Burnett v Fergbilt Pty Ltd[2015] QCAT 328

APPEARANCES:

REASONS FOR DECISION

1. [1]
   By an application for domestic building disputes filed on 6 November 2014 (‘the Application’), the Applicants sought rectification or completion of alleged defective work (and costs) in relation to renovation work performed by the Respondent at the residential home owned by the Applicants situated at Alderley in Brisbane in the State of Queensland (‘the Property’).
2. [2]
   The details of the alleged defective work were set out in the schedule to the Application. There were four items of work described as follows:

   2. a)
      defective external concrete work at the front and side of the Property which has excessive cracking across 22 separate locations and, in several locations, concrete is breaking up with looser pieces of concrete coming away;

   2. b)
      defective external painting work because the Respondent’s painter used the incorrect paint colour on windows, front stairs and features of the street facing front of the Property and the colour does not match the paint colour of the remainder of the trims and features across the Property;

   2. c)
      defective cracking has occurred between the cornice and ceiling in several sections of the new ground floor of the Property;

   2. d)
      the light in the main upstairs bathroom does not work due to it being connected incorrectly.
3. [3]
   The ‘Attachment’ to an application filed by the Applicants on 11 May 2015 states that:

1. The Applicants seek that the Respondent be ordered by the Tribunal to pay the following damages to the Applicants:

1. (a)
    $16,097.00 for the full rectification of the defective concrete work;

2. (b)
    $3,520.00 for the full rectification of the defective external painting works;

3. (c)
    $400.00 rectification of the defective internal painting works;

4. (d)
    $150.00 for the rectification of the defective light switch operation in the upstairs bathroom;

2. The costs sought by the Applicants against the Respondent were as follows:

1. (a)
    QCAT building dispute filing fee - $295.00;

2. (b)
    Tax Invoice cost for the Applicants’ Concrete Expert and Witness, Mr John Tuxworth (‘Mr Tuxworth’) of Built Environment Collective Pty Ltd T/A BE Collective ABN 95 629 309 237 for inspections and Reporting (Professional Opinion and Recommendations Report dated 30 January 2015) - $3,206.83;

3. (c)
    Tax invoice cost for Structerre Consulting Engineers to prepare Saw Cut plan to demonstrate where saw cuts should have been made by the Respondent to control cracking per industry best practice - $110.00

4. (d)
    Tax invoice cost for John Tuxworth for review and response to Respondent’s Witness Statement & Statement of Evidence of Respondent dated 2 March 2015 - $858.00

5. (e)
    Tax invoice cost for John Tuxworth to attend Expert Conclave as set down by the Tribunal for 14 May 2015 – Estimate $445.00 (based on 1.5 hours to attend the Expert Conclave meeting).

Jurisdiction

4. [4]
   Section 77(1) of Queensland Building and Construction Commission Act 1991 (Qld) (‘the QBCC Act’) provides that a person involved in a ‘building dispute’ may apply to the Tribunal to have the Tribunal decide the dispute.
5. [5]
   At the time of the filing of the application, Schedule 2 to the QBCC Act provided, among other things:

building dispute means—

1. (a)
    a domestic building dispute; …

domestic building dispute means—

1. (a)
    a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of ‘reviewable domestic work; …

reviewable domestic work means domestic building work under the Domestic Building Contracts Act 2000, except that for applying section 8(8) of that Act, the definition excluded building work in that Act is taken not to mean anything mentioned in paragraph (b), (c) or (d) of the definition.”

6. [6]
   Section 8 of the Domestic Building Contracts Act 2000 (Qld) (‘the DBC Act’) (now repealed) provided in part:

3. (1)
    Each of the following is domestic building work—

1. (a)
    the erection or construction of a detached dwelling;

2. (b)
    the renovation, alteration, extension, improvement or repair of a home;

3. (c)
    removal or resiting work for a detached dwelling.

…..

3. (3)
    Domestic building work includes—

1. (a)
    work (associated work) associated with the erection, construction, removal or resiting of a detached dwelling; and

2. (b)
    work (associated work) associated with the renovation, alteration, extension, improvement or repair of a home.

3. (4)
    Without limiting subsection (3), associated work includes—

1. (a)
    landscaping; and

2. (b)
    paving; and

3. (c)
    the erection or construction of a building or fixture associated with the detached dwelling or home.

 Examples of buildings and fixtures for subsection (4)(c)—

Retaining structures, driveways, fencing, garages, carports, workshops, swimming pools and spas.

3. (5)
    For the erection or construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.

3. (6)
    For the renovation, alteration, extension, improvement or repair of a home, domestic building work includes the provision of services or facilities to the home or the property on which the home is situated.

Examples of services and facilities for subsections (5) and (6)—

Lighting, heating, ventilation, air conditioning, water supply, sewerage and drainage.

7. [7]
   In my view, the work performed by the Respondent at the Property was domestic building work within the meaning of the DBC Act. The renovation work performed by the Respondent (as a registered builder) was work within the scope of s 8(1)(b). Further, I find that each of the items complained of by the Applicants falls within the scope of such work. I note that s 8 specifically includes paving (see s 8(4)) and lighting (see s 8(6)). The painting and cornice work was work associated with the renovation (see s 8(3)(b)). The Tribunal has jurisdiction to decide this building dispute.

Statutory Remedies

8. [8]
   Section 77(2) of the QBCC Act provides, among other things, that (without limiting the Tribunal’s powers to resolve the dispute), the Tribunal may award damages;^[1] order rectification or completion of defective or incomplete ‘tribunal work’;^[2] and award costs.^[3]
9. [9]
   Reviewable domestic work is ‘tribunal work’ (see s 75(2) of the QBCC Act). As addressed above, this proceeding involves reviewable domestic work and, consequently, ‘tribunal work’.

The warranties

10. [10]
    Under clause 1.1 of the General Conditions of the building contract between the parties dated 24 July 2013 (‘the Contract’), the Respondent was obliged to carry out the renovation work:

    2. a)
       in an appropriate and skilful way;

    2. b)
       with reasonable care and skill;

    2. c)
       in accordance with the Plans and Specifications; and

    2. d)
       in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975 (Qld).
11. [11]
    There were also contractual warranties implied into the Contract by law: that the work would be carried out in an appropriate and skilful way; and with reasonable care and skill (see s 41 and s 44 of the DBC Act (as applicable at the date of contract)).
12. [12]
    I will now turn to the alleged items of defective work, leaving the issue of the concrete cracking until last.

Cracking adjacent to timber cornices and plasterboard walls and putty marks

13. [13]
    The Applicant’s complaint in relation to the cracking along the ground floor cornice is that there is visible cracking/separation of the paint where the ceiling cornices on the new ground floor meet the plasterboard ceiling and plasterboard walls. The Applicants produced five photographs depicting the separation of the paint between the cornice and the wall.^[4] It is apparent that the paint has cracked along the joint line.
14. [14]
    The Respondent has not disputed the existence of the cracking along the cornices. The Respondent’s evidence in relation to the Applicants’ complaint is contained in [30] to [32] of Mr Ferguson’s statement:^[5]

30. During the progress of the works, around the time of installation of plasterboard to the lower level of the Property, Mr Burnett specifically instructed me, on behalf of the Respondent, to install timber cornices to the new plasterboard walls to match the existing timber cornices in other parts of the dwelling (i.e. in the upstairs part of the house, which was the original house). I subsequently, although prior to the installation of the requested cornices, advised Mr Burnett that:

1. (a)
    There would be differential movement between the timber and plaster materials, and cracking would occur; and

2. (b)
    In conventional building practice, plaster cornices were used against plaster walls and ceilings, which would avoid such cracking.

31. Despite my advice, Mr Burnett insisted that timber cornices be installed to achieve uniformity of appearance. Accordingly, the work was carried out as per the specific instructions of the Applicants, with the recommendation of the Respondent ignored, and accordingly the Respondent is not liable for alleged cracking occurring as a consequence of the timber cornices meeting the plasterboard walls.
32. In any event, it is interesting to note that the QBCC advised Mr Burnett that the cacking was not sufficient to be classified a defect (see paragraph 13 above). Further, in the Applicants Statement of Evidence at paragraph 18(b) (being on page 19), the Applicants deny the matter set out in the Respondent’s Response regarding the advice given to Mr Burnett as to utilising timber cornices. Reference is made to paragraphs 33 and 36 to 40 of the First Decision regarding findings of fact made by the Tribunal Member in that proceeding as to Mr Burnett’s recollection of the matters the subject of this dispute.”

15. [15]
    In cross-examination, Mr Burnett accepted that the Applicants requested that the cornice downstairs should match the existing cornice in the upstairs section of the Property. The existing cornice upstairs was a timber cornice.
16. [16]
    However, the Applicants deny that Mr Ferguson advised or warned them against using timber cornice for the new ceilings downstairs. They contend that, had they been so warned, they would not have accepted the prospect of paint cracking and splitting along the ceiling cornice on the ground floor by insisting on a timber cornice instead of a plasterboard cornice. In my view, this is inherently likely. I accept that they received no such warning.
17. [17]
    Further, even if a timber cornice had been required by the Applicants, I find that the cracking was not an inevitable consequence of the choice of a timber cornice. Mr Ferguson acknowledged in cross-examination that a sanitary grade silicone sealant could have been used to limit the possibility of cracking (and Mr Ferguson stated that such a silicone sealant could be retrofitted to repair the cracking complained of by the Applicants). I find that, even with a timber cornice, the cracking could have been avoided with a reasonable and proper method of affixation.
18. [18]
    In my view, for the above reasons, the affixing of the timber cornices to the plasterboard walls was work that was not carried out in an appropriate and skilful way nor was it carried out with reasonable care and skill.
19. [19]
    I reach a similar conclusion in relation to a further complaint by the Applicants of visible paint surface discolouration as a result of the browning of the putty used to fill the nail depressions where cornices were fixed and then painted white. The Respondent did not mount a serious contest to this complaint.
20. [20]
    The Applicants have obtained a quote from Higher Level Painting Services dated 16 November 2014 in which they provided a quote ‘To prep and paint all cornices inside of the lower section of the house fixing cracks and putty stains in the amount of $440.00 (inclusive of GST)’.^[6] The quantum of this aspect of the claim has not been disputed by the Respondent and I find that it is a proper and reasonable amount for the rectification of such work.
21. [21]
    However, the primary relief sought by the Applicants at the hearing was that the Respondent be ordered to rectify the defective work. Given the nature of the rectification work, which does not involve any major work, and that the rectification work is likely to be carried out by a (painting) subcontractor, I consider that it is appropriate to order rectification of the work by the Respondent rather than making an award of damages.

The paint colours

22. [22]
    The Applicants’ case is that some of the external trim and features have been painted in the paint colour ‘Alabaster’ when all external trim features should have been painted in the paint colour ‘Snowy White’.
23. [23]
    It is not in dispute that:

    2. a)
       the interior of the Property is painted in ‘Snowy White’;

    2. b)
       the Applicants requested that Mr Ferguson look at a house in an adjoining suburb and use the colours on that house and Mr Ferguson spoke to the owner who provided Mr Ferguson with a page listing the colours used externally on that house.
24. [24]
    Mr Ferguson says he provided that page to the Applicants along with another page he prepared, which attached samples of the colours listed on the page provided by the owner of the other house. This was not contested.
25. [25]
    The critical contest appears to revolve around a subsequent discussion and email correspondence between Mr Burnett and Mr Ferguson.
26. [26]
    Mr Burnett asserts that during the conversation concerned he requested the use of the ‘Snowy White’ colour externally as well as internally. Mr Ferguson’s evidence, in cross-examination, was that the request concerned the use of that colour only on the perimeter of the windows and doors (as would be obvious when they were open) and not generally on the exterior trim.
27. [27]
    The Applicants adduced evidence of subsequent email correspondence between Mr Burnett and Mr Ferguson:^[7]

    2. a)
       from Mr Ferguson to Mr Burnett sent on 22 October 2013 at 9:54am:

Greg,

Just looking at the samples of Taubmans Snowy White and Resene Alabaster – I think you may as well go with the Snowy White inside and outside of the doors and windows.

Your call

2. b)
   from Mr Burnett to Mr Ferguson sent on 22 October 2013 at 10:11am:

Hi Craig

Yes I am happy to use the Snowy White for internal and external.

28. [28]
    During his cross-examination, Mr Ferguson acknowledged the sending and receipt of the respective emails.
29. [29]
    The Applicants also refer to a conversation with Mr Tyson Kelly, the painter who verbally advised them that he was contacted by Mr Ferguson after he commenced external painting works and was informed that all external trim and features would be painted in ‘Snow [sic] White’. The Applicant did not call evidence from Mr Kelly and I place no reliance on this hearsay evidence. The Applicants’ evidence is that Mr Kelly reverted to using the ‘Snowy White’ for the remainder of the external trim and features of the house that had not been painted.
30. [30]
    There appears to be no dispute between the parties that the colour ‘Alabaster’ has been used on various external trim.
31. [31]
    In my view, the content of the email correspondence, properly construed, makes it clear that Mr Burnett (on behalf of the Applicants) was requesting the ‘Snowy White’ colour on all external trim and features. The Respondent was required to, but did not, cause the painting subcontractor to paint all external trim and features in the colour ‘Snowy White’.
32. [32]
    In my view, the painting of the wrong colour on some of the exterior trim and features amounted to defective or incomplete work.
33. [33]
    In Belgrove v Eldridge,^[8] the High Court said:^[9]

‘Departures from the plans and specifications forming part of a contract for the erection of a building may result in the completion of a building which, whilst differing in some particulars from that contracted for, is no less valuable. For instance, particular rooms in such a building may be finished in one colour instead of quite a different colour as specified. Is the owner in these circumstances without a remedy? In our opinion he is not; he is entitled to the reasonable cost of rectifying the departure or defect so far as that is possible.’ (underlining added)

34. [34]
    As with the internal painting rectification, given the nature of the rectification work and that it is likely to be carried out by a painting subcontractor, I consider that it is appropriate to order rectification of the work by the Respondent rather than making an award of damages.

The light and IXL heater

35. [35]
    The Applicants’ case is that, prior to the renovation work, the combined ceiling mounted light and IXL heater in the main upstairs bathroom was operating properly. Utilising the switch on the bathroom wall, the light could be operated and, additionally, there was a facility to operate either two or four of the heater globes in the IXL heater. The Applicants assert that, as a variation, they asked the Respondent to install a replacement light fitting which was mounted on the wall above the vanity cabinet (the light fitting was chrome plated and it had become tarnished). They say that the electrical contractor replaced the wall switch as part of the work. This does not appear to be in dispute. The Applicants also state that they subsequently raised with Mr Ferguson the fact that the light in the IXL heater was not operating. They say that Mr Ferguson replied that it was just a blown globe. However, the Applicants replaced the globe twice with a brand new globe and the light did not operate.
36. [36]
    The Respondent’s case, as asserted in Mr Ferguson’s statement, is as follows:

34. The Respondent denies that the bathroom light was connected incorrectly. I have been advised by the electrical subcontractor engaged by the Respondent to perform work at the Property, that:

a) During the works, Mr Burnett directly requested the electrical subcontractor (again bypassing the Respondent) to install a new switch to an existing bathroom light, because the existing switch was defective; and

b) the Respondent’s electrical subcontractor advised that a replacement switch of the same exact type could not be obtained, because the switch was integral to the light fitting and it could not be purchased separately; and

c) Mr Burnett advised the electrical subcontractor that he did not wish to replace the whole light fitting, and as such the Respondent’s electrical subcontractor was requested by Mr Burnett to install, and did in fact install, a new, industry standard, switch.

35. As far as I am aware, all circuits of the new switch were installed in accordance with the current wiring rules, and all functions of the existing light fitting were operational at practical completion. The newly installed generic switch may not allow the old light fitting to perform all of the separate features that the old light fitting may have been able to perform when it used its manufactured switch. However, that is simply an unfortunate side effect of the unavailability of the switch manufactured specifically for the old light fitting. To avoid this issue, the Applicants would have needed to purchase an entire new light fitting which comes with its manufactured, specific switch, and I understand that Mr Burnett advised the Respondent’s electrical subcontractor that he was not prepared to do that.

37. [37]
    In cross-examination, Mr Burnett accepted that the extent of electrical work included an item ‘check and repair faulty connection to light’. However, he did not accept that this item related to a fault with the light switch.
38. [38]
    The Respondent did not adduce evidence from the electrical contractor who performed the work at the Property. While the Tribunal is not bound by the rules of evidence, I am not prepared to accept the hearsay evidence purportedly attributed to the electrical contractor. I prefer the evidence of the Applicants which was largely uncontradicted.
39. [39]
    I find that:

    2. a)
       the light in the ceiling IXL heater was operating prior to the performance of the electrical work but not afterwards;

    2. b)
       the four heater globes in the IXL heater could be operated at 50% (two globes) or 100% (four globes) prior to the performance of that work but not afterwards;

    2. c)
       the only electrical work specifically requested by the Applicants in relation to the upstairs bathroom was the replacement of the light fitting over the vanity basin.
40. [40]
    In my view, the replacement of a light switch which failed to operate the main light (on the ceiling) in the main bathroom, resulted in rendering inoperable a light which was previously operable and evidences a failure on the part of the Respondent (by its subcontractor) to perform the work in an appropriate and skilful way and to carry it out with reasonable care and skill.
41. [41]
    With respect to the heater globes, I find that the electrical work was defective in that they would no longer operate at both a 50% and 100% capacity.
42. [42]
    In my view, it is appropriate to order that the Respondent rectify the ceiling light and IXL heater in the upstairs bathroom (and plainly a qualified electrical contractor will need to be engaged to carry out the rectification work).

Cracking in the concrete

43. [43]
    The concrete work at the Property was originally intended to be performed by Aaron Burke Concreting (‘the concreter’). However, due to an apparent delay in the concreter being in a position to perform the work, coupled with a need to bring the project to completion, the work performed by the concreter was limited to the screeding and trowelling of the concrete. The Respondent performed the balance of the work including boxing and placement of reinforcing. The Respondent’s labourers also performed the saw cuts in the concrete after it had been laid.
44. [44]
    Each of the parties retained an engineering expert in this matter. The Applicants retained Mr Tuxworth and the Respondent retained Mr John Reid.
45. [45]
    The experts attended a conclave on 5 June 2015 and prepared a Joint Experts Report dated 13 July 2015 (‘the Joint Report’). Appended to the Joint Report was a revised defect plan which plotted the location and length of the various cracks that had emerged in the concrete pavement.
46. [46]
    In my view, the construction of the decorative concrete pavement at the Property was not carried out in an appropriate and skilful way or with reasonable care and skill for the following reasons.
47. [47]
    In January 2015 the pavement exhibited 24 cracks with widths of up to 1 mm.
48. [48]
    Approximately six months after the initial inspection, the pavement was reinspected by Mr Tuxworth and this inspection revealed the following:

    2. a)
       all but one of the 24 cracks able to be accessed had increased in width (up to 1.5mm for crack 18) between inspection dates;

    2. b)
       several cracks had increased in length, with cracks numbered 4 and 8 documented as having joined since the last inspection;

    2. c)
       three new crack locations were recorded in the external pavement area (crack numbers: 25, 26 & 27);

    2. d)
       spalling, in excess of the recorded crack widths, was recorded and photographed (see photos for crack numbers: 2, 3, 9, 18, 20, 24);

    2. e)
       reinspection documentation indicated ‘defect progression and holistic worsening across the external pavement’;

    2. f)
       multiple cracks, up to 0.7mm, and spalling were additionally recorded in the garage slab-on-ground (refer crack number 28).
49. [49]
    In my view, these changes evidenced a material worsening of the condition of the concrete pavement.
50. [50]
    The experts agreed that the pavement, as constructed, is deficient with respect to Australian Standard AS3727–1993 Guide to Residential Pavements in relation to:

    2. a)
       suitability of control joint spacing for highly reactive, Class ‘H’ site;

    2. b)
       control joint saw cut depths (which exceed the maximum nominated);

    2. c)
       isolation joints (which were not installed).^[10]
51. [51]
    In my view, each of those matters should have been addressed in the construction of the concrete pavement. The experts agree that the pavement jointing should have been designed and constructed along the lines of the plan provided in Appendix D of the BE Collective report dated 30 January 2015.^[11]
52. [52]
    The experts also agree that Australian concrete standards are based on limiting crack to 0.3 mm or less in order to achieve a consistent alkaline passivation layer to afford protection of steel reinforcement from corrosion.^[12]
53. [53]
    They further agree that movement due to the Class ‘H’ site is likely to further increase ‘spalling’ of crack edges.^[13] ‘Spalling’ is the formation of concrete pieces along the line of cracking.
54. [54]
    The substance of the Respondent's case in relation to the alleged defective concrete work is contained in [16] to [25] inclusive of Mr Ferguson's witness statement. Paragraph 20 refers to report of a Mr Batterham. At the hearing, Mr Ferguson (for the Respondent) did not press the admission of that report. Otherwise, the Respondent's case (at the time of the Ferguson's statement) centred on the assertion that, based on Australian Standard AS3727, the crack widths must exceed 1.5 mm to be considered a defect. This statement preceded the Joint Report. I have addressed the relevant parts of that report above. At [6] of the Joint Report, the experts stated that the Australian Standard was ‘deficient with respect to criteria appropriate for the design and assessment of decorative concrete pavements’ (and the experts made specific reference to the guidelines citing crack widths of 1.5 mm as the limit). In my view, the expert evidence contradicts the Respondent's case; the evidence demonstrates that the work was not performed in an appropriate and skilful way and was not performed with reasonable care and skill. The expert evidence plainly points to the concrete work performed being defective and I so find.
55. [55]
    Mr Ferguson cross-examined Mr Tuxworth at some length in relation to cracking that had occurred on a pedestrian pavement access way at Southbank Parklands (the photographs are annexed to Mr Ferguson’s supplementary statement which is Exhibit 9). Mr Ferguson’s evidence was that no control joint had been provided to the slabs, they have the perimeter isolation joints referred to Mr Tuxworth’s reports, they have been coloured and finished in the identical manner a the concrete driveway at the Applicants’ home, they were covered by a structure which would provide better temperature control during curing than the concrete work at the Applicants’ home and that there were 11 slabs conforming to the above description with each one demonstrating cracking to the slab surface comparable to that in the Applicants’ driveway. The Respondent’s evidence included photographs of same. In my respectful view, the existence of such cracking in that situation is of no relevance to determining whether the concrete work performed at the Applicants’ home was defective or whether the Respondent failed to comply with the implied and express warranties. At face value, such evidence may simply demonstrate that the work performed at the Parklands was defective and should have been rectified. Further, in my view (and consistently with the evidence of Mr Tuxworth in cross-examination), there is no proper comparison between the performance of work in that public space and the decorative concrete work performed on the concrete pavements at the Applicants’ home.
56. [56]
    The experts agree that the driveway and pedestrian pavements as constructed require some form of remediation.^[14]
57. [57]
    The areas of dispute between the experts concern the likelihood of future deterioration of the paving as a result of the steel reinforcement and whether or not long-lasting remediation can only be achieved by a full pavement replacement.
58. [58]
    Mr Tuxworth’s opinion is that Australian Standards and supporting research indicate that steel corrosion will occur in an advanced and untimely manner due to the inherent cracking sighted. This will result in discontinuity of cracked, isolated slab elements, as well as increased differential movement and spalling due to the highly reactive soil classification.
59. [59]
    Mr Reid’s opinion is that future deterioration of this paving as a result of corrosion of the steel reinforcement (Item 9) is highly unlikely, given its situation and the probable crack widths present at the level of the steel within the concrete.
60. [60]
    Mr Tuxworth is of the opinion that, given the defect progression and holistic worsening between inspections spaced at approximately six months, a long lasting remediation is unlikely to be achieved, nor will it adequately address any further ongoing degradation due to highly reactive soil movements.
61. [61]
    Mr Reid’s opinion is that despite the statement of agreement in Item 13 of the Joint Report, it may be ‘possible’ to effect visually acceptable and long-lasting remediation by crack-filling the existing concrete, cutting in new joints and applying a suitable decorative surface treatment.
62. [62]
    Item 13 of the Joint Report provided:

Whilst the construction omissions and existing cracking defects inherent in the pavement as constructed can likely be remediated, provision of a decorative finish equivalent in durability to, and homogenous with, the concrete pavement can only be achieved by full pavement replacement.

63. [63]
    In cross-examination, Mr Reid accepted that the more limited remedial work would not provide the same finish in those areas.
64. [64]
    In those areas where the opinions of the experts differ, I prefer the evidence of Mr Tuxworth. While both experts presented well (Mr Reid by telephone), I prefer Mr Tuxworth’s evidence because he inspected the site on two occasions, namely 14 January 2015 and 7 July 2015. Mr Reid acknowledged that he had not inspected the site at all; rather, he based his evidence upon viewing the photographs taken by Mr Tuxworth. I consider that a visual inspection of the cracking provides a firmer basis for reaching a concluded expert opinion than merely relying upon photographic evidence.
65. [65]
    On this basis, I accept the evidence of Mr Tuxworth that:

    2. a)
       steel corrosion will occur in an advanced and untimely manner due to the inherent cracking and this will result in discontinuity of cracked, isolated slab elements as well as increased differential movement and spalling due to the highly reactive soil classification; and

    2. b)
       a long lasting remediation is unlikely to be achieved by crack filling the existing concrete, cutting in new joints and applying a suitable decorative surface treatment (nor will it adequately address any further ongoing degradation due to highly reactive soil movements).
66. [66]
    I find that it is necessary and reasonable that the defective concrete work be rectified by full pavement replacement (including appropriate cracking control measures). I address below whether the Respondent should be directed to perform that work or whether there should be an award of damages.

Additional claimed defects

67. [67]
    At the hearing, Mr Burnett for the Applicants submitted that the Tribunal should make orders concerning the investigation of cracking of the slab on the interior of the Property. Mr Burnett referred to cracking in one of the rooms of the house that was evident before the carpet was laid.
68. [68]
    The Respondent objected to the Tribunal making any such orders. Mr Ferguson submitted that there was no claim for those orders in the application and the Respondent had not had the opportunity to investigate same. Mr Ferguson also made the point that there was no cracking in the internal tiles which would be expected if there were significant issues with the slab on the interior of the house.
69. [69]
    In Mr Tuxworth’s original report, he stated that cracking of the house slab-on-ground is also of concern (see p 6); he recommended that an independent investigation and reporting of the house slab be undertaken at the Respondent’s expense to ensure construction performance meets the requirements of the Building Code of Australia and Australian Standards AS3600 Concrete Structures and AS 870 Residential Slabs and Footings.
70. [70]
    The Application identified ‘defective external concrete work at the front and side of the property…’. On 6 May 2015 the Tribunal directed, among other things, that the Applicants file an amended application and any statement of evidence from Aaron Burke by 4:00pm on 13 May 2015. The file does not indicate that any amended application was filed by the Applicants. Importantly in my view, the Joint Report does not address any issue in relation to cracking of the slab in relation to the interior of the house (there is a separate question in relation to cracking in the garage area of the slab which I will address below). On the basis of the current expert evidence, there is no evidence that there is any cracking of the slab on the interior of the house. In my view, there is no proper basis for putting the Respondent to the substantial expense of an investigation of the interior slab area of the house given that such relief was not sought in the Application and the Respondent has not, in my view, had a reasonable opportunity to address that issue. I find that no orders should be made in relation to the slab on the interior of the house.
71. [71]
    With respect to the slab in the garage, the Joint Report does refer to cracking in the garage. Item 17g refers to:

Multiple cracks, up to 0.7mm, and spalling were additionally recorded in the garage slab-on-ground (refer crack number 28).

72. [72]
    There is a plan attached to the Joint Report which identifies a number of cracks alongside the number ‘28’.
73. [73]
    However, the Application did not reference this aspect of the defective work nor did the Applicants adduce evidence of the cost of rectification of that aspect of the work. For these reasons, I make no order in relation to the cracking of the slab in the garage.

Remedy in relation to the defective concrete areas

74. [74]
    What is the appropriate remedy to be ordered in relation to the driveway, forecourt and pedestrian pavement areas?
75. [75]
    It appeared clear to me at the hearing that the cracking in the concrete pavement was a major source of angst for the Applicants. The pavement sections of the driveway and pathways were comprised of decorative concrete and were intended to be a feature of the Property. There was an evident sense of aggravation between the parties in the course of the cross-examination of Mr Burnett and Mr Ferguson respectively. The experts agree that a full pavement replacement will likely be disruptive to the Applicants.^[15] In all the circumstances, I consider that in relation to the rectification of the concrete pavement, the appropriate remedy is one of damages rather than a direction to rectify. This will also avoid the possibility of further dispute between the parties in relation to this issue.
76. [76]
    Mr Tuxworth, in the BE Collective report dated 30 January 2015^[16], provided ‘preliminary cost estimates’ for the demolition and replacement of the pavement. The total cost estimate, as set out in Appendix E to the report, totalled $16,097.00. The Appendix contained an itemised breakdown based on Rawlinson's Australian Construction Handbook (30^th ed.). The Respondent led no contrary evidence in relation to the quantum of such rectification work. I find that the estimated cost is a fair and reasonable cost for rectifying the defective concrete work. I award that amount as damages pursuant to s 77(2)(c) of the QBCC Act.

Costs

77. [77]
    At the hearing the Applicants sought the (updated) following costs:

    2. a)
       QCAT filing fee of $295.00;

    2. b)
       various costs in relation to the engagement of Mr Tuxworth as an expert witness:

    2. i)
       $3,800.83 to complete site inspections and prepare the original expert report;

    2. ii)
       $858.00 to respond to the Respondent’s witness statement of evidence;

    2. iii)
       $486.75 to attend the expert conclave ordered by the Tribunal;

    2. iv)
       $1,201.75 to contribute to the Joint Report;

    2. v)
       the costs incurred in relation to Mr Tuxworth’s attendance to give evidence at the hearing;

    2. c)
       $110.00 for the cost for the structural engineer to prepare a typical sawcut plan for concrete component of the project (which formed part of the Tuxworth’s original report).
78. [78]
    Mr Ferguson for the Respondent submitted that in the event that orders were made against the Respondent there should be no order as to costs (the parties should ‘look after’ their own costs). Mr Ferguson referred to the Tribunal being (generally) a ‘no costs’ jurisdiction. He also took particular issue with the claim for costs in respect of Mr Tuxworth’s responsive statement.
79. [79]
    The Tribunal’s discretion to award costs in a building dispute is a broader and more general discretion than the one conferred by the Queensland Civil and Administrative Act 2009 (Qld).^[17]
80. [80]
    It has been said that there is no automatic rule that costs ‘follow the event’ (i.e., the outcome of the proceeding) or that the unsuccessful party must compensate the successful one; the discretion to award costs starts with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them; otherwise, the factors affecting the discretion will vary in each case.^[18]
81. [81]
    In my view, the following factors justify the exercise of the Tribunal’s discretion in favour of an award of costs in favour of the Applicants. First, other than the filing fee, the costs sought by the Applicants relate to the expert engineering evidence in relation to the cracking of the concrete. There was no factual dispute as to the existence of the cracking. Secondly, the Applicants raised their concerns about the cracking with the Respondent, including email correspondence sent on 17 December 2013,^[19] 3 January 2014,^[20] 11 February 2014,^[21] 14 February 2014 (in which the Applicants contended that the cracking was a defect and requested that the Respondent remove all areas of the defective concrete affected by the cracking and ‘redo’ the concreting at the Respondent’s cost)^[22] and 31 March 2014 (when the Applicants again requested that the defective concrete work be removed and the concrete work done again).^[23] The Respondent denied that the concrete work was defective and maintained that stance up to and including the hearing of this proceeding. I have dealt with the expert evidence above. As noted, the experts were in agreement that the pavement was deficient in the respects identified. The number of cracks and the extent of the cracking plainly indicated that there was an issue with the performance of the concrete work. The Respondent ran its case in the face of the joint expert evidence.
82. [82]
    In my view, the Applicants were left with no choice but to commence and prosecute the proceeding in order to seek relief in relation to the defective concrete work. I find that the costs were necessarily and reasonably incurred. With respect to Mr Tuxworth’s supplementary report dated 9 March 2015, I find that it was reasonable for the Applicants to seek a response to the matters raised by the Respondent. The content of that report is properly responsive to the matters raised.
83. [83]
    With respect to the proof of the costs, the Applicants have produced a bundle of invoices in support of same.^[24] Those costs total $6,752.33. With respect to the costs relating to securing the attendance, as a witness, of Mr Tuxworth, I consider it reasonable to allow 2 hours at the rate indicated on his invoices, namely $195.00 (plus GST). I allow $429.00 (inclusive of GST) for this item.
84. [84]
    I award costs in favour of the Applicants against the Respondent in the total amount of $7,181.33.