In the recent QCAT decision of McSwan & Anor v Weaver [2023] QCAT 148, home owners were unsuccessful in suing a builder for negligence because they were not considered vulnerable in circumstances where they had failed to ensure they entered into a legally enforceable domestic building contract.
Brief background
The owners engaged a builder to construct a carport with a roof and gutter to match their existing home.
There was no written or signed contract between the owners and the builder.
The carport was completed in March 2020, but it was not until December 2020 when the owners raised with the builder concerns that the carport roof was not the same colour as the roof to their home.
Before ordering the carport roof sheeting, the builder had seen a can of “Deep Ocean” spray paint that had been used by owners to spray roof screws on the roof of their home. The builder texted one of the owners whether he was to use “the same colour deep ocean as well as the fascia and gutter” to which she replied “yes please”.
In the proceedings, the owners said they did not know the original roof colour and had bought the spray can because they believed it would look similar. However, the owners subsequently located a receipt for the original roof and identified the correct colour to be “Ironstone”.
The owners sued the builder for the amount of $30,742.80 for the costs of replacing the carport roof to match the colour of the home. Apart from the colour issue, the roof was otherwise defect free.
The QCAT Decision
Domestic building contracts over the value of $20,000 are required by law in Queensland to have been in a written form, dated and signed by or on behalf of each of the parties to it.
Any agreement between home owners and builders which do not comply with this statutory requirement are of no effect, the consequences of which is that the parties are unable to enforce any rights or obligations arising from the agreement for the works even if the parties were able to show a verbal contract had formed. In such circumstances, a home owner is also denied the ability to rely on the benefit of the statutory warranties implied into domestic building contracts.
In the absence of a binding contract, the owners attempted to argue that the builder owed them a duty of care in ensuring the carport colour matched the original roof, and as a result of his failure to do so, the owners suffered a loss.
In determining whether a builder owes a home owner a duty of care, an assessment of the degree of vulnerability of the party which suffered the alleged loss is undertaken.
The QCAT member went to great lengths in the decision to summarise historical cases on the common law of negligence in the context of building disputes.
The QCAT member ultimately concluded that the current state of the common law is that a builder does not owe a duty of care to the original building owner, because the owner has the ability to adequately protect themselves with a building contract from the risks associated with a builder failing to perform the building work in a competent manner.
For that reason, the law considers them not to have been vulnerable and thus not owed a duty of care by the builder.
A claim of negligence was therefore not open to the owners given the requirement for a contract to have been entered into, such being one which would have afforded them the protection of a statutory warranty that would have dealt with their claim.
It was not what the owners did that matters, it is what they could have done. It is not the fact they entered into a contract that was of no effect that left them vulnerable, it is that they could have (and in fact were required to do so according to the Queensland legislation) which would have provided them of the benefit of the statutory warranties.
Other considerations
Member Taylor noted that even if he was incorrect on his analysis of the current law, the owners’ claim must still fail based on evidence because:
- the builder had taken reasonable steps to verify the colour with the owners; and
- even if the builder hadn’t taken reasonable steps and had a means of confirming the original roof colour:
(a) there was no evidence that replacing the carport roof with the “Ironstone” would have resulted in conformity, given the existing roof on the home had faded; and
(b) the owners had failed to provide evidence that there had been a diminution in value. The owners had simply asserted that the carport roof colour devalued their house because it looks “absolutely ridiculous”. The roof was defect free, and therefore if the QCAT member was to value such claim, he would have valued the claim at $1.00.
The member concluded the decision by calling for legislative reform – suggesting either:
- a mechanism of a contract remaining enforceable and afford some statutory warranties in the event a contract is not reduced to writing; or
- the introduction of legislation in Queensland which expressly provides that a duty of care is owed by builders to owners with whom they are contracted to build.
Important reminder for builders and owners
This decision serves as another important reminder for home owners and builders to ensure that they enter into a written contract which complies with statutory requirements.
While this case highlights the severe consequences for owners, builders who fail to comply with this requirement so do so at significant risk and expose themselves to the offence provisions in the Queensland legislation, which may include significant fines and demerit points against their licence.
If you have any queries about your building contract, please do not hesitate to contact our offices on (07) 3139 1874 or email us at info@constructlaw.com.au.
This post is provided for general information and educational purposes only and does not constitute legal advice. Readers should obtain appropriate independent legal advice based on their own specific circumstances.
