The applicant homeowner's application for domestic building dispute relief was dismissed in its entirety. The homeowner sought orders that the respondent builder either relocate encroaching retaining walls and fences within the property boundary or arrange removal of an encumbrance placed by council against the property records. The Tribunal found the contract was a level 2 regulated contract under the QBCC Act that lacked the required written, dated and signed formalities, rendering it without effect under Schedule 1B, s 14(10) and precluding any contractual claim. On negligence, the Tribunal maintained its view (contrary to other QCAT decisions such as McSwan v Weaver and Vietheer v Holstein) that a duty of care may exist notwithstanding the statutory invalidity of the contract, but held the claim failed because neither order sought was a remedy available in negligence, and the applicant had not established identifiable damage given the council had not required removal of the encroaching works and the encumbrance was not recorded on the property title. The Tribunal also held it lacked power under s 77(3)(g) to order work on third-party land where that third party was not joined to the proceedings. The split in QCAT authority on the negligence duty of care question in the context of ineffective regulated contracts remains unresolved.
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