Mair Renovations v Miller[2015] QCAT 333

APPEARANCES:

REASONS FOR DECISION

1. [1]
   Duncan Thomas Miller and Genevieve Kay Miller (the Millers) owned an old Queenslander that they rented out for many years. They wanted to renovate it so they could move in and live upstairs and rent out the downstairs.
2. [2]
   The Millers approached an architect, Robert Eccles, about their idea. They had many discussions about Mr Eccles’ renovation plans. The plans were put out to tender and Jeffrey Mair and Pamela Mair trading as Mair Renovations (Mair Renovations) were the successful builder.
3. [3]
   The parties signed a Master Builders Simple Works contract on 14 September 2009 (the Contract). Jeffrey Mair was a registered builder at the time and signed the Contract as the representative for Mair Renovations. Mr Miller signed the Contract for the Millers. Bob Eccles (Mr Eccles) was the representative for ‘Robert Eccles Pty Ltd’ the appointed ‘architect’ who would also administer the Contract. The Contract work was to be performed in two stages being the upstairs and the downstairs.
4. [4]
   Mair Renovations renovated the old Queenslander and built a retaining wall. During completion of the building work a dispute arose between the parties. The Millers moved into the Queenslander with the consent of Mair Renovations before the work was completed. After the Millers moved in there was also a dispute about the work performed including work done to the retaining wall. Proceedings followed in the District Court of Queensland and then QCAT.
5. [5]
   Mr Mair and the expert witness Dr Peter Mullins, Civil Engineer, gave evidence for Mair Renovations. Mr and Mrs Miller and the expert witnesses Greg Jones, Builder, and George Englert, Painter (by phone), gave evidence for the Millers. Mr Eccles also gave evidence.^[1] 
6. [6]
   Mair Renovations submits that they should be paid for all of the renovation work including many variations. Mair Renovations submits that they should be paid for the installation of blackbutt wood flooring to the upstairs. Mair Renovations claims the amount of $156,936.70 plus interest. In relation to any rectification work that needs to be performed Mair Renovations submits that it should be allowed to carry out the works to the site including the retaining wall. Mair Renovations also claims its costs of the proceedings.
7. [7]
   The Millers argue that some of the money claimed by Mair Renovations is for variations that were not put in writing. The Millers argue that they did not approve all of the variations. In relation to the flooring the Millers say that the Contract price included the cost of installation of pinewood flooring. The Millers argue that the Contract was terminated on 28 August 2012 and some of the work performed is defective. The Millers argue that Mair Renovations should pay them for the cost of rectifying the alleged defective work including work done to the retaining wall. The Millers also argue that Mair Renovations should pay an amount for rental costs and lost rental income because the building work was not completed within seven months. The Millers also claim costs of the proceedings.

Was the upstairs flooring included in the Contract works?

8. [8]
   Mair Renovations argues that the Contract amount of $550,000 does not include the supply and installation of pinewood flooring. In written submissions, Mair Renovations submit that when the flooring went ‘into the job’ the Contract price ‘went back up’ to $600,000 as set out in the quotations attached to the Contract.^[2] Mair Renovations submit that the sum payable under the Contract was $600,000 (not $550,000).^[3]
9. [9]
   It is common ground that blackbutt flooring was installed upstairs at the Millers request. The supply and installation of blackbutt flooring is more expensive than the supply and installation of pinewood flooring. The issue to be determined by the Tribunal is whether the Contract works included the supply and installation of pinewood flooring to the upstairs.
10. [10]
    In this case, the Contract identifies the work to be performed in two stages. Under Item 5 of the Contract, stage one in the amount of $330,000 includes work to be performed downstairs including lifting of the existing house. Stage two in the amount of $220,000 includes work to be performed to the ‘existing upper floor’.^[4] Section ‘S’ (definitions) of the Contract provides that the ‘contract documents’ include special conditions in schedule 2, the conditions of the Contract, the specifications, the drawings and other documents shown in schedule 3.^[5]
11. [11]
    The Contract ‘works’ are described in Section S as the ‘completed construction’ set out in the Contract documents described in Item 5 (the works). Item 5 refers to the two stages of work to be performed. There is no reference to any ‘exclusions’ in the descriptions of work (to be performed) for stage one and stage two.
12. [12]
    Schedule 3 of the Contract provides the ‘order of precedence of contract documents’ as follows:

    1. This contract
    2. Architectural [drawings]
       Miller Stage 1 0B140/01-07-51/G
       Stage 2 0B140/01-07-52/G
    3. Architectural [specifications] – Miller
       Athlone St/Stage 1/Stage 2
    4. Geotech Report & Concrete Design
       Structerre 1877-10HS
    5. Builder’s written Quote 1.9.10
       Stage 1 $330,000 – incl GST
       Stage 2 $220,000 – incl GST (EXCL. new floor covering Dry areas)^[6]
13. [13]
    The Contract price is $550,000 and details ‘the works’ in Item 5. The plans or architectural drawings that form part of the Contract as the ‘second documents’ in the order of precedence specify for the upper level ‘floor cladding’ and this includes interior.^[7] The proposed upper floor plan for ‘Stage 2’ also refer to ‘timber’, ‘carpet’ and ‘tiles’ as depicted in the plan.^[8]
14. [14]
    The Builder’s written quotations that form part of the Contract as the ‘fifth documents’ in the order of precedence also identify the work to be performed. As can be seen in Schedule 3 of the Contract the ‘Builder’s written Quote’ for stage 2 provides ‘Stage 2 $220,000 – inc GST (EXCL. new floor covering Dry areas’). The quotation for stage two (quotation No. 40) in the amount of $220,000 specifies the work to be performed (upstairs) and provides the ‘supply & fit new pine flooring’. There is no ‘exclusion’ of work provided in the quotation (No. 40).
15. [15]
    The written quotation (No. 39) for work to the downstairs is in the amount of $330,000. The quotation was originally in the amount of $380,000 because the figure has been changed (crossed out) and is now $330,000. The quotation provides: ‘Exclusions new floor cladding to upper floor. Living & hallway’.^[9]
16. [16]
    Mr Mair said that he prepared two quotations totalling $600,000 that included an amount of $50,000 for new pinewood flooring upstairs (including GST).^[10] Mr Mair said he reduced the quotations by $50,000 for the flooring because Mr Eccles said ‘to take out the flooring’ because the type of flooring was still undecided by the Millers.^[11] Mr Mair said quotation No. 39 (for the downstairs) was reduced from $380,000 to $330,000 ‘yet the $50,000 related to the flooring in the upstairs contract’.^[12] Mr Mair said he offered his two quotations to do both levels (of the house) at a total of $550,000 inclusive of GST and exclusive of flooring to the upper level being $330,000 for the upstairs and $220,000 for the downstairs.^[13]
17. [17]
    Mr Eccles gave evidence at the hearing about the Contract and the quotations prepared by Mair Renovations. Mr Eccles said that the Millers were undecided about what sort of flooring to install upstairs so he asked Mr Mair to give him various cost differences. Mr Eccles said that Mr Mair told him he would ‘knock $50,000 off the cost of the project and delete the floor’.^[14]
18. [18]
    Mr Eccles said he amended Mr Mair’s quotation for $380,000 for the wrong contract (quotation) by $50,000.^[15] Mr Eccles said he had the wrong (original) quotation (No. 39 instead of No. 40) and amended the amount of the quotation from $380,000 to $330,000. Mr Eccles said he got Mr Mair to write on the bottom of that sheet (quotation No. 39): ‘exclusion new floor cladding to upper floor’.^[16] Mr Eccles said that he put ‘it’ meaning the quotations in the Contract. He said that he could not remember whether he had ‘relayed’ (the change) to the Millers. Mr Eccles accepted when questioned that the quotation for upstairs in the amount of $220,000 included ‘new pine flooring’ to be installed.^[17] Mr Eccles was questioned about whether he told the Millers on the day they signed the Contract that the flooring was no longer included. Mr Eccles said ‘No, I didn’t’.^[18]
19. [19]
    Mr Miller said that he and his wife (Mrs Miller) saw the Contract documents included pinewood floors and carpets in the bedrooms and this was included in the drawings, the specification and on the quotation.^[19] At the hearing Mr Miller, when questioned, did not accept that the Contract price was $600,000 and said that he did not think he had received the original quotations (that totalled $600,000).^[20] Mr Miller was questioned at the hearing about the two quotations and the wording in relation to ‘exclusions’ in quotation No. 39. Mr Miller said that he was ‘reading on quote 40 supply and fit pine floorings at Item 3’.^[21] Mr Miller said in giving his evidence that pinewood flooring was part of the Contract. He said ‘we were shocked when we received these huge claims for flooring halfway through 2011…’.^[22]
20. [20]
    I accept Mr Miller’s evidence that the pinewood flooring was included in the Contract works and that he was not told prior to signing the Contract that there was a change in the Contract works (to exclude flooring). This is because it is consistent with Mr Eccles’ evidence that he did not tell the Millers on the day they signed the Contract that pinewood flooring was no longer included.^[23]
21. [21]
    I have carefully considered the Contract, the evidence given by Mr Mair, Mr Miller and Mr Eccles and the written submissions filed by Mair Renovations. Mair Renovations submit that ‘it is inconceivable that the works of the builder would not include constructing the floor otherwise there would not be access to use the upper level’.^[24] Mair Renovations says that when the flooring went into the ‘job’ the Contract price went to $600,000. I do not accept Mair Renovations’ submission that the Contract price went up to $600,000 when flooring was added because there was no written agreement between the parties to vary the Contract and Mr Eccles did not notify the Millers of any changes to the Contract works.
22. [22]
    The Contract when read in the ‘order of documents’ does include the words ‘supply and fit new pine flooring’ in quotation No. 40 for the work to be performed upstairs. There is no reference to works being excluded in quotation No. 40 or in Item 5 of the Contract.
23. [23]
    I find that any inconsistency in the wording of the work to be performed upstairs as it appears in Schedule 3 and the reference to ‘Stage 2’ by reason of the words ‘(EXCL. new floor covering Dry areas)’ can be resolved when reading the Contract in its entirety in the ‘order of contract documents’. In Schedule 3 ‘the order of precedence of contract documents’ is the Contract, drawings and specifications and the written quotations. There is no reference to ‘exclusions’ in the ‘works’ to be performed in ‘the Contract’ (Introduction) because in Item 5 of the Contract, the two stages of work are identified and there is no reference (in respect of stage two) to any exclusion of work such as flooring. The specifications for the upper level refer to ‘floor cladding’ and the drawings refer to ‘timber’. The quotation (No. 40) for stage two specifies ‘new pine flooring’ in the work to be included. Mr Eccles accepted when giving his evidence at the hearing that the quotation for upstairs (No. 40) included ‘new pine flooring’.
24. [24]
    The evidence of Mr Eccles is that the wrong quotation was amended to reflect a change in the Contract works but Mr Eccles did not amend the Contract price and the work to be performed as it appears in Item 5 of the Contract. I find that the Contract price as provided in Item 4 is $550,000 and the Contract works did include the supply and installation of pinewood flooring to the upstairs.

What are the variations and the final amount claimed by Mair Renovations?

25. [25]
    Mair Renovations claims the amount of $633,886.70 inclusive of retention moneys as the total amount of the ‘certified work’.^[25] Mair Renovations relies on certificates prepared and issued by Mr Eccles as follows:

Certificate no. 5 dated 16 July 2012 – stage 1 (contract A - downstairs) - $304,300.70

Certificate no. 4 dated 18 July 2012 – stage 2 (contract B - upstairs) - $329,586.00^[26]

26. [26]
    Mair Renovations claims that the Millers owe the amount of $143,186.70 plus interest because the amount of $476,950 has already been paid.^[27]
27. [27]
    In the alternative Mair Renovations says that if it is found that the certificates included variations which do not comply with s 79 and s 84 of the Domestic Building Contracts Act 2000 (Qld) (the DBC Act), Mr Eccles directed or requested the variations and the variations were agreed (or requested) by the Millers and the value of the Contract work both increased (and/or decreased).^[28]
28. [28]
    Mair Renovations says that if it is found that the variations do not comply with the requirements of the DBC Act because they were not put in writing, there are exceptional circumstances that entitle Mair Renovations to be paid and the Millers have received the benefit of the work. Mair Renovations therefore claim the value of the variations as assessed pursuant to s 84 of the DBC Act plus the percentage of 10% for profit and interest of 10% under the Contract.^[29]
29. [29]
    There is a further basis upon which Mair Renovations claims the amount of $156,936.70 plus interest (the Contract amount of $633,886.70) as being payable by the Millers for the Contract work. Mair Renovations says that the Millers have been unjustly enriched because they have received a benefit for the work performed by Mair Renovations.^[30]
30. [30]
    The amended statement of claim filed on 8 April 2014 does not particularise the various items of work (or variations) claimed by Mair Renovations in the certificates No. 5 and No. 4. The certificate No. 4 dated 18 July 2012 refers to ‘variations to 18/07/12’ in the amount of $109,586 but does not specify the items of work (or variations).
31. [31]
    Mr Miller in his statement of evidence refers to 17 items of work described as ‘the builder’s claims for variations’.^[31] The 17 items of work was prepared as a schedule (Exhibit 4) tendered at the hearing by the Millers.^[32] In final written submissions the Millers prepared a schedule of the variations claimed (Schedule C).^[33] Schedule C identifies the items (from Exhibit 4), the amount claimed, the evidence given at the hearing about whether the Millers were advised of the cost of the item and whether the item is disputed by the Millers.
32. [32]
    Mr Mair and Mr Miller had an opportunity to give evidence at the hearing about the 17 variations listed as ‘variations’ in Schedule C (Exhibit 4) identified as follows:

    1. Balustrade - $1,658
    2. Bathroom tiling (upstairs) - $6,616
    3. Bedroom robes (upstairs) - $9,199
    4. Concrete slab upgrade - $803
    5. Electrical work - $4,870.80
    6. Extended laundry - $1,980
    7. Flooring (upstairs) - $36,685
    8. Garage Doors - $4,950
    9. Installation of store room - $2,733
    10. Laundry/WC tiles - $1,407
    11. Living Room Decorative Arch - $1,375
    12. New Louvre Window Bedroom 1 to Study - $1,622
    13. New study floor upgrade - $833
    14. New study wall framing - $3,520
    15. R2.5 Insulation to upper floor ceiling and western wall - $3,289
    16. Raised block work at entry - $3,146
    17. Replace existing DH windows Southside - $6,600
    18. Replace gutters and downpipes - $2,750
    19. Roofing to underside of eastern decks - $3,927
    20. Sound insulation bed1/living - $935
    21. Floor framing structural steel (stage 2) - $8,378
    22. Timber battens to north side of garage - $550
    23. Upgrade garage ceiling from 4.5 FC sheet to gyprock - $594
    24. Upgrade roof battens to original veranda roof - $1,870
    25. Windows awnings to three windows on the Southside - $1,760
    26. Window schedule variations - $7,788
    27. Workshop - $10,780
33. [33]
    On the fourth day of the hearing I made a ruling to refuse Mair Renovations’ application to amend the amended statement of claim to include the following claims for variations:

a) Floor upgrade from 140 millimetres clear pine to 85 millimetres select blackbutt in the amount of $8,087

b) 22 August 2011 – study hall, living, kitchen, dining supply lay and sand pine flooring $181 x 105 m² in the amount of $19,005

c) 22 August 2011 – bedroom supply lay and sand pine flooring $181 x 53 m² in the amount of $9,593

d) 22 August 2011 – installation of toilet adjoining laundry in the amount of $4,840

e) Bathroom tiling in the amount of $6,616

34. [34]
    In written submissions, Mair Renovations relies on a ‘list of variations’ that is attached to the statement of Mr Mair.^[34] Mair Renovations says that the ‘list’ contains details of the variations and the assessments by Mr Eccles and the claims by Mair Renovations. The items are numbered 1 to 20 but Mair Renovations says that items 7, 8 and 9 are not ‘in the disputed list’ because these items relate to the flooring for the upstairs.^[35]
35. [35]
    Mr Mair said in his statement (when referring to the ‘list of variations’ document) ‘the notes I made on the variations schedule [were made] during the discussions with the Architect and [the Millers] in September 2011’.^[36] Mr Mair does not identify in his statement or in the ‘list of variations’ document which of the items (or variations) are included in the certificates (No. 5 and No. 4) assessed by Mr Eccles for the work performed upstairs and downstairs.
36. [36]
    Mair Renovations did not particularise the variations claimed in the amended statement of claim or in Mr Mair’s statements of evidence with respect to the certificates (No. 5 and No. 4). It would not be fair to the Millers to allow Mair Renovations’ further claims for variations such as the items in the ‘list of variations’ document because of the ruling made by the Tribunal.
37. [37]
    Mr Mair had an opportunity to give evidence about the variations listed in Schedule C (Exhibit 4). Consistent with the Tribunal’s ruling made on 20 November 2014, I will only consider the variations claimed by Mair Renovations that are the 17 variations (items of work) listed in Schedule C (Exhibit 4).

What does the Contract and the DBC Act say about variations?

38. [38]
    Clause H of the Contract requires the contractor to comply with certain requirements for making a claim to ‘adjust the Contract’ including notifying the architect in writing. If the claim ‘results from an instruction to proceed with a variation’ the requirements for ‘submission’ of the claim are ‘set out in clause J4’ of the Contract.
39. [39]
    Under clause J1 the architect may give a ‘written instruction’ for a variation at any time before the date of practical completion. The contractor is required under clause J2 to ‘review’ any written instruction issued by the architect. If the instruction results in an adjustment to the Contract price, the contractor ‘must’ within 20 working days, notify the architect in writing. Clause J4 of the Contract requires the contractor to maintain ‘detailed records’ of any cost of carrying out the variation and amongst others, notify the architect in writing when the variation work has been completed and submit ‘the detailed’ claim to adjust the Contract within 20 working days. Mair Renovations as the contractor is entitled to claim a percentage of 10% for ‘overheads and profits’ under Item 11.
40. [40]
    The DBC Act requires variations to be in writing and that the variation comply with the ‘formal requirements for a variation document’.^[37] Section 82 of the DBC Act requires the ‘builder’ as soon as practicable after ‘an appropriate variation document is made’ to take ‘all reasonable steps’ to ensure the document is signed by the owner.^[38] If the variation was originally sought by the homeowner the builder may recover the variation amount only if it has complied with s 79, s 80, s 82 and s 83 (or in the event that there were circumstances that could not have been reasonably foreseen) or alternatively with the Tribunal’s approval.
41. [41]
    If the builder has not complied with the relevant sections of the DBC Act, the builder may recover an amount for variations claimed only with the Tribunal’s approval as set out under s 84(4). The Tribunal must be satisfied that there are ‘exceptional circumstances’ to warrant the conferring of an entitlement, the builder would ‘suffer unreasonable hardship’ and it would not be ‘unfair’ to the building owner for the builder to recover the amount claimed.^[39]

Should Mair Renovations be paid for the variations?

42. [42]
    It is common ground that the variations claimed by Mair Renovations was not put in writing. Mr Eccles in his role as architect did not provide Mair Renovations with a written instruction and Mair Renovations did not provide Mr Eccles or the Millers with a claim including details of any estimate or quotation for the work.
43. [43]
    Mair Renovations says that pursuant to the Contract Mr Eccles gave directions to Mr Mair, the licensed builder, to carry out the works.^[40] Mair Renovations says that Mr Eccles was appointed to administer the Contract and Mr Eccles agreed on a ‘number of occasions’ that he did not follow the Contract in relation to the variations. Mair Renovations says that the Millers must under clause A4.2 of the Contract indemnify the ‘contractor’ in respect of any negligence of ‘the architect’.^[41] Mair Renovations says that Mr Eccles was negligent in administering the Contract and in ‘his drawings’.^[42]
44. [44]
    I accept that Mr Eccles is the ‘representative’ for Robert Eccles Pty Ltd the appointed ‘Architect’ that would also administrator the Contract because the name ‘Bob Eccles’ appears in Item 2 of the Contract as the ‘architects representative’.^[43]
45. [45]
    I do not accept Mr Mair’s evidence that the Contract required him to follow Mr Eccles’ verbal directions (as the architect).^[44] The Contract requires the contractor to ‘carry out’ the architect’s ‘written’ instruction ‘promptly’ if as provided in clause J2 the instruction will not result in an adjustment of the Contract price or require an adjustment to the date for practical completion.
46. [46]
    Mair Renovations as the contractor has obligations under the Contract in relation to receiving instructions from the architect and making a claim to adjust the Contract. Because there was no compliance with the Contract or the DBC Act, the amount claimed for the variations can only be recovered by Mair Renovations with the Tribunal’s approval under s 84(4) of the DBC Act.
47. [47]
    Mr Mair gave evidence that despite his several years experience (approximately 20 years) working as a builder he had no knowledge of the DBC Act.^[45] Mr Mair said that he did know that he was required to comply with certain procedures in relation to variations. He said that, he did not know any requirements (for variations) was ‘compulsory’ and said that he thought the architect could ‘overrule that’.^[46]
48. [48]
    Mr Mair said that he did read the Contract with the architect but when asked if he did ‘go through [the Contract] clause by clause’, he said ‘no’.^[47] Mr Mair said he ‘followed [the architect] blindly’ and said, when questioned, that he thought the architect could override the DBC Act that requires variations to be put in writing.^[48] Mr Mair was questioned about the Contract and the role of the architect. Mr Mair said he thought if he performed the job ‘properly’ then he would get paid. Mr Mair referred to himself as a ‘lowly carpenter’ and said that he relied on the architect.^[49]
49. [49]
    Mr Mair has many years’ experience as a builder and even though he says he did not know about the DBC Act when he signed the Contract he is still required to comply with the Contract and the DBC Act as the contractor’s representative.
50. [50]
    There is no evidence before me that Mr Mair as representative for Mair Renovations received a written instruction from Mr Eccles to perform all of the variations, as required under the Contract. There is no evidence before me that Mr Mair provided the Millers or Mr Eccles with written notification about all of the variation work and whether it would, if performed, result in an increase or decrease in the Contract price.
51. [51]
    I do not accept Mr Mair’s evidence that the Millers agreed to all of the variations because they have sent various emails to Mr Eccles requesting work to be performed. Mr Mair said in his statement that the emails contain requests for work by the Millers that were ‘a variation’.^[50] Mr Mair does not identify in his statement or in giving his evidence at the hearing how the emails relate to items or variations claimed in the certificates (No. 5 and No. 4) that he said were assessed by Mr Eccles.
52. [52]
    I do not accept Mr Mair’s evidence that the Millers in an email to Mr Eccles dated 3 July 2011 agreed to pay for all of the variations. Mair Renovations says that upon reading the email dated 3 July 2011 the Millers are shown to have ‘understood’ that it was Mr Eccles’ role to adjust the Contract price following changes that they told Mr Eccles ‘to do so’.^[51] The email dated 3 July 2011 sent by the Millers to Mr Eccles identifies the following items (variations) as being ‘agreed’:^[52]

    2. a)
       03/02/11-01 Window - $7788

    2. b)
       03/02/11-02 New study wall framing - $3520

    2. c)
       14/03/11-01 New Louvre window bed1-study - $1622

    2. d)
       14/03/11-02 Replace existing D/H windows south elevation beds 2/3/4 - $6600

    2. e)
       14/03/11-01 New Louvre window bed1-study - $1622

    2. f)
       30/06/11-02 Living dining decorative arch - $1375

    2. g)
       30/06/11-07 Balustrades total 31.3Lm less allowance 20Lm 11.3Lm x $33 inc GST - $373
53. [53]
    As I have said, the variations claimed by Mair Renovations are not particularised in the certificates (No. 5 and No. 4). The Millers have in the email dated 3 July 2011 only referred to some of the variations claimed by Mair Renovations. Some of the variations referred to by the Millers as being ‘agreed’ in the email dated 3 July 2011 also appear in Schedule C (Exhibit 4).^[53]
54. [54]
    I do not accept Mair Renovations’ submissions that the issue with the payment of the variations was resolved in a meeting in November 2011.^[54] There is conflicting evidence about what happened in the November 2011 meeting. Mr Miller did not agree that an ‘agreement’ was reached at the meeting. Mr Miller said that ‘we attempted to compromise and agree some items but Mr Mair would not move on the cost of his claims and so no progress was made’.^[55]
55. [55]
    Mair Renovations relies on an email dated 15 December 2011 (after the November 2011 meeting) sent by Mrs Miller (to Mr Mair) in which she (Mrs Miller) wrote, ‘we know we owe you for variations agreed’.^[56] Mair Renovations says that it had an ‘expectation’ that the Millers would pay for the work and materials supplied and the Millers’ delay in paying Mair Renovations ‘accounts for any alleged delay by [them] in completing the works’.^[57]
56. [56]
    The email relied upon by Mair Renovations was sent by Mrs Millers to Mr Eccles and Mair Renovations on 14 December 2011 and forwarded to ‘martymair’ on 15 December 2011.^[58] The email states, ‘…I appreciate you want funds for variations agreed…’ and identifies a list of items or issues in relation to the building work.^[59]
57. [57]
    I am not satisfied that the email dated 14 December 2011 demonstrates an intention by the Millers that they agreed to pay for all of the variations. It is common ground that the variations were not put in writing prior to the work being performed as required under the Contract and the DBC Act. The Millers have consistently maintained in giving their evidence that they did not agree to all of the variations claimed.
58. [58]
    Mr Eccles gave evidence about the Contract and the requirement for Mair Renovations to disclose the cost of variations. Mr Eccles said at the hearing that he was ‘very remiss’.^[60] Mr Eccles accepted that the procedure for variations was not followed under the Contract. Mr Eccles said that he directed some of the variations in the absence of written instructions to Mair Renovations. He said that he did not approve many variations in the ‘early stage’ (of the Contract) and it was when the Contract ‘broke down’ that he ‘felt compelled’ to issue variations to reflect the amount of work that had been done’.^[61]
59. [59]
    Mr Miller said in his statement that there were only five variations that Mrs Miller ‘discussed and verbally agreed’ the cost of with the ‘foreman’ (Martin Mair). Mr Miller said that neither Mair Renovations nor Mr Eccles gave them the opportunity to agree or otherwise the cost of ‘other supposed variations’.^[62] Mr Miller said they dispute the claims because they are ‘unfair’ and also dispute the quantum of the costs claimed and said they ‘note that no proof of actual costs have been provided by the builder’.^[63] The five variations Mr Miller said were ‘agreed’ are reflected in the email dated 3 July 2011 (referred to above)^[64] and Schedule C as follows:

Item viii - The garage doors - $4,950

Item xi - Living room decorative arch - $1,375

Item xii - New Louvre window bedroom 1 to study - $1,622

Item xvii - Replace existing DH windows Southside - $6,600

Item xviii - Replace gutters and downpipes - $2,750

60. [60]
    In written submissions the Millers say that notwithstanding the fact they agreed to each of the five variations (Nos. viii, xi, xii, xvii and xviii), the Tribunal is not in a position to be satisfied as to the cost of the works giving rise to the variations and should not approve the variations.^[65]
61. [61]
    I accept the evidence of Mr Miller that there was no agreement reached between the Millers and Mair Renovations in the meeting in November 2011 about payment for all of the variations. The email dated 14 December 2011 supports the evidence given by Mr Miller that they (the Millers) had agreed to pay for some of the variations because the email sent by Mrs Miller refers to ‘variations agreed’.^[66]
62. [62]
    The Tribunal can approve the five variations referred to in Mr Miller’s statement (and Schedule C) under s 84(4) of the DBC Act in certain circumstances.
63. [63]
    In relation to item viii, the garage doors in the amount of $4,950, I am satisfied for the purposes of s 84(4), that there are exceptional circumstances before me and that Mair Renovations would suffer unreasonable hardship if they were not paid for the work. The exceptional circumstances are that Mair Renovations has completed the work because Mr Eccles verbally directed Mair Renovations to do so. I am satisfied it would not be unfair to the Millers to approve the variation because the Millers have had the benefit of the work and accept that they requested the work. There is evidence before me that Mair Renovations performed the work that was assessed by Mr Eccles. Mr Eccles said at the hearing that he assessed the work performed in the amount of $4,950 as an increase in the Contract price.^[67] The Millers have had an opportunity to give evidence about the work performed. I accept Mr Eccles’ evidence about the work performed and assessed by him because he was the architect appointed under the Contract.
64. [64]
    In relation to Item xi, living room decorative arch in the amount of $1,375, I am satisfied for the purposes of s 84(4), that there are exceptional circumstances before me and that Mair Renovations would suffer unreasonable hardship if they were not paid for the work. The exceptional circumstances are that Mair Renovations has completed the work because Mr Eccles verbally directed Mair Renovations to do so. I am satisfied it would not be unfair to the Millers to approve the variation because the Millers have had the benefit of the work and accept that they requested the work. There is evidence before me that Mair Renovations performed the work that was assessed by Mr Eccles. Mr Eccles said at the hearing that he assessed the work performed in the amount of $1,375 as an increase in the Contract price.^[68] The Millers have had an opportunity to give evidence about the work performed. I accept Mr Eccles’ evidence about the work performed and assessed by him because he was the architect appointed under the Contract.
65. [65]
    In relation to Item xii, new Louvre window to study in the amount of $1,622, I am satisfied for the purposes of s 84(4), that there are exceptional circumstances before me and that Mair Renovations would suffer unreasonable hardship if they were not paid for the work. The exceptional circumstances are that Mair Renovations has completed the work because Mr Eccles verbally directed Mair Renovations to do so. I am satisfied it would not be unfair to the Millers to approve the variation because the Millers have had the benefit of the work and accept that they requested the work. There is evidence before me that Mair Renovations performed the work that was assessed by Mr Eccles. Mr Eccles said at the hearing that he assessed the work performed in the amount of $1,622 as an increase in the Contract price.^[69] The Millers have had an opportunity to give evidence about the work performed. I accept Mr Eccles’ evidence about the work performed and assessed by him because he was the architect appointed under the Contract.
66. [66]
    In relation to Item xvii, replacement of the existing window in the amount of $6,600, I am satisfied for the purposes of s 84(4), that there are exceptional circumstances before me and that Mair Renovations would suffer unreasonable hardship if they were not paid for the work. The exceptional circumstances are that Mair Renovations has completed the work because Mr Eccles verbally directed Mair Renovations to do so. I am satisfied it would not be unfair to the Millers to approve the variation because the Millers have had the benefit of the work and accept that they requested the work. Mr Eccles gave evidence at the hearing that the amount claimed for ‘replace DH windows Southside ($6,600) [item xvii]’ was assessed by him being an amount to replace existing double-hung windows on the south elevation, bedrooms 2, 3 and 4.^[70] There is no evidence before me that this item ‘replace DH windows Southside ($6,600)’ is a ‘double-up’ as contended by Mr Miller. The Millers have had an opportunity to give evidence about the work performed. I accept Mr Eccles assessment for this item because he was the architect appointed to administer the Contract.
67. [67]
    In relation to Item xviii, the replacement of gutters in the amount of $2,750, I am satisfied for the purposes of s 84(4), that there are exceptional circumstances before me and that Mair Renovations would suffer unreasonable hardship if they were not paid for the work. The exceptional circumstances are that Mair Renovations has completed the work because Mr Eccles verbally directed Mair Renovations to do so. I am satisfied it would not be unfair to the Millers to approve the variation because the Millers have had the benefit of the work and accept that they requested the work. There is evidence before me that Mair Renovations performed the work that was assessed by Mr Eccles. Mr Eccles said at the hearing that he assessed the work performed in the amount of $2,750 as an increase in the Contract price.^[71] The Millers have had an opportunity to give evidence about the work performed. I accept Mr Eccles’ evidence about the work performed and assessed by him because he was the architect appointed under the Contract.
68. [68]
    The total amount approved by the Tribunal for the ‘five variations’ is $17,297.00.^[72] I will allow the percentage of 10% for ‘overheads and profit’ pursuant to Item 11 of the Contract on the variations approved by the Tribunal.
69. [69]
    I will not allow interest on the variations approved as claimed by Mair Renovations because of the findings I have made about the certificates prepared and issued (certificates Nos 4 and 5).^[73] I have found that the certificates (Nos 5 and 4) issued did not contain particulars of the variations claimed and were not issued in accordance with the Contract.
70. [70]
    I have considered the remaining variations that appear in Schedule C (Exhibit 4) as follows:

    1. Balustrade - $1,658
71. [71]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $1,658. I accept the evidence of Mr Miller that there was no prior discussion about this item of work with Mr Mair (or Mr Eccles) and that there would be an additional cost incurred.^[74] I accept Mr Miller’s evidence that had he been informed about an additional cost for this item he would not have agreed to the work and would have instructed Mr Eccles to ‘stay within the scope of the Contract’.^[75] For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allow the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $1,658 is refused.

    2. Bathroom tiling (upstairs) - $6,616
72. [72]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $6,616. I accept Mr Miller’s evidence that there was no discussion about the bathroom tiling. Mr Miller said in his statement that the supply and installation of bathroom tiling was included in the Contract.^[76] For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $6,616 is refused.

    3. Bedroom robes (upstairs) - $9,199
73. [73]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $9,199. I accept Mr Miller’s evidence that they expected the cost of the robes ‘would be easily covered by the $8000 in the PC and Provisional Sums schedule’.^[77] I accept Mr Miller’s evidence that they did not request anything more than what was in the Contract and did not have an opportunity to ‘sign off on’ the items they subsequently did with the downstairs unit.^[78] For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allow the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $9,199 is refused.

    4. Concrete slab upgrade - $803
74. [74]
    I will allow this claim. Mr Miller said in his statement that he requested a quote for heavier steel fabric in the concrete slab on the ground to help reduce shrinkage and cracking. Mr Miller said that he was not given a quote or breakdown of the cost and received a claim for $803 for the work months after the slab was constructed.^[79] I am satisfied that exceptional circumstances exist for the purposes of s 84(4) of the DBC Act to warrant the conferring of an entitlement to Mair Renovations because the Millers have had the benefit of the work and Mr Miller said that he requested a ‘quote’ for the work. Mr Eccles gave evidence at the hearing that he assessed the work for the concrete slab upgrade in the amount of $803 and this was an increase in the Contract price.^[80] I accept Mr Eccles evidence about the amount assessed for the work. I am satisfied that Mair Renovations would suffer unreasonable hardship if I did not allow the variation because they have performed the work. I am satisfied that it would not be unfair to the Millers to allow the variation because they have had the benefit of the work. I will allow the variation in the amount of $803 plus 10% (for profit) pursuant to Item 11 of the Contract. Consistent with my earlier finding I will not allow Mair Renovations to claim an amount for interest on the variation claimed.

    5. Electrical work - $4,870
75. [75]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $4,870. I accept Mr Miller’s evidence that they did not request the extra electrical work. Mr Miller said that ‘we had not asked for it’.^[81] For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $4,870 is refused.

    6. Extended laundry - $1,980
76. [76]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract and cost of $1,980. I accept Mr Miller’s evidence that they were given no opportunity to consider the costing and options prior to construction of the laundry.^[82]
77. [77]
    For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act. The Millers accept that they requested an increase in the size of the downstairs laundry but did not expect there to be an increase to the Contract price. Mr Miller said in his statement that because the request (to extend) would (as stated by Mr Miller) result in a ‘more efficient’ design the change would be ‘cheaper’.^[83] Mr Miller said that the change in design would allow Mair Renovations to use the existing concrete block party wall for two of its walls. Mr Miller said in his statement that they would have stayed within the Contract had they known there was going to be an additional charge for the laundry. I accept Mr Miller’s evidence.
78. [78]
    I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $1,980 is refused.

    7. Flooring (upstairs) - $36,685
79. [79]
    I have already found that the Contract price of $550,000 included the supply and installation of pinewood flooring. In written submissions the Millers say that the Contract price included the laying of pinewood flooring. The Millers accept that they requested Mair Renovations to install blackbutt flooring but do not accept that the cost of the flooring is $36,685.^[84] The Millers do, however, accept the amount of $8,000 for the blackbutt flooring.^[85]
80. [80]
    The evidence of Mr Eccles given at the hearing was that he assessed the floor cladding upgrade from ‘140 millimetres clear pine to 85 millimetres select blackbutt’ by increasing the Contract price in the amount of $8,087.^[86] I will allow the variation amount of $8087 (not $36,685) because the Millers accept that they requested the floor upgrade (upstairs). I am satisfied there are exceptional circumstances for the purposes of s 84(4) of the DBC Act and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation because they have performed the work requested by the Millers. I am not satisfied it would be unfair to the Millers to allow the claim because they have had the benefit of the work. I will approve the variation for the upstairs flooring in the amount of $8,087 plus 10% (for profit) pursuant to Item 11 of the Contract. Consistent with my earlier finding I will not allow Mair Renovations to claim an amount for interest on the variation claimed.

ix. Installation of store room - $2,733

81. [81]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $2,733. I accept Mr Miller’s evidence had they been given the opportunity they would not have allowed this to extend beyond the scope of the Contract. Mr Miller said that ‘this was not discussed with us’.^[87] Mr Miller said that they did discuss the issue with the pool builder.
82. [82]
    For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $2,733 is refused.

x. Laundry/WC tiles - $1,407

83. [83]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract an additional cost of $1,407. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the variation claimed. Mr Mair (as the representative) has several years’ experience as a builder and did not comply with the Contract or the DBC Act in relation to the variations.
84. [84]
    Mr Miller said in his statement that he ‘assumed’ a more efficient plan in extending the laundry and ‘WC’ would reduce the overall cost and had they been provided an estimate of the additional cost they would have ‘insisted the builder stay within the Contract costing’.^[88] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $1,407 is refused.

    13. New study floor upgrade - $833
85. [85]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would attract an additional cost of $833. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act in relation to the variations.
86. [86]
    Mr Miller said in his statement that the additional cost is unfair and excessive.^[89] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost prior to constructing the floor and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $833 is refused.

    14. New study wall framing - $3,520
87. [87]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract an additional cost of $3,520. The Millers did indicate that they ‘agreed’ to the variation in the email dated 3 July 2011 but Mr Miller in his statement of evidence raises issues about the amount claimed for this item. Mr Miller said in his statement that ‘it seemed’ that there would not be much cost difference in the change in area from a balcony to enclosed study with timber flooring. Mr Miller said that there was no credit given for the deck plus sub-deck roofing and no opportunity for them to ‘appreciate cost impact’.^[90] I accept Mr Miller’s evidence.
88. [88]
    For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years experience as a builder and did not comply with the Contract or the DBC Act. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $3,520 is refused.

    15. R2.5 Insulation to upper floor ceiling and western wall - $3,289
89. [89]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract an additional cost of $3,289. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
90. [90]
    Mr Miller said in his statement that he did request a quote for additional insulation on the western side but Mair Renovations did not provide one and a claim was issued months later.^[91] The Millers did indicate that they agreed to the variation in the email dated 3 July 2011 but Mr Mair said the cost is ‘exorbitant’ and had a quote been supplied we (the Millers) would not have proceeded with such an ‘expensive addition to the Contract’.^[92] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $3,289 is refused.

    16. Raised block work at entry - $3,146
91. [91]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $3,146. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act in relation to the variations.
92. [92]
    Mr Miller said in his statement that he did not know how ‘exorbitant’ the claim would be. I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $3,146 is refused.

    19. Roofing to underside of eastern decks - $3,927
93. [93]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $3,927. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
94. [94]
    Mr Miller said in his statement that they ‘had no idea’ that sub-deck roofing would become necessary because the study changed to an open porch.^[93] Mr Miller said neither Mr Eccles nor Mair Renovations provided any indication about the additional cost resulting from work outside the Contract and said that it (the work) was not on the Contract drawings.^[94] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $3,927 is refused.

    20. Sound insulation bed1/living - $935
95. [95]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $935. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
96. [96]
    Mr Miller said in his statement that they did not request sound insulation.^[95] Mr Miller said the extent and amount of insulation was undefined and had they been provided with a quotation with the extent of the insulation defined they would have reduced the amount to ‘cover a more localised area’.^[96] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $935 is refused.

    21. Floor framing structural steel (stage 2) - $8,378
97. [97]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $8,378. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
98. [98]
    Mr Miller said in his statement that they assumed the Engineer would provide the design documentation for structural steel and the steel would be fabricated and installed by the builder. Mr Miller said they were not provided with a costing to be agreed in accordance with the Contract prior to the fabrication and installation of any extra steel.^[97] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $8,378 is refused.

    22. Timber battens to north side of garage - $550
99. [99]
    I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $550. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
100. [100]
     Mr Miller said in his statement that there was no prior discussion about the work and they were not informed about the costs of the work.^[98] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed that the work was not included in the Contract and were not given an opportunity to consider the cost of the work and accept or reject the additional work. The claim for $550 is refused.

     23. Upgrade garage ceiling from 4.5 FC sheet to Gyprock - $594
101. [101]
     I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $594. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
102. [102]
     Mr Miller said in his statement that there was no agreement for the upgrade to gyprock and the ceiling should have been 4.5 FC sheet as specification not gyprock.^[99] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $594 is refused.

     24. Upgrade roof battens to original veranda roof - $1,870
103. [103]
     I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $1,870. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
104. [104]
     Mr Miller said in his statement that there was no discussion about the work and no reason for the work was given.^[100] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $1,870 is refused.

     25. Windows awnings to 3 windows on the south side - $1,760
105. [105]
     I will not allow this variation because it was not put in writing and the Millers were not advised about the cost of $1,760. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
106. [106]
     Mr Miller said in his statement that no quote for the work was provided and they were not given an opportunity to agree to the cost. Mr Miller said had they been given the costing they would have insisted the builder stay within the scope of the Contract.^[101] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $1,760 is refused.

     26. Window schedule variations - $7,788
107. [107]
     I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $7,788. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
108. [108]
     Mr Miller said in his statement that the claim is very unfair because there was no opportunity afforded to them to agree to the cost.^[102] Mr Miller said at the hearing that Mrs Miller may have made a verbal request for a louvre window in the bathroom area but no estimate of cost for that work was given. I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $7,788 is refused.

     27. Workshop - $10,780
109. [109]
     I will not allow this variation because it was not put in writing and the Millers were not advised that this would be additional work and would attract a cost of $10,780. For the purposes of s 84(4) of the DBC Act I am not satisfied that exceptional circumstances exist to warrant the conferring of an entitlement to Mair Renovations for the work performed and that Mair Renovations would suffer unreasonable hardship if I did not allow the claim. Mr Mair as the representative for Mair Renovations has several years’ experience as a builder and did not comply with the Contract or the DBC Act.
110. [110]
     At the hearing Mr Miller said that the cost for the work was provided months after the work was done. He said that the cost came as a ‘shock’ and the workshop was left incomplete. Mr Miller said in his statement that had they been informed about the cost they would certainly not have gone ahead with it and would have stayed with the scope of the Contract.^[103] I accept Mr Miller’s evidence. I am satisfied that it would be unfair to the Millers if I allowed the variation because they were not informed about the cost of the work and were not given an opportunity to accept or reject the additional work. The claim for $10,780 is refused.

     28. Addition of toilet

This item does not appear in Exhibit 4 prepared by the respondents and therefore forms part of the other items that are subject to the ruling made by the Tribunal on 19 November 2014. This claim is refused because of the ruling made by the Tribunal. Notwithstanding the Tribunal’s ruling, I am not satisfied for the purposes of s 84(4) of the DBC Act that Mair Renovations would suffer unreasonable hardship if I did not allow the claim because the variation was not put in writing and Mr Mair has many years experience as a builder and did not comply with the Contract or the DBC Act. I accept the evidence of Mr Miller that he was not advised about the cost of this item and I am satisfied that it would be unfair to the Millers to allow this variation because they were not given an opportunity to accept or reject the claim before the work was completed.

Did the works reach practical completion when the Millers moved in?

111. [111]
     I am not satisfied that the works reached practical completion when the Millers moved into the house on 15 September 2011 as contended by Mair Renovations.^[104]
112. [112]
     Mr Mair said in his statement that he understood practical completion was reached when the owners moved back into the property. He said that when the Millers moved in, the downstairs and outside area ‘were not yet at completion stage’.^[105] Mr Mair said that he ‘accepted’ Mr Eccles would ‘deal with practical completion’ and that his ‘crew’ could work around the Millers and their family.^[106]
113. [113]
     The Contract provides that the works have reached practical completion when ‘they are substantially complete and incomplete work or defects remaining in the works are of a minor nature’.^[107] The Contract also provides that the contractor must notify the architect (Mr Eccles) when the works are ‘near’ practical completion (in writing) 10 working days before the date when practical completion is expected to be reached.^[108] If the architect (Mr Eccles) decides, the works have reached practical completion than a notice within five days after completing an inspection must be issued to the contractor (Mair Renovations).^[109]
114. [114]
     In this case there was no notice of practical completion issued by Mr Eccles as required under the Contract because at the hearing Mr Mair said, when questioned, that he had not received a notice of practical completion when the Millers moved into the house.^[110]
115. [115]
     In this case I find that the work was not ‘substantially complete’ save for any incomplete work or minor defects as provided under the Contract because Mr Mair said that there was ‘significant work’ to be completed when the Millers moved into the house. Mr Mair said in his statement that he agreed to the Millers moving into the house because the Architect had told him they would pay his variations. Mr Mair said that ‘the outside walls and grounds were not finished and there was still significant work to be completed in the downstairs area’.^[111] I accept Mr Mair’s evidence and find that practical completion was not reached on 15 September 2011.

Should the Millers pay the amount claimed in the certificates because they have had the benefit of the work?

116. [116]
     The Contract provides that the ‘final claim’ can only be made when all defects liability periods have ended and the contractor has rectified all defects and finalised incomplete work and the works have been completed in accordance with the Contract.^[112] Under Clause N11 of the Contract Mr Eccles must (as the architect) assess the final claim and issue a final certificate setting out the amount due for payment.
117. [117]
     I have already made a finding that practical completion was not reached with the Millers moved into the property. I have found that as at September 2011 there was significant work yet to be completed by Mair Renovations. Because of my findings, there was no contractual basis for Mr Eccles (as architect) to assess the work and issue the final certificate or final claim under the Contract.
118. [118]
     Mair Renovations also claim the amount of $156,936.70 plus interest as owing under the contract (based on the Contract amount of $633,886.70) on the basis that the Millers have been unjustly enriched because they have received a benefit for the work performed.
119. [119]
     Because of my above findings on the variations and practical completion I cannot be satisfied that the work assessed by Mr Eccles in certificate No. 5 and No. 4 is a true assessment of the work performed by Mair Renovations.
120. [120]
     The variations in certificates (No. 5 and No. 4) were not put in writing and I have made findings about 17 of the variation items claimed that required approval by the Tribunal. I have also found that the work did not reach practical completion when the Millers moved into the property. There is also evidence before me that there are items of work that require rectification such as the retaining wall. In relation to Mr Eccles’ evidence about the final amounts assessed by him in certificates (No. 5 and No. 4) I find his evidence unreliable because he (Mr Eccles) accepted when questioned at the hearing that he had made mistakes in his calculations.
121. [121]
     Mair Renovations has had an opportunity to present its case including any independent evidence to support its claim that the amount of $156,936.70 plus interest is payable by the Millers because they have had the benefit of the work.
122. [122]
     Mair Renovations in written submissions rely on the ‘evidence’ of Russell Ensbey in his affidavit sworn 21 October 2013 in relation to the assessment of the variations (by Mr Eccles). The affidavit of Russell Ensbey does not form part of the evidence before the Tribunal because it was not tendered at the hearing.^[113] Although the rules of evidence do not apply in QCAT, the Tribunal must in conducting a proceeding observe the rules of natural justice and this includes affording procedural fairness to all parties including the Millers.^[114] It would not be fair to the Millers to attach any weight to the evidence of Mr Ensbey because the affidavit was not tendered at the hearing and the Millers were not given an opportunity in giving their evidence to respond to any assertions now made by Mair Renovations in respect of the affidavit of Mr Ensbey.
123. [123]
     Mr Eccles gave evidence at the hearing about the final amount owing under the Contract that is reflected in the certificates No. 4 and No. 5. Mr Eccles said that Mair Renovations would notify him that he (Mr Mair) ‘was ready’ to ‘draw for [the] completion of that stage’. Mr Eccles said he would inspect the site, make an assessment and issue the appropriate certificate.^[115] Mr Eccles said that for certificate No. 5 there were various items deleted reflected in the ‘schedule of PC & provisional sums’.^[116] Mr Eccles was asked whether the certificate No. 5 in the amount of $304,300.70 ($309,800.70 less $5,500) was ‘true to your calculations or that note’ and Mr Eccles said ‘yes’.^[117] Mr Eccles accepted when questioned that the amount of $23,800.70 for ‘stage five completion’ as it appears in certificate No. 5 included variation claims by Mr Mair that were not put in writing.^[118] Mr Eccles said that from August 2011 until May 2012 the parties were not ‘getting along’. Mr Eccles said that he put together variations in certificate No. 5 (contract A) which was then issued to Mair Renovations and the Millers for the payment.^[119]
124. [124]
     Mr Eccles said at the hearing that certificate No. 4 was assessed in the amount of $220,000 and there were variations. Mr Eccles referred to the bundle of documents tendered at the hearing that include a schedule titled ‘contract variations summary.^[120] Mr Eccles said when questioned there were ‘a lot of variations’ requested during the construction period. Mr Eccles was asked if the variations were requested by the owners (the Millers) and Mr Eccles said, ‘yes’.^[121]
125. [125]
     Mr Eccles said that for certificate No. 4 he calculated variations in the amount of $109,586.^[122] Mr Eccles when questioned admitted that he had made mistakes in relation to his calculations.^[123] Mr Eccles accepted that the claim for ‘balustrades’ in the amount of $1,658 was effectively calculated twice. Mr Eccles accepted that there was also a mistake in relation to ‘robes’ in the amount of $9,199.^[124] Mr Eccles also accepted when questioned that he had released retention monies in the certificate without a notice of practical completion. Mr Eccles said that he ‘had not read the Contract properly’.^[125]
126. [126]
     I find Mr Eccles evidence in relation to the assessment of work performed by Mair Renovations reflected in the certificates (No. 5 and No. 4) unreliable. Mr Eccles accepted when giving his evidence at the hearing that he had made mistakes in his calculations. The evidence of Mr Eccles is that the certificates included claims for items of work that were variations not put in writing. The variations would require the Tribunal’s approval under the DBC Act and I have made findings about 17 of the variations claimed by Mair Renovations that were not particularised in the certificates (No. 5 and No. 4). Mair Renovations’ claim that the Tribunal should otherwise approve the claim in the amount of $156,936.70 plus interest on the basis that the Millers have had the benefit of the work is refused.

Was there an implied term that the works would be completed within seven months?

127. [127]
     Mair Renovations (as the contractor) must bring the works to practical completion by the date for practical completion shown in item 16 of schedule 1 of the Contract.^[126] Clause G5 of the Contract requires the contractor (Mair Renovations) to provide a ‘program’ (to the architect) within ten working days after being given possession of the site setting out the dates of commencement and completion of the major stages of the works, the date for practical completion, the start and completion dates of all trades and a critical path.
128. [128]
     In this case there was no date for practical completion inserted in the Contract and Mair Renovations did not provide a program to Mr Eccles as required under Clause G5 of the Contract.
129. [129]
     The Millers argue that there was an implied term that the building works would be completed within six months of construction.^[127] The Millers argue that the Tribunal should find that Mair Renovations breached the express term, the statutory warranty and the implied term to bring the works to completion within a reasonable time, being the period of seven months based on the evidence of Greg Jones.^[128]
130. [130]
     The Millers claim additional rental and lost rental due to the alleged failure by Mair Renovations to complete the works with diligence and within a reasonable time being the period of seven months. The Millers claim $11,464.26 for additional rental incurred between June 2011 and September 2011 and $28,800 (for downstairs) for lost rental between June 2011 and May 2012.^[129]
131. [131]
     There is conflicting evidence about whether the Millers were told by both Mr Mair and Mr Eccles that the renovation work would be completed within six months. Mr Miller said that Mr Eccles and Mr Mair told him before signing the Contract that the construction would take six months to complete. Mr Miller said that as construction commenced in early December 2010 ‘we assumed that the upstairs would be available to occupy and the downstairs unit would be available to rent out [in] June 2011’.^[130] Mr Miller said that he did not ‘realise the significance and importance’ of the omission in the Contract to include a timeframe.^[131]
132. [132]
     Mr Mair said at the hearing that the reason why he did not provide a ‘program’ to Mr Eccles under clause G5 of the Contract is because he (Mr Eccles) had not given him the drawings for downstairs.^[132] Mr Mair said that he did not make a claim to Mr Eccles to adjust time because there was no time ‘given to undertake the works’.^[133] Mr Mair said that Mr Eccles ‘suggested initially’ that there be no date for practical completion put in the Contract because ‘we still didn’t know the direction of the Contract, the direction of the job’.^[134]
133. [133]
     Mr Mair was cross-examined about whether he told the Millers the works would be completed by June 2011. Mr Mair said that he knew the Millers were intending to rent out the downstairs apartment but denied that he told them the works would be completed by June 2011. He said that had he known the Millers were planning to rent the downstairs apartment from June 2011 he would have said ‘that’s ridiculous’. Mr Mair said ‘we waited five months for a drainage plan’.^[135] Mr Mair was cross-examined about why he had said in his statement he had to ‘catch up on lost time’ if he had not told the Millers the construction would take six months.^[136] Mr Mair said he told the Millers ‘in a perfect situation, this type of job could be done in six months’.^[137]
134. [134]
     Mr Mair was cross-examined about whether he knew the reason why the Millers had requested two quotes (because of their intention to rent out the downstairs) and how many contracts he had signed with the Millers. Mr Mair referred to himself as being ‘just a dumb carpenter’.^[138] Mr Mair said at the hearing that he has constructed in the past ten years approximately four to five ‘jobs’ at an average cost of $400,000.^[139] Mr Mair agreed, when questioned that he was used to working on contracts under the supervisor of an architect.^[140]
135. [135]
     I am not satisfied based on the evidence before me in particular Mr Miller’s evidence alone, that the Millers were told by either Mr Mair or Mr Eccles that the work would be completed by June 2011 (or by six months). As I have said the Contract did not contain a date for practical completion. Furthermore, the Millers did not put anything in writing at the time of signing the Contract to reflect their intention to rent out their property on the basis that the renovation work would be completed within six months (or by June 2011). I have also considered the evidence of Mr Eccles who was cross-examined at the hearing about the time for completion of the work. Mr Eccles said at the hearing that he told the Millers they could move into the property in June 2011 but it was an unspoken proviso that this was subject to no hold ups.^[141]
136. [136]
     There is conflicting evidence before me about the alleged delays in the completion of the renovation work by Mair Renovations. The Millers’ argue that Mair Renovations was absent from site and have not acted diligently in completing the works under the contract.
137. [137]
     Mair Renovations relies on Mr Mair’s evidence. Mr Mair in giving his evidence argues there were delays that are attributable to the Millers such as the alleged delay in providing plans necessary to complete the renovation work, the late payment by the Millers for work completed and Mr Miller’s request that there be no work completed for a period of approximately 21 days after ‘laying the slab’. Mair Renovations also argue that there were constant changes to the plans by the Millers and there was adverse weather in early 2011 that has also contributed to a delay in completing the work.
138. [138]
     The Millers do not dispute that the certified plans were not provided until April 2011. The Millers say that Mair Renovations did not make a request for the plans and that they (Mair Renovations) have an obligation under the Contract to act reasonably.
139. [139]
     There is an obligation under the Contract for Mair Renovations (and the Millers) to act ‘reasonably’ and to cooperate in all matters under clause A1. I accept that there is also an obligation on Mair Renovations as the contractor to carry out the necessary work ‘diligently’ under clause A2 and to bring the works to practical completion under clause M1. There is also an obligation under Clause A4 of the Contract for the Millers as the ‘owners’ to obtain and give to Mair Renovations any ‘statutory approvals’ required to begin works. The Contract provides that the ‘owner’ (the Millers) must provide appropriate ‘contract documents’ for the works and indemnify the ‘contractor’ for any liability incurred under Clause A4. The ‘contract documents’ under Section S include ‘the specifications, the drawings and any other documents shown in schedule 3’.
140. [140]
     I accept Mr Mair’s evidence that there were delays due to the weather in early 2011 and delays in being provided the certified plans (by the Millers) some months after work commenced in December 2010. Mr Mair said that he did not receive certified plans until April 2011.^[142] Mr Mair said that he attended the ‘site’ in December 2010 and raised the dwelling to the height advised by Mr Eccles, put in supports and beams and a block retaining wall.^[143] Mr Mair also said that there were delays to the construction due to the weather after Christmas 2010 and until late January 2011. Mr Mair said ‘we could not return [to site] until early February 2011’.^[144] He said that there were also ‘regular and significant changes to the drawings’.^[145]
141. [141]
     I am satisfied based on the evidence before me that Mair Renovations has acted reasonably when taking steps to obtain the certified plans because Mr Mair said he made verbal requests to Mr Eccles for the plans to be provided. I accept Mr Mair’s evidence that there were floods in January 2011 contributing to a delay in the completion of works for the period from Christmas 2010 to late January or early February 2011.
142. [142]
     I do not accept Mr Mair’s evidence that he was told by Mr Miller not to work on the slab (after it was poured) in 2011 for 21 days. I found Mr Mair’s evidence about the ‘slab issue’ to be unreliable because in his statement Mr Mair said that he was told by Mr Eccles that Mr Miller did not want any work done on the slab for 21 days.^[146] At the hearing Mr Mair said when questioned that he made a mistake in his statement and that Mr Miller had told him not to do any work on the slab for 21 days (not Mr Eccles).^[147]
143. [143]
     I have also considered the evidence given by Mr Miller at the hearing about the email sent (about the curing) to ‘Structere’ and the response received by Mr Miller (from Tim Ryan) on 6 May 2011.^[148] Mr Miller was cross-examined about the emails at the hearing. Mr Miller accepted that he forwarded the response received from Structere to Mr Eccles in relation to the ‘curing’ but maintained that he (Mr Miller) did not say that ‘you can’t go on a slab’ for 21 or 28 days. Mr Miller said at the hearing that ‘[he] never said that’ and stated that he sent an email ‘completely refuting that’.^[149] I accept Mr Miller’s evidence about the ‘curing slab’ issue because there is an email dated 26 May 2011 sent by Mr Miller to Mr Eccles. In the email dated 26 May 2011 Mr Miller states:

I was astonished at the suggestion by [Mr Mair] and yourself that I had implied no work on the concrete slab could take place for 28 days from placement to allow curing. This is a complete fabrication.^[150]

144. [144]
     I have also considered the evidence in relation to whether Mair Renovations was absent from site during 2011 and 2012 in breach of their contractual obligation to complete the work ‘diligently’ as provided under Clause A2 of the Contract.
145. [145]
     I prefer the evidence of Mr Miller that Mair Renovations was absent from site in 2011 at various times and this has contributed to a delay in completing the works. Mr Miller said there was a delay in the construction of the work due to Mair Renovations’ ‘complete absence’ from site for weeks at a time.^[151]
146. [146]
     The Millers rely on various emails sent to Mr Eccles. Mr Miller said in giving his evidence that the emails document ‘our complaints’. The emails are dated 26 May 2011, 22 June 2011, 14 August 2011, 18 August 2011, 30 October 2011, 14 December 2011, 19 January 2012 and 24 January 2012.^[152] The emails do identify issues with the completion of certain items of work and raise issues in relation to the time of completion. For example, the email dated 26 May 2011 states that ‘[t]here is no reason the project should be further delayed’.^[153] The email dated 22 January 2012 states that the Millers have ‘asked for these repair on several occasions’.^[154] In the email dated 14 December 2011 Mrs Miller states ‘I’m disappointed I cannot communicate with the foreman’.^[155] In the email dated 18 August 2011 the Millers state ‘[t]he length of the project is dragging out and we’ve had enough’ and in the email dated 22 June 2011, the Millers state ‘[w]e are concerned that progress seems rather slow currently’.^[156]
147. [147]
     Mr Mair said that his ‘crew worked as fast as we were allowed’ and that by June 2011 the major part of the works ‘had been completed’.^[157] There is evidence before me, however, that in September 2011 the retaining wall had not been constructed in accordance with the drawings. Mr Mair accepted when questioned that the revised plans for the retaining wall were provided to him in May 2011 but he did not undertake the work until September 2011.^[158] Mr Mair also said in giving his evidence at the hearing that in September 2011 there was significant work to be completed downstairs.^[159]
148. [148]
     I do not accept Mr Mair’s evidence that there were other delays attributable to the Millers as contended, such as the late payment of a certificate issued for payment in July 2011.^[160] I do not accept that this delayed the work to be performed by Mair Renovations because Mr Mair as stated by him told Mr Eccles that he would ‘get the job finished and move on’.^[161]
149. [149]
     Mr Mair does not dispute that Mair Renovations was working on jobs other than the Millers’ property in 2011. Mr Mair said that in late September 2011 he asked Mr Eccles for payment of variations and was told by him that the Millers had not agreed to payment.^[162] Mr Mair said he needed ‘cash flow’ so in late September 2011 he sent his crew to other jobs while still working on the house.^[163]
150. [150]
     I have also considered the evidence of Mr Eccles about whether Mair Renovations was absent from site during 2011. Mr Eccles said in his statement that from August 2011 until May 2012 the parties were not getting along and he can recall instances when the Millers had not paid on time and there were instances when their cheques were dishonoured. Mr Eccles said that Mr Mair ‘went off and did other jobs to maintain cash flow’.^[164]
151. [151]
     I find that Mair Renovations was absent from site at various times in 2011 and this did contribute to a delay in completing the works. I am not satisfied however based on the evidence before me that the Millers have acted reasonably in relation to mitigating their loss in respect of the additional rental claims. There are no special conditions in the Contract that entitle the Millers to claim lost rental should the works not be completed within a certain timeframe (six or seven months). The Millers did not put Mair Renovations on notice of any alleged breach of the Contract because of the failure to complete the works within seven months and/or diligently until August 2012. Furthermore, the Millers did not put Mair Renovations on notice of their intention to claim lost rental monies in the event that the works were not completed within seven months or diligently.
152. [152]
     I have also considered the evidence of Mr Jones in relation to the ‘construction timeline’^[165] prepared by him (Mr Jones) in his capacity as an expert witness. Mr Jones states in the report dated 13 November 2014 that the timeline schedule allows sufficient time for a competent builder to complete the works.^[166]
153. [153]
     I cannot be satisfied based on Mr Jones’ evidence alone that the works would be completed in seven months based on the findings I have made about the delays in 2011 and 2012 that were not attributed to Mair Renovations. I have found that there was a delay in construction in the end of 2010 because of the weather and a delay in 2011 (by the Millers) in providing the certified plans. Mr Jones does not address in his timeline schedule the impact of other delays such as the weather and a delay in providing the certified plans. Mr Jones states in his report that ‘[w]eekends were taken into account but no allowances were made for ‘wet days’.^[167] Mr Jones also states that he adopted a ‘conservative approach’ whilst calculating the likely time for the various trades and stages.^[168]
154. [154]
     The Millers’ claim for lost rental must fail because the Millers have taken no steps to enforce their rights under the Contract and to mitigate their loss in respect of the rental claims. The Millers did not issue a notice to remedy breach to Mair Renovations until August 2012. I have also found that there was no implied term that the contract work would be completed within six months or by June 2011 as contended by the Millers.

Did the Millers lawfully terminated the Contract on 28 August 2012?

155. [155]
     The Millers argue that the Contract was lawfully terminated on 28 August 2012 by written notice given to Mair Renovations by the Millers’ solicitors.^[169] In the alternative the Millers argue that ‘by the party conduct’ the Contract was mutually abandoned.^[170]
156. [156]
     A notice to remedy breach was sent by the Millers directly to Mair Renovations on 9 August 2012. The notice was issued to Mair Renovations pursuant to clause Q1 of the Contract and gave Mair Renovations 10 working days to remedy defects contained in a list (of defects) issued on 10 April 2012. In the notice (dated 9 August 2012) the Millers state that Mair Renovations has ‘not been onsite undertaking any work since 24 February 2012 (over 5 months)’.^[171]
157. [157]
     On the same day the notice was issued (9 August 2012) the Millers emailed Mr Eccles stating that he not make any further determinations or decisions under the Contract without first referring to the Millers for instructions and requested he advise the Millers if he (Mr Eccles) was contacted by Mair Renovations.^[172]
158. [158]
     Clause Q1 of the Contract provides that the owner may require the contractor to remedy default if the contractor fails to ‘meet a substantial obligation under [the] contract’ and the owner may give the contractor a written notice requiring the default to be remedied within 10 working days. If the default is not remedied or the contractor fails to ‘show reasonable cause why it cannot be remedied’ within 10 working days or such additional days ‘as agreed with the architect’ the owner may terminate the engagement of the contractor by giving written notice of termination.
159. [159]
     The notice did satisfy the requirements of clause Q1 of the Contract because it identified the alleged breach and stated the notice period to remedy the alleged breach. The notice attached an updated list of defects and effectively put Mair Renovations on notice that it had breached the contractual obligations by failing to ‘proceed with due diligence’ with the works and by failing to address the major defects required to achieve practical completion.^[173] Mair Renovations had been notified about alleged defective items of work prior to the notice (dated 9 August 2012) being issued because defect lists were sent by the Millers to Mair Renovations on 13 February 2012, 19 February 2012 and 10 April 2012.^[174]
160. [160]
     It is common ground that Mair Renovations received the notice dated 9 August 2012 from the Millers. Mr Mair said that his wife informed him on 10 August 2012 that she had received a fax from the Millers which required him to attend to defects within 10 working days.^[175] Mr Mair said Mr Eccles informed him that he had to refer all determinations or decisions to the Millers for instructions.^[176]
161. [161]
     At the hearing Mr Mair said he was in hospital when he received the notice from the Millers. It is Mr Mair’s evidence that he did not contact the Millers directly but he did contact Mr Eccles the day after receiving the notice.^[177]
162. [162]
     Mr Mair said at the hearing that the works could be completed within two days.^[178] Mr Mair said in his statement that a response to the notice was prepared pursuant to ‘M3 of the special conditions’ of the Contract and sent to Mr Eccles.^[179]
163. [163]
     The evidence is that Mr Eccles sent an email dated 21 August 2012 to the Millers to organise a meeting because he had received a telephone call from Mr Mair requesting a meeting. In the email dated 21 August 2012 Mr Eccles states ‘[t]he builder has contacted me in regards to rectification work. He has requested me to arrange a site meeting with you. Please call to discuss the execution of the work’.^[180]
164. [164]
     The evidence shows that the Millers replied to Mr Eccles’ email on 22 August 2012 stating that they ‘require [Mair Renovations] to proceed with the remaining works under the contract’. The Millers state in the email that they ‘are overseas’ and access (to the property) ‘will need to be’ arranged with their remaining family at home.^[181]
165. [165]
     Mr Eccles said that he met Martin Mair onsite a few days later but no work was done. Mr Eccles said arrangements were made for Martin Mair to attend on another day.^[182] Mr Mair supports Mr Eccles’ evidence. Mr Mair said that Martin Mair and some workers attended the property on 28 August 2012 and again on 29 August 2012. On 29 August 2012 Mr Mair said access was refused.
166. [166]
     Mr Mair also gave evidence about completing the works during the period from early 2012 to August 2012. Mr Mair said he kept telephoning Mr Eccles to arrange access to attend to defects. Mr Mair said he did this half a dozen times.^[183] Mr Mair said he would contact Mr Eccles and he (Mr Eccles) would advise that he had no contact with the Millers.^[184]
167. [167]
     Mr Eccles’ evidence does not support Mr Mair’s evidence about the attempts made (by Mair Renovations) to gain access to the property. Mr Eccles said when questioned that he was not contacting the Millers (between early 2012 and August 2012).^[185] Mr Eccles did not say that Mr Mair had been contacting him to arrange access. Mr Eccles did not give any evidence about Mair Renovations response to the notice of defects (sent by Mair Renovations on 16 August 2012).^[186]
168. [168]
     The document prepared by Mr Mair (in response) dated 16 August 2012 does not include an intention to attend to all items as stated by Mr Mair. When giving evidence about the defects (in the notice) Mr Mair said Mair Renovations was prepared to attend to all of the defects but in the response Mair Renovations state that that the front retaining wall issues were attended to in 2011.^[187]
169. [169]
     The evidence shows that the retaining wall is an item that requires rectification and was therefore not satisfactorily attended to prior to August 2012 because it is one of the items the Millers expert witness (Mr Jones) has given evidence about in terms of the costs of rectification. Mair Renovations accept that the retaining wall requires rectification.
170. [170]
     I am not satisfied that as at August 2012 all of the defects could have been attended to by Mair Renovations within two days as stated by Mr Mair because there were outstanding items including the retaining wall that required significant rectification work.
171. [171]
     I am not satisfied based on the evidence before me that Mr Mair as representative for Mair Renovations has acted reasonably by taking the necessary steps to attend to the defective works within the ‘10 working day’ period stated in the notice (dated 9 August 2012). I am satisfied the Millers had a right to terminate the Contract on 28 August 2012 by issuing a notice under clause Q1.2 of the Contract. I am also satisfied the Contract was properly terminated by the Millers on 28 August 2012.
172. [172]
     I have considered the evidence before me, in particular Mr Mair’s evidence, about whether Mr Eccles extended the ‘10 working day’ period in the notice (dated 9 August 2012).^[188]
173. [173]
     Mr Eccles did not give evidence that he extended the time (in the 9 August 2012 notice) for Mair Renovations to attend the property and undertake the rectification work. Mr Eccles’ evidence is that Mr Mair asked him to arrange access to the property.
174. [174]
     There is no evidence before me that Mair Renovations or Mr Eccles requested the Millers to provide their consent to an extension of the ‘10 working day’ period in the notice. There is no evidence before me from Martin Mair in relation to the alleged discussions that took place between him and Mr Eccles relating to completing the works and access to the property. In the absence of any corroborating evidence of the proposed extension of time for completion of the works I cannot be satisfied that Mr Eccles extended the time for completion of the ‘10 working day’ notice period under clause Q1 of the Contract. I cannot be satisfied based on the evidence before me that Mr Eccles had the intention of extending time and took steps to do so as the architect under the Contract.
175. [175]
     I have also considered the evidence of Mr Mair about the steps taken by him to attend to completion of the works in early 2012 to August 2012 (inclusive). I do not accept that Mair Renovations has acted reasonably. There is no evidence to corroborate Mr Mair’s evidence about his attempts to contact Mr Eccles verbally (to attend to the work).
176. [176]
     The Millers have consistently maintained in giving their evidence that Mair Renovations has not attended the site regularly throughout 2011 and 2012. The Millers say that Mair Renovations was not on site during the period from February 2012 to August 2012 despite sending three defects lists.^[189] I accept the Millers evidence because their concerns about Mair Renovations failure to attend to the works is reflected in emails dated 19 January 2012, 24 January 2012 and the notice dated 9 August 2012 states ‘you have not been onsite’ since 24 February 2012 ‘over five months about’. I am satisfied that Mair Renovations has not acted reasonably and has failed to attend to the work including the work in the defects list in the notice dated 9 August 2012.
177. [177]
     The Millers argue that in the alterative, by party conduct, the Contract was mutually abandoned after the termination notice was sent (by the Millers) on 28 August 2012.^[190]
178. [178]
     Mr Mair’s evidence that he did speak to Mr Eccles in the six month period after termination is not supported by Mr Eccles. Mr Eccles gave evidence that after the alleged termination of the contract he did not receive any communication from Mr Mair or the Millers until the District Court proceedings were commenced (on 1 August 2013).^[191]
179. [179]
     Mr Mair in giving his evidence that he is ready and willing to undertake the rectification work and has been awaiting the results of an investigation conducted by the Queensland Building Services Authority (now the Queensland Building and Construction Commission).^[192] Mr Mair was questioned at the hearing about whether he had responded to an offer to attend to rectification of the work made by the Millers’ solicitors by letter dated 14 July 2014. Mr Mair said that ‘he was not aware of the letter’.^[193] I have already found that Mair Renovations did not complete the works diligently during 2011 because there were delays that were not attributable to the Millers, as alleged. I have also found that Mair Renovations has not acted reasonably and has failed to attend to the work including the work in the defects list in the notice dated 9 August 2012.
180. [180]
     I do not accept Mr Mair’s evidence that he had an intention to return to the site to complete the rectification work after receiving the letter of termination on 28 August 2012. This is because Mr Eccles’ evidence does not support Mr Mair’s evidence about his attempts to speak to him (Mr Eccles) during the six month period after termination. I am satisfied that after 28 August 2012 ‘[n]either party intended that the contract should be further performed’.^[194] I find that by party conduct the Contract was otherwise mutually abandoned.

Should Mair Renovations be permitted to attend to the rectification of any defective works?

181. [181]
     Mair Renovations argues that it should be permitted to attend to the defects (solely as the builder) or by use of sub-contractors. Mair Renovations argues that Mr Eccles or the Queensland Building and Construction Commission (QBCC) should determine whether the work has been satisfactorily completed.^[195] Mair Renovations also say that it would not challenge a payment to the Millers of $60,000 to remedy the wall defects.^[196]
182. [182]
     In written submissions the Millers argue that Mr Mair no longer holds a licence with the QBCC because a decision was made by the Tribunal on 4 November 2014 to confirm the decision to refuse to categorise Mr Mair as a permitted individual.^[197] The Millers argue that Mair Renovations has had opportunities to attend to rectification of the works and given the ‘uncertainty’ about Mr Mair’s licence there is also uncertainty about the ‘logistics’ of how the work would be carried out and supervised effectively.^[198]
183. [183]
     I have made findings about termination of the Contract by the Millers and the failure by Mair Renovations to attend to completion of major defective work including the retaining wall prior to termination on 28 August 2012. Because of my findings in relation to termination I am not satisfied that a direction that Mair Renovations attend to the rectification of the retaining wall and other defective work will result in a resolution of the dispute. I have found that Mair Renovations was given opportunities to attend to rectification of the defective works and I accept the submissions made by the Millers that there is a ‘loss of trust of the applicants’ by the Millers.^[199]
184. [184]
     I also accept the submissions made by the Millers that Mr Mair no longer holds a building licence with the QBCC because there is a published decision of the Tribunal made on 4 November 2014 confirming the decision made by the QBCC to refuse to categorise Mr Mair as a permitted individual.^[200] There is no independent evidence before me that Mr Mair now holds a licence with the QBCC. I am satisfied having considered all of the submissions and the evidence before me that a direction requiring Mair Renovations to attend to the rectification of the defective works including the retaining wall is not appropriate because it would not result in a resolution of the dispute between the parties.

Should Mair Renovations pay for the rectification of the alleged defective work?

185. [185]
     In this case the Millers are entitled to only recover damages for any defective work provided rectification of the defect was reasonable and necessary to enable the works to conform with the contract.^[201] The Millers are entitled to be put in the position had the works been completed by Mair Renovations in accordance with the Contract.
186. [186]
     The Millers claim the amount of $212,688 plus interest for damages for the defective works performed by Mair Renovations as follows^[202]:

     2. a)
        the retaining wall (cost to rectify $146,869)

     2. b)
        the painting defects (in the amount of $40,184)

     2. c)
        various defects (in the amount of $25,635)
187. [187]
     The ‘various defects’ in the total amount of $25,635 are contained in the updated Scott Schedule (Exhibit 22) as follows:

188. [188]
     The Millers rely on the expert evidence of Mr Jones in particular his assessment of the costs of rectification of the defective items of work. Mr Jones prepared an updated report dated 12 January 2015 together with an updated Schedule to detail a proposed increase in his earlier assessments for the costs of rectification of the defective works.^[203] Mr Jones said at the hearing (and in his report) that he prepared the further report and Schedule to reflect the ‘likely cost increases’ for items with reference to the Rawlinsons Construction Cost Guide.^[204]
189. [189]
     I accept the evidence of Mr Jones in relation to the assessments prepared by him and the costs to rectify the defective work. I am satisfied that the work detailed in the schedule above referred to as the ‘various defects’ are defective work and require rectification. Mr Jones has suitable experience as a builder and I found him to be reliable as a witness. Mair Renovations has had an opportunity to adduce evidence about the defective work and the costs of rectification. Mair Renovations has also had an opportunity to cross-examine Mr Jones in relation to his evidence. Mr Jones was cross-examined at the hearing about the assessments prepared by him in the updated Schedule (Exhibit 22) and the reports prepared by him that provide his opinion about the alleged defective work and the cost of rectification.^[205] I accept Mr Jones’ evidence that it was necessary to increase his earlier assessments to reflect cost increases having regard to ‘Rawlinsons’.

Should Mair Renovations pay the costs to rectify the retaining wall?

190. [190]
     It is common ground that the retaining wall is defective. Dr Mullins, expert witness for Mair Renovations prepared a report with a proposed method of rectification.
191. [191]
     In written submissions Mair Renovations argues that the proposed cost of rectification is approximately three times the cost of demolition and rebuilding.^[206] The proposed cost of rectification by Mr Jones, expert witness for the Millers is $148,869.00.
192. [192]
     The evidence of Mr Jones as building expert is that the cost of rectification having regard to the proposed rectification works of Dr Mullins is the amount of $146,869.^[207] Mr Jones said at the hearing that the rectification work required a ‘very competent builder’.^[208] Mr Jones was questioned at the hearing about the changes in his estimate because in his report dated 21 February 2014 the cost of rectification was the amount of $65,776 but the recent estimate is $146,869 based on Dr Mullins’ method (or design) for rectification. Mr Jones said that the higher cost represented the cost to rectify the retaining wall based on Dr Mullins’ design. Mr Jones said that since Dr Mullins had become involved he (Mr Jones) had gone through ‘quite a learning curve’ about the design and rebuilding of the wall referring to it as a ‘major engineering design’. Mr Jones said that it (the design) is ‘beyond [his] ability as a builder’.^[209]
193. [193]
     Mr Jones gave evidence at the hearing that his final estimate for the retaining wall was based on obtaining a number of quotes from subcontractors in addition to meeting some of the subcontractors on site to discuss the work.^[210] The work includes demolition of the existing retaining wall structure in sections, the bored piers and the rock anchors.^[211] The work also includes a 20% builder’s margin because of the nature of the work. Mr Jones said that he believed that it (the work) was not going to be ‘an easy task’.^[212] The quotations obtained by Mr Jones for the work are include in his recent report dated 12 January 2015 (Exhibit 21) tendered at the hearing.
194. [194]
     Dr Mullins in his reports dated 24 April 2014 and 31 March 2014 refers to the retaining wall as containing many ‘omissions’ and said in the report dated 31 March 2014 that the enforcement at the location exposed does not comply with the design.^[213] Dr Mullins identifies issues in relation to whether there should be a complete demolition and reconstruction of the retaining wall.^[214] Dr Mullins said that it would be necessary to obtain permission from the Brisbane City Council to excavate one to two metres into the footpath to achieve a safe system of work. Dr Mullins said that because of the distance between the boundary and the house it is likely that ‘vertical ground anchors would be required to achieve stability of the wall and footing’.^[215] Dr Mullins details an alterative method for rectification in the joint experts report.^[216]
195. [195]
     I accept the evidence of Dr Mullins relied upon by Mair Renovations that the retaining wall is defective and requires rectification. I accept Dr Mullins’ evidence relied upon by Mair Renovations as to the proposed method of rectification. Mr Jones has given evidence about the cost of rectification based on Dr Mullins’ proposed method of rectification and costing obtained by him (Mr Jones).
196. [196]
     I accept Mr Jones’ evidence about the cost of rectification of the retaining wall of $148,869.00 including a 20% margin due to ‘risks’ in relation to the work is appropriate.^[217] I do not accept Mr Jones’ earlier assessment (reflected in his earlier report) because this was based on his own knowledge as stated by him at the hearing ‘of how to do the wall’.^[218] I accept Mr Jones’ evidence that since Dr Mullins has become involved he has gone through ‘quite a learning curve’ and because of the ‘difficult task’ to rectify the wall the assessment for the rectification work has increased. Mr Jones said at the hearing that the quotes obtained by him had ‘expired’.^[219] The current assessment by Mr Jones based on quotations obtained by him is reflected in the updated Schedule (Exhibit 12 at item B7) tendered at the hearing.
197. [197]
     Mair Renovations has had an opportunity to adduce evidence about the proposed cost of rectification and has had an opportunity to cross-examination Mr Jones about his assessment based on quotations obtained by him. I have made findings that it is not appropriate to direct Mair Renovations to attend to the rectification works either directly or indirectly through the use of sub-contractors. I have made findings that I accept Dr Mullins and Mr Jones’ evidence about the retaining wall. I will allow the amount of $146,869 as claimed by the Millers (including the builder’s margin) and an amount representing cost increases having regard to ‘Rawlinsons’. I have found that the Contract was lawfully terminated by the Millers. Because of my finding about termination, I will also allow interest at 12% per annum as claimed by the Millers under Clause N15, Schedule 1 (Item 22) of the Contract.

Should Mair Renovations pay the costs to rectify the painting?

198. [198]
     I accept Mr Englert’s evidence about the paining work and I accept his assessment of costs to rectify the work. I found Mr Englert to be a reliable witness. He gave evidence at the hearing by telephone about the poor quality of the paint work. He said that the poor quality was due to poor work practices and application techniques. I am satisfied that the paining work is defective.
199. [199]
     I accept Mr Jones’ evidence that it was necessary to obtain a further quotation for the painting from Mr Englert because the first quotation obtained by him for $25,000 was unreliable. Mr Jones said at the hearing that the earlier quotation was out of date and did not contain enough information. Mr Jones also said that the painter who prepared the earlier quotation (Clint Audoss) did not respond to his emails or return his calls. I also accept Mr Jones’ evidence about the builder’s margin to be applied to the costs of rectification for the painting work in the amount of $40,184 and an amount representing cost increases having regard to ‘Rawlinsons’.
200. [200]
     I have made findings that Mair Renovations should not be directed to attend to the rectification of the defective work either solely or through the engagement of sub-contractors. I have found that a direction that Mair Renovations attend to the completion of the rectification work will not result in a resolution of the dispute. I will therefore allow the amount claimed by the Millers for the painting work because I have found that the painting work is defective and I accept Mr Englert’s and Mr Jones’ evidence about the costs to rectify the painting work (including the builder’s margin) and an amount representing cost increases having regard to ‘Rawlinsons’. I will therefore all the amount of $40,184. I have found that the Millers lawfully terminated the Contract. Because of my finding about termination, I will also allow interest at 12% per annum as claimed by the Millers under Clause N15, Schedule 1 (Item 22) of the Contract.

Should Mair Renovations pay the costs to rectify the ‘various’ defects?

201. [201]
     I accept Mr Jones’ evidence in relation to the ‘various defects’ in the total amount of $25,635. Mr Jones has prepared an updated Schedule that reflects his opinion in relation to each item and the amount assessed by him as being the cost of rectification of the work. Mair Renovations had an opportunity to cross-examine Mr Jones at the hearing about his evidence. I found Mr Jones to be reliable as a witness and he has many years experience as a builder.
202. [202]
     I accept Mr Jones’ evidence that the ‘various defects’ items detailed in the Schedule are defective items of work that require rectification. The items of work that require rectification are particularised in the schedule and include: render and paint (item C) in the amount of $2,309, render and paint pump room walls in the amount of $3,446 (item D), water damage in workshop (item E) in the amount of $875, Carpentry in kitchen (item F1) in the amount of $432, carpentry in apartment (item F2) in the amount of $260, carpentry to apartment (item F3) in the amount of $987, carpentry upstairs (item F4) in the amount of $454, carpentry in apartment (item F5) in the amount of $454, carpentry for window (item F6) in the amount of $351, carpentry to shelving (item F7) in the amount of $3,287, carpentry to timber steps (item F8) in the amount of $672, exposed wall framing (item G) in the amount of $1,417, blocked soakage pit (item I) in the amount of $6,427, replacement of silt (item J) in the amount of $2,151, defective structural steel (item K) in the amount of $1,720 and preliminaries or other items (item M) in the amount of $393.
203. [203]
     I accept Mr Jones’ evidence as to the cost of rectification of the items particularised above that includes an amount for the builder’s margin and an amount representing cost increases having regard to ‘Rawlinsons’.
204. [204]
     I have made findings that it is not appropriate to direct Mair Renovations to attend to rectification work. Mair Renovations has had an opportunity to present independent evidence about the defective items and the costs of rectification. I will allow the amount claimed by the Millers for the ‘various items’ identified as items C, D, E, F1, F2, F3, F4, F5, F6, F7, F8, G, I, J, K and M in the total amount of $25,635. I have found that the Contract was lawfully terminated by the Millers. Because of my finding about termination I will also allow interest at 12% per annum as claimed by the Millers under Clause N15, Schedule 1 (Item 22) of the Contract.

Conclusion

205. [205]
     I find that the Contract price was $550,000 and did include the supply and installation of pinewood flooring upstairs.
206. [206]
     I find that the variations claimed by Mair Renovations were not put in writing and require approval by the Tribunal under the DBC Act.
207. [207]
     I am not satisfied that the works reached practical completion when the Millers moved into the house on 15 September 2011. This is because there is no notice of practical completion and as at September 2011 there was significant work to be completed to the house by Mair Renovations.
208. [208]
     Mair Renovations claims that the Millers should pay the amount of $156,936.70 plus interest as owing under the Contract and in the alternative the Millers should pay the amount claimed because they have had the benefit of the work. I find that Mair Renovations’ claims must fail because I find that the certificates for payment prepared by Mr Eccles (certificates Nos. 5 and 4) were not issued in accordance with the Contract and there is no independent evidence before me in relation to the assessment of the work performed by Mair Renovations.
209. [209]
     I find that there was no implied term for completion of the Contract work within six or seven months as claimed by the Millers. I also find that the Millers’ claims for lost rental must fail because there was no date for practical completion in the Contract and no provision (in the Contract) that entitled the Millers to claim lost rental. I also find that the Millers did not act reasonably and did not take steps to mitigate their loss.
210. [210]
     Mair Renovations was given an opportunity to present its case including presenting any independent evidence in relation to the building work and the costs of rectifying any alleged defective building work.
211. [211]
     I accept the evidence of Mr Jones in relation to the alleged defective work that includes the retaining wall and painting defects. I find that the retaining wall, the painting and the ‘various defects’ identified as items C, D, E, F1, F2, F3, F4, F5, F6, F7, F8, G, I, J, K and M (in the schedule) are defective work that requires rectification. I accept Mr Jones’ evidence and his recent assessments as to the cost of rectification. I also accept Mr Jones’ evidence and assessment of the costs of rectification of the retaining wall because it is based on the proposed method of rectification by Dr Mullins. Because of my finding about termination of the Contract I will allow interest at 12% per annum as claimed by the Millers under the Contract on the total amount of damages for the rectification of the defective work.
212. [212]
     I am not satisfied that an order requiring Mair Renovations to attend to rectification of the defective works including the retaining wall will result in a resolution of the matter. I allow the amounts claimed by the Millers for the costs of rectification based on Mr Jones’ evidence about the defective work and costs of rectification.
213. [213]
     Mair Renovations’ claim for building work completed is to be determined from the Contract amount plus any variations assessed by the Tribunal under the DBC Act (plus 10% for profit on the variations assessed). The amount owing to Mair Renovations is to be offset against the rectification costs of the defective work because I have found that the Millers properly terminated the Contract.

214. [214]
     The final amount owing is assessed as follows:

Contract amount                $ 550,000.00

LESS amount paid by the Millers               $ 476,950.00

Balance contract sum               $   73,050.00

PLUS ‘the five variations’ (assessed) $ 17,297.00

PLUS variation ‘item iv’ (assessed) $ 803.00

PLUS variation ‘flooring’ (assessed) $ 8,087.00

Total amount for variations               $  26,187.00

PLUS 10% (for profit)               $    2,618.70

LESS retention monies (certificate No. 5) $ 8,250.00

LESS retention monies (certificate No. 4) $ 5,500.00

Total amount of retention monies               -$ 13,750.00

LESS rectification costs (retaining wall) $ 146,869.00

LESS rectification costs (painting) $ 40,184.00

LESS rectification costs (various defects) $ 25,635.00

Total amount of rectification costs               -$ 212,688.00

LESS interest at 12% per annum on the
total amount of rectification costs^[220]               -$   76,287.98

TOTAL               -$ 200,870.28

215. [215]
     The order is that Mair Renovations pay the Millers the amount of $200,870.28 by 4:00 pm on 21 October 2015. I will give the parties an opportunity to make any submissions in relation to costs. I direct that the parties file in the Tribunal and serve on the other party any written submissions in relation to costs.