QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Peckham v Rosa [2024] QCAT 366	
PARTIES:	mathew patrick peckham	

(applicant)	

	v	
	jack daniel rosa	

(respondent)	

APPLICATION NO/S:	BDL 402-23	
MATTER TYPE:	Building matters	
DELIVERED ON:	5 September 2024	
HEARING DATE:	On the papers	
DECISION OF:	Member Taylor	
ORDERS:	1.	The Application for Domestic Building Dispute filed 27 November 2023 is dismissed.	
CATCHWORDS:	ADMINISTRATIVE TRIBUNALS – QUEENSLAND ADMINISTRATIVE TRIBUNAL – where an application to the Tribunal had been made and purportedly served on the respondent – where the respondent did not provide any response to the application or otherwise contact the Tribunal – where the applicant filed an Affidavit of Service purporting to show service had been effected on the respondent – where the Affidavit of Service did not comply with the requirements of the Tribunal’s rules in terms of proving service – where the evidence provided in support of Affidavit of Service was otherwise inadequate to prove service
CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – OTHER MATTERS – where a homeowner asserted he entered into a contract with a building trade contractor – where the homeowner asserted the trade contractor performed work under the contract – where the trade contractor was not licenced to perform such work – where the homeowner sought restitution of money asserted to have been paid under the contract to the trade contractor – where the homeowner failed to adduce relevant and requisite evidence to prove the existence of the contract, the performance of the work, or the payment said to have been made
EVIDENCE – PROOF – STANDARD OF PROOF – STANDARD OF SATISFACTION – SUFFICIENCY – GENERALLY – where an application to the Tribunal had been made and purportedly served on the respondent – where the respondent trade contractor did not provide any response to the application or otherwise contact the Tribunal – where the applicant homeowner filed an Affidavit of Service purporting to show service had been effected on the respondent – where the Affidavit of Service did not comply with the requirements of the Tribunal’s rules in terms of proving service – where the evidence provided in support of Affidavit of Service was otherwise inadequate to prove service - where the homeowner asserted he entered into a contract with the trade contractor – where the homeowner asserted the trade contractor performed work under the contract – where the trade contractor was not licenced to perform such work – where the homeowner sought restitution of money asserted to have been paid under the contract to the trade contractor – where the homeowner failed to adduce relevant and requisite evidence to prove the existence of the contract, the performance of the work, or the payment said to have been made  
Electronic Transactions (Queensland) Act 2001(Qld), s 23, s 24, s 25, s 26
Queensland Building and Construction Commission Act 1991 (Qld), s 42, Schedule 1 A s 8, Schedule 2 Schedule 1B s 13(5), s 19, s 22, s 19
Queensland Building and Construction Commission Regulation 2018 (Qld), s 5, Schedule 1 s 2
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 32, s 224, Schedule 2 s 7
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), s 36, s 39, s 42   
Neil v Nott (1994) 68 ALJR 509	
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
Overview
[1]	Mr Peckham sought restitution of money he says he paid to Mr Rosa for the performance of building work by Mr Rosa, but in circumstances where Mr Rosa was not licenced to perform such work. He also asserted that the work performed was defective and so he claimed damages against Mr Rosa.
[2]	Mr Rosa did not file any response to that claim or otherwise make any contact with this Tribunal in respect of this proceeding. Nor did Mr Peckham provide anything to this Tribunal which showed any response by Mr Rosa to the claim being made against him.
[3]	For the reasons I discuss herein, Mr Peckham failed in his efforts to have this Tribunal make an order against Mr Rosa for the claims pressed. This was because not only did Mr Peckham fail to show with sufficient certainty that he had served Mr Rosa with the originating application, but he also failed to show that he had in fact contracted or otherwise engaged Mr Rosa to perform the asserted work, that Mr Rosa had in fact performed that work, and that he had paid Mr Rosa. Accordingly an order was made dismissing the application.
Relevant Facts and Circumstances
[4]	On 27 November 2023 Mr Peckham filed an Application for Domestic Building Dispute in this Tribunal naming Mr Rosa as the respondent to his claim (the Application). Whilst it was confused within the document, Mr Peckham expressed his claim as a total of $8,681.82 or $8,699.82, in a combination of restitution, damages, and costs.
[5]	The Application was premised on the following asserted facts:
(a)	On or about 5 September 2023 the parties entered into a contract, which whilst not expressly stated therein I infer from reading the entirety of the Application document it was for plastering works to a ceiling in Mr Peckham’s house;
(b)	The contract amount was $8,500;
(c)	From 5 September 2023 to 10 September 2023 works were performed under the contract;
(d)	Mr Peckham paid the entire $8,500 to Mr Rosa;
(e)	Subsequent to the works being completed and that amount having been paid, Mr Peckham asserted the works were defective and that he only then learned that Mr Rosa did not hold a licence under the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act) to have performed the works;
(f)	Mr Peckham has incurred a cost of $2,215 in repairing the defective work;
(g)	He will incur further costs for repair work yet to be performed;
(h)	Because Mr Rosa does not hold the requisite licence, under s 42 of the QBCC Act Mr Peckham sought repayment from Mr Rosa of $6,331.12, which he said was the labour component of that which he paid to Mr Rosa.
[6]	Mr Rosa did not file any documentation in this proceeding, nor otherwise contact the Tribunal. Nor is there anything filed by Mr Peckham to show any response or other communication he had received from Mr Rosa in terms of the Application, this proceeding, or his claim against Mr Rosa.
[7]	By a Direction issued by this Tribunal, it was directed that this proceeding was to be determined on the papers on the basis of the documents forming the Tribunal record. 
[8]	It is against that background that the proceeding came before me for determination.
The Issues in this Proceeding
[9]	A threshold issue in this proceeding was whether Mr Rosa was served with the Application.
[10]	If that was satisfied, the next relevant issues were:
(a)	whether there was a contract, or at the very least some form of arrangement, between Mr Peckham and Mr Rosa under which building work was to be performed;
(b)	whether that work was performed by Mr Rosa; and 
(c)	whether Mr Peckham paid the $8,500 to Mr Rosa for such work.
[11]	It is only if those issues were satisfied did the issue arise as to whether Mr Peckham was entitled to the relief he sought from this Tribunal.
The Evidence
[12]	The evidence from Mr Peckham in support of his claim was minimal. As noted, there is nothing from Mr Rosa.
[13]	On 12 December 2023, Mr Peckham filed an Affidavit of Service in which he declared that on 11 December 2023 at 6:40 pm he served the Application on Mr Rosa by way of:
(a)	Express post via Australia Post said to have been sent 7 December 2023 at 2:33 pm to an address in Crows Nest QLD, 4355 and asserted to have been received on 8 December 2023 at 3:19 pm by a Dana Tutton; and
(b)	E-mailed to an address said to be ‘jack@therosahouse.com’ on a date not specified but asserted to have been sent at 4:13 pm in which reference was made to that stated in (a) herein.
[14]	However he did not provide evidence sufficient to support that declaration. At its highest he provided a copy of:
(a)	a receipt from an Australia Post office at Deception Bay for purchase of an express post envelope and label on 7 December 2023 at 2:33 pm, on which there is a hand-written note as to the asserted receipt of a posted article by Dana Tuton; and
(b)	what he says is an e-mail sent by him to Mr Rosa ‘Today at 4:13 pm’ shown to have had attached to it two QCAT documents in Portable Document Format, but without any identification of what those documents were, nor the date on which it was sent, nor any reference thereon indicating it had been sent, nor a delivery receipt or read receipt in terms of the e-mail shown as having been delivered or read. 
[15]	Despite a Direction being given to him by this Tribunal for the provision of a copy of the contract, he did not provide any evidence to support his assertion of a contract or any arrangement at all between the parties.
[16]	He did not provide any ‘statement of evidence’ in which he described the relevant events as they are said to have occurred, nor did he provide any evidence of the asserted work having been performed.
[17]	The remainder of his evidence was limited to the following:
(a)	A copy of what is said to be a Tax Invoice dated 27 September 2023 in the name of J.D.R Plastering with the quoted ABN 12 667 032 390, with a hand written note thereon being ‘Jacks (sic) personal ABN with an arrow pointing to that ABN, it being for a total of $8500 incl GST, it showing ‘Payment Instructions’ giving an account name, a BSB number, and an Account Number, and it showing that total having been paid;
(b)	Copies of search results of the QBCC Licence Register in the names of ‘Jack Rosa’ and ‘JDR Plastering’, both showing ‘no licence’ result, but without any reference to the dates on which these were performed;
(c)	A copy of what he asserted was a record of six separate payments being made via bank transfer to ‘Rosa JD Commbank’ referenced as ‘Ceiling Replacemen’ (sic) totalling $8,500, the first payment shown as having been paid on 21 August 2023, the last as having been paid 11 September 2023.
The Relevant Law
[18]	The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 224 provides for the making of certain rules for inter-alia certain practices and procedures to be applied in the conduct of a proceeding in this Tribunal. In turn QCAT Act Schedule 2 s 7 provides for the making of relevant rules for the service of documents.
[19]	The relevant rules are then found in the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules), which for ease of reference I extract here in full to the extent relevant in this proceeding:
Part 5 Service of notices or other documents
Division 1 Statement of address for service
36 	Other parties to file statement of address for service
(1) 	A party to a proceeding for an application or referral, other than the applicant or a party who has responded to the application or referral, must—
(a) 	file a statement of address for service; and
(b) 	give a copy of the statement to—
(i) 	each party to the proceeding; and
(ii) 	each other person to whom a copy of the statement is required to be given under an enabling Act; and
(iii) 	any person the tribunal directs to be given a copy of the statement.
(2) 	Subrule (1) does not apply to a respondent if the application or referral includes the respondent’s correct contact details.
(3) 	If an application or referral includes the contact details of a respondent and the respondent does not file a statement of address for service (whether as part of a response or under subrule (1)), the part of the application or referral containing the respondent’s contact details is taken to be the respondent’s statement of address for service.
(4)	…
Division 2 		Provisions about giving documents
39 	Giving documents to other persons
(1) 	Unless an enabling Act provides otherwise, a document required to be given to an entity in a proceeding may be given to the entity in 1 of the following ways—
(a) 	…;
(b) 	by sending it by post to the relevant address; 
(c) 	…; 
(d) 	if the entity has an address for service that includes an email address—by sending it to the entity at that address;
(e) 	…;
(f)	…
(g) 	in another way provided for in the service practice direction;
(h) 	in any other way directed by the tribunal.
(2) 	In this rule—
relevant address, for giving a document to an entity, means—
(a) 	the service address in the entity’s address for service; or
(b) 	if the entity does not have an address for service—
(i) 	for posting the document to the entity—the address provided for in the service practice direction to which documents may be posted to the entity if the entity does not have an address for service; or
(ii) 	…
42 	Affidavit proving document was given
(1) 	This rule applies if proof of the giving of a document required to be given under the Act, an enabling Act or these rules is required—
(a) 	under a provision of the Act, an enabling Act or these rules; or
(b) 	by the tribunal.
(2) 	The proof must be given by affidavit.
(3) 	…
(4) 	If the affidavit is about giving a document other than by personal delivery, the affidavit—
(a) 	must state the relevant dates and the facts showing the document has been given; and
(b) 	may be made on information given to, or the belief of, the person giving the document; and
(c) 	if made on information given to the person giving the document—must state the source of the information.
(5) 	Also, the affidavit must—
(a) 	have the document filed with it as an exhibit or be written on the document; or
(b) 	if the document has been filed—mention the document in a way sufficient to enable the document to be identified.
[20]	Associated with these provisions is the QCAT Practice Direction No 8 of 2009 (PD # 8). Whilst that Practice Direction is entitled ‘Personal service of documents’, it contains one provision in terms of Rule 39 extracted above which I consider relevant to the issue of whether Mr Rosa was in fact served, namely:
Rule 39 – The relevant address for an entity that does not have an address for service
13. 	For the purpose of either posting a document or leaving a document with someone pursuant to rule 39 (Giving other documents to other persons) the relevant address where the entity does not have an address for service is:
(a) 	for an individual, their last known residential or business address;
(b) 	….
[21]	Also as might otherwise be relevant in this proceeding were the provisions of s 42 of the QBCC Act. However for the reasons I discuss later herein I have not extracted it here as I have not engaged in any detailed discussion on it.
Discussion on the Issues
[22]	On the evidence before this Tribunal, Mr Peckham was simply unable to succeed on his claim. This is for two reasons which I will address in turn.
Mr Peckham’s failure to have proven service
[23]	It will be recalled that Mr Rosa did not file any material in this proceeding, or otherwise contact the Tribunal. Nor was there anything from Mr Peckham to indicate any sort of response by Mr Rosa to the claim being made against him. Thus it was challenging for me to be satisfied that Mr Rosa had in fact received the Application and was aware of the claim against him in this Tribunal. Mr Peckham’s evidence of service, as given by way of affidavit, was inadequate to provide the requisite level of satisfaction. This was for a number of reasons.
[24]	First, whilst it may readily be accepted that, as provided for under Rule 36 of the QCAT Rules, in the absence of Mr Rosa having responded to the Application by way of a ‘Form 36 – Response and/or counter-application’, or otherwise as provided for by Rule 36(1) and (2), Mr Rosa’s statement of addresses for service was that as per the street and e-mail addresses for Mr Rosa shown by Mr Peckham in the Application document. But that of itself was insufficient to satisfy me that these addresses were correctly given as being Mr Rosa’s addresses. 
[25]	For the purposes of Rule 39 the relevant address is that which is his ‘address for service’, but in my opinion it does not follow that notwithstanding those provisions the address given in an application document can just be accepted as the relevant address absent any supporting evidence of it. Something more would be required in the circumstances such as they exist in this proceeding where there is an entire absence of any response from a respondent. That something more can readily be found in PD # 8. In this proceeding, at the very least there should have been some evidence of it being Mr Rosa’s last known residential or business address.
[26]	But, Mr Peckham’s material filed is entirely devoid of anything from which that information can be found, either directly or by inference. At best, it is a bare assertion by Mr Peckham that this is Mr Rosa’s address, be it either the street address or the e-mail address. He does not provide any information as to the premise for his assertion it is the correct address.
[27]	Moreover, whilst he asserts the Application document was posted to that street address, and in turn received by a Dana Tutton, he does not provide any evidence as to proof of postage to that address. At the very least this could have been a photograph of the envelope showing as having been addressed to that address, and a statement having been given by him under oath, or from the Australia Post staff member who received the envelope, as the envelope having the correct postage paid and it being received as post made at the relevant time and date. At its highest Mr Peckham’s evidence is that he purchased an express post envelope and label for $13.45 at the Deception Bay Post Office on 7 December 2023 at 2:33pm. This is not evidence of the document having been posted to that street address.
[28]	Secondly, as to the assertion that the document as allegedly posted was received by Dana Tutton, there is no evidence as to who Dana Tutton is and her relationship to Mr Rosa, or otherwise that the document did or would have come to Mr Rosa’s attention. Moreover, he does not provide any evidence as to how he became aware of such a fact. It is once again an entirely bare assertion. In this regard, his affidavit is not compliant with the requirement of QCAT Rules rule 42(4).
[29]	Thirdly, as to the assertion of the documents having been e-mailed, as I indicated it earlier herein the evidence is devoid of anything which shows effective service by e-mail. Once again there is nothing in the material to support the assertion that the stated e-mail address is in fact Mr Rosa’s e-mail address. Nor is there anything to show with certainty that the e-mail Mr Peckham asserts he sent was actually sent. The copy of the document he provides is without anything contained within it to show even a date sent let alone confirmation of it being sent. For these reasons, Mr Peckham’s evidence is devoid of the requisite information to enable a positive finding of service by way of satisfaction of s 23, s 24, s 25, and s 26 of the Electronic Transactions (Queensland) Act 2001(Qld). 
[30]	There is also one other aspect of Mr Peckham’s evidence of service of the Application document which was troubling. Whilst he says it was served by way of post effectively on 8 December 2023 when it was received, and also by e-mail on a date not specified but said to have been sent at 4:13 pm, in is affidavit document he states, ‘on oath’ or otherwise ‘affirmed and declared’, that he served Mr Rosa on 11 December 2023 at 6:40 pm. This statement is entirely at odds with the remainder of his evidence of purported service. It of itself raises questions as to the correctness of that which Mr Peckham stated.
[31]	In all respects, there was insufficient evidence before me to enable me to make a positive finding that service of the Application document had been effected on Mr Rosa, such that it would then be open for me to make a finding against Mr Rosa if ultimately that is something I would do on the evidence before the Tribunal. However, as I discuss in the few paragraphs that follow here, even if I were to find that service had been effected, or am wrong in my conclusions as to service, on the remainder of Mr Peckham’s evidence it was simply not open for any such finding to be made against Mr Rosa.
Mr Peckham’s failure to have proven his case
[32]	On the material before this Tribunal, it may readily be accepted that Mr Rosa did not hold a licence under the QBCC Act permitting him to lawfully carry out plastering works to a value exceeding $3,300.
[33]	However, notwithstanding that fact and thus the relief Mr Peckham sought from this Tribunal, his case required the following facts to have been established on the balance of probability:
(a)	He engaged Mr Rosa in a contract, or at least some form of an agreement that may not have been formally a contract at law;
(b)	Mr Rosa performed that work under that contract or agreement, and moreover, as I will discuss it briefly shortly herein, he performed that work himself or at the very least using a subcontractor who was similarly not licenced; and
(c)	He paid Mr Rosa the asserted $8,500 for that work.
[34]	On the evidence he presented to this Tribunal, I was unable to make a positive finding in terms of any of those facts. 
[35]	Firstly, as I noted it earlier herein, Mr Peckham did not present anything which expressly averted to the fact of the contract or other engagement, nor anything from which a positive finding of such a fact could have been inferred. His assertion was simply a bare one.
[36]	Secondly, he did not present any evidence of the work having been performed, nor that it was Mr Rosa who himself performed the work. Even if I could accept on the state of the evidence that the asserted work was done, in the absence of any details of who actually performed the work it remained a possibility, even if a very slight one, that given Mr Rosa not the holder of the requisite licence to perform the work, it was open for him to have engaged, by way of a subcontracting arrangement, a person who was properly licenced to perform the work. Had he done so he could have been exempt from a finding of unlicenced contracting, such being as provided for under s 42(1) of the QBCC Act in terms of head contractors as found in Schedule 1A s 8 of that Act.
[37]	Thirdly, his asserted evidence as to payment of the $8,500 was inadequate. At best he provided a copy of a Tax Invoice said to have been given by Mr Rosa which showed a description of works and for which payment had been made to be read together with a copy of what he said were bank transfers to an account in the name of Rosa JD. Whilst the total of the payments made equate to the total of the invoice, and that payment were made to an account, and requested on the invoice to be made to an account, in the name of Rosa JD, that is the extent to which the two pieces of evidence marry up. It is not evidence that the payments said to have been made were made by Mr Peckham, or at the very least by somebody on his behalf, from his funds to Mr Rosa’s account. 
[38]	Moreover, there is an inconsistency that exists within this purported evidence of that payment. As I noted it earlier herein, the Tax Invoice showed a bank account name, a BSB number, and an Account Number, all as ‘Payment Instructions’. Whilst the account name is given as ‘Rosa JD’ and thus consistent with the asserted record of payments said to have been made, that is where the consistency ends. There is nothing contained in the record of payments to show those payments went to the nominated bank account, or that the account to which they are said to have been sent was an account belonging to, or for the benefit of, Mr Rosa. 
[39]	But more critically, there is an issue with the record of payments in terms of the bank to which it records the payments were sent, namely ‘Commbank’ which may readily be read as a reference to the Commonwealth Bank. However the BSB number shown on the Tax Invoice for Mr Rosa’s nominated account is not a Commonwealth Bank branch. That BSB belongs to the ANZ bank at Highfields in Queensland.
[40]	For these reasons I could not reach the requisite level of satisfaction that, as a fact, it could be said Mr Peckham paid Mr Rosa to perform the said works.
[41]	In the absence of the ability to make those findings of fact in Mr Peckham’s favour, there was no premise upon which any finding could be made as to his entitlement to, at the very least, restitution. For that reason I need not have, and so did not, consider further his claim reliant on s 42 of the QBCC Act and thus have not discussed it in these reasons.
[42]	For completeness however I will make one other observation in terms of the relief Mr Peckham sought in this proceeding, such being in terms of his asserted entitlement to and claim for repainting of the ceiling and purchase of some material. Such is a claim in damages which would have to be founded in either breach of contract or some form of tort, usually negligence. But on the facts as presented neither would be open to him. This is because:
(a)	There was no written contract, and because the work said to have been performed, if it were found to have been performed and performed defectively, fell within the ambit of domestic building work and thus the contract would have been a Level 1 domestic building contract;
(b)	In turn, as provided for under the QBCC Act Schedule 1B s 13(5), in the absence of it being in written form, dated, and signed by or on behalf of both Mr Peckham and Mr Rosa, the contract would have not been of any effect and accordingly a claim for breach of contract could not have been pressed. 
(c)	For similar reasons, a claim in negligence could not have been pressed. This is because Mr Rosa did not owe Mr Peckham a duty of care, such being an essential element of a negligence action. 
(d)	This was because Mr Peckham was not vulnerable in the sense of a negligence action, because he could have entered into an effective contract with Mr Rosa by putting the asserted contract into written form and having it dated and signed by or on behalf of himself and Mr Rosa;
(e)	Had he done so he would have put himself in a position of benefitting from the warranties that then would have been imposed on Mr Rosa under the QBCC Act Schedule 1B s 19. In particular this would have been the warranty of ‘standard of work and exercise of care and skill’ as provided for under s 22 therein, and thus it would have enabled him to proceed against Mr Rosa under s 29 therein for breach of the said warranty on the basis of the allegedly defective work having been performed. 
[43]	That being so, at best Mr Peckham’s case would have been one for restitution for a failure of consideration, but in order to press any such claim he would have had to establish the basic facts which I mentioned earlier, but which he failed to do.
Conclusion
[44]	In Neil v Nott¸ the High Court observed: 
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.
[45]	In this proceeding, that obfuscation has occurred. Mr Peckham efforts to press his case  was entirely inadequate. Whilst, in the manner observed by the High Court, it could be said that this Tribunal then assumed the burden of ascertaining his rights, it does not mean that this Tribunal was burdened with the task of informing Mr Peckham where his case was failing and telling him what was required to fix it. This Tribunal does not make a case for a party. It determines a proceeding based on the case put forward by a party.
[46]	Here, Mr Peckham simply did not make out his case. But moreover, and critically, he did not establish with any certainty that Mr Rosa had actually been served with the Application document so as Mr Peckham’s case against him could be considered and even possibly a finding be made against Mr Rosa.
[47]	In all respects the only proper outcome in this proceeding based on the case as presented by Mr Peckham was for the Application to be dismissed, at the very least effectively for want of evidence. An order was made to that effect.