, and the QCAT Act, when read together in terms of ACL claims, was intended to outflank the restrictive provisions of Schedule 1B of the QBCC Act.[25]
• [45] For these reasons, in my opinion the applicant could not pursue her claim against the respondent as a breach of the guarantee provided for under s 60 of the ACL.

• [46] In a decision I delivered on 2 May 2023, McSwan & Anor v Weaver [26](McSwan) I discussed at great length the issue of whether a home-owner maintained an entitlement to an action in negligence against a building contractor for damages arising from defectively performed building work in circumstances where the contract was of no effect. I held that such a cause of action was not available because the building contractor did not owe the homeowner a duty of care. This was because the homeowner was not vulnerable.
• [47] As I stated in my reasons therein:[27]

... 'it is not what the applicants did that matters, it is what they could have done'. To put it in terms of the facts - it is not the fact that they entered into a contract that was of no effect that left them vulnerable, it is the fact that they could have, and moreover were required by legislation to have, entered into a contract reduced to writing that complied with the requirements of Schedule 1B of the QBCC Act that would have provided them with the benefit of the statutorily imposed warranties under that legislation, thus affording them protection against failure by the respondent to have done that which they say they assumed he would do, thus they were not vulnerable.

• [48] As I had also noted therein, in Cerda v Jacob being a decision of the Appeal Division of this Tribunal, the following observation was made:[28]

If parties contract for the performance of domestic building work without complying with these requirements they do so at their own peril and without the protections afforded by a contract or the statutory warranties implied into such contracts.

• [49] A similar observation, but one with a more expansive point being covered, was made in this Tribunal at first instance in Clarke v Queensland Building and Construction Commission:[29]

More to the point, level 2 regulated contracts are significant contracts. The statutory requirement for them to be in writing, dated and signed by or on behalf of both parties is there for a self-evident reason - to minimise disputes, of which the current matter is an example, about the terms of such contracts. There is obviously a consumer protection element to the evident policy of the legislation, but there is also a broader public interest in the minimisation of disputes the resolution of which, through publicly-funded mechanisms such as the Commission's and Tribunal's review processes, comes at a cost to the general public. It is prudent for owners entering into significant arrangements with builders to ensure they have a written contract signed by both parties and dated. Parliament's plain intention is that owners or builders who fail to observe that requirement do so at their peril.

• [50] Whilst in Cerda v Jacob the Appeal Tribunal ultimately concluded that even in the absence of an effective contract a claim in negligence remained available, as I discussed it and explained in McSwan , in considering the state of the law as it then was based on the extensive history of caselaw to which I referred therein I concluded that a claim in negligence was not available.
• [51] Such a conclusion has been met with contrary conclusions subsequently in this Tribunal at first instance, in each instance effectively following that which the Appeal Tribunal concluded in Cerda v Jacob.[30]
• [52] The second of those three decisions, Mikita, was delivered the same day as the decision of the High Court in Mallonland Pty Ltd v Advanta Seeds Pty Ltd (Mallonland HC),[31] the earlier progress of the dispute before the Court therein having only reached and been decided in the Queensland Court of Appeal when I delivered my decision in McSwan. The reasoning of the Tribunal therein in part reliant on the 'salient feature' line of reasoning current in the Courts up to that point in time, it being in part the subject of criticism by the Court in Mallonland HC.
• [53] The last of those three decisions, Chau's, was delivered after Mallonland HC.
• [54] In Mallonland HC the plurality said this, such being effectively a foundation for the reasoning of the learned Senior Member in Chau's, it also being in part the reasoning of the learned Member in Mikita albeit reasoning which had not at that point been espoused by the High Court:[32]

Where a defendant has assumed a responsibility towards the plaintiff to take reasonable care to avoid economic loss to the plaintiff, a duty of care may well be established. The term "assumption of responsibility" has been criticised as "imprecise and beguiling but deceptively simple". An assumption of responsibility is best understood as an undertaking (whether express or implied) by a person to take on a task or job for another person or class of persons, from which it can be inferred that the first person accepted that he or she would take reasonable care when engaging in that task or job.

• [55] In Chau's, the learned Senior Member expressed these observations on the reasoning of the High Court therein:[33]

[38] In Bryan v Maloney the High Court recognised the special relationship between a building contractor and a building owner for whom building work is undertaken

On the other hand, there are strong reasons for acknowledging the existence of a relevant relationship of proximity between a builder such as Mr Bryan and a first owner such as Mrs Manion with respect to the kind of economic loss sustained by Mrs Maloney. In particular, the ordinary relationship between a builder of a house and the first owner with respect to that kind of economic loss is characterized by the kind of assumption of responsibility on the one part (i.e. the builder) and known reliance on the other (i.e. the building owner) which commonly exists in the special categories of case in which a relationship of proximity and a consequent duty of care exists in respect of pure economic loss. There is nothing to suggest that the relationship between Mr Bryan and Mrs Manion was not characterized by such an assumption of responsibility and such reliance.

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

[43] 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.

[44] 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 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.

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

[46] The relationship between Chau's and Mr Karam was characterized by an assumption of responsibility by Chau's and known reliance by Mr Karam. The relationship falls within one of the special categories of cases in which a duty of care is owed. I find that Chau's owed to Mr Karam a duty to undertake the works in an appropriate and skilful way, with reasonable care and skill and free from defects.

• [56] In his reasons given separately from the plurality, shortly prior to Edelmann J expressing the conclusion on assumption of responsibility and vulnerability as extracted by the learned Senior Member in that passage, his Honour had said this:[34]

... Vulnerability was described "as a reference to the plaintiff's inability to protect itself from the consequences of a defendant's want of reasonable care, either entirely or at least in a way which would cast the consequences of loss on the defendant". In Perre, McHugh J considered that vulnerability was the salient feature that was "likely to be decisive". Vulnerability is a concept that promised much. But it has delivered little. It is perhaps unsurprising that it is not uncommon for intermediate appellate courts to apply this concept with different results reached by different judges within each court and with different results reached by different courts in cases with some comparable features.

In some cases, the concept of vulnerability has been conflated with an assumption of responsibility based upon an implied undertaking. In these cases, vulnerability is just a fifth wheel on the coach.

• [57] After then expressing that concluding observation, his Honour continued immediately thereafter making this observation:[35]

Beyond cases where vulnerability is used as a proxy for an assumption of responsibility, vulnerability remains a concept that is highly uncertain and contestable. There is uncertainty in what is meant by a plaintiff's "inability to protect itself", particularly if the issue requires a collateral investigation of the insurance market. In Perre, McHugh J held that an ability to insure against a risk was irrelevant to an assessment of the plaintiff's vulnerability to that risk. But the ability of a person to bargain for and obtain a contractual indemnity, which is a matter that has been held to reduce vulnerability, could itself be described as a form of insurance. And, in rejecting a general duty of care to avoid causing economic loss to another, the Restatement treats the ability to insure or to obtain contractual indemnity alike:

[V]ictims of economic injury often can protect themselves effectively by means other than a tort suit. They may be able to obtain first-party insurance against their losses, or recover in contract from those who do have good claims against the defendant.

• [58] Ultimately, as Edelmann J concluded in the matter that was before the Court on that occasion, the appellants had methods by which they could reduce the extent of their vulnerability, and so no duty of care was owed, such noted expressly as being consistent with the joint reasons of the plurality therein.[36]
• [59] As I now read the reasoning of the High Court in Mallonland HC, notwithstanding the observations Edelmann J expressed in terms of the limited value of vulnerability as a salient feature upon which a duty of care can be established in novel cases but rather the focus should be on an assumption of responsibility, as the majority therein identified with certainty and clarity it remains a relevant concept in terms of answering the question whether a duty of care is owed. If a claimant could have taken steps to protect themselves there can not be a duty of care owed even if an assumption of responsibility is taken up.
• [60] Such was the question I posed and answered in McSwan in the circumstances where a contract was of no effect. I do not consider that the reasoning of the High Court in Mallonland HC has changed the conclusion I reached therein. Whilst the reasoning of Edelmann J is instructive in developing the law in terms of vulnerability, it shifting the pendulum towards focusing on an assumption of responsibility, it does not negate the forceful reasoning of Bond JA, with whom Morrison JA and Williams J of the Queensland Court of Appeal agreed, in Mallonland v Advanta Seeds [37] (Mallonland QCA) such being the decision under appeal to the High Court. This is as found in the following passage of his Honour's reasoning as I extracted it in my reasons in McSwan: [38]

Accordingly, a further policy question is whether the common law of the tort of negligence should extend the legal protection available to end users of manufactured goods notwithstanding the limitations imposed by the legislature by the definition of "consumer" or by the considerations adverted to in ss 54(2) and 54(3) of the Australian Consumer Law.

The judgment of Crennan, Bell and Keane JJ in Brookfield Multiplex also provides an appropriate starting point in relation to each of the policy questions just mentioned. Their Honours acknowledged -

(a) at [121]:

"Economic interests are protected by the law of contract and by those torts that are usually described as the economic torts, such as deceit, duress, intimidation, conspiracy, and inducing breach of contract."

"... the primacy of the law of contract in the protection afforded by the common law against unintended harm to economic interests where the particular harm consists of disappointed expectations under a contract."

"Statutory provisions may supplement the common law of contract by providing for special protection to identified classes of purchasers on the ground, for example, that they may not be expected to be sufficiently astute to protect their own economic interests. Part 2C of the Home Building Act 1989 (NSW) is an example of such a statutory regime. By enacting the scheme of statutory warranties, the legislature adopted a policy of consumer protection for those who acquire buildings as dwellings. To observe that the Home Building Act does not cover claims by purchasers of serviced apartments is not to assert that the Act contains an implied denial of the duty propounded by the respondent. Rather, it is to recognise that the legislature has made a policy choice to differentiate between consumers and investors in favour of the former. That is not the kind of policy choice with which courts responsible for the incremental development of the common law are familiar; and to the extent that deference to policy considerations of this kind might be seen to be the leitmotif of this Court's decision in Bryan v Maloney, the action taken by the New South Wales legislature served to relieve the pressure, in terms of policy, to expand the protection available to consumers."

• [61] Bond JA then concluded with these comments:[39]

Although it would be wrong to suggest that there is some form of neat compartmentalisation between contract and tort, these passages suggest the primacy of the law of contract as the remedial response provided by the common law in circumstances such as those revealed by the present case. They also recognise that the fact that a particular area of commercial conduct has been the subject of legislative regulation may influence the choices made by judges in the development of the common law. Common law courts should eschew the temptation to encroach into areas which would require a claim to political legitimacy and, accordingly, are more properly the purview of the executive or legislative arms of government.

Notably, in Brookfield Multiplex, Gageler J observed:

"[T]he plurality in Woolcock Street Investments noted that the actual decision in Bryan v Maloney had by then been "overtaken, at least to a significant extent, by various statutory forms of protection for those who buy dwelling houses which turn out to be defective". The Court of Appeal in the present case referred in detail to the current statutory regime in New South Wales. If legal protection is now to be extended, it is best done by legislative extension of those statutory forms of protection."

• [62] These conclusions were not disturbed by the High Court. For that reason, they remain good law and binding on this Tribunal.
• [63] As it was expressed by the plurality of the High Court:[40]

In truth, the growers were able to protect themselves.

• [64] The same applies to any homeowner engaging a building or trade contractor. In truth, such a homeowner can protect themselves by entering into a contract with the contractor in a manner that complies with the requirements of the legislation, and moreover one which they are expressly obligated to comply with.
• [65] Adopting the words of Bond JA, it is a particular area of commercial conduct that has been the subject of legislative regulation. Also adopting the words of Crennan, Bell and Keane JJ in Brookfield Multiplex[41] as noted by Bond JA, statutory provisions may supplement the common law of contract by providing for special protection to identified classes of purchasers on the ground, for example, that they may not be expected to be sufficiently astute to protect their own economic interests. These statutory provisions are, at the very least, the warranties imposed on all domestic building contracts as provided for under Schedule 1B of the QBCC Act to which I referred earlier, such readily accessible by the homeowner when there is an effective contract. It would also extend to the guarantee provided under s 60 of the ACL, accessible by a homeowner via the ACLQ but again only with the existence of an effective contract.
• [66] As to the consequences of not meeting that obligation, one needs look no further than the observation by the Appeal Division of this Tribunal in Cerda v Jacob, and the Tribunal at first instance observed in Clarke v Queensland Building and Construction Commission, each of which I extracted in paragraphs [48] and [49]. The homeowner does so at their own peril without the protections otherwise afforded them.
• [67] There is however one more relevant aspect that arises on the facts and circumstances in this proceeding, such which in my opinion is directly relevant to the argument in issue regardless of which of the divergent approaches taken in this Tribunal is the correct one.
• [68] Here, unlike the circumstances in McSwan, Mikita, or Chau's, the respondent, being the contractor, was not licenced. Whilst the applicant could have protected herself by entering into the contract in a manner required by the legislation, such giving her the protection of the statutory warranties and the ACL, moreover she could have readily undertaken a publicly available free search to ascertain whether the respondent held a licence under the QBCC Act and upon identifying that he did not, then readily decide not to proceed with engaging him to undertake the required concreting work. It was yet another method of protecting herself that she did not engage.
• [69] But this has one more relevant aspect to it. As I noted the suggested definition of an 'assumption of responsibility' in paragraph [54] herein, as it applies in this proceeding it would be to draw the inference, from the fact that the respondent took on the task of the concreting work, that he would take reasonable care when engaging in that task. In my opinion that is not an inference that can be drawn when the fact is he that he undertook the task when not licenced to do so. That inference relies on the unattractive position that the respondent's commission of an offence is the basis upon which he simultaneously assumed a responsibility to take reasonable care to avoid economic loss to the applicant. Such cannot[42]e correct.42
• [70] That being so, even if I am wrong in my conclusions about the entitlement a homeowner has to press a claim in negligence in the circumstance of the contract being of no effect, such an entitlement could not extend by virtue of the assumption of responsibility line of reasoning as explored more fully by Edelman J in Mallonland HC and applied by the learned Senior Member in Chau's to the circumstance where the contracted party was not licenced under the QBCC Act.
• [71] For all these reasons, the applicant was not entitled to press any claim in negligence.

An overarching issue - Cost of Cure vs Diminution in Value

• [72] Finally, and once again even if I am wrong about all that which I have just said, in cases such as these there is an overriding legal principle that applies, namely the question of cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons - Building and Engineering Contracts:

Where a builder has carried out work to a building which requires remediation, the issue that arises is whether the building Owner is entitled to the cost of repairing that defective work - the cost of cure - or is limited to the diminution in the value of their building as a consequence of the defective quality of the work undertaken.[43]

• [73] This is often referred to as the test in Bellgrove v Eldridge [44] wherein the Court adopted the following statement made in an earlier version of Hudsons, expressing it as a correct statement of the law:[45]

... the measure of 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 the building conform to the contract, with the addition, in most cases, of amount of profits or earnings lost by the breach.

• [74] Dixon CJ, Webb, and Taylor JJ, expressed a qualification to that rule, it being:[46]

The qualification, however, as to which this rule is subject is that, not only must the work undertaken by necessary to produce conformity, but it must be a reasonable course to adopt. ... Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of deal with the situation and in such cases the true measure of the building owner's loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or material.

As to what remedial work is both "necessary" and "reasonable" in any particular case is a question of fact. ...

• [75] Whilst the observations made therein were cast in the language of a breach of contract, the same principles can be applied in cases of negligence. There is however a difference.
• [76] When damages are assessed for breach of contract, it is the damages that would flow had the breach not occurred and the contract had been performed to completion, and so must be calculated relevant to the contract. This is in effect the claim the applicant presses, save only that her calculation of the damages claim is flawed in that she has failed to allow the requisite reduction of the claim for that which she would have paid to the respondent in full had he properly performed the work.
• [77] In contrast, when damages are being assessed under negligence, it is the amount which would flow had the wrong not occurred, and so must be calculated relevant to what it would cost for her to be put back into the position she originally was. That is, the state of her house before the concreting work was performed, her assertion effectively being that the entirety of the work was negligently performed. The applicant's claim as expressed went beyond this.
• [78] But in both instances, there is the question of what is necessary and reasonable to remedy the alleged error made? To answer that, it is necessary to consider the evidence as it was placed before this Tribunal.
• [79] I accepted at face value the work was defective. Such is the finding of the QBCC that gave rise to the direction to the respondent requiring him to rectify the work. But that of itself does not dictate that the entirety of the work must be demolished and replaced. It may be that certain remedial work, such as the saw-cutting of control joints into the concrete work with requisite treatment to protect against corrosion, can resolve at least part, if not all, of the issues. It might also be that whilst the work is defective, it is a defect that ultimately can be accommodated in the use of the surfaces concreted but with some degree of inconvenience, that inconvenience being evaluated in terms of the loss of value in the finished product. The same may apply to the asserted consequential damage.
• [80] The challenge for the applicant in this proceeding was that she effectively put all her proverbial eggs in the one basket, running a case of defective work only without any regard to the possible alternative of diminished value. Her case was entirely devoid of any evidence of the value of her house having been diminished because of the work having been performed by the respondent defectively but in circumstances were the rectification of that work by demolition and replacement was found to be unreasonable.
• [81] Whilst it was the respondent to show that demolition and replacement of the concreting work was not a reasonable course of action to take, he holding the evidentiary burden in that regard,[47] in the absence of anything from the respondent as is the case in this proceeding it does not follow that the applicant would simply become entitled to the cost of cure. The relevant test must still be applied and the requisite level of satisfaction that demolition and replacement was a reasonable course to take. The applicant's material did not go that far.
• [82] Thus, at best on the material before this Tribunal, if the applicant had a cause of action upon which she could rely to become entitled to relief she sought, in my opinion she would fail on an evidentiary basis.

• [83] It is here that I return to the issue of refund of the Deposit Paid.
• [84] As I have noted it earlier herein, the contract between the parties is of no effect, and moreover the respondent was unlicenced and accordingly not entitled to any payment, other than cost of material reasonably supplied, because of s 42 of the QBCC Act. He has not raised any claim for such cost of material. In the absence of such there was no basis upon which an order in his favour could be made.
• [85] What this meant was that he had no entitlement to retain the Deposit Paid and he must refund it in full to the applicant. This is an entitlement the applicant had to restitution of money paid under a mistake, the applicant seemingly understanding she was required to pay the deposit claimed.
• [86] It also meant that the respondent had no entitlement to payment of any of the remainder of that which he claimed payment for by way of his invoice for the work performed, whether it be a claim in contract or on a quantum meruit basis. Thus, the applicant was also entitled to an order that she be relieved from making any further payment to the respondent for the concreting works.
• [87] This left one remaining aspect of the applicant's claim. As I noted it earlier, she also sought an order for payment of interest on the Deposit Paid. I did not allow that aspect of her claim. This was because, as I noted it earlier herein, she could have but did not ascertain the unlicenced nature of the respondent, and had she done so she could have then readily elected not to pay the deposit. But blind to that fact, she readily and elected to pay the deposit. Any interest on the amount paid should therefore rest with her.

• [88] For all the reasons I discussed herein, at best the applicant was entitled to restitution of the Deposit Paid, and an order that she be relieved from making any further payment to the respondent. However, the balance of her claim was dismissed. Orders were made to that effect.
• [89] The conclusions I reached and the orders I made are reflective of the requisite balance of the broader public interest policies against the benefit of consumer protection as discussed in Clarke v Queensland Building and Construction Commission to which I referred earlier. They are also consistent with the primacy of the law of contract as the relevant response to the facts and circumstances which are the foundation for this proceeding, they reflect the subject of legislative regulation, and they are consistent with avoiding an encroachment into an area which is more properly the purview of the legislature. Such is as per the observations of Bond JA to which I also referred earlier.
• [90] To the extent the applicant failed in her claim for the cost of demolition and replacement, and remedial work to what is said to be the consequential damage incurred, such is directly because of her failure to have ensured she had a written contract with the respondent that complied with the requirements of the prevailing legislation. All homeowners should be aware of the need for same. Once that message is finally understood by homeowners, many of these sorts of disputes may either be avoided or result in better outcomes for homeowners.
• [91] I will however, and for completeness, repeat here that which I said at the conclusion of my reasons in McSwan v Weaver.
• [92] To the applicant, it may seem odd and concerning that as a homeowner, not being sophisticated in workings of the law, she may not know or realise that the contract had to be put in a form compliant with Schedule 1B of the QBCC Act. Nor may it be expected she would know that the contract she entered would be of no effect in the absence of such having occurred. It may also seem odd that, in such circumstances, her failure to have done so should result in her also then not having a right of recourse against a builder for negligence or reliant on the ACT.
• [93] I accept such a view as having merit. It is a case of 'damnum absque injuria', which is a Latin maxim meaning - 'there is a loss for which the law provides no means of recovery'. But, in the same manner as Bond JA described it in his reasoning in Mallonland QCA to which I referred earlier, it is not for this Tribunal to fill the gap by effectively creating that liability by way of imposing a duty of care.
• [94] Legislative reform is clearly required in this regard.
• [95] One option is to provide a protective mechanism of a contract remaining enforceable by homeowners, thus affording homeowners at the very least the protection of the statutory warranties even in the event the contract is not reduced to writing such that it is only the building contractor who is effectively compromised by its failure to have reduced the contract to writing in a compliant manner.
• [96] Another option, and in my opinion the preferable one, is to introduce legislation into Queensland which expressly provides for a duty of care to be applicable on contractors, licenced or not, in favour of owners of buildings to whom they are contracted to carry out building work. Such could and should readily also be inclusive of subsequent purchasers of those buildings. Similar legislation already exists in New South Wales in the form of the Design and Building Practitioners Act 2020 (NSW) which, under s 37 therein, expressly provides for a duty cast upon a builder to exercise reasonable care to avoid economic loss caused by defects, such being owed to an owner whether the construction work was carried out under a contract with the owner.
• [97] Such would obviate the dilemma that continues to be faced in determinations of matters such as these given the confusion that arises in application of the caselaw which has been the subject of considerable discussion at various times and which brought about a body of conflicting views, particularly since the decision in Bryan v Maloney,[48] such effectively being a source of the line of reasoning since which has now reached the High Court in Mallonland HC.

[1] In the absence of the respondent having filed any documentation in this proceeding, these facts and circumstances are drawn solely from the applicant's material.

[2] Whilst it was initially agreed at the price of at $8,778, the respondent's invoice for the work was issued seeking payment of $14,250 in total. That difference is not an issue in this proceeding that requires any determination. I merely note it here for completeness given the order that the applicant be relieved from making any payment to the respondent, such covering the entire amount of this invoice.

[3] I pause here to observe that the applicant filed an Affidavit of Service on 28 October 2024 which records she served the Application on the respondent by leaving it with a person named 'Sarah Holstein' at the respondent's address. I accept that as recording good service, and accordingly I am satisfied that the respondent was aware of this proceeding and obligated to respond to it.

[4] Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509, 510.

[5] QBCC Act - Schedule 1B - s 4(1)(b), (3)(b), and 4(c) in that the concreting work became a fixture associated with the home, further or alternatively associated with the improvement of the home.

[6] Ibid s 3(1)(a). The exclusionary provisions of s3(2) do not apply.

[8] Ibid - s 6. As noted earlier the applicant asserts the contract amount was originally $8,778. This is unchallenged. Whilst no definitive finding need be made, on the respondent's invoice raised after the work was completed the final price was said to be $14,250. In either case it exceeds the 'regulated amount', namely $3,300 but less than the level 2 amount of $20,000. It thus makes it a Level 1 Regulated Contract. See QBCC Act Schedule 1B s 6 read in conjunction with the definition of regulated amount found in Schedule 1B s 1.

[11] See for example - Smart v Berry (Building and Property) [2016] VCAT 540,[27]-[34] considering equivalent Victorian legislation.

[12] The applicant does not raise this expressly in her material filed, however it is apparent from the fact of the QBCC documentation she included within it. But, even in the absence of any expression of such a fact, it is a fact readily identifiable from a publicly available search of the QBCC Licence Register, such which this Tribunal may do of its own volition to ensure that it has all relevant material before it - see Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(c) and (e).

[14] QBCC Act s 75. The work does not fall within the exceptions under s 76 of the Act.

[15] See the definitions of 'reviewable domestic work' and 'building dispute' in Schedule 2 of the QBCC Act. See also s 77 of the QBCC Act which provides this Tribunal with the statutory power to decide the dispute.

[16] See for example Stelzig v Ireland [2024] QCAT 237; [36] to [39].

[17] See the discussion in Leyden v N J Tierney Constructions Pty Ltd [2015] QCAT 483, [15].

[19] See Robinson v Harman [1848] EngR 135; (1848) 154 ER 363.

[20] QBCC Act - Schedule 1B - s 20 to s 22.

[21] Bocquee v Baltus [2019] QCAT 280,[24]; Vaiao & Anor v Sharkie [2019] QCAT 264,[28]; Zhang v Todd [2019] QCAT 208,[24]; Clarke v Queensland Building and Construction Commission [2020] QCAT 88,[8] to [17].

[22] Such which would be a failure by the respondent to have rendered the concreting work with due care and skill, such being on the basis that the concreting work was a 'service' supplied by the respondent in 'trade or commerce'.

[23] See the reference to an action under s 267(4) of the ACL as it appears in the Table to s 50 of the FTA.

[24] See the definitions of 'consumer' and 'trader' in Schedule 3 to the QCAT Act.

[25] Consider Cant Contracting P/L v Casella & Anor (2007) 2 QdR 13, [2006] QCA 538, per Williams JA at [33], per Jerrard JA at [42], per Philip McMurdo J at [61].

[26] McSwan & Anor v Weaver [2023] QCAT at [107] to [115].

[28] Cerda v Jacob [2020] QCATA 57,[26].

[29] Clarke v Queensland Building and Construction Commission [2020] QCAT 88,[27]. My emphasis, both bold and via underlining.

[30] Burnell v Jarvis [2024] QCAT 126; Mitika v Kontek Constructions Pty Ltd [2024] QCAT 315 (Mikita); and Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 (Chau's).

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

[32] Ibid, per Gagelar CJ, Gordon, Steward, Gleeson, Jagot, and Beech-Jones JJ at 966,[33].

[33] Chau's & Sons Pty Ltd t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476. Paragraph numbers as noted. Footnotes omitted. Emphasis is as it appears in the original.

[34] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956, 980; [2024] HCA 25, [96] and [97]. Footnotes omitted. Emphasis added.

[35] Ibid,981,[99]. Footnotes omitted. Emphasis added.

[36] Ibid,969,[53] and [54], as noted by Edelman J at 983,[109].

[37] Mallonland Pty Ltd & Anor v Advanta Seeds Pty Ltd (2023) 13 QR 492, [2023] QCA 24.

[39] Ibid, [303] and [304]. Emphasis added.

[40] Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25; (2024) 98 ALJR 956,970; [2024] HCA 25,[53].

[41] Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 & Anor [2014] HCA 36; (2014) 254 CLR 185.

[42] Consider Cant Contracting P/L v Casella & Anor (2007) 2 QdR 13, [2006] QCA 538, per Philip McMurdo J at [53].

[43] N. Dennys and R. Clay, Hudsons - Building and Engineering Contracts 13th Ed (London: Sweet & Maxwell, Thomson Reuters (Professional) UK, 20150, (Hudsons) at 7-006, p.828.

[44] Bellgrove v Eldridge (1954) 90 CLR 369.

[46] Bellgrove v Eldridge (1954) 90 CLR 369, 618 and 619.

[47] See Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114;[71] and the earlier authorities cited therein.

[48] Bryan v Maloney (1995) 182 CLR 609.