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Sovereign Homes Qld Pty Ltd v Edwards[2018] QCAT 276

Sovereign Homes Qld Pty Ltd v Edwards[2018] QCAT 276

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276

PARTIES:

SOVEREIGN HOMES QLD PTY LTD

(applicant)

v

DONALD BRUCE EDWARDS

(respondent)

APPLICATION NO/S:

BDL253-15

MATTER TYPE:

Building matters

DELIVERED ON:

21 August 2018

HEARING DATE:

25 October 2017; 26 October 2017; 27 October 2017

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

The Tribunal directs by way of interim orders that:

  1. Donald Bruce Edwards pay Sovereign Homes Qld Pty Ltd $46,155.20 plus interest to be assessed  in respect of its claim;
  2. Sovereign Homes Qld Pty Ltd pay Donald Bruce Edwards the sum of $79,938.30 in respect of his Counter-application;
  3. The directions to pay are stayed until further argument in relation to interest, costs and the form of final orders;
  4. The parties file written submissions as to those matters as follows:
  1. (a)
    Sovereign Homes Qld Pty Ltd by 4.00 pm 21 September 2018;
  2. (b)
    Donald Bruce Edwards by 4.00 pm 5 October 2018.
  1. The matter is adjourned for further oral argument, if any, to a date to be fixed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – builder responsible for change in design of box gutter – failure to carry out in accordance with plans and specifications – Practical Completion – Certificate signed by Owner – Owner in possession – sufficiency of certificate as a Notice of Practical Completion – purpose of setting a date for Practical Completion – damage to works by weather events prior to practical completion – builder denied liability – insurance monies paid out to builder after practical completion – defects

Domestic Building Contracts Act 2000 (Qld) (repealed)

B.P. Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR 783

Baltic Shipping Company v Dillon (1993) 176 CLR 344 Batty v Metropolitan Property Realisations Ltd [1978] QB 554

Bellgrove v Eldridge (1954) 90 CLR 613

Bonchristiano v Lohmann [1998] 4 VR 82

Burke v Lunn [1976] VR 268

Chalet Homes Pty Ltd v Kelly [1978] Qd R 389

Coshott v Fewings Joinery Pty Ltd BC 960 2970 NSWCA 15 July 1996 (unreported)

Falko v Jones McKewen & Co Pty Ltd [1977] BR 447

Faulks v New World Constructions Pty Ltd [2013] QCAT 658

Hutchinson v Harris (1978) 10 BLR 24

Robinson v Harman (1848) 154 ER 363

Ruxley Electronics and Construction v Forsyth (1996) AC 344

Serisier Investments Pty Ltd v English [1989] 1 Qd R 678

Sovereign Homes Pty Ltd v Edwards [2016] QCAT 461

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390

Tranquility Pools & Spas v Huntsman Chemical Company Australia Pty Ltd [2011] NSWSC 75

Willshee v WestCourt [2009] WASCA 87

APPEARANCES & REPRESENTATION:

 

Applicant:

P W Evans, solicitor of McKays Solicitors

Respondent:

B J Saal, solicitor of Saal & Associates Lawyers

REASONS FOR DECISION

  1. [1]
    The Respondent, Donald Bruce Edwards, is the owner of a residential home located at 35 Cameron Street, Fairfield in Brisbane hereafter referred to as ‘the House’. The Applicant builder, Sovereign Homes Qld Pty Ltd, (‘Sovereign’) entered into an HIA Queensland Plain Language Alteration, Addition and Renovation Contract dated 30 June 2014 to carry out ‘alterations and additions to an existing timber clad 3 level home’.
  2. [2]
    Sovereign's sole director is John Firrell.
  3. [3]
    Initial discussions about the renovation commenced on 6 November 2013 between Mr Firrell and Mr Edwards and his partner Ms Tina Ogilvie. A further five meetings, to determine the scope of the works, took place during the period up to the time of signing of the contract. On occasions, Sovereign’s Design Manager, Mr John Flatley was involved in discussions. Work commenced on 25 July 2014.

Background

  1. [4]
    The renovations involved the construction of an extension to the existing house adding a fourth level with three bedrooms, a bathroom, separate toilet and retreat for the children. Mr Edwards and his family intended to reside in the house during construction. Indeed, Mr Edwards intended to do most of the painting of the new work.
  2. [5]
    Work progressed satisfactorily until the occurrence of the first of two weather events that occurred in August 2014. On that occasion, water penetration caused the ceilings in level 2 of the living area and laundry to collapse. Sovereign rectified much of the damage but Ms Ogilvie says the genesis of the breakdown in the relationship between them and Mr Firrell can be traced back to his conduct in response to the damage. Ms Ogilvie says it is a reason why they withheld payment subject to the final claims being settled.[1] The relationship soured further, in November 2014, when Mr Edwards emailed Mr Firrell and Mr Dayne Marshall, Sovereign’s Project Manager, to inform them that a floor laying subcontractor had not arrived on site as scheduled and that he was withdrawing access to the site. Which he did.

Claim and Cross Application

  1. [6]
    Sovereign’s legal advisors have succinctly summarised these proceedings in their Overview contained in written submissions made on its behalf. Mr Edwards’ lawyers agree that the Overview is an accurate summary. From the summary the following issues can be identified:
  2. [7]
    Sovereign seeks payment of an amount owing pursuant to the contract. The claim comprises:
    1. (a)
      The Final Claim of $46,155.20;
    2. (b)
      Interest at 18% per annum simple interest calculated as per clause 32.1 of the General Conditions of the Contract from the date when the payment was due, namely 11 December 2014;
    3. (c)
      Costs pursuant to clause 33 of the Contract being legal fees of Sovereign on a solicitor and own client basis, associated with recovering the final claim owed under the Contract.
  3. [8]
    Mr Edwards in his Amended Response, inter alia:
    1. (a)
      Says that Practical Completion had not been completed;
    2. (b)
      Makes a cross claim in the sum of $133,379.30 (‘the Sum’);
    3. (c)
      That sum relates to various alleged defects which are listed in the schedules of the Conclave Report, more particularly, the defects comprise Schedule D and Schedule E (‘the Defects Claim’) and Schedule C (‘the Contractual Claim’) which relate to contractual defects, being work undertaken not in accordance with the Contract;
    4. (d)
      Schedule D of the Carpenter Report amounts to $6,568.28. Of that sum the claim has already been reduced as part of the conclave and is detailed in the Conclave Report by the experts. The amount of the claim has reduced by $1,964.93 making the maximum claim approximately $4,603.35;
    5. (e)
      Schedule E amounts to $1,847.79 in the Carpenter Report which is disputed for the reasons set out in the Conclave Report;
    6. (f)
      Schedule C of the Carpenter Report comprises alleged breaches of the Contract and that the work done is alleged to have not been done as per the obligations cast on Sovereign by the Contract. This is in the sum of $23,301.13. This section has been modified as part of the Conclave Report as follows and excluding gutters (where there is a margin of $3,500) the maximum amount of the claim has reduced by $10,851.13 making the maximum claim approximately $12,450;
    7. (g)
      The Sum also relates to an amount concerning an insurance payment made to Sovereign for damages that occurred to the House from two different storms;
    8. (h)
      The Sum also relates to consolation damages for the Defects Claim in the sum of $20,000;
    9. (i)
      Finally, the Sum relates to damages for delay, based on the allegation that Practical Completion has never occurred and, therefore, Sovereign is liable to pay a daily rate, for over two years;
    10. (j)
      The total for the Defects Claim and the Contractual Claim, if there is a liability, which is denied by Sovereign for most items, is a maximum sum of $18,901.24 comprised of:
      1. Defects Claim (schedules D and E) - $4603.35 & $1847.79; and
      2. Contractual Claim (schedule C) - $12,450.10.
    11. (k)
      Mr Edwards also alleged fraud, as well as misleading and deceptive conduct, however, at the hearing he:
      1. withdrew only the allegation of fraud at the end of the trial;
      2. led no evidence, nor put to any witness any allegation of, fraud; and
      3. led no evidence, nor put to any witness, any allegation of misleading or deceptive conduct.
    12. (l)
      Various other claims for amounts, such as whatever the project management component of the Contract was, have been abandoned;
    13. (m)
      There have been offers by Sovereign, including an open offer made in the weeks leading up to the hearing, to pay the insurance money to Mr Edwards, less the amounts allowed by the insurer to compile the same and for work already done, but this has been refused; and
    14. (n)
      Moreover, Mr Edwards in his affidavit expressly states that he refuses to make any decision about the same until after he has had the decision of this Tribunal handed down. In this regard, he has also refused access to Sovereign to complete any defects work and swears in his affidavit evidence that there was ‘already shattered relations’ from at least September 2014.
  4. [9]
    The above sets out the issues canvassed by the parties in the course of the three-day hearing before the Tribunal.

Credit

  1. [10]
    A perusal of Mr Edwards’ Statement of Evidence, attachments and emails shows a progressive deterioration in Mr Edwards’ relationship with Mr Firrell and Sovereign. As Ms Ogilvie said, its genesis can be traced back to Mr Firrell’s conduct in response to the rain damage. I note that Mr Edwards admits that Mr Marshall attended the house following the storm and took steps to assist the water to escape and swept up for some time. He also repositioned tarps to deflect further water from the Works.[2] Mr Firrell, when told of the water ingress, is alleged to have responded, the day following, advising that his insurers would cover the repairs.[3] That comment may have been premature, in that, there was then a suggestion that Mr Edwards’ insurer may have to respond. However, subsequently, the issue was determined.
  2. [11]
    It seems, from this time on, Mr Edwards formed the impression that Mr Firrell was unscrupulous and dishonest and he, Mr Edwards, did not hesitate to inform third parties of his opinion including Sovereign’s insurers. His distrust of Mr Firrell extended to the conduct of these proceedings where he opposed an application by Sovereign, that Mr Firrell having access to the house for expert inspections, on the basis of his conduct and attitude to his family and that he was untrustworthy and an unscrupulous operator.[4] He demonized Sovereign to all who would listen. Mr Edwards developed such a dislike for Mr Firrell, bordering on hatred, that it has clouded his judgment and prolonged this litigation. From the material before me, I find it difficult to reach the same opinion about Mr Firrell. Unfortunately, this obsession affects Mr Edwards’ interpretation of events and I have found it difficult to accept his version of what has occurred in respect to a number of issues. It is not surprising that Mr Firrell was not responsive to Mr Edwards’ requests for information about the insurance in 2015, and subsequently.

Practical completion

  1. [12]
    Sovereign submits that practical completion was reached on 11 December 2014 or very soon after that date. ‘Practical Completion’ is defined in Schedule 2 of the Contract as meaning:
  1. (a)
    where the works are for the erection or construction of a detached dwelling or the renovation, alteration, extension, improvement or repair of a home to a stage suitable for occupation - the stage when the works:
  1. (i)
    have been completed in accordance with this contract and all relevant statutory requirements apart from minor defects or minor omissions; and
  1. (ii)
    are reasonably suitable for habitation;
  1. (b)
    in all other cases - when the works have been completed in accordance with this contract apart from minor defects or minor omissions.
  1. [13]
    The Domestic Building Contracts Act 2000 (Qld) (repealed), which, it is agreed, is the applicable legislation contains near identical provisions.
  2. [14]
    To establish the date of practical completion Sovereign relies upon what it describes as a Certificate on Practical Completion[5] presented by its Project Manager, Mr Marshall, at a site meeting on 11 December 2014, attended by Mr Edwards and, his partner, Ms Ogilvie.
  3. [15]
    The requirement contained in Clause 24.2 is that on reaching practical completion the contractor must give the owner:
  1. (a)
    a notice of practical completion stating the contractor’s opinion of the date of practical completion; and
  1. (b)
    the final claim.
  1. [16]
    The certificate relied upon does not expressly state the date of practical completion. The Certificate requires the owner not only to list the minor defects but also a time by which those minor defects will be attended to. The minor defects are listed but there is no time listed by which they will be attended to.
  2. [17]
    Nevertheless, the Certificate,[6] which does not actually certify anything, is more of a notice to the owner and, acknowledges that the owner has inspected the works and that the builder/contractor has duly performed the contract to the owner’s satisfaction and agrees that the works have reached practical completion and are in good order except for some minor defects listed therein. At the foot of the Certificate, just above the signature, is the payment authority directed to the owner’s lending body to pay the balance of the money payable under the contract immediately.
  3. [18]
    Mr Marshall says that prior to signing the certificate an inspection of the premises was carried out and each of the minor defects was identified and listed.
  4. [19]
    Does the certificate have the evidentiary effect of establishing the date of practical completion? Prima facie, the signing of the document and the provision of a payment authority would suggest that Mr Edwards, at the time, was satisfied that practical completion had been reached.
  5. [20]
    Mr Marshall, on attending the site on 11 December 2014, noted that Mr Evans had moved furniture into the bedrooms. It was argued that in doing so it was evidence that Mr Evans had taken possession of the Works. I will refer to this later in these reasons.
  6. [21]
    Mr Marshall says that during the meeting the items on the Certificate of Practical Completion were added following a tour of the Works. He said that Mr Edwards agreed with the list of items that were outstanding.
  7. [22]
    Upon completion of the inspection, Mr Marshall presented Mr Edwards with a final claim in the sum of $46,150.20 (inclusive of GST), the Certificate on Practical Completion and a Suncorp Bank Transfer Form. Mr Edwards signed the Certificate on Practical Completion in duplicate and retained a copy. Mr Marshall says Mr Edwards fully understood his obligations on signing the document. Although Mr Marshall refers to the document as a Notice it is, in fact, the Certificate on Completion referred to earlier.
  8. [23]
    I am satisfied that though described as a Certificate on Practical Completion the document, for all intents and purposes, fulfils the requirements of a Notice of Practical Completions as referred to in Clause 24 of the Contract.
  9. [24]
    At a meeting the following week, Mr Edwards advised that he would sign the Suncorp Bank Transfer Form and forward it to Sovereign. Mr Marshall described that meeting as amicable and there was no suggestion by Mr Edwards of any coercion.
  10. [25]
    The defects referred to in the Certificate were attended to in the following week other than for the skirting board in the dining room which was left as Mr Edwards had not completed painting and, in lieu thereof, sought a cash settlement for that work.[7]
  11. [26]
    Mr Edwards in his statement of evidence says:[8]

On 11 December 2014 I was presented with a Certificate of Practical Completion… by Mr Dayne Marshall… which I signed on the strict understanding it did not prevent me from negotiating on the final claim as some adjustments needed to be made in my favour. I was given this assurance by Mr Marshall. I was concurrently served with the Final Claim… for $46,155.20.

  1. [27]
    Cross examined on this issue, Mr Edwards was reticent to admit that he signed a certificate merely saying that his name was printed on the Certificate on Practical Completion. He argued that his signature at the bottom of the document was not relevant to the form at the top. He said further ‘I’m saying here that I signed it, but on looking at it recently it’s clear that I haven’t signed it’.[9]
  2. [28]
    Mr Marshall denies that there was any discussion about adjustments to the final claim figure. He states that he was not authorised to negotiate on such matters.
  3. [29]
    At the meeting, it is alleged by Mr Marshall that Mr Edwards said he would forward the Suncorp transfer form to Sovereign that evening. When it did not arrive Mr Marshall contacted Mr Edwards. Mr Marshall exhibits to his second statement dated 15 March 2017 a text message, dated 12 December 2014,[10] from Mr Edwards, to the effect that he was happy to sign the forms (bank transfer) and a second text message from Ms Ogilvy advising Mr Marshall that Mr Edwards had signed the forms but had problems with the scanner and did not have a chance to send them. He never returned the Suncorp Bank Transfer form.
  4. [30]
    Subsequently, Mr Edwards withheld paying the final claim pending resolution of a range of issues which he set out in an email dated 5 January 2015. Many of the complaints contained in the email are quite demanding considering that there had been no earlier discussion. Mr Edwards, unilaterally, reduced the final payment by $24,290 (which included a retention of $7,000) and expected, quite unrealistically, that Sovereign would accept the reduction. Sovereign’s response was to request payment of the balance. Mr Edwards’ response[11] was that his email was not an exhaustive list of costs and he would be adding further items to the list. It was becoming increasingly apparent, that he would continue to increase his claim and that the dispute would be never ending.[12]
  5. [31]
    It seems fairly clear, that at that time at the meeting on 11 December 2014, there was no issue about the completion of the contract, Mr Edwards being quite happy with Sovereign's completion of the works. Mr Marshall says that at no time during that meeting did Mr Edwards indicate that he intended to dispute the Final Claim. I accept that to be the case, all contemporaneous correspondence corroborates Mr Marshall in that regard. Discussions at that time appeared to be quite amicable.
  6. [32]
    Where their evidence differs I accept the evidence of Mr Marshall in preference to Mr Edwards and/or Ms Ogilvie.
  7. [33]
    It is curious that at the meeting, Mr Edwards did not question Mr Marshall about the more substantive complaints he had about the works and why they were not included in the defects list, particularly, those matters raised in his email of 5 January 2015, such as the box gutter. This is not a case of a builder taking advantage of an uneducated and unsophisticated home owner. Mr Edwards is a retired public servant and holds the degrees of Bachelor of Business in Industrial Relations and Human Resources and a Masters of Business Administration.
  8. [34]
    Despite Mr Edwards’ assertion to the contrary,[13] it is difficult to accept, that if Mr Edwards was in the same frame of mind he was, when he wrote the email of 5 January 2015, that he could have signed the Certificate, in reliance on the alleged verbal assurance from Mr Marshall that, in doing so, he was not prevented in negotiating the final claim, at a later date. Particularly, bearing in mind, the intense distrust that Mr Edwards harboured against Mr Firrell and Sovereign. However, Mr Edwards did not raise these matters in the days following when asked for the Suncorp Transfer Form, which he, and or Ms Ogilvie, indicated a number of times that they would send.
  9. [35]
    Mr Edwards in the course of cross-examination, said that ‘…I don’t know what forms they were… but in no way was I ever going to sign the Suncorp Transfer Form…’[14] If that is the case, then his response demonstrates some deviousness because, clearly, he and his partner, Ms Ogilvie, led Mr Marshall to believe that he would do so.[15] Later he contradicted himself and said he was aware that the form being spoken about was a Suncorp Transfer Form.[16]
  10. [36]
    In my opinion, Mr Edwards, at the time of signing, was satisfied that practical completion had been reached and that the damage from the weather events was a separate issue. I am also of the opinion that he had accepted the box gutter design which, subsequently, became such a significant issue in these proceedings. The only other explanation for his conduct is that he knowingly signed the Certificate with no intention of paying the final claim, for some ulterior motive.
  11. [37]
    Mr Edwards argues that as Sovereign had not complied with the plans and specification in respect to a number of issues, which are dealt with hereafter, that practical completion had not been reached. Such a proposition is fundamentally wrong in that it is not uncommon for a builder not to follow the plans and/or specifications, either inadvertently or deliberately, and that the omission might not be apparent at the time of practical completion. If, subsequently, a major latent defect is discovered it could not then be argued that, the on finding such a defect, the date of practical completion would be set aside, the completion date delayed and a claim for liquidated damages triggered.
  12. [38]
    The function of establishing a date for practical completion is, inter alia, to provide evidence of the point in time for a number of events to take place. Under the Contract it:
    1. (a)
      Sets a time for the payment of the final claim;
    2. (b)
      Allows the owner to dispute whether practical completion has been reached and identify what work is required to reach practical completion;
    3. (c)
      Identifies minor defects and omissions to be attended to;
    4. (d)
      Triggers the defects period;
    5. (e)
      Transfers the risk of the property to the owner;[17] and
    6. (f)
      Sets a date for calculation of liquidation damages.
  13. [39]
    The Notice, or in this case, the Certificate establishes the date of practical completion and sets in motion the events described above. Clause 24 provides a formula to that effect. Until those requirements are satisfied the final payment is not due.
  14. [40]
    Clause 24.8 provides:

The owner's payment of the final claim is conclusive evidence of the contractor's satisfaction, and discharge, of the contractor's obligations in connection with the subject matter of this contract except for:

  1. (a)
    fraud, dishonesty or fraudulent concealment relating to the works;
  1. (b)
    the contractor's liability under subclause 26.1; and
  1. (c)
    the contractor's liability under a statutory warranty set out in clause 35.
  1. [41]
    Clause 26.1 relates to the defects liability period during which the builder must rectify any defects or other faults (except for minor settlement or minor shrinkage) due to the works not being in accordance with the contract that appear and are notified in writing by the owner to the contractor within six calendar months after the date of practical completion.
  2. [42]
    Clause 35 incorporates the contractual warranties under the Domestic Building Contracts Act 2000 (repealed).
  3. [43]
    I find, as a fact, that practical completion was reached on 11 December 2014 pursuant to Clause 24.9 of the Contract. That disposes of the claim for damages by Mr Edwards for delay based on the claim that practical completion had not been reached.
  4. [44]
    Alternatively, I find that Mr Edwards and his family took possession of the Works. Mr Marshall, at the time of the meeting observed that beds had been set up in the various bedrooms not just mattresses as asserted by Mr Edwards. Mr Edwards says it occurred after the hail event but it seems that they had moved into the works by middle December at least. Ms Ogilvie stated that she moved the children in just before Christmas 2014.[18] Clause 25 provides the circumstance by which the owner can take possession of the Works. It has not been complied with in this case.
  5. [45]
    I am also satisfied that Sovereign is entitled to be paid $46,155.20 owed under the contract less any claim for defective work or incomplete work. It is conceded that the quantum of that claim is not disputed.[19] Sovereign is also entitled to interest on the balance, if any.

Weather events and insurance claims

  1. [46]
    In the course of the build there were two weather events that affected the works. The first occurred between 16 and 17 August 2014 (the ‘rain event’) when heavy rain penetrated the house and caused a partial collapse of the roof. Sovereign made a claim on its insurance policy for the damage to the works and, on 6 November 2015, was reimbursed the amount of $3,500.46, Sovereign had to bear a deductible of $1,000. It repaired and replaced the damage other than for some minor items which it alleges it was unable to attend to because Mr Edwards refused them access to the site. It remains ready, willing and able to attend to these matters. These items comprise Schedule B which are set out below and the quantum of the cost of repair is agreed.
  2. [47]
    Mr Edwards claimed that the collapse of the ceiling of his house as a consequence of the rain event was due to the negligence of Sovereign in not adequately placing tarpaulins over the works. Mr Edwards based this claim on the report of a loss assessor, Nathan Bryant.[20] Mr Bryant’s report is in the agreed bundle of documents but he did not give evidence and was not cross examined. Sovereign denies that it was negligent. I am not prepared to make that finding on the material before me.
  3. [48]
    Ms Tina Ogilvie in Attachment 1 to her undated statement said:

Whilst Mr Firrell has rectified much of the damage, some repair work remains.

  1. (a)
    Preparing, sealing stains and painted rear timber weatherboard wall to match existing colour.
  2. (b)
    Raking out affected grout on the wall tiles to remove tannin staining and re-grout as required to best match existing.
  3. (c)
    Installing curtain and pelmet tracks dislodged and damaged by collapsed ceilings.
  4. (d)
    Replacing the sagging and bowed ceiling to the rear deck.
  1. [49]
    She also claimed $82.95 being the cost for a text book destroyed by the rain and the cost of cleaning some curtains.
  2. [50]
    It is alleged by Mr Edwards that, after denying the claim, Sovereign made a claim on its insurance and secretly pocketed the insurance funds it received.
  3. [51]
    Sovereign engaged a loss assessor to liaise with QBE Insurance (Australia) Limited (‘QBE’). Initial advice was that a claim should be made under Mr Edwards’ policy. Mr Edwards’ advice was that his insurer would not respond. Mr Bryant was engaged by Mr Edwards’ home insurer. Eventually, Sovereign’s insurer responded and paid the claim on 6 November 2014. This seems to have been the cause of Mr Edwards’ complaint to HIA Insurance Services on 29 October 2014[21] and for his suspicions for Sovereign’s insured status.
  4. [52]
    Sovereign now admits liability for these items.
  5. [53]
    On 27 November 2014 significant damage was done to the works by a hailstorm (the ‘hail event’). The storm damaged the new roof, windows and skylights. Mr Edwards described this storm as ‘…particularly vicious causing significant damage to houses in our street including ours where the majority of our southern windows were broken’.[22] Sovereign quickly attended to the damage and repairs and the damaged items were replaced.[23] It is conceded by Mr Edwards that some of the obvious minor hail storm damage was fixed by Sovereign, namely, the damage to the skylight cover, shattered windows to bedroom 3 and retreat and minor skin plastering in bedroom 3 to fill imperfections caused by broken glass embedded in the wall. He undertook the repainting himself. Other damage, discovered later, Mr Edwards says he communicated to Sovereign in an email dated 13 January 2015. That damage included the damaged roof, sheeting and windows.
  6. [54]
    Tina Ogilvie said, in cross examination, that all but one item of the hail damage was fixed quite quickly by Sovereign.[24]
  7. [55]
    Sovereign alleges that Mr Marshall and Mr Edwards met on site with a QBE insurance assessor on 3 February 2015. The claim was paid by QBE on 22 September 2015.
  8. [56]
    Sovereign made a claim under its policy to repair the damage sustained to the works. It assessed the damage at $70,594.18 of which $1,000 was a deductible for excess. The claim was paid on 15 September 2015. These proceedings were commenced on 10 December 2015.
  9. [57]
    Mr Firrell says he was not obliged to notify Mr Edwards of the insurance settlement figures. He says that Sovereign’s obligation was to remedy the damaged works and it remains ready and willing to do so. The delay was due to the fact that Mr Edwards would not pay the outstanding amounts and would not allow Sovereign access to the property.
  10. [58]
    By letter dated 9 June 2016, Sovereign provided to Mr Edwards a Scope of Works[25] for each of the weather events. Sovereign claims it has been refused access to the site to carry out the rectification work. Again, at the time of providing his statement on 9 August 2016, Mr Firrell declared Sovereign was ready, willing and able to carry out the work.
  11. [59]
    It is argued on Mr Edwards’ behalf that there was only one contract and that was to complete the works in accordance with the Contract. It is submitted that, what he describes as ‘the insurance works’ are part of the Contract works. As this work, which is not minor work, has not been carried out he argues that the practical completion stage has not been reached.
  12. [60]
    Sovereign maintains that the repair work associated with the rain and hail events are separate and distinct from the Works it was required to carry out under the Contract and requires a separate contract, new insurances and a new completion date.
  13. [61]
    Under the terms of the Contract the Works were at the risk of Sovereign up to the time of Practical Completion.[26]
  14. [62]
    Sovereign was required to insure the Works for among other things ‘storm damage’ to the Works and was to maintain that cover until Practical Completion. The policy was to note the ‘insured’ as the contractor and the homeowner.
  15. [63]
    The owner was obliged to keep and maintain until Practical Completion a home and contents insurance policy over the existing building, the site and all of the owners property on the land including cover against, inter alia, storm damage.[27]
  16. [64]
    The policy taken out by Sovereign with QBE did not name Mr Edwards as an insured. It ought to have. It did name Mr Edwards as the ‘principal’. Mr Firrell’s assertion that he was not obliged to notify Mr Edwards of the insurance settlement may be correct on the construction of the Policy but was not in accordance with the terms of the Contract. However, nothing arises from that omission.
  17. [65]
    The Contract does not provide for the situation where work, already completed under the contract, is damaged or destroyed by events not within control of the builder. In some construction and engineering contracts there are standard clauses which qualify the liability of the builder in such circumstances. It is not uncommon for insurance clauses to provide that it is the builders responsibility to reinstate the works, but not until the insurance claim has been settled. In those circumstances, unless the settlement is delayed by an act or omission of the builder, the builder would be entitled to claim an extension of time for any delay. Provision can be made for the insurance monies to be paid into a joint account pending the reinstatement of the works. It is also the case, that the builder can only recover the monies received from the settlement of the claim for that work, exclusive of fees and costs.
  18. [66]
    The construction favoured by Mr Edwards that Sovereign should have proceeded in reinstating the works prior to the settlement of the insurance claim, in my opinion, is unreasonable. Such a requirement, hypothetically, could place an unreasonable financial burden on a builder.
  19. [67]
    It seems sensible that the reinstatement of the works should be the subject to separate scopes of works. It is submitted, on behalf of Mr Edwards, that the insurance work should have been completed before Practical Completion had been achieved. The fact is, that Practical Completion has occurred as I have already found. Mr Edwards and his family had moved into possession. He was aware that there was an insurance claim by Sovereign relating to damage to the works and that work would be attended to when the claim had been settled.
  20. [68]
    Mr Edwards would not be precluded for claiming for defective work under clause 26 or under a statutory warranty under clause 35 of the Contract, if the insurance work was not completed by Sovereign after settlement of the claim.

Expert evidence

  1. [69]
    A conclave of experts was held on 15 May 2017. At that conclave, certain points were agreed, and the hydraulic experts prepared a further report dated 14 August 2017. The experts were:
    1. (a)
      Gary Carpenter a carpenter and joiner by trade but having wide experience in the construction industry;
    2. (b)
      Christopher Boyle, a building consultant with wide practical experience in the building industry as well as having once held the position of Executive Manager of Resolution and Regulatory Services for the Queensland Building Construction Commission;
    3. (c)
      Neil Blair of Neil Blair Associates Pty Ltd a licensed plumber, drainer and gas fitter and hydraulic consultant;
    4. (d)
      Alan Kwan, a hydraulic engineer; and
    5. (e)
      Richard Ray, quantity surveyor and director of Accurate Estimating Services.
  2. [70]
    The experts gave their evidence together on the second day of the hearing and were cross-examined.

Schedule A

  1. [71]
    This claim related to the Hail Event on 27 November 2014. In Mr Edwards’ email of 5 January 2015, which was the first indication of Mr Edwards’ dissatisfaction with Sovereign following Practical Completion, he detailed his claim for rectification of the storm damage not already rectified. He advised he was withholding $7,000.00. The items were:
    1. (a)
      Hire of a wet dry vacuum cleaner at $74;
    2. (b)
      Replacement of tube and diffuser in skylight;
    3. (c)
      Replacement of carpet in bedroom 3 which had been replaced but was not the same carpet as the other 2 rooms; and
    4. (d)
      Damage to sliding window frame in retreat and bedroom 3.
  2. [72]
    In a letter to the Loss Adjuster dated 5 March 2015,[28] Sovereign set out the damage to the house following the hailstorm on 27 November 2014. Mr Marshall was the author of the letter and stated that following inspection the following was revealed:
  1. Several of the windows have been damaged (sic) to the aluminium frame and will need replacement.
  1. Some of the external flashings above the windows that have been integrated within the cladding have been damaged beyond repair and will need to be replaced.
  1. Some of the external cladding has, in particular the flat FC sheeting and some of the timber work surrounding windows and cover beads, been dented by the hail and will need replacing.
  1. The roofing and cappings have been damaged and will need replacement.
  1. The metal facia and barges in particular areas have been dented and need replacing.
  1. There is a broken window that has since been repaired that need replacement.
  1. The skylight in the bathroom was broken and needed replacement.
  1. There has been a piece of timber dislodged from the string on the veranda stairs.
  1. [73]
    Sovereign quoted $76,927.40 as the cost of repairs, QBE assessed $70,594.18.
  2. [74]
    I do not accept Mr Edwards’ contention that Mr Firrell or Sovereign intended to ‘pocket the insurance monies’. His letter to the insurer dated 4 May 2015 protesting QBE’s response to the quoted cost of repairs which contained, in Mr Firrell’s view, unsubstantiated reductions in the quote suggests he was always going to carry out the repairs, if allowed to do so. The letter describes the difficulties Sovereign has had with their ‘pedantic’ client and his (the client’s) requirement that Sovereign ‘abide with all facets of the law’.
  3. [75]
    Mr Edwards was in correspondence with QBE with complaints as to the progress of the insurance claim. In that correspondence he did not hesitate to criticise Mr Firrell and Sovereign with references of deception and incompetence on their part. QBE responded to Mr Edwards on 17 June 2015 advising that they were progressing the matter. Mr Edwards submits that Mr Firrell was deceitful and dishonest in keeping details of the insurance settlement from him and that he had no intention of returning and carrying out the work. I do not accept that. As I have found earlier in these reasons, it is clear Mr Edwards developed an intense dislike and distrust of Mr Firrell, bordering on the irrational, at times.
  4. [76]
    Sovereign settled the insurance claim with QBE on 10 September 2015.
  5. [77]
    Mr Edwards said that, in respect to the claim as settled, that he could not argue with the settlement save for one matter which was a claim of $400 for hire of a generator.[29]
  6. [78]
    Sovereign, through its then solicitor BCCS Law, by letter dated 2 October 2015, responded to this claim by agreeing, as a gesture of goodwill, to cover the hire cost of the vacuum cleaner and the carpet supplier agreed to replace the carpets. It denied the claim for damage to the window frames, being storm damage, and not the responsibility of Sovereign.
  7. [79]
    It is true that Sovereign attempted to settle the claim with Mr Edwards for less than the insurance payout but this was in the face of litigation by Mr Edwards where he had refused to pay the final payment under the contract. He denied access to the house to allow Sovereign to carry out the work
  8. [80]
    Sovereign in its closing submissions says the quantum of this item has been agreed at $69,717.00. Mr Edwards, in his submissions, says the quantum is $69,823.00.

Schedule B

  1. [81]
    This related to the rain event that occurred over 16 and 17 August 2014. It is alleged by Mr Edwards that this resulted from inadequate tarping of the works which permitted water to pool on the newly constructed floor of the upstairs section and ultimately the collapse of the ceiling in the family room. It was inspected, sometime later by Nathan Bryant, a loss assessor for Suncorp, which was Mr Edwards’ insurer. Mr Bryant observed:

At the time of inspection the downstairs ceiling and cornice in the family room and laundry had already been replaced and was yet to be painted. We were advised this was completed by your insured builder and was done so as to move forward with their contract of works. The insured advised he was unsure if his builder was going to invoice him with a variation for these repairs or by repairing the ceiling has accepted responsibility for the events, consequently absorbing the associated costs.

  1. [82]
    Although, he recommended not accepting liability for the cost of repairs he assessed the repairs at $5,728.80 including builder's margin and GST.
  2. [83]
    The Carpenter report dated 31 May 2016[30] quantified the loss at $3,299.85 which included the sum of $745.92 for cleaning which was carried out by Mr Edwards and his family. The other items included:
  1. Preparing, sealing stains and painting rear timber weatherboard wall to match existing colour - $1,063
  1. Raking out affected grout on the wall tiles to remove tannin staining and re-grout as required to best match existing - $270
  1. Install replacement curtain and pelmet tracks dislodged by collapsed ceiling - $266.98
  1. Rear deck ceiling is badly sagged and bowed and requires replacing - $871
  1. Damaged textbook reimbursement costs - $34.95
  1. Cleaning curtains - $48
  1. [84]
    Sovereign says the quantum of Schedule B has been agreed. Mr Edwards says it has been agreed at $1,344.

Schedule C

Item 2 Skylight

  1. [85]
    Mr Edwards’ complaint is that the skylight was removed when the box gutter was installed. There is no allowance in the plans or specifications for the skylight to be reinstalled.[31] Mr Carpenter agreed. It would require a variation of the contract. The cost was $635 to $698. I do not allow the claim.

Item 3 Doors to deck

  1. [86]
    This item was withdrawn.

Item 4 Removal of solar panels

  1. [87]
    Mr Edwards’ complaint is that the solar panels were removed at the commencement of the works and there are fittings which held the panels in place still in situ. Specification 1.14 (f) required Sovereign to arrange quotes to disconnect existing solar panels, store, relocate and reconnect them. Sovereign obtained two quotes but did not communicate them to Mr Edwards until after the panels had been removed.[32] The cost of removal the subject of an adjustment 008 was $600. However, the email of 31 August 14 makes it clear that Mr Edwards, at the time, was not concerned about the absence of a quote for the removal of the panels.
  2. [88]
    Removal of the fittings was not part of the scope of works.
  3. [89]
    Mr Edwards’ complaint appears to be that some of the connections remained in place. Mr Boyle thought that they would have been left if the panels were to be put back. He did not see the brackets when he inspected. He thought their removal might compromise the weather tightness of the roof. Mr Carpenter thought it would be good practice to have removed them. The agreed cost is $400.
  4. [90]
    Although an adjustment was made for removal of the panels there was no allowance for removal of the connections. Presumably, they were left because it was intended to reinstall the panels. Removal of the connections may now involve more work and weatherproofing. I am not convinced the claim is made out. I disallow the sum of $400.

Item 5 Labour to pack walls.

  1. [91]
    This complaint by Mr Edwards dealt with bowing of the internal walls which were not part of the scope of works. He says that the defect was only noticed on demolition. Mr Carpenter, initially, thought that Sovereign was responsible for construction of the walls. He changed his evidence on learning that the walls were pre-existing.
    Mr Edwards maintains that Sovereign should have contemplated such work being required as part of the original scope of works. It would have required a variation of the contract. The agreed rectification cost was $225. I do not allow the sum.

Item 6 Completion of hallway work

  1. [92]
    This was agreed at $99.

Item 8 Valley gutters

  1. [93]
    Mr Edwards’ complaint is that the contract specified Colorbond valley gutters (specification 14 (a)). Sovereign used Zincalume which is equivalent, the only difference being colour. Zincalume can be painted. Mr Boyle gave evidence[33] that Zincalume is a natural finish, whereas Colorbond, has colour applied. The experts agreed there is no difference in performance.[34] Painting was an alternative but was not costed. I allow $400.

Schedule D Claims

  1. [94]
    These are described and categorised in Gary Carpenter's report of 31 May 2016[35] as workmanship issues reported on and assessed by QBCC.

Item 2 Overflow Relief Gully (‘ORG’)

  1. [95]
    The complaint was that palings installed by Sovereign prevents access to the ORG. This is a critical part of the sewage system that prevents sewage from flooding the house. At the time the contract was signed it did not appear on the drainage plan of the Brisbane City Council records. Sovereign believed it to be a drain. It installed palings over the top. Once it was discovered to be an ORG it had to be repositioned which would involve removal of the palings and re-fixing. Mr Edwards maintains that an experienced builder such as Sovereign ought to have known that it was an ORG. Sovereign says it was assumed to be simply a surface water drain. In my opinion, not an unreasonable assumption.
  2. [96]
    The requirements of the Australian Standards AS-3500 are that there should be clear access for more than 2 m above the top of the gully grate. It seems to me that Mr Edwards will have to remove or reposition the ORG in any event and Sovereign should not have to bear the cost of removing and replacing the palings in order for the work to be carried out. Mr Edwards had already engaged a plumber to access the sewer. Mr Carpenter agreed that the construction or relocation of the ORG would have had to have been a variation and was not part of the contract.[36] Mr Blair considered it to be technically illegal in that it was higher than the internal fixtures underneath the dwelling.[37] The cost of rectification is agreed at $950. I disallow the claim.

Item 3 Smoke Alarms

  1. [97]
    The claim is that the smoke alarm was not connected to the main circuit as required. Sovereign says it was not part of the contract. Mr Carpenter said that if a builder was aware of it, that is a non-compliance issue and it should have been raised with the owner.[38] If a variation is required to make the house habitable it should be attended to. If the variation was not accepted then there is no obligation to do the work. Mr Boyle says a Final Certificate or Form 21 was issued by the Building Certifier indicating that it was outside the scope of the approved works.[39] Clearly, there is no obligation for Sovereign to bear the cost.
  2. [98]
    Mr Edwards says that additional costs will now be incurred for installation as it will be necessary to cut through walls and floors. Amount of $378 claimed. I do not allow the claim.

Item 4 Box Gutter

  1. [99]
    This issue involved a considerable amount of input from the experts and a significant amount of hearing time. I will deal with it separately, later in these reasons.

Item 8 Soffits to rear deck

  1. [100]
    Mr Edwards complained about the amount of water over flowing the eaves from the short section of gutter onto the timber deck. The QBCC inspector found that the soffits were not constructed as per plan. It was determined to be a category 1 defect. A further explanation was provided by Mr Edwards that the soffits were demolished but the work was not part of the works. Mr Stephen Nugent, the carpenter, recalls a conversation along the lines that cutting the soffits back would give a better appearance. Mr Edwards instructed Mr Marshall, in the presence of Mr Nugent, to cut them back.[40] Mr Edwards denies giving any such instruction. I accept Mr Nugent and Mr Marshall's evidence on this point. Although, the soffits were demolished at Mr Edwards’ request Sovereign agreed that the size of the gutter needs to be increased to cater for the water flow from the roof. I accept the cost of $1,360 based on Mr Ray's estimate.

Item 10 Gap in bathroom wall

  1. [101]
    Liability and quantum for this item was agreed at $250.

Item 11 Store door

  1. [102]
    Liability and quantum for this item was agreed at $60.

Item 12 Chipped tile bathroom entry

  1. [103]
    Sovereign says this was not the fault of the builder. It was not included in recorded defects in the Certificate of Practical Completion. Mr Edwards says that it was caused during construction by a crowbar. Ms Ogilvie, in her statement says she was present when it occurred and informed Mr Firrell. The matter was not explored in cross examination. The agreed cost was $120, I allow that sum.

Item 13 New shower shelf rusting underneath

  1. [104]
    This is a category 2 defect. Liability was denied by Sovereign but quantum was agreed at $60. It was first brought to the attention of Sovereign on 8 September 2015 which was after the expiration of the defects liability period. I accept Mr Boyle's evidence that it is a cleaning issue and is not defective work. I do not allow the claim.

Item 14 Hand towel rail

  1. [105]
    When inspected by the QBCC the towel ring was missing. The inspector considered an incorrect fastener had been used. Mr Boyle was unable to comment whether it was due to poor workmanship or excessive force. It was a category 2 defect and was not notified as a defect within the defects liability period. Quantum was agreed at $80. I do not allow the claim.

Item 15 Jantek 3 in 1 bathroom exhaust fan and heater

  1. [106]
    The complaint was that the fan rattles loudly. It was described as a category 1 defect. Mr Edwards says it does not do the job and does not meet the specification of ‘2 Light IXL’. Sovereign was notified of the defect on 8 September 2015. Mr Edwards contacted the manufacturer who advised him the fan ‘was not strong enough for your application’. Mr Edwards was offered some other extractor fans but refused the offer as they were not 3 in 1 fans offered.[41] It is not clear that the fan did not meet the specification but there appears no doubt that it is inadequate. An issue that affected quantum was whether ducting was required or whether it was sufficient for the fan to discharge into the roof void. That appears to be a reasonable. It is accepted that the fan is not operating efficiently. I would allow the cost of an upgraded replacement of the fan at $466.

Item 16 Faulty smoke alarm

  1. [107]
    The fault was notified on 8 September 2015. Mr Edwards replaced the alarm at a cost of $192.10. Sovereign says that they were not notified within the warranty period. The cost was agreed at $175.30. I will allow that sum.

Schedule E (these were non-reported QBCC defects)

Item 1 Second-hand decking to rear deck.

  1. [108]
    Mr Carpenter referred to the boards that were fitted as being undersize in width and of different surface profile. Replacement costs he estimated at $250. Sovereign's response is that the decking was new. Specification 11.2 (a) allowed for approximate sizing. The decking was not finished, as painting was not part of the contract. The quantum was agreed at $200. It was not identified as a defect at the time of practical completion. I do not allow the claim.

Item 2 Door to bed four will not close.

  1. [109]
    This was an agreed defect with an agreed cost $60.

Item 3 Weatherboard at rear of house buckling.

  1. [110]
    This was an agreed defect with an agreed cost of $500.

Item 4 Damage to cornice to bathroom

  1. [111]
    Liability was admitted to extent of quantum of $93 which excluded painting. The issue was whether it was caused by Sovereign's workman in which case $150 was claimed. Mr Edwards says the plasterer ripped it when replacing a tile. The issue was not subject of any further evidence. I allow $150.

Item 5 Plumbing work to unblock sewer line

  1. [112]
    Mr Edwards accepts responsibility for the blocked sewer. He claims that it was not accessible through the ORG because of the construction of palings over the top of it. It was necessary for the plumber to cut into the sewer line at another point. The work cost $547. I note that the ORG was itself blocked. I do not accept Mr Edwards’ evidence that it was contributed to by Sovereign in any way. The blockage occurred in 2016. I consider it a maintenance issue as claimed by Mr Boyle.[42] I do not allow the claim.

Item 6 Inconsistent fixing of skirting palings

  1. [113]
    Mr Edwards’ complaint was that they are not vertical and present a poor appearance. Mr Carpenter suggests they be removed, primed and re-fixed at a cost of $170. However, painting was not part of the contract and was going to be undertaken by Mr Edwards. Mr Boyle says, once painted, the appearance will improve. I agree, I do not allow the claim. It was not identified at the time of practical completion.

Item 7 Knots in weatherboards

  1. [114]
    Exhibit 18 depicts the weatherboards, knots and knot holes. Mr Carpenter says that only weatherboards with tight knots should be used. The costs of rectification could not be quantified. Mr Boyle did not consider it a defect that the builder could be held liable for. I note that neither Mr Carpenter nor Mr Boyle inspected the weatherboards before painting. They did not see the knot holes as depicted in Exhibit 18.[43] Mr Boyle considered the knots could be adequately filled and painted. Mr Carpenter thought they would continue to pose a problem.
  2. [115]
    Mr Edwards claimed damages for loss of amenity in accordance with the decision of Ruxley Electronics and Construction v Forsyth,[44] where the House of Lords reinstated the trial judge's decision to award damages for loss of amenity of £2,500 because the swimming pool built was only 6 foot deep rather than 7 foot 6 inches deep as designed. The homeowner had claimed £21,650 for demolishing and reconstructing the pool. It is submitted on Sovereign's behalf that the case is distinguishable. I think that is the case. The award of damages for loss of amenities was an exception to the rule that a party cannot recover damages for injured feelings. The exception was where the object of the contract was to afford pleasure, such as a holiday. This is not such a contract. I do not allow any part of the claim.

Box gutter

Background

  1. [116]
    This issue occupied a considerable amount of hearing time. There was much discussion on what was a box gutter and whether the gutter constructed could be referred to as a ‘box gutter’. Through the oral and written evidence, the term ‘box gutter’ was used sometimes in a very general sense and, at other times, as referring technically to a box gutter design. This should be borne in mind when reviewing the evidence.
  2. [117]
    On the plans it is not described as a box gutter but rather as a tapered gutter.
  3. [118]
    Sovereign's Design Manager, John Flatley, in his affidavit deposed to the fact that Sovereign was not permitted to undertake invasive investigation into the structural elements of the original home prior to preparing plans. He said that the design of the box gutter was always intended to be indicative only but, ultimately, was to be constructed on site to achieve a minimum of Q100 rainfall event capacity if required.
  4. [119]
    A perusal of the plans support Mr Flately’s assertion that the gutter, as designed, was not in the shape of a box gutter as generally described. The term is mentioned in the specifications. They provide relevantly:

Colorbond box gutters with ply support sump and overflow provisions to Level 2 and 3 roof intersections as per plan.

  1. [120]
    There is no mention of ‘box gutter’ in the plans only ‘tapered gutter’. Clause 13.6 of the contract provides that in the case of discrepancy or error in documentation the specifications take precedence over the plans.
  2. [121]
    My impression of what Mr Edwards required, prior to the breakdown in his relationship with Sovereign was not necessarily a ‘box gutter’ but rather a gutter that achieved the capacity to meet a one in 100 year rain event. He said so, in an email dated 29 August 2014,[45] ‘the reason for the wide box gutters was to address our concerns that there was absolutely no way water could back up in the heaviest of storms’.
  3. [122]
    That email was Mr Edwards first complaint about what was being constructed. It had been installed the day before and, according to Mr Edwards, the gutter as constructed appeared not to be consistent with the plans nor with his discussions in the preparatory stage of the project. He also noted that there was to be ply under the box guttering so that he would be able to walk on it. He then enquired of Mr Firrell as to how the current box guttering and roof tiling was to be completed.
  4. [123]
    The guttering was installed by a subcontractor, Andre Maul of Power Roofing Pty Ltd. It is tolerably clear, that what was installed was not what Mr Firrell or Mr Flatley had in mind. I say this because, Mr Firrell’s email of 29 August 2014, in response to Mr Edwards’ enquiry, was to agree with Mr Edwards that it was not as he had intended, nor, as it had been drawn.
  5. [124]
    What brought this state of affairs about, appears from the evidence of one of the subcontractor’s employees, Gary Nugent. On 19 August 2014 Mr Gary Nugent was privy to a conversation between his son Stephen Nugent, who was a Director of Astrega Constructions Pty Ltd, the subcontractor responsible for the carpentry work, and Mr Maul. Mr Gary Nugent kept diary notes and referred to them in the course of his evidence. At that meeting, Mr Maul said that there was no need to install timber framing or decking under the gutter. He measured up that day and left the site.
  6. [125]
    On 28 August 2014 he installed the guttering. On that same day Mr Edwards questioned Mr Gary Nugent as to why ply had not been installed under the gutters. Mr Nugent referred him to Sovereign.
  7. [126]
    On 29 August 2014, the day following its installation and Mr Edward's initial email, referred to earlier, there was a site meeting attended by Mr Flatley and Mr Maul. Mr Gary Nugent was privy to the conversation that ensued. He recorded that:

John (Flatley) wanted box gutters changed to how they were drawn on the roof plans. Andre explained why they could not be done that way. They came to a compromise. Andre would increase the height up the wall and screw flashing to each stud. Sovereign had to supply ply for us to install under box gutter.

The ply, which was in fact yellow tongue flooring, was delivered and installed the same day.

  1. [127]
    The project manager, Mr Marshall, in his affidavit referred to discussions with Stephen Nugent about the design of the box gutter system and how awkward in appearance the large apron would appear and how the join in the flashing within the gutter tray, that would be required to give its width, would be a potential problem for the gutter to leak. As a consequence of further discussions, between Mr Nugent and Andre Maul, it was proposed that the details of the gutter system be changed which would result in a similar or better outcome while still meeting Mr Edwards’ requirements that the gutter exceed the Q100 capacity. Unfortunately, this was not discussed with Mr Edwards.
  2. [128]
    Mr Marshall says Mr Edwards was well aware of the changes proposed by Sovereign to the box gutter prior to such work being carried out and completed, and, at no stage, did he inform Mr Marshall that he was not agreeable to such changes. Under cross examination, it became apparent, that Mr Marshall made this assertion on what he was allegedly told by others. He agreed that the email from Mr Edwards of 28 August 2014 was inconsistent with Mr Edwards having such knowledge.[46] I find as a fact, that Mr Edwards was not aware of the changes prior to them being made.
  3. [129]
    Mr Marshall concedes that what has been instructed was not according to the contract.[47] Mr Firrell makes the same concession that what was built was not as per the plan.[48]
  4. [130]
    No variation of the plan or contract was sought by Sovereign. What was built did not at the time have the approval of Mr Edwards, but that does not mean that he did not acquiesce at a later time.
  5. [131]
    John Flatley emailed Mr Edwards on 4 September 2014[49] with the box gutter size calculations and attached tables and an explanation of how the calculations were made. Mr Flatley concluded the email with the comment: ‘Therefore the box gutters are more than adequate for the Q100’. Cross examined on this document Mr Edwards admitted that he did not respond to the email, his explanation being, that he did not understand it. However, he did not seek an explanation from Mr Flatley. He said he did not understand what was meant by Q100 but added ‘something about an event every - every 100 years and - and they seemed to happen more often than not these days.’[50] I do not accept that Mr Edwards, at the time, did not understand the email or what Q100 was intended to convey.
  6. [132]
    It was submitted on Mr Edwards’ behalf that the Building Approval contained the following:

1. Gutters, Downpipes and Box gutters (if applicable) shall be fitted to comply with BCA, Part 3.5.2 and AS3500.

It is then submitted that Sovereign had an obligation to install box gutters that met that regulatory requirement. The obligation depends upon the gutter being installed being a box gutter. As I have found, I do not consider that the gutter, to be installed, necessarily, was intended to fit the description of ‘box gutter’.

  1. [133]
    However, I find that Mr Edwards acquiesced in the ‘alternative arrangement’ under the National Building Construction Code and accepted the changes as evidenced by him accepting that Practical Completion had been achieved. If the guttering was such a big issue, then I would have expected it to be raised at the meeting with Mr Marshall.

Is the gutter as built defective and should it be replaced?

  1. [134]
    In relation to the box gutter the hydraulic experts, Mr Blair and Mr Kwan agreed that it did not require an overflow but that the sump required an overflow. They were unable to comment upon the suitability of yellow tongue flooring that was used in lieu of the ply. However, Mr Carpenter said that it was inferior to ply and that the use of Yellow Tongue is not recommended by the manufacturer.[51] Mr Boyle made similar enquiries with the manufacturer and found that it had greatly improved from the original product and, now, could be used in wet areas such as bathroom floors with an appropriate waterproof membrane.[52] Mr Edwards made enquiries from the manufacturer and was advised that it had not been tested in wet conditions and they did not recommend it.[53]
  2. [135]
    Mr Blair and Mr Kwan’s opinions differed on whether the gutter as built was defective. Mr Blair believed the gutter was not defective because its size and installation met the requirements of the Alternative Solutions Provision of the National Construction Code. Mr Blair believed the contract drawings indicated a tapered gutter whereas Mr Kwan believe the contract documents do not support enough information on the design, shape and size of the gutter.
  3. [136]
    Mr Blair believed the gutter was fit for the purpose and that the ‘Vee’ gutter exceeded an equivalent box gutter by 2.68 times the cross-sectional area. Mr Kwan believes the installed gutter was not fit for purpose because of flooding issues.
  4. [137]
    Mr Blair believed there was no detail of the gutter design on the approved plans and that the term would have been used as a general term for consumer understanding not strictly as the shape of a box section. He said, further, that the term is used to emphasise the difference between a gutter that is inboard of a parapet, or abuts a wall - in contrast to an eaves gutter attached to a fascia.[54] He said the box gutters can take many shapes and sizes and are not all square or rectangular. Mr Kwan says that the builder failed to follow the contractual drawings and specifications which use the term ‘box gutter’. I note that it is only the specifications that refer to ‘box gutter’.
  5. [138]
    In their joint report Mr Blair believed that the gutter as built satisfied the ‘alternative solution’ provision of the National Construction Code. Mr Kwan believed there was no evidence of any alternative solution being produced that would meet the Code. He said there was no evidence of the builder following the ‘alternative solution’ process which was:
    1. (a)
      identify the relevant Deemed-to-Satisfy Provisions that would be the subject of the Alternative Solution;
    2. (b)
      identify the Performance Requirements relevant to the identified Deemed-to-Satisfy Provisions; and
    3. (c)
      identify any other Performance Requirements relevant to any aspects of the Alternative Solution proposed or that are affected by the application of the Deemed-to-Satisfy Provisions that are the subject of the Alternative Solution.
  6. [139]
    Asked whether the gutter, as installed, satisfied the requirements of the National Construction Code, Mr Blair stated that he believed it did so. Mr Kwan believed the gutter did not meet the minimum requirements of the Code and could fail in normal storm conditions.
  7. [140]
    The gutter, as built, has over flashing installed on one side. Mr Kwan believed the flashing was unacceptable, as it was not an integral part of the guttering, but merely, waterproofing. Mr Blair believed, if sealed, in an approved manner with pop rivets and silicone, it was acceptable.
  8. [141]
    Mr Kwan believed the gutter would be difficult to maintain because it is difficult to walk on due to the V slope of the gutter and that increased the maintenance costs. He did not believe the gutter conformed to the requirements of a ‘Valley Gutter’ under AS 3500.3 as its catchment area was greater than 20 m². Mr Kwan believed that the design required a box gutter and, therefore, AS 3500.3 applied. He believed that the gutter did not comply with section 3.7.1 of the Standard because it did not have a minimum width of 200 mm. He said the Standard does not allow for variable width. He also believed there was no hydraulic calculation to demonstrate hydraulic capacity to comply with section 3.7.3. He also believed it did not comply with section 3.7.4 because it had a 90° turn instead of being straight. He considered that the general layout of the installed gutter configuration on the plan defied design logic. He said that on the upstream end, the gutter had a width of 25 mm and tapered to 440 mm wide and when it reached a 90° bend (box gutters are not permitted to have bends or changes in the direction under AS3500.3). This, he said, created a throttling effect to the flow, restricting the flow rate to the cross-sectional area.
  9. [142]
    Mr Blair believed AS 3500.3 is irrelevant due to the National Construction Code (Alternative Solution) provision.
  10. [143]
    Finally in their joint report, Mr Blair and Mr Kwan were asked whether the box gutter specifications had to be designed by a suitably qualified person (hydraulic engineer), whether a Form 15 was required to be provided before certifying the plans and/or whether a Form 16 ought to have been provided before certifying the building, as constructed. Mr Blair did not believe it was a box gutter and he understood that a certifier had issued a building approval and had provided an ‘Alternative Solution’. Mr Kwan believed the Code required the box gutter to be designed by a suitably qualified person, who would have provided a Form 15 certification that the design complied with AS3500 and, at completion, the installer would then have provided a Form 16 certifying installation in accordance with the certified design drawing.
  11. [144]
    In fact, a Form 15 - Compliance certificate for building design or specification dated 18 October 2017[55] has been provided by the Building Certification Group, based on an alternative solution for the gutter design, based on the hydraulic calculations of Neil Blair and Associates Pty Ltd. Mr Blair, in the course of cross examination, stated that although the National Construction Code contemplated ‘alternative solutions’ should be approved prior to the event, in application, he said that it is very common for them to be approved, subsequently, as was the case here.[56]
  12. [145]
    I note that the QBCC report is critical of the V gutter as installed, which according to the author of the report, was not a permissible design in the circumstances. The inspector was also of the opinion that, ultimately, the design would result in water entering the building. However, QBCC considered a direction to rectify would be unreasonable in the circumstances where the owner was withholding a substantial amount of money. I note that the inspection and report preceded the issuing of the Form 15.
  13. [146]
    Mr Edwards alleges that the box gutter has already failed.[57] He does not go into details in his statement and, the attachment, he refers to, throws no further light on the matter. Evidence of past failures of the box gutter was not considered by the experts in any detail. It was raised as an issue in the re-examination of Mr Edwards on the third day of the hearing after the experts had given evidence. The re-examination of Mr Edwards on this issue was objected to but I allowed the questions.[58] Mr Edwards said that the box gutter leaked during the November hail storm. He referred to photographs of staining of internal walls of the house which he said was directly below the box gutter.[59] It is unfortunate that this issue was not fully ventilated with the experts. It is surprising that it wasn’t, as no stronger case could be advanced by Mr Edwards and the experts, than an actual failure. It is difficult to determine whether the damage was caused by a failure of the design of the gutter. There was evidence that at the time of inspection by the experts, that there was flashing that was not properly fastened down which may have permitted water ingress.[60] To that extent the work may have been defective but arose out of the Hail event which, on all accounts, was a severe weather event.
  14. [147]
    In not constructing the gutter according to the plans and specifications, as conceded by Mr Firrell and Mr Marshall, Sovereign was in breach of the contract.
  15. [148]
    Mr Edwards wants the box gutter installed which would cost $14,323 inclusive of GST. The experts, Mr Carpenter and Mr Ray put their respective assessment of the cost at $11,500.00 and 7,988.00.
  16. [149]
    In my opinion, the gutter, as built, meets the requirements of Mr Edwards that the gutter meet a Q100 weather event. After his initial query it does not seem to have been an issue until the relationship between Mr Firrell and Mr Edwards broke down irretrievably. It was not raised at the time of Practical Completion.
  17. [150]
    Mr Marshall says that he discussed the matter with Mr Edwards and, particularly, the outlet to the rain water sump onto the lower roof following the installation of the box gutter and Mr Edwards, the plumber and Mr Marshall discussed and designed the storm water outlet system to the tank on 15 October 2014, well after the installation of the box gutter. At that time Mr Edwards did not express any concerns regarding the box gutter.[61]
  18. [151]
    In my opinion, there is an argument that in accepting Practical Completion, with the knowledge of these matters, Mr Edwards could be taken to have accepted the gutter as designed and installed as a variation of the contract.
  19. [152]
    The common law rule is that where a party breaches a contract the party suffering the loss is entitled to be placed in the same position he would have been, with respect to damages, as if the contract had been performed according to its terms.[62] It is submitted, on Mr Edwards’ behalf, that he entered into a contract that served his interests and was entitled to have the contract performed, despite the fact that others considered something else was just as good.
  20. [153]
    Mr Edwards relies upon the authority of Tranquility Pools & Spas v Huntsman Chemical Company Australia Pty Ltd,[63] and Tabcorp Holdings Ltd v Bowen Investments Pty Ltd[64] for his claim to be awarded damages based on the cost of reinstatement as opposed to diminution in value. In the latter case the High Court held that to restore a party to the position it would have been in, had the contract been performed according to its terms, does not always demand that they be put in the same financial position as they would have been had the contract been performed as agreed. The diminution in value of the subject of the contract as a result of the breach is not always the appropriate measure of damages. In some cases, the loss caused by the party’s failure to comply with its obligations can only be met by reinstatement damages. In my opinion, the decisions are distinguishable, in that, Tabcorp dealt with a specific covenant which forbade any alteration of the premises without the written consent of the landlord. In that case the express negative covenant was designed to protect the landlord’s legitimate interest in retaining the physical character of the building. That was altered without its consent and damages for diminution in value of the property, in the circumstances, was not considered reasonable compensation.
  21. [154]
    Reference was made to Tranquility Pools & Spas (supra) for a passage that actually is contained in the decision of Willshee v WestCourt [2009] WASCA 87. Martin CJ with whom the other members of the Court after referring to Tabcorp (supra) said:

… the question of whether or not Mr Willshee's views in this respect are idiosyncratic, or would be shared by others, is not to the point. Mr Willshee entered into a contract which he considered served his interests, and he is entitled to the performance of that contract quite irrespective of the views which other people might form in relation to the advancement of those interests, such as views relating to the aesthetic appearance of the house.

  1. [155]
    In that case there was a contractual obligation to supply limestone of high quality for use as the external cladding of the house. The Chief Justice observed that the external cladding of a house was quite obviously a matter of great significance and importance to its owner. Notwithstanding that contractual obligation, the builder installed a significant quantity of limestone which was of inferior quality, with the result that it deteriorated rapidly, necessitating significant remedial work. Even though the deterioration did not adversely affect the structural soundness of the building, it was nevertheless material to the calibre and quality of the building supplied, when compared to the calibre and quality of the building for which the homeowner contracted. The case considered Bellgrove v Eldridge,[65] which is referred to in more detail in the passage below
  2. [156]
    In Chalet Homes Pty Ltd v Kelly,[66] Connolly J made the following observations:

… a building owner is not entitled to have the structure remedied in order to bring it into conformity with the plans and specifications if he has been given something which, although not conforming to the contract, can fairly be regarded as structurally sound. In support of this approach my attention was directed to Bellgrove v. Eldridge (1953–54) 90 C.L.R. 613. Where damages for breach of an executed contract to build are sought, there is a well-known qualification of the rule that the owner may recover the cost of achieving conformity with the contract and that is that the work undertaken must be a reasonable course to adopt. The qualification is, however, of a strictly limited character. The instance given by the court at p. 618 is of the incorporation of material of better quality than that specified which would in any case be covered by external rendering. The court, at p. 619, is at pains to state that the principle cannot deny to a building owner the right to demolish a structure which, though satisfactory as a structure of a particular type, is quite different in character from that called for by the contract. Where the contract is executory, I see no warrant for the view that the building owner is not entitled in reliance upon a provision such as clause 30 of this contract, to have the works put into strict conformity with the contract.

  1. [157]
    This particular issue has been difficult to determine. The experts are divided and Mr Edwards was aware of the compromised gutter. However, in his acquiescence, I am not convinced that he was fully informed of the extent of the compromise at the time he signed the Certificate on Practical Completion. I am also concerned that the yellow tongue board used instead of ply was not appropriate for the conditions. There is also the allegation that the current gutter leaked. Mr Ray allowed the sum of $7,988.00 as the cost of rectifying the gutter, Mr Carpenter assessed the costs at $11,500.00. The difference was that Mr Ray was critical of Mr Carpenter’s figure as there was no breakdown of the cost. Mr Carpenter agreed it would be less if Sovereign carried out the work. I will allow a sum of $10,000.00 for the cost of rectification.
  2. [158]
    I do not think it is unreasonable, in all the circumstances, to remove the current gutter and reinstall a gutter according to the specifications.

Unconscionable Conduct and Misleading and Deceptive Conduct

  1. [159]
    By an interlocutory hearing on the papers, the Applicant attempted to have this claim struck out on the basis that the Tribunal did not have jurisdiction. In a reasoned decision Senior Member Stilgoe AM found that the Tribunal had jurisdiction and dismissed the application.[67]
  2. [160]
    In his submissions, Mr Edwards claims the amounts paid by QBE, for the respective weather events, as damages. His claim takes no account of the fact that Sovereign effected significant repairs, at its own expense, in respect of both events prior to Practical Completion.
  3. [161]
    Sovereign objects to the claim on that basis, and on the basis that no evidence was led at the hearing. A case of deceptive or misleading or unconscionable conduct was not put to Mr Firrell or any other witnesses, in the course of the hearing. They have not had an opportunity to respond.
  4. [162]
    Indeed, no mention was made, in respect of this claim, until raised on the third day of the hearing. It was raised in circumstances that allegations of fraud and dishonesty had been levelled, principally, at Mr Firrell and others, by Mr Edwards but at the completion of his cross-examination, no evidence had been led. He was asked to withdraw those allegations and did so after a short adjournment. At that time Mr Saal, Mr Edwards’ solicitor, announced that the claims of unconscionable conduct and misleading and deceptive conduct would be maintained but confined to the evidence that had already been led.
  5. [163]
    I am not prepared to entertain the claim for the above reasons.

Consolation

  1. [164]
    Mr Edwards claims damages of $20,000 for consolation. This claim, appears, not to have been seriously pressed at the hearing. In cross examination, Mr Edwards conceded that the project was inherently stressful, the August storm ‘significantly’ added to his stress.[68] During the build he was stressed by the sudden deterioration in health and death of an immediate family member in February 2015.
  2. [165]
    As a matter of law, general damages for inconvenience, distress and discomfort are not usually available to home owners under a building contract. Mere disappointment or disruption is insufficient unless the object of the contract involved an emotional outcome which is defeated by the breach.[69] As I stated earlier in these reasons the object of the contract here was not to afford pleasure.
  3. [166]
    In any event, no expert evidence has been adduced from a doctor or psychiatrist attesting to Mr Edwards’ health as being affected or the cause of his stress as being related to any breach of contract by Sovereign. I disallow the claim.

Edwards’ Claim

  1. [167]
    Mr Edwards’ claim I assess as follows:

Category A      $64,954.00[70]

Category B      $1,344.00

Category C      $499.00

Category D      $12,431.30

Category E      $710.00

Total       $79,938.30

Interest

  1. [168]
    Sovereign claims interest under Clause 32 of the Contract. Item 14 of the Schedule to the contract sets the rate of default interest at 18%. Sovereign claims $22.76 per day which calculated to date amounts to $30,757.00.
  2. [169]
    Mr Edwards’ written submissions do not appear to question the methodology of the claim or Sovereign’s entitlement if its claim is otherwise recoverable. In his Statement of Evidence, Mr Edwards refers to Mr Firrell’s unreasonable delaying tactics, and that he delayed in settling the QBE claim.[71]
  3. [170]
    Mr Edwards referred to the decision of Thomas J (as he then was) in Serisier Investments Pty Ltd v English [1989] 1 Qd R 678 where His Honour said at 679:

There are sometimes circumstances in which it would be unfair to order a defendant to pay interest over the whole period. This includes the situation where the defendant is unaware of the existence of any claim or liability and would have ordered his affairs differently had he been advised of it, or where a defendant may have offered amends at an earlier date had the claim been made. A far more common case in which the interest is not allowed from the date of loss is where the plaintiff has been guilty of unreasonable delay in prosecuting the claim. The public policy of having claims brought and determined promptly seems to underlie this approach. Goff J thought that "this may be to encourage plaintiffs to prosecute their claims with diligence and also because such conduct may lull a defendant into a false sense of security, leading him to think that the claim will not be pursued against him" (B.P. Exploration (Libya) Co Ltd v Hunt (No 2) [1979] 1WLR 783, 847).

  1. [171]
    I do not consider any delay was excessive, to the extent, as to warrant a reduction in the interest claimed. However, as I have found that there was defective work which will involve a set-off of the amount owed, I will reserve the final calculation of interest, until I have heard argument on the form of final orders. 

Sovereign’s claim

Final claim      $46,155.20

Conclusion

  1. [172]
    By way of interim orders:
    1. (a)
      I direct Mr Edwards to pay Sovereign $46,155.20 plus interest to be assessed in respect to Sovereign’s claim;
    2. (b)
      I direct Sovereign to pay Mr Edwards the sum of $79,938.30 in respect to Mr Edwards’ Counter-application;
    3. (c)
      I stay the operation of those directions until further argument in relation to interest, costs and the form of final orders;
    4. (d)
      I direct that the parties file written submissions as to those matters as follows:
      1. Sovereign by 4.00 pm 21 September 2018;
      2. Mr Edwards by 4.00 pm 5 October 2018.
    5. (e)
      I adjourn the matter for further oral argument, if any, to a date to be fixed.

Footnotes

[1] Exhibit 1, Volume 3, Ms Ogilvie’s statement, page 548.

[2] Exhibit 1, Vol 3, Attachment 40, page 157.

[3] Exhibit 1, Vol 3, Attachment 40, page 158.

[4] Exhibit 1, Vol 3, page 436.

[5] This is the title the Certificate bears and not ‘Certificate of Practical Completion’.

[6] Exhibit 1, Volume 4, Part E, page 92.

[7] See email dated 7 January 2015, statement of Dayne Marshall dated May 2016, exhibit DTM 4.

[8] Filed on 2 June 2016, paragraph 15.

[9] T3-11, line 20.

[10] Exhibit 1, Volume 2, page 318.

[11] Email 7 and 9 January 2015, from Edwards to Sovereign, Exhibit 1, Vol 2, pages 140, 146.

[12] T1-70, lines 5-15.

[13] T3-13, lines 15-20.

[14] T3-13, lines 43-45.

[15] Mobile phone texts, Exhibit 1, Volume 2, pages 318, 320.

[16] T3-14, line 25.

[17] Exhibit 1, Volume 2, page 44, Clause 14.3.

[18] T3–57, line 20.

[19] See Exhibit 6 and T1-10, line 11. Also, admission by Mr Edwards T3-11, line 42.

[20] Exhibit 1, Vol 3, page 173.

[21] Exhibit 1, Vol 3, Attachment 57, page 203.

[22] Email 5 January 2015, Exhibit 1, Vol 3, page 46.

[23] Statement of Evidence Tina Ogilvie, paragraph 13, transcript 3-51.

[24] Transcript 3.51 [3-21].

[25] Exhibit 1, Vol 5, page 329–331.

[26] Exhibit 1, Vol 2, page 44, Clause 14.3.

[27] Exhibit 1, Vol 2, page 44, Clause 14.7.

[28] Exhibit 1, Volume 3, Attachment 24, page 91.

[29] Exhibit 1, Vol 3, Page 30, [260], T3-37, lines 5-10,

[30] Exhibit 1, Vol 4, Section D, Page 23.

[31] T2-97.

[32] Exhibit 1, Vol 5, page 41, attachment 23.

[33] T2-105, [35].

[34] T2-106, [1]-[5].

[35] Exhibit 1, Volume 4, paragraph 61, page 34.

[36] T2-109, [18-22].

[37] T2-108, [44-46].

[38] T2-112, [35-45].

[39] Exhibit 1, Section D, page 55, Item 3.

[40] T1-90 [22]; T2-14 [35-40].

[41] Exhibit 1, Vol 3, Part C, page 392.

[42] T2–126, [21]–[22].

[43] T2–129, [15]–[35].

[44] (1996) 1 AC 344.

[45] Exhibit 1, Volume 3, Part C, page 246.

[46] T1– 83, line 17.

[47] T1– 83, line 39.

[48] T1– 55, line 47.

[49] Exhibit 1, Vol 5, page 47.

[50] T3 – 41, lines 5-15.

[51] T2 – 122, lines 25-45.

[52] T2 – 124, lines 5-12.

[53] T2 – 125, lines 1-20.

[54] Affidavit of Neil Blair, appendix 3, Exhibit 1, Vol 4, page 255.

[55] Exhibit 15.

[56] T2-77, line 4.

[57] Statement of evidence D B Edwards, Volume 5, paragraph 346.

[58] T3-5 to 3-7.

[59] Exhibit 1, Volume 5, page 367.

[60] T2-71, lines 30-35.

[61] Exhibit 1, Statement of D Marshall, 15 March 2017, pages 311-312.

[62] Robinson v Harman (1848) 154 ER 363.

[63] [2011] NSWSC 75.

[64] (2009) 83 ALJR 390, [13]-[15].

[65] (1954) 90 CLR 613.

[66] [1978] Qd R 389.

[67] Sovereign Homes Pty Ltd v Edwards [2016] QCAT 461.

[68] T3 – 9, 10, 11.

[69] Falko v Jones McKewen & Co. Pty Ltd [1977] BR 447; Coshott v Fewings Joinery Pty Ltd BC 960 2970 NSWCA 15 July 1996 (unreported); Baltic Shipping Company v Dillon (1993) 176 CLR 344; Hutchinson v Harris (1978) 10 BLR 24, 37-38; Batty v Metropolitan Property Realisations Ltd [1978] QB 554, 563 A - B; Burke v Lunn [1976] VR 268 at 286; Bonchristiano v Lohmann [1998] 4 VR 82 and Faulks v New World Constructions Pty Ltd [2013] QCAT 658, [62].

[70] The difference between the sum of $69,717.00 is the cost incurred in attending with the loss assessor, preparing specifications and schedules and submitting the insurance claim: T1-13, line 25.

[71] Exhibit 1, Volume 2, page 125, Attachment 29C.

Close

Editorial Notes

  • Published Case Name:

    Sovereign Homes Qld Pty Ltd v Edwards

  • Shortened Case Name:

    Sovereign Homes Qld Pty Ltd v Edwards

  • MNC:

    [2018] QCAT 276

  • Court:

    QCAT

  • Judge(s):

    Member King-Scott

  • Date:

    21 Aug 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Baltic Shipping Company v Dillon (1993) 176 CLR 344
2 citations
Jump To
Cite 1 - (1993) 176 CLR 344
Cite 2 - (1993) 176 CLR 344
Batty v Metropolitan Property Realizations Ltd. (1978) QB 554
2 citations
Jump To
Cite 1 - (1978) QB 554
Cite 2 - (1978) QB 554
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Boncristiano v Lohmann [1998] 4 VR 82
2 citations
Jump To
Cite 1 - [1998] 4 VR 82
Cite 2 - [1998] 4 VR 82
BP Exploration Co (Libya) Ltd v Hunt (No 2) (1979) 1 WLR 783
2 citations
Jump To
Cite 1 - (1979) 1 WLR 783
Cite 2 - (1979) 1 WLR 783
Burke v Lunn [1976] VR 268
2 citations
Jump To
Cite 1 - [1976] VR 268
Cite 2 - [1976] VR 268
Chalet Homes Pty Ltd v Kelly [1978] Qd R 389
2 citations
Jump To
Cite 1 - [1978] Qd R 389
Cite 2 - [1978] Qd R 389
Falko v Jones McKewen & Co Pty Ltd [1977] BR 447
2 citations
Jump To
Cite 1 - [1977] BR 447
Cite 2 - [1977] BR 447
Faulks v New World Constructions Pty Ltd [2013] QCAT 658
2 citations
Jump To
Cite 1 - [2013] QCAT 658
Cite 2 - [2013] QCAT 658
Hutchinson v Harris (1978) 10 BLR 24
2 citations
Jump To
Cite 1 - (1978) 10 BLR 24
Cite 2 - (1978) 10 BLR 24
Robinson v Harman (1848) 154 ER 363
2 citations
Jump To
Cite 1 - (1848) 154 ER 363
Cite 2 - (1848) 154 ER 363
Ruxley Electronics and Construction Ltd v Forsyth (1996) 1 AC 344
1 citation
Jump To
Cite 1 - (1996) 1 AC 344
Ruxley Electronics Ltd v Forsyth (1996) AC 344
1 citation
Jump To
Cite 1 - (1996) AC 344
Serisier Investments Pty Ltd v English [1989] 1 Qd R 678
2 citations
Jump To
Cite 1 - [1989] 1 Qd R 678
Cite 2 - [1989] 1 Qd R 678
Sovereign Homes Qld Pty Ltd v Edwards [2016] QCAT 461
2 citations
Jump To
Cite 1 - [2016] QCAT 461
Cite 2 - [2016] QCAT 461
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 83 ALJR 390
2 citations
Jump To
Cite 1 - (2009) 83 ALJR 390
Cite 2 - (2009) 83 ALJR 390
Tranquility Pools & Spas Pty Limited v Huntsman Chemical Co Pty Limited [2011] NSWSC 75
2 citations
Jump To
Cite 1 - [2011] NSWSC 75
Cite 2 - [2011] NSWSC 75
Willshee v Westcourt Ltd [2009] WASCA 87
2 citations
Jump To
Cite 1 - [2009] WASCA 87
Cite 2 - [2009] WASCA 87

Cases Citing

Case NameFull CitationFrequency
Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 1462 citations
Edwards v Sovereign Homes Qld Pty Ltd [2022] QCA 4 16 citations
Edwards v Sovereign Homes Qld Pty Ltd [2022] QCAT 2442 citations
Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 4103 citations
1

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