QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Bunwong and Cunliffe v Pete’s Painting Solutions Pty Ltd [2022] QCAT 248	
PARTIES:	SAOWANI BUNWONG and scott cunliffe	

(applicant)	

	v	
	pete’s painting service solutions pty ltd	

(respondent)	

APPLICATION NO/S:	BDL 137-20	
MATTER TYPE:	Building matters	
DELIVERED ON:	28 June 2022	
HEARING DATE:	26 November 2021	
HEARD AT:	Cairns	
DECISION OF:	Member Pearce	
ORDERS:	1.	Pete’s Painting Service Solutions Pty Ltd is to pay to Saowani Bunwong and Scott Cunliffe the amount of $3,434.60 within 28 days of this decision.
2.	Each party to bear their own costs of the proceeding.
	
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – GENERALLY – where parties entered a contract for painting – where rectifications required for work – where site access hasn’t been granted – damages for breach of contract – where the loss is not caused by failure of contract – where the evidence is inconsistent

Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Lyons v Dreamstarter Pty Ltd [2017] QCATA 33

APPEARANCES & REPRESENTATION:	

Applicant:	
Self-represented by Saowani Bunwong and Scott Cunliffe	

Respondent:	
Self-represented by Peter Raby, director	

REASONS FOR DECISION
[1]	Ms Bunwong and Mr Cunliffe are owners of 27 Hill Street, Manunda Qld 4870 (“the property”). They contracted with Mr Raby of Pete’s Painting Service Solutions Pty Ltd, to undertake painting works at their premises in January 2020. The applicant claims the costs of rectification, and an award of damages and interest on the damages. 
Background
[2]	On 5 December 2019 the respondent quoted to the applicants for painting works to the interior and exterior of the Property.
[3]	The respondent is a registered company and holds a current QBCC licence. The business traded under the name “Pete’s Painting Solutions”. Peter Raby is the Director.
[4]	The contract included the following express term:
“PPS guarantees to provide quality workmanship and products within the guide to Standards and Tolerances 2007”
[5]	The applicant accepted the quote, and the contract was thereby formed. It must be noted no written contract was entered into. The accepted quotation states:
“… the owner will undertake the majority of preparation required. Externally there is not really a great deal except for the treatment of some rusted sections…… Internally is a slightly different story with a large amount of paint that has crazed….”
[6]	The Property had been purchased by the applicants and they were undertaking renovations prior to occupying the premises. They were renting alternative premises. It is noted that a significant amount of renovation work was being carried out including removal of floor coverings, floor sanding, kitchen replacement, bathroom and toilet renovations and plumbing and electrical works. These works were being carried out by multiple parties that include relatives of Ms Bunwong. It was presented to the Tribunal that these relatives were from overseas and staying with the applicants for a period of time. It is unclear if these relatives were tradespeople or possessed any skill in the works being caried out. It is accepted that a degree of the preparation work was attempted by parties arranged by the applicants (not related to the respondent). The respondent has stated that some of the preparation work had to be carried out by his workers irrespective of the terms stated above.
[7]	The applicant paid to the respondent a sum of $7,500.00 for the works to be carried out.
[8]	In early January 2020 the respondent carried out the internal and external repaint works.
[9]	Following the completion of the painting works the applicants and the respondent met at the Property on or about the 16th or 20th of January 2020 to address areas of concern that the Applicants had raised. It was arranged for these concerns to be rectified during a period when the applicants would be out of town, namely 21 January to 2 February 2020. For reasons unknown the respondent did not attend.
[10]	On or about 4 February 2020 the parties met again at the Property and the respondent offered to address the concerns. This was rejected by the applicant.
[11]	On 11 February 2020 the Applicant wrote to the respondent proposing to settle the dispute by the respondent paying the Applicant a sum of $2,375.00 in return for the applicants dealing with the rectification work themselves. The respondent rejected this. Correspondence presented to the Tribunal by the respondent indicates that the respondent offered on multiple occasions to address the items of concern to the applicant. These were rejected by the applicant.
[12]	On 24 February 2020 the applicant submitted a defective building work complaint to QBCC.
[13]	Following advice from the QBCC the applicant allowed the respondent to inspect their items of concern on 7 April 2020. It is accepted that during this visit the respondent attempted to test paint removal methods in two areas.
[14]	The QBCC conducted a short site visit on 9 April 2020.
[15]	The QBCC report outlines a number of reasons provided by the applicant for denying access to the respondent to address items of concern. These include:
(a)	“The job being left in the state it was in the first instance indicates poor workmanship;
(b)	The respondent had already been given an opportunity to fix the damage and this was not done;
(c)	The respondent is not a wood floor expert and cannot repair floors;
(d)	The Applicant does not want the Respondent causing more damage;
(e)	The settlement proposal offered by the claimant was preferable as it provided an “easy out”, a simple way to get the whole ting done and dusted” and a way to relieve the case of having to deal with the Respondent;
(f)	The Respondent has displayed unprofessional behaviour, with the claimant no longer trusting the Respondent;
(g)	The claimant has concerns for their personal safety if the respondent were allowed back to site.”
[16]	The QBCC report goes on further to state:
“The inspector, in his opinion, did not witness any aggressive or abusive behaviour displayed by the respondent during the site inspection that raised any obvious or significant concerns.”
[17]	The report concludes with the following:
“The respondent has requested site access on multiple occasions to address the claimants’ items of concern. These requests have been denied by the claimant. It would therefore not be reasonable for the QBCC to direct the licensee to rectify, and complaint items deemed to be defective building work”.

Jurisdiction 
[18]	The Tribunal has jurisdiction to hear and determine building disputes, once the parties have submitted to any dispute resolution process provided by the Queensland Building and Construction Commission.
[19]	This matter involves a building dispute between a building owner and a building contractor relating to the performance of reviewable domestic work which includes tiling as part of the renovation or improvement of a home.2 Accordingly the Tribunal has jurisdiction to hear and determine the matter.
The Evidence from the Applicant
[20]	The applicant was self-represented and called no witnesses. The applicant provided oral evidence that he obtained the respondent’s details from advertisements in Hi-Pages. He sought 3 different quotes from 3 businesses of which the respondent was one.
[21]	The applicant stated the parties met at the premises on 5 December to discuss the job and the respondent provided a quote. The quote was accepted, and work was to commence “straight away”. At some stage over the Christmas break the works were completed and the Applicant states they viewed the work on 14 January. The Applicant states the work was poor with paint all over the floors and overspray over the interior.
[22]	The applicants confirmed that they met on site with the respondent and that the respondent agreed the job was a “mess”. The applicant stated they agreed to have some rectification work and also discussed a bit of additional work. The applicant states payment was made in full with an additional $300.0 for the additional work.
[23]	The applicant stated that the rectification was to be completed while they were away, and keys were left in the washing machine for access. No rectification was done. The applicants stated that this was the commencement for “nasty emails” and that the respondent “refused to negotiate”
[24]	The applicants state that on 16 February they made an offer to settle to the respondent. This was refused.
[25]	The applicants asserted that the basics of painting were not followed – no drop sheets used, and the job was not adequately taped up. 
[26]	The applicant commenced a claim with the QBCC which is summarized previously. 
[27]	They state they were advised by the QBCC that they could not live in the property or do any works as this would make their application difficult. The applicants state that the wife’s family had come from overseas to perform a Buddhist ceremony for their first home. The applicants had given notice to their landlords but state when they made their application to QBCC they decided to remain in the rental property for all up a total of an additional 144 days.
[28]	As summarised above the QBCC declined to bring the respondent back to rectify the works as the applicants had refused access previously and had indicated they did not want the respondent at their property.
[29]	The applicant also reported the Respondent to the QBCC on the basis that no contract was being entered into.
The Evidence from the Respondent
[30]	The respondent company was represented by their sole director Mr Raby who was self-represented. No witnesses were called.
[31]	The respondent states he was paid for the job following completion as the job was done. He stated that the painting job itself was not in dispute. Rather, some areas of overspray were seen due to the area not being taped appropriately. 
[32]	The respondent advised that the job was done with acrylic paint and that if he had not been denied access it could have been resolved easily by removing the over spray. The longer it is left the harder it is to remove.
[33]	The respondent stated that the essence of the problem lay in the preparation work which had not been done properly but was to be carried out by the applicant’s prior to the job. He also stated that he cannot be in control of the whole job site when there were so many other people and family members coming and going.
[34]	The respondent agreed it was a cash job which was why no contract was entered into and because the applicants wanted the job done over the Christmas period it was good way to give his workers some work over that time.
[35]	The respondent also advised that QBCC carried out their own investigation into “illegal workers” meaning the applicants family who were carrying out renovations.
[36]	The respondent stated he has experienced significant loss as a result of this job. The report to the QBCC saw the Respondent fined $3,000 and a loss of points. He states that the situation became a “game” for the applicants who engaged in a “sadistic onslaught” that was an attempt to destroy the business. The respondent also stated the applicants had made further complaints about his business to other referral sites causing detriment.
[37]	The respondent claimed that the actual painting job was not disputed, the real issue was with the taping. He stated he was paid because the job was completed, there were no ongoing issues. The applicant did not dispute this.
[38]	The respondent also confirmed that unlike standard jobs a builder’s clean would have rectified some of the issues but as the renovations were being done by family members this was never done.
The Applicant’s claim
[39]	The applicant has listed some 54 defects which were submitted to QBCC for their investigation.
[40]	Initially the applicant asserted that as a result of the breach of contract or breach of duty by the respondent the applicant has incurred loss and damage in the amount of $9,898.67 being
(a)	Costs of flooring contractor to strip and recoat floor boards	$1,717.00
(b)	Costs of worker/handyman for removal of paint to interior 
over sprayed areas						$790.00
(c)	Cost of rent paid during the period of rectification works	$5,802.67
(d)	Loss of ability to use commercial food van			$920.00
(e)	Miscellaneous areas damaged by overspray (screen doors, 
fan in kitchen and hose)						$420.00
(f)	Costs of $249.00 in relation to photocopying, postage etc	$249.00
Total								$9,898.67

[41]	Material filed by the applicant on 13 August 2021 included a Scott schedule claiming the following:
(a)	Defective work costs 						$3,434.60
(b)	Rent								$6,144.48
(c)	Loss of rent of shed (had to store furniture)			$1,748.57
(d)	Damage to furniture in shed					$975.00
(e)	Religious ceremony (airfares for parents)			$9,339.00
(f)	Financial loss depreciation on campervan			$595.00
(g)	Financial loss – storage of commercial food van			$690.00
(h)	Administration costs						$350.00
Total								$28,96.65

[42]	There was consistent evidence from both sides and in the written submissions that one of the biggest areas of concern was the paint on the floorboards. For this reason, that amount is accepted.
[43]	In addition, there seemed consistent evidence that overspray had caused issues in a number of areas and for that reason the additional defective works costs are accepted. The total being $3,434.60.
[44]	Whilst no witnesses were called by either party it appeared that the actual painting was not questioned but the main difficulties were the overspray and damage to floors.
[45]	The original agreement between the parties to proceed without written contract, pay cash thereby avoiding GST and some confusion around the actual scope of the work and which party performed what items of preparation makes determining a breach of contract problematic and the applicant did not lead evidence in that regard.
[46]	Even if a breach of contract could be determined in order to recover damages the damages claimed must not be too remote. That is, the loss and damage must arise naturally from the breach of contract and should have been in contemplation by the builder if the works were not performed with due care and skill. The items claimed as loss, the bigger of the mentioned below, I consider to be too remote.
[47]	There are also some conflicting items claimed in the applicants’ statements. In the original application the applicants claimed an amount by virtue of not being able to use his commercial food van. The original application explains that the food van is normally stored in the shed, but the shed was full of furniture due to the painting and delays with rectification. The information provides that the van had to be stored elsewhere. In the amended application on the Scott Schedule the applicants claim and amount of $ for loss of the rental for the shed. It is not accepted that the Applicant would have received rental for the shed as it appears evidence provided is that the food van would be stored there. 
[48]	The applicants have claimed and amount of $6,144. Being rent for the 144 extra days they were required to live at a rental premises. The applicants gave oral evidence that QBCC advised that they were not able to move into their home while the claim was in progress. The applicants say these delays cost them more in rent. The applicant’s however led no evidence to substantiate this, and I do not accept this cost was caused by this matter. Many home owners reside in their homes whilst rectification works are being carried out. To suggest otherwise without evidence is unusual.
[49]	The applicants have also claimed $9,339.00 for loss incurred due to the cancellation of a Buddhist ceremony that was to be conducted at the applicants’ new home. The applicants state that the wife’s parents and an assistant monk travelled to Australia from overseas and due to the delays were unable to perform the ceremony. It is not accepted that this loss was caused as a result of this proceeding.
[50]	In the same way the other items claimed as losses cause are not accepted.
[51]	It is noted that much of this dispute has been caused by both the applicants and the respondent. The applicants refused to allow the respondent to attend to rectify the items noted. It is probable that had the QBCC been able to order the rectification works this matter would be resolved. In the same way however, the respondent failed when given and opportunity to attend to rectify the issues. It is noted that the responded provided evidence to the Tribunal that at the time this was happening he was going through a difficult divorce, he had been prevented seeing his young son and had experienced some serious mental health issues. It is acknowledged that had this occurred during a time when the respondent was not experiencing such personal difficulties the outcome may have been very different.
Power to award costs under the QCAT Act
[52]	The relevant costs provisions under the QCAT Act are contained in section 100 and 102. The starting point in relation to costs under the QCAT Act is that other than as provided under this Act or an enabling Act, “each party to a proceeding must bear the party’s own costs for the proceeding’.
[53]	There is power under the Queensland Building and Construction Commission Act 1991 (QBCC Act) for the Tribunal to make orders to ‘resolve the [building] dispute’ and the Tribunal may exercise power to ‘award costs’.
[54]	The power to make an order for costs under s 77 of the QBCC Act involves the exercise of discretion. In Lyons v Dreamstarter Pty Ltd the Appeal Tribunal said that s 77 does confer jurisdiction on the Tribunal and that the Tribunal may make an order for costs. The Appeal Tribunal said in Lyon’s case that s77 ‘does not provide further guidance or prescription about the occasions for or conditions of exercise of that power’. The exercise of a broad general discretion must be ‘exercised judicially’. The then Deputy President, Judge Kingham said:
A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.
[55]	In this case the parties represented themselves at the hearing. The applicant’s have provided evidence of legal assistance in preparation of the case. The respondent too, advised he has sought legal advice and incurred expenses however did not provide an account of this.
[56]	I have also considered the opportunity of both parties to resolve the matter and the offers of settlement made. It is not clear from the evidence provided by both parties whether either party made a genuine effort to resolve the matter. As previously stated, I accept the applicant caused delay to rectification works by not allowing the respondent to attend. In the same way, when given an opportunity to attend to rectify works the respondent failed to attend to do so due to some personal issues.
[57]	In this case, both of the parties had some success with their application and response. Both parties have been put to expense in relation to the proceedings. I am satisfied that the appropriate order for costs in relation to the proceedings is that each party bear its own costs.
Orders 
[58]	For the reasons above, the applicants’ claim against the respondent is allowed in the sum of $3,434.60, determined as follows: 
(a)	Defects claim: 	$3,434.60
Total 		$3,434.60