QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Spurr v Jack t/as AP Fencing Solutions [2024] QCAT 270	
PARTIES:	MATTHEW ANTHONY SPURR	

(applicant)	

	v	
	ADAM JACK T/AS AP FENCING SOLUTIONS	

(respondent)	

APPLICATION NO:	BDL167- 23	
MATTER TYPE:	Building matters	
DELIVERED ON:	3 July 2024	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF: 	Member Jensen	
ORDERS:	The respondent is required to pay the applicant $18,339.70	
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DOMESTIC BUILDING WORK - OTHER MATTERS – where the applicant brought an application for damages for defective and incomplete work – consideration of implied term of the contract that the respondent was required to perform the work in a good and workmanlike manner and with good and proper materials – consideration of damages for breach of implied term.
Queensland Building and Construction Commission Act 1991 (Qld), s 77(1).
O’Neall v Barra Rosa Pty Ltd (1989) 96 FLR 436. 
Robinson v Harman (1848) 154 ER 363.	
APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
Introduction 
[1]	The applicant is claiming damages for breach of contract alleging that the respondent performed defective and incomplete domestic building work at the applicant’s home.  
Domestic building dispute 
[2]	The applicant is a homeowner. The respondent is a fencing contractor. The subject work was the supply and installation of Colourbond fencing to the side and rear of the applicant’s home. This application proceeded as a domestic building dispute and no challenge has been raised to this Tribunal’s jurisdiction to decide this dispute. 
[3]	The Tribunal has jurisdiction to hear and decide building disputes which includes domestic building disputes.
[4]	A domestic building dispute is a dispute about reviewable domestic work or a contract for the performance of reviewable domestic work between a building owner and a building contractor. Reviewable domestic work means domestic building work. 
[5]	Domestic building work includes associated work such as the erection or construction of a building or fixture associated with the detached dwelling or home. One of the examples given in the legislation is ‘fencing’.  According to the evidence before me, the applicant is the owner of the home situated at 59 High Street, Bundamba Queensland and the contracted fencing work was to be performed at the rear and side boundaries of the applicant’s home. This work therefore satisfies the meaning of associated work and I find that the work performed by the respondent constituted domestic building work and that this dispute is a domestic building dispute and within the jurisdiction of this Tribunal.
The contract
[6]	The evidence shows that there is a contract between the parties dated on or about 19 January 2022. The contract is for $9,000 inclusive of GST and is constituted by the respondent’s quotation #12085 dated 10 January 2022 (tailored to the work to be performed for the applicant by invoice #1241 dated 19 January 2022) and accepted by the applicant on 19 January 2022 by payment of a deposit.  
[7]	The terms of the contract are: 
(a)	The respondent was to supply and install boundary fencing: 
(i)	20m Colourbond side fence for $3,250;
(ii)	27m Colourbond rear fence for $3750; and 
(iii)	5m aluminium slats with gate for $2,000. 
[8]	There is also implied into contracts of this type a term that the respondent is to perform the work in a good and workmanlike manner and with good and proper materials.
The breach 
[9]	There is evidence that the respondent’s work is defective and incomplete. The unchallenged evidence is contained in the Queensland Building and Construction Commission (‘QBCC’) report dated 6 September 2022 prepared in respect of the applicant and the owner of the adjoining 66 Harold Street property. Thereafter followed a direction to rectify dated 7 September 2022. 
[10]	The QBCC report was prepared by an inspector who found 7 items of defective work against the QBCC Policy Guide and other standards. There were also other items which the inspector identified as contractual which were not the subject of the direction to rectify.  
[11]	I am satisfied that the said QBCC report is clear and compelling evidence of a breach of the implied term of the contract that required the respondent to perform the work in a good and workmanlike manner and with good and proper materials. 
[12]	For these reasons, I find that the respondent has breached the contract. 
The remedy 
[13]	The applicant’s original application sought payment of an amount owing and restitution. However, pursuant to the Tribunal’s directions of 28 November 2023, the applicant sought to be compensated by way of damages in the amount of $17,972.70. In my view this matter should proceed by way of an assessment of damages being pursuant to the directions of the Tribunal and the applicant does request ‘to make whole’ in the original application form. 
[14]	The remedy available to the applicant, who has suffered a breach of contract, is that he is to be placed in the same position with respect to damages as if the contract had been performed as set out in the case of Robinson v Harman:   
The rule of common law is, that where a party sustains a loss by reason of a breach of contract, he 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. 
[15]	The applicant has provided evidence that the cost of putting him in the same situation as if the contract had been performed is $17,972.70.  The evidence is in the form of a quotation from Connell’s Property Maintenance dated 19 January 2024. This evidence from Connell's Property Maintenance is unchallenged. I have had regard to the line items and in my view the quote applies to the same work as the respondent contracted to carry out; there are removal and disposal costs and QBCC insurance costs which are appropriate. I find this quoted price to be reasonable.  
[16]	I find the respondent is liable to the applicant for damages in the amount of $17,972.70. 
[17]	I also find that the respondent is liable reimburse the applicant for the Tribunal filing fee of $367.00. 
Order
[18]	The respondent is required to pay the applicant $18,339.70.