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Mulder v Queensland Building and Construction Commission QCAT 395
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Mulder v Queensland Building and Construction Commission  QCAT 395
HEINRICH GEORGE LUDIWICK MULDER AND AMANDA MULDER
QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION
DR FAMILY PTY LTD TRADING AS CONSOLIDATED BUILDING CONCEPTS PTY LTD
GAR 119-18; GAR 145-18
General administrative review matters
16 December 2019
26, 27 and 28 August 2019
The Tribunal orders:
ADMINISTRATIVE LAW –ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General Administrative Review – application by building owner to review a decision by the Queensland Building and Construction Commission to reject a claims by building owner for a direction to rectify and for payment under Queensland Home Warranty Scheme – whether the building owner repudiated the building contract – whether the builder validly terminated a building contract – where the building owner also purported to terminate the contract – the rights of the building contractor and the building owner under contract and at law – where the tribunal reviews the decision of the QBCC’s refusal to order Direction to Rectify and refusal of claim under the statutory scheme in favour of the building owner as builder had validly terminated the contract
Domestic Building Contracts Act 2000 (Qld) s 45
Queensland Building and Construction Commission Act 1991 (Qld) s 72
Queensland Building Construction Commission Regulation 2018 (Qld) s 67X (4)
Freedom Homes Pty Ltd v Botros & Anor (2000) 2 Qd R 377
Carr v J A Berriman Pty Ltd (1953) 89 CLR 327
Carswell v Collard (1893) 9 App Cas 434
Centreplex Pty Ltd v Noah’s Rosehill Waters Pty Ltd  WASC 252
Forslind v. Bechely-Crundall 1922 S.C.(HL) 173
Koompahtoo Council v Sanpine Pty Ltd (2007) 233 CLR 115
Laurinda Pty Ltd v Capalaba Shopping Centre Pty Ltd (1989) 166 CLR 623
Minion v. Graystone Pty Ltd (1990) 1 Qd R 157
Ross T. Smyth & Co. Ltd. v. T. D. Bailey, Son & Co. [19401 3 All E.R. 60
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245
William George Carlsen t/as W & E Carlsen Builders v Tresidder  QCAT 260
K Joyce for Queensland Building And Construction Commission
CE Taylor instructed by Geldard Sherrington Lawyers for DR Family Pty Ltd
REASONS FOR DECISION
- Mr and Mrs Mulder, the Applicants in this matter, own land situated at 71 Eagle Beach Parade, Dundowran Beach, near Hervey Bay, hereafter referred to as ‘the land’. Meaning no respect, but for the purposes of brevity, I will refer to Mr and Mrs Mulder as ‘the Mulders’. Mrs Mulder did not give evidence at the hearing and has not participated in the dispute other than nominally in her capacity as a party to the Contract. Mr Mulder has represented himself and his wife in all discussions and at the hearing.
- Mr Mulder migrated from South Africa to Australia in late January 2015. He describes himself as semi-retired but was a registered architect in South Africa. He does not have registration in Australia.
- The Mulders were desirous of building a house on the land. To that end, on 7 February 2017, they entered into a contract with DR Family Pty Ltd, hereafter referred to as ‘DRF. The Contract was a Master Builders Queensland Residential Building Contract – Level 2. The contract price was $255,980.00.
- DRF commenced work in around March 2017. Because of a dispute between the DRF and the Mulders, work ceased on around 2 May 2017 prior to the slab being poured. On 2 May 2017 DRF terminated the Contract.
- The dispute has occupied a considerable amount of time of the parties and the Tribunal. Documents filed and/or tendered in the Tribunal now exceeds 9 cartons! This is in relation to a building dispute that did not proceed beyond preparation of the house slab! Those acting for DRF have described the material filed by Mr Mulder as extensive, repetitive, voluminous, prolix, confused and confusing. A sentiment that, unfortunately, has some substance.
- The works, the dispute arose over, involved the construction of the ground slab of the house up to the stage ready for pouring. DRF terminated the Contract because of the extensive interference of Mr Mulder. That interference is described by DRF as a bombardment of communications by Mr Mulder, his insistence on carrying out inspections, his refusal to accept the decisions of the certifier and engineer and the frustration of DRF’s attempts to carry out the construction work.
- Following the purported determination of the Contract by DRF Mr Mulder made complaints of defective work to the Commission.
- By section 19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) the Tribunal must decide the review in accordance with the QCAT Act and the Queensland Building and Construction Commission Act 1991 (Qld) hereafter referred to as the ‘QBCC Act’. The Tribunal has all the functions of the decision maker.
- By section 20 of the QCAT Act the review is a fresh hearing on the merits. The purpose of the review is to reach the correct and preferable decision.
- Section 24 of the QCAT Act provides that the Orders that can be made by the Tribunal upon review are:
- (a)the decision is confirmed; or
- (b)the decision is set aside and substituted with the Tribunal’s own decision; or
- (c)the decision is set aside and the matter returned to the Commission to reconsider the decision with directions the Tribunal considers appropriate
- The Mulders seeks an external review of two internal review decisions of the Queensland Building and Construction Commission (‘the Commission’). They are:
- (a)A decision not to direct rectification of allegedly defective work (the Rectification decision);
- (b)A decision not to allow a claim for non-completion under the Queensland Home Warranty Scheme. (The Insurance Claim Decision).
- It is important to bear in mind that these proceedings are not a domestic building dispute wherein relief for breach of contract is sought. Rather, the proceedings are a review of the internal review decision of the Commission, addressing the matters referred to above. It is not, although at times, it threatened to be, a forum for Mr Mulder to ventilate his dispute with DRF, Mr Wegner the Engineer and Mr Eaves the Certifier.
The Rectification decision
- Section 72 of the QBCC Act provides that if the Commission is of the opinion that building work is defective or incomplete it may direct a builder to rectify the defective work or compete the incomplete work. The Section provides further:
- (3)In deciding whether to give the direction, the commission may take into consideration all the circumstances it considers are reasonably relevant and, in particular, is not limited to a consideration of the terms of the contract for carrying out the building work (including the terms of any warranties included in the contract.
- (5)The commission is not required to give the direction if the commission is satisfied that, in the circumstances, it would be unfair to the person to give the direction.
- The works ceased on about 2 May 2017. The Mulders submitted a complaint to the Commission on 12 September 2017 alleging defective work by DRF further particularised in an email dated 24 September 2017.
- I am satisfied that the complaint related to ‘building work’ and that DRF was responsible for the building work.
- The Commission inspected the work on 26 October 2017. That inspection took place 6 months after DRF left the site, at a time the inspection site had been left open after the security fencing had been removed. Form work was also removed. DRF denies removing anything from the site.
- On 31 October 2017 the Commission decided not to direct rectification of the building work. That was on the basis that the work was not considered defective. The Mulders sought an internal review of the decision. It was a lengthy document and raised a number of irrelevant issues. Mr Steven Noble, Senior Technical Officer of the Commission conducted a desk top review, that is, a review based on the reports of the building inspector and other specialist reports, but it did not involve an inspection of the site.
- Those complaints made by the Mulders and considered by the Commission were:
Item 1 - Fill on site
- Mr Mulder, initially, complained that the fill looked like it contained a lot of clay. On inspection the fill was no longer on the site which Mr Mulder accepted. Mr Noble’s findings were that the geotechnical investigation undertaken by Dirts (Qld) Pty Ltd dated 3 November 2016 identified the land with rolled non-compacted fill of up to 400mm is acceptable and in accordance with AS2870:2011 sec 2.5.3.
- He alleges that the old fill was removed, and new fill was carted in and placed as a platform.
- It was originally complained that there was no proof of whether the current fill affected the site classification negatively.
- It was determined that there was insufficient evidence to reveal any obvious defective construction.
Item 2 - Fill removed from site
- The Commission was unable to assess the fill as it had allegedly been removed. The fill material that was there was satisfactory to support the slab and the soil test undertaken by Wide Bay Geotechnical Services Pty Ltd confirmed the fill was measured at 300 mm which was acceptable under with AS2870:2011 sec 2.5.3.
Item 3 – Use of topsoil containing organic matter as a sand bed
- The initial complaint by Mr Mulder was that DRF were using topsoil containing organic matter as a sand bed under the Vapour Barrier. Bore samples taken and supplied to the Commission revealed no evidence of organic matter. On inspection an insignificant amount of organic matter was identified on site which did not impact on the capacity of the slab.
Item 4- Vapour Barrier not marked as required by AS2870.
- This was found to be the case but the product met the performance standards of AS2870 and was otherwise fit for the purpose.
Item 5 - Inadequate side cover of the trench mesh
- The Commission inspection did not reveal defective work in the manner in which the slab reinforcement was installed. The slab reinforcement had been installed in accordance with the engineer’s design as indicated on the form 16 Inspection Certificate. Mr Noble noted the evidentiary difficulties arising from the material available to the Commission and the duration of time that had lapsed since works ceased on site. The Commission could not be satisfied that the works described in the complaint were defective.
Item 6 - Mesh not bent down at the step down to the Alfresco & Porch
- The Commission’s inspection did not reveal defective work in the manner in which the slab reinforcement was installed. The slab reinforcement was installed in accordance with the engineer’s design as indicated on the form 16 Inspection Certificate. Mr Noble noted the evidentiary difficulties arising from the material available to the Commission and the duration of time that had lapsed since works ceased on site. The Commission could not be satisfied that the works described in the complaint were defective.
Item 7 - Vapour Barrier damaged by penetration of rods.
- Infrequent punctures are permissible under the Australian Standards. The work was not considered defective.
Item 8 - Edge beam widths not in accordance with engineer’s specifications
- It was noted that the site had deteriorated and that it was not possible to determine with certainty whether the edge beams width had been excavated contrary to the engineer’s design and were anything but compliant as the Form 16 Inspection Certificate indicated.
Item 9 - Overlap of Vapour Barrier insufficient
- Inspection by Mr Noble at the time did not confirm that the vapour barrier installation did not comply with AS2870 at the time of the construction.
Item 10 - Failure to remove topsoil containing roots
- The fill material was considered satisfactory.
Item 11 - Edge beams not thickened as per AS 2870 where it is penetrated b service pipes
- Mr Noble determined that the original location of the service pipes relating to the edge beams and the depth of the service pipes had not been established, as the site was subject to water ingress and had deteriorated. It was not clear what impact that had on the pipes. The design engineer undertook two site inspections and determined the reinforcement and pipe penetrations were satisfactory. The Commission could not be satisfied that the works described in the complaint were defective.
Item 12 - Steel in the edge beams touched the service penetrations
- Mr Nobel noted that the site had been subject to water ingress resulting in deterioration of the excavation and it was not clear to him what effect it had had on the installed service pipes. Further the engineer documented his observations of reinforcement and pipe penetration and determined them to be satisfactory. Evidentiary difficulties associated with the length of time that works had been incomplete made it difficult for the Commission to be satisfied that the works described in the complaint were defective.
Item 13 - Vapour barrier not properly sealed where pipes penetrated.
- Mr Noble found some pipes were unsealed but noted that he could not determine whether they were originally unsealed or whether the lack of a seal was the result of deterioration during the time the works were left incomplete.
Item 14 - Form work made no provision for rebates for brick work
- Form work had been removed at time of inspection and it was not possible to determine the provision of the slab rebate profile. Mr Noble noted that the engineer would not have issued a Form 16 if it had been installed in an unsatisfactory manner.
Item 15- Fill not compacted
- Mr Mulder complained that the bar chairs to the slab mesh had settled substantially over the past few months indicating to him that the fill had not been properly compacted. Mr Nobel noted that the settlement of the fill is minor and infrequent and may result from water ingress for which DRF were not responsible. The presence of uncompacted fill under 300 mm is permissible.
DRF’s response to the Rectification claim
- It is not disputed by DRF that it was required to build in accordance with the plans and specifications. indeed, it gave a warranty to that effect. However, such a requirement must be interpreted as part of the contract as a whole. In particular, to the extent of the warranty given as to compliance with plans and specifications to be read in conjunction with the balance of the warranty given, such as to proceed with due diligence.
- It is submitted by DRF that it was not impermissible for DRF to have made slight deviations from plans and specifications provided that the deviation did not affect the performance and functional use of the finished product. It may be accepted that it is common building practice that such might arise as result of site conditions that are discovered during building operations are not consistent with plans and specifications.
- In assessing Mr Mulder’s claims for non-compliance by DRF in some instances, I am assisted by observations made by Member Gordon in William George Carlsen t/as W & E Carlsen Builders v Tresidder where he said:
 In Queensland, there is a statutory requirement that work under such contracts will be carried out in accordance with the plans and specifications. This requirement is also one of the contractor’s obligations in the building contract itself. …
 In deciding whether there was a breach of this obligation, a line needs to be drawn. A deviation from the plans and specifications which falls one side of the line will not be a breach. But a deviation falling on the other side of the line will be a breach. Where should the line be drawn?
 The legislature could easily have added a modifying expression immediately before the words ‘in accordance with the plans and specifications’. Examples would be, ‘generally’, ‘substantially’, ‘only’, ‘precisely’, or ‘strictly’. Such modifying words are found in other statutes and for example development permissions and sometimes in court orders. The absence of the word suggests that the legislature have left it to the Courts and to the Tribunal to decide how strictly the obligation should be construed.
 It is only reasonable that some departure from the dimensions or position of a structure given in the plans is permissible, because for a number of reasons including errors by the designer or architect, differing size of materials, or unforeseen practical difficulties on site, it will often be very difficult for the builder to be exact. It could not be the intention of the legislature for example to say that if a bathroom was built very slightly narrower or wider than in the plans, this would be a breach of the obligation.
 On the other hand, it would be wrong to read the obligation as requiring only ‘general’, or ‘substantial’ compliance. To do so, would be to add a word to the statutory obligation which is not there. This would not be permissible.
 The position of the line must lie somewhere between the two extremes. In this case, the alleged departure from the plans and specifications fall into the following categories: using different methods of construction from that specified, using different materials from that specified, omitting work specified, and positioning fittings differently from as shown on the plan. In each case it is necessary to reach a finding of fact whether the work was carried out in accordance with the plans and specifications in all the circumstances.
- Counsel addressed the specific complaints in his written submissions they are:
- Mr Mulder’s case is that he asserts that the Contract required 300 mm of fill on the site, and though he concedes +/- 20 – 50 mm deviation, that dimension does not mean that DRF could permissibly only place 200 mm as did occur, when it was scraped back to this approximate dimension as Mr Allman explained. It is submitted by DRF there is no substance to this complaint.
- In cross-examination Mr Wegner said the plans refer to an approximate depth of 300mm. The builder has to get a level pad over the whole site and an error of +/- 100 mm is acceptable.
- Mr Wegner in evidence affirmed that at no time did he have concerns about the fill.
Alleged change in fill depth
- Mr Mulder was concerned that after the Wide Bay Geotechnical Services (WGBS) test report of 7 April 2017 the there was a change in fill depth and that invalidated the tests findings. DRF submitted that in cross-examination Mr Wegner did not have concerns with the fill used. Ultimately, he said the fill is not an issue because the depth of the footings was increased to 500 mm and as such, they found natural ground.
- Mr Mulder suggests that the fill must be controlled fill because uncontrolled fill is not permissibly used if the site is an S – Class site, and that rolled fill as was specified by the engineer cannot be used because it is uncontrolled fill. Such an assertion it is submitted by DRF is to misconstrue the meanings of s.6.4.2 and s.2.5.3 of AS 2870. In the former, filling to support the slab shall be controlled or rolled fill, the description of each being given in paragraphs (a) and (b) of s.6.4.2. Whilst it may be accepted that rolled fill as it is referred to in s 6.4.2 is something different to controlled fill and as such when reading s 2.5.3 rolled fill must fall under uncontrolled fill, as noted therein, in circumstances where uncontrolled fill, that is material other than sand is used and is not more than 400 mm deep, the site classification will only be a ‘P’ site if the footings are not found on natural soil through the filling. Mr Wegner confirmed that the site classification did not change from the designed for ‘S’ class as the footings were on natural ground.
Fill disturbed after they WBGS Report
- Mr Mulder’s allegation is that any earth works after that report that disturbed earthworks on site must comply with AS 3798 ’Guidelines on Earthworks for Commercial and Residential Developments’ to validate the site classification.
- DRF submits that AS 3798 does not require a retesting of the site, it merely requires that so as to ensure the site classification does not change, that it remains valid as per the report, any earthworks done subsequent to the date of the report must be done in the manner required under AS 3798. It is submitted that Mr Mulder did not put anything to any witness nor present any evidence that challenged the proposition or that the subsequent removal of 100 mm of fill and its later replacement did not comply with AS 3798.
Placement of reinforcing mesh
- Mr Mulder complained of the placement of the reinforcing mesh and the bending at step downs or under service penetrations. Mr Mulder’s cross-examination of Mr Wegner focused on the Dwg S.03 and the note 14.1 as ‘Reinforcing Cover’, and the note 14.5 as to a typical detail for service penetrations both as shown on Dwg S .07. Mr Wegner confirmed in cross-examination that:
- (a)the details were purely diagrammatic, and the coverage dimension is, generally, as required;
- (b)Whilst the mesh was not ‘bent’ down as shown on those details, it was seen by him to be ‘running through’ the location in a satisfactory manner;
- (c)What he observed was sufficiently compliant with the design requirement.
- (d)Further it was observed that to the extent that it was observed that some non-compliance with cover dimensions during the setup of the reinforcing steel in advance of concrete placement, the normal construction practice is for the concreter to lift and push down the reinforcing mesh to ensure correct coverage.
- I am satisfied on all of the material that there were no defects that required a Direction to Rectify and I confirm the decision of the Commission in that regard.
- Mr Mulder brought his applications for review against the Commission. On the application of the Commission, DRF were added as a party on 24 October 2018.
- The Insurance Claim was filed by Mr Mulder on 17 July 2017. The claim was declined by the Commission on 7 September 2017. He sought an internal review of the decision on 7 December 2017. That was disallowed by the Commission by Decision Notice dated 26 March 2018. Mr Mulder filed his application for external review on 27 April 2018.
- Part 5 of the QBCC Act establishes an insurance scheme to provide assistance to consumers of residential construction work for loss associated that is defective or incomplete.
- The Scheme known as the Queensland Home Warranty Scheme was established under s 67X (4) of the QBCC Act. Schedule 6 of the Queensland Building Construction Commission Regulation 2018 (Qld) (QBCC Regs) sets the parameters for application of the Scheme. Relevantly, it applies to work carried out under a fixed price contract which ends within 2 years after the day work starts under the contract and the work is incomplete. A fixed price contract, which, the contract in this case clearly was, is defined as ‘ended’, inter alia, if validly terminated on the default of the licensed contractor. That was the subject of the internal review by the Commission, albeit under the repealed provisions of the legislation.
- The issue, to be determined is whether the Contract ended as a consequence of the default of DRF. If, as DRF claims, the Contract was repudiated by the Mulders prior to the Mulders purported termination then the Scheme would not respond. DRF claims that the Mulders repudiated the Contract by Mr Mulder’s repeated communications which interfered with and hindered the progress of the Works contrary to Clause 11.12 of the Contract. It also relied upon breaches of Clause 7.4 in that Mr Mulder unlawfully entered upon the site and inspected the works. DRF also relied upon its common law right to terminate the Contract.
- Mr Mulder communicated with DRF by way of email and text messages. A perusal of the emails and messages reveal a consistent questioning of DRF on its performance of the works and their obligations under the Contract. The emails, generally, are what have been described as shouting emails with the frequent use of capital letters, underlining and highlighting and are nearly always said to be urgent and demanding an immediate response. Sometimes, they were offensive. Mr Mulder not only succeeded in alienating DRF’ staff but also his engineer and certifier, to the extent that neither would communicate with him except through their lawyers.
- The emails and the messages are voluminous. An example, referred to by DRF, was 64 emails/text messages over a 4 day period in relation to just the boxing for the concrete slab.
- It is not necessary for me to refer to all of the correspondence, the following will suffice. In quoting the correspondence I have retained, where possible, Mr Mulder’s use of emphasis by capitalised or bold text, or sometimes both.
- In an email dated 27 March 2017 sent at 1.32 pm Mr Mulder enquired about the fill on his block and that it looks different to the fill on other blocks he had observed around Hervey Bay. He described it as similar to clay subsoil he had seen in South Africa. He enquired as to whether it is what the engineer has specified. He then said ‘Your urgent clarification of this will be appreciated, before the works progress too far. I need some form of response from you today.’
- The following texts followed with Jeff Allman:
27 March 2017 2.49 pm from Mr Mulder:
Hi Jeff I need to know today about the filling. Also sent message to Duane and emailed Office. Please at least just respond to My Message.
27 March 2017 3.02 pm from Jeff:
I will be back in office in 25 mins
27 March 2017 4.58 pm from Mr Mulder:
Hi Jeff. If everything is okay with the fill, then surely, I should be getting a quick response to my query ????
27 March 2017 5.08 pm from Jeff:
Robbo is going to respond. There is no issue with the fill.
27 March 2017 5.29 pm from Mr Mulder:
Thanks Jeff. That is what I need, a response.
- Mr Duane Robinson responded by email 27 March 217 at 6.53 pm.
In reply to your email regarding the fill for your house pad I would like to point out the same field is used on all Coral Homes, Dixon Homes and P J Burns Homes as they are supplied by the same sub-contractor. I have spoken to the supplier of the fill today and he has had testing done on this fill and it comes up well above the 95 percent compaction level that is need (sic.) in residential build and was told it will conform to a level 3 road base substrate.
In saying this Heinrich the site/soil classification has come back as a S site so the engineer has designed the slab to conform to this as a S site you can lay this straight on sand without any controlled fill. We lay down controlled fill so we don't lose a lot of concrete in the slab and the mesh sits up without the chairs being pushed into the sand.
I hope this puts your mind at ease and would really appreciate not getting text messages giving me a deadline to respond as I always read emails at different times of the day and have a just read yours and then received your text.
- Then followed at 7.37 pm the same day a long email. After criticising Mr Robinson for his lack of communication he went on as follows:
Also, you are nominated as the Agent/authorised representative in the contract, but you expect me to work with Jeff – I have NO objection to this, but you have to officially approve/authorise Jeff to be Agent/authorised representative – I have asked for this many times, and also put in writing about a week to 10 days ago – I HAVE RECEIVED NO RESPONSE ????? So, you can see where these communication problems come from?
- Later on, in the same email he said:
The process that you have followed is different from what was specified by the Engineer – I believe that in terms of the contract that you cannot do this without consultation and agreement. I have asked certain questions in my email to you, which you have not responded to. I would like for you to please answer my specific queries – as your client, I believe I am entitled to such answers in terms of the Contract – here follows.
- Does the fill contain clay?
- Can the fill you used be defined as ‘stable fill’ as specified by the Engineer?
- The fill was not placed in layers of 150 mm as per Engineer – why not or does the fill that you used not require this?
- The Engineer specified the fill be rolled-this was not done, it was placed in one layer and not rolled – Why was this done in this manner – perhaps it is that the fill you used can be placed in one layer and does not need ‘rolled’ compaction, but I would like confirmation of this.
- On 28 March 2017, Mr Mulder emailed his Engineer Mr Daniel Wegner of Holmes McCloud Consulting Engineers, raising the same issues. Mr Wegner responded that he was unaware of what fill had been used and made some observations about what was required of the fill. If Mr Mulder was concerned, he suggested that Mr Mulder obtain an opinion from DIRTS who did the original site classification.
- Mr Mulder responded to Mr Wegner that he, Mr Wegner, had not responded to his specific queries. He then enquired whether Holmes McCloud Consulting Engineers took full responsibility for the fill now on site and advised that he remained concerned.
- Mr Wegner replied by email dated 3 April 2017 at 9.41 am:
To answer your question the compaction of the fill doesn’t matter as you can have uncontrolled fill to 400mm deep providing the footings are founded on natural material.
I have no idea where the fill came from or what the properties of the fill are. As mentioned in the previous email my concern would be that the fill may be reactive enough to change the site class from S to M site. From photos it doesn’t appear it would but without testing I can’t say definitely.
HMC is not taking full responsibility of the fill. We take responsibility for what we do (the engineering), not what someone else (the builder in this case) has done. If you have an issue with the builder I suggest you contact the QBCC.
- Mr Mulder took the issue up with DRF. Mr Mulder emailed them on 3 April 2017 at 11.56 am as follows:
The Engineer has clarified some of the issues – HOWEVER, they are not prepared to accept responsibility for the fill – I suppose mainly because they do not know whether it will change the classification of the site?
If it was stable rolled fill as per their specifications then they would have to take responsibility – In fact, if it was done as per Engineer’s specification, then we would not be talking about this now.
I suggest that we get together a.s.a.p to discuss what options are potentially available to rectify the situation.
- DRF responded by email dated 3 April 2017 at 2.05 pm advising that they were reducing the height of the fill to 200 mm to allow footings to be founded on natural material.
- In a long and argumentative email dated 3 April 2017 at 3.15 pm Mr Mulder accused DRF of misinterpreting the engineer’s correspondence. He said, inter alia, somewhat inaccurately that the engineer expressed concern about the type of fill which on a reading of the email was not the case. Mr Mulder requested urgent attention to the issue.
- Mr Robinson responded by email dated 3 April 2017 at 7.33 pm Mr Robinson by this time had been induced into shouting emails. His email read:
I have receipted (sic.) your email and text message with regards to your fill on your block. I would like it noted that WE HAVE NOT MISINTERPRETED your engineering. CBC has been in contact with your engineer today in regards to your latest email and has no problem with works we have carried out your engineering does not state 300 mm of fill to be used it actually takes approximately 300 mm of fill which then can be a decision made by the builder as to the lift out of the ground with reference to falls we need to comply with QBCC.
Your plans at no stage have an RL point to work off.
Heinrich, I think at this point you need to have your engineer attend your site as soon as possible with yourself and CBC in attendance to have the matter resolved. As you have engaged the engineer yourself and not CBC then I would ask yourself to organise his meeting and send CBC a meeting request.
We hope you can organise his meeting as soon as possible as this whole situation is causing delays in which at this point I would think both parties are not happy with.
- Mr Mulder sent a long argumentative email the following day and advised that he was only prepared to meet at the site if DRF paid the engineer’s fee to do so. Ultimately, he ended the email as follows:
IN SUMMARY: You should decide whether we need a site inspection or whether the Engineer should just certify that there are “NO PROBLEM” with the works. Please let me know which it is going to be.
- Further correspondence ensued. Mr Mulder accused DRF of misinterpreting the Engineer’s comments. Further lengthy emails followed. DRF assured Mr Mulder there was no problem with the fill and that their meeting with the Engineer had confirmed this. They suggested that he visit the site with the Engineer. Mr Mulder was only prepared to do so if DRF paid the Engineer’s fee to do so.
- On 7 April 2017, to satisfy Mr Mulder, DRF requested a soil test of the site. That was provided the same day. The site classification remained ‘S’. the results were passed on to Mr Wegner the Engineer. He replied to Mr Mulder that ‘Everything was fine, no issues with compaction, still an S site.’ Mr Mulder was not happy with this response and required that he approve what DRF had done requesting a ‘yes’ or ‘no’ answer. Mr Wegner responded ‘yes’. That was not sufficient for Mr Mulder and a further detailed email followed. He thought the Engineer should issue revised drawings or specifications to confirm officially his professional engineering acceptance of work that was done on site. Mr Wegner replied that no changes were needed as the fill was as per drawings.
- Mr Mulder was still not satisfied and continued to demand of DRF that they now soil test the fill for bearing capacity for the slab.
- Mr Robinson replied by email as follows:
DRF has now got a second independent soil test and you are still not happy with the answers you are getting.
As the Representative of DRF I am now being pushed into a position by yourself by way of delay. As part of the building contract 11.2 states that the owner is not to interfere or hinder progress at any stage. DRF has complied with your request for compaction and soil tests in regard to the fill. Additionally, Holmes McCloud has approved all the work done by DRF thus far.
- Mr Mulder replied, inter alia:
So, based on the Engineer's statement, there is no reason to stop the works. I'm definitely not preventing you from continuing, and neither can my email be interpreted as instructing you to proceed, or preventing you from proceeding - All I ask is that you proceed as per the contract - nothing else.
NB: Appreciated if you can please advise as to whether you are going to reconsider or not and continue with the work.
- DRF replied that they would continue.
- Mr Allman and Mr Mulder met on 20 April 2017. Following that meeting Mr Mulder sent the following email.
Attached please find attachment detailing critical construction issues and concerns as presented at the meeting.
– Engineer to inspect.
– Bearing test for soil as well as the fill
– Vapour barrier installation and specification
– Vibration of edge beams – VERY NB
– I will most likely want to do 2 inspections w.r.t the programme for next week.
- The attachment comprised our pages of notes entitled CRITICAL CONSTRUCTION ISSUES/CONCERNS.
- Mr Mulder emailed Mr Allman on Sunday 23 April 2017 with a request for inspections before the casting of the concrete and after the casting of the concrete.
- On Monday 24 April 2017 Mr Mulder requested an urgent inspection of the site under Clause 7.4 of the Contract as there had been a reduction in the height of the fill.
- On that day there had followed a series of text messages as follows:
2.17 pm Heinrich: URGENT:- Not Happy. Why are u reducing the levels of the site – not in line with our Contract and not as per Engineer’s specifications????? URGENT meeting needed. DRF most likely in breach of Contract!!!
3.50 pm Jeff: I will call soon.
3.51 pm Heinrich: OK thanks. But please please do call.
6.57 pm Heinrich: Waiting for your call Jeff.
7.25 Jeff: Hi Heinrich. Sorry but I had a crappy day. I will call first thing Wednesday.
7.32 pm Heinrich: Ok But my day was also crappy and tomorrow will also be, as DRF (Robbo) apparently think that they can do whatever they like to do by ignoring the clauses/conditions/legal requirements of the Contrcat. NB Better if we can meet on site to discuss on Wednesday morning. I am available any time from 6.30am. please advise.
7.39pm Jeff: I have a 7.00 am meeting at Burrum Heads on Wednesday. I will call and meet on site once I am finished. I have both the Certifier and the engineer on site to pass prior to pouring the slab. If it doesn’t comply then we will have to change it so it does meet requirements.
8.09 pm Heinrich: At this stage I do not care about what the Certifier or the Engineer thinks or say. A Contract was signed between DRF and us (the owner). This included drawings and specifications which was accepted by DRF as correct and acceptable …
9.16 pm Heinrich: I will try and explain it in simpler manner. Before the Contract is signed …
- There is a further text message on 25 April 2017 at 6.42 pm from Mr Mulder, where he advised he was stressed by the events of the previous day and suggested that the concrete pour be delayed as, in his view, DRF are clearly in breach of contract.
- On 28 April 2017 Mr Mulder sent by email an 8 page illustrated document entitled ‘My record of the confusion which apparently represents my building project’ with attachments. He followed it up with several text messages the same day to Mr Allman to ensure that Mr Allman received the document.
- In the interim the parties had arranged for an inspection on Saturday 29 April 2017 at 6.30 am. At 5.32 am Mr Allman emailed to advise that due to Mr Mulder’s concerns he was going to delay the concrete pour scheduled for 6.30 am on the following Tuesday. Mr Mulder responded at 6.02 am that if the engineer and the Certifier are not concerned then the pour should go ahead. On the other hand, he said if the professionals approve then they can carry the risk and ‘ALSO, if you are sure that you have done the right thing, then you should be confident to proceed with the process’.
- In the same email he asked to be advised when Mr Allman was ready for his inspection. Mr Allman turned up for the meeting but Mr Mulder failed to appear. There was a dispute as to why Mr Mulder did not attend, he maintained that he thought it had been put off. There were some confusing messages from Mr Allman. At 5.32 am on 29 April 2017 he emailed Mr Mulder advising that:
We were scheduled to pour the concrete on Tuesday at 6.30 am. Given your concerns I will delay this until your satisfied we can pour. With the amount of confusion you have stated in your email we need to resolve these prior to any major step in your building.
- Mr Mulder responded to Mr Allman by email dated 29 April 2016 6:02 AM. In the email he stated: –
I just want my house to be built as per Plans and Specifications, and in line with the Contract.
NB: the Engineer and Certifier must be happy. If they are not concerned now that they have the full picture, then there is no reason not to proceed with the work, but it is up to you. The sooner you know that they are happy, the sooner you can proceed, as I am not going to stop you on the project at any time
NB: I would once again suggest that we meet on site with the Engineer and the Certifier together, as I know from experience that this will be the quickest way to discuss, get answers and agree on things - otherwise will have to write long emails return something waste my time as well as yours. So, please advise as soon as you are then ready for my inspection, with or without the Professionals.
- Mr Mulder then went on to identify other issues he was dissatisfied with.
- Mr Allman attended the site at the arranged time and Mr Mulder did not appear. Mr Allman texted Mr Mulder at 7.01 am on the day advising that they had a meeting at 6.30 am and he had left the site. Unfortunately, he did not stay nor did he phone Mr Mulder. Mr Mulder did not respond to the text message.
- I am satisfied that the failure to attend was a misunderstanding between Mr Mulder and Mr Allman. I expect that by the time relations between the two, already strained, had reached their peak. There were further discussions over the weekend in respect of the non-attendance of Mr Mulder.
- By Monday 1 May 2017 Mr Mulder had changed his mind and sent an Inspection Report with detailed photographs setting out what he considered defects. These are very similar to those contained in the initial QBCC report. The report comprises 25 pages. It is prefaced in bold type as follows:
Please note that I am of the opinion that no certification (Engineer or Certifier) can take place until all the concerns re defects that have been highlighted have ben resolved and/or rectified, all in accordance with legislation, and the Contract Conditions.
NB: Note that you CANNOT LEGALLY POUR THE CONCRETE UNTIL THE CONTRACT CONDITIONS HAS BEEN COMPLIED WITH - ….
- It is alleged to complete this report Mr Mulder entered upon the building site, without the authority of DRF.
- The Certifier had inspected the slab preparation on 28 April 2017 and found that there were very minor works to be carried out which he identified as-
Trimmer bars to the dining/family room external footing
Trim around waste pipe to kitchen
Add some additional bar chairs to fabric
Provide support to the fabric generally where it sags at the edges to maintain accurate cover.
- A further inspection was to be conducted prior to the pour.
- I have set out the correspondence of emails and text messages in some detail to permit a full understanding of the issues that led to the dispute. There were other issues but the issue over the fill and Mr Mulder’s requests for inspections demonstrates his participation, to use a neutral term, leading up to DRF’s decision to terminate the Contract.
- This is not a matter where the veracity of the witnesses is particularly in dispute. Generally, I am satisfied that each gave an honest and frank account of the matter. This is despite some of Mr Mulder’s outbursts in print challenging the honesty and integrity not only of the builders but also the experts and building inspectors. It is clear from his actions that he was concerned that their house was not being built strictly in accordance with the plans and specifications. An erroneous perception on his part. It would appear to have become an obsession that got the better of him and continued to do so not only through the build and its aftermath but also this litigation.
Termination of the Contract
- On 2 May 2017 at 4.53 pm, DRF’s Solicitors Law Essentials emailed the Mulders advising that DRF was terminating the Contract, effective immediately. The reasons were stated to be:
- (a)Mr Mulder’s multiple attendance on the work site without authorisation in breach of clause 7.4 of the contract.
- (b)Mr Mulder’s consistent interference and/or hindrance with the carrying out of the works in breach of clause 11.12 of the Contract.
- As stated earlier, DRF also relies upon its common law right to terminate the Contract.
- The relevant provisions of the Contract are as follows:
CLAUSE 7.4 Owners rights to inspect Works
- (a)On written request by the Owner, the Contractor must give to the Owner, or a person authorised by the Owner:
- (i)reasonable supervised access to designated construction errors at the Site; and
- (ii)a reasonable opportunity to review any part of the Works provided that the Contractor's performance is not obstructed and the Owner or authorised person complies with any reasonable direction by the Contractor in respect of workplace health and safety.
- (b)Access by the Owner, or a person authorised by the Owner, under this clause is to be by prior arrangement with the Contractor must be during usual business hours or other times as agreed.
CLAUSE 11.12 Owner not to interfere with the carrying out of the Works
- (a)The Owner must not obstruct, interfere with or hinder the carrying out of the Works. The Owner must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of Works.
- (b)If the owner or any person authorised by the Owner obstructs, interferes with or hinders carrying out of Works, the Owner must indemnify the Contractor against the consequences of any delay and any additional costs incurred by the Contractor, as a result if the Contractor gives to the Owner of written notice advising of the delay or the additional costs within ten (10) Business Days of the Contractor becoming aware of the obstruction, interference or hindrance.
- (c)The Owner must:
(i) comply with the directions of the Contractor are given for workplace health and safety at the Site;
(ii) not willfully or recklessly interfere with or misuse anything provided for workplace health and safety at the workplace;
(iii) not willfully place a risk to health and safety of any person at workplace:
(iv) not willfully injure oneself; and
(v) only attend the designated construction areas of the Site whilst supervised by the Contractor or the Contractor's Representative.
Law of Repudiation
- Where a party to a contract evinces by his acts or omissions an intention not to be bound by it, the other party is entitled to rescind the contract. In Carr v J A Berriman Pty Ltd, a building case that also did not get past the excavation of the site stage, Fullagar J (with whom the other members of the Court agreed) said:
A reasonable man could hardly draw any other inference than that the building owner does not intend to take the contract seriously, that he is prepared to carry out his part of the contract only if and when it suits him. The intention must be judged from the acts. … The intention evinced here is an intention not to be bound by the contract. When such an intention is shown, the other party is entitled to rescind the contract.
- The law of repudiation of a contract was once again considered in Laurinda Pty Ltd v Capalaba Shopping Centre Pty Ltd  where Deane and Dawson JJ said:
Lord Wright's oft-quoted admonition that "repudiation of a contract is a serious matter, not to be lightly found or inferred" is, no doubt, a wise one. It should not, however, be allowed to cloud the fact that an allegation of repudiation of contract in a civil case does not involve an assertion that the alleged repudiator subjectively intended to repudiate his obligations.
It is not necessary for repudiation of a contract that the repudiator make plain that he will never perform his contractual obligations at all. What Lord Dunedin described in Forslind v. Bechely-Crundall as the assumption of "a shilly-shallying attitude in regard to the contract" and what Lord Shaw of Dunfermline called "procrastination ... persistently practised" can, in some circumstances, reach the stage of repudiation even though accompanied by assurances of ultimate performance at some future time. In that regard, the law was correctly stated by Lord Shaw in the following extract from his judgment in Forslind which is directly in point to the circumstances of the present case:
"If, in short, A, a party to a contract, acts in such a fashion of ignoring or not complying with his obligations under it, B, the other party, is entitled to say: 'My rights under this contract are being completely ignored and my interests may suffer by non-performance by A of his obligations, and that to such a fundamental and essential extent that I declare he is treating me as if no contract existed which bound him.' ... In business over and over again it occurs - as, in my opinion, it occurred in the present case - that procrastination is so persistently practised as to make a most serious inroad into the rights of the other party to a contract. There must be a stage when the person suffering from that is entitled to say: 'This must be brought to an end. My efforts have been unavailing, and I declare that you have broken your contract relations with me.'''
Lord Shaw went on to point out that "the question whether the stage has been reached when procrastination or non-performance" constitutes repudiation is essentially one of fact. That question will, as has been said, only be properly answered in the affirmative when procrastination or non-performance has marked the stage of conveying to a reasonable person, in the situation of the other party, repudiation or disavowal either of the contract as a whole or of a fundamental obligation under it. 
(Some citations omitted)
- Brennan J (as he then was) said:
Repudiation is not ascertained by an inquiry into the subjective state of mind of the party in default; it is to be found in the conduct, whether verbal or other, of the party in default which conveys to the other party the defaulting party's inability to perform the contract or promise or his intention not to perform it or to fulfil it only in a manner substantially inconsistent with his obligations and not in any other way.
- In Koompahtoo Council v Sanpine Pty Ltd Gleeson CJ, Gummow, Heydon and Crennan JJ said in relation to the law of repudiation:
The term repudiation is used to different sense. First, may refer to conduct which evinces an unwillingness or an inability to render substantial performance of the contract. This is sometimes described as conduct of a party which event is an intention no longer to be bound by the contract or to fulfil only in a manner substantially inconsistent with the party's obligations. It may be termed renunciation. The test is whether the conduct of one party of such tests can go to a reasonable person, in the situation of the other party, renunciation of the contract as a whole or of a fundamental obligation under it… Secondly, it may refer to any breach of contract which justifies termination by the other party.
There may be cases where a failure to perform, even if not in breach of an essential term… Manifests unwillingness or inability to perform in such circumstances that the other party is entitled to conclude that the contract will not be performed substantially according to its requirements. This overlapping between renunciation and failure of performance may appear conceptually untidy, but unwillingness or inability to perform a contract often is manifested most clearly by the conduct of a party when the time for performance arrives. In contractual renunciation, actions may speak louder than words.
- A further issue is whether DRF is confined to the notices given in respect of breaches of clauses 7.4 and 11.12 of the Contract or whether it can rely upon any other basis at common law to rescind the contract. DRF refers to a recent decision of Centreplex Pty Ltd v Noah’s Rosehill Waters Pty Ltd where Le Miere J outlined the legal principles concerning the right to terminate a contract.
Where a promisee elects to terminate the contract, what matters is whether the promisee is entitled to do so, not the basis stated by the promisee for doing so. Termination of a contract may be justified by reference to any ground that was valid at the time of termination, even though it was not relied on at the time.
- Similar statements can be found in Freedom Homes Pty Ltd v Botros & Anor (2000) 2 Qd R 377 at  McPherson JA said:
As the tribunal member correctly observed, termination of a contract can as a matter of law later be justified on any sufficient ground available to a party claiming to terminate a contract even if that specific ground was not relied on at the time of termination.
- Moynihan J agreed and said at  of his reasons:
It is true that the ground found to justify the builder's termination was not that relied on at the time and that the member found that the ground which had been relied on was not sustainable. There is however clear authority that the termination of the contract can be justified on any sufficient ground available even if that specific ground was not relied on at the time of termination: Shepherd v Felt & Textiles of Australia Ltd, Minion v. Graystone Pty Ltd
Did Mr Mulder by his conduct repudiate the Contract?
- I set out in some detail the communications that passed between Mr Mulder, DRF and to a lesser extent Mr Wegner and Mr Eaves. Irrespective of the advice he received from DRF, a builder experienced in building homes in the area, Mr Wegner the Engineer and Mr Eaves the Certifier both experts in their field, Mr Mulder chose to rely on his own interpretation of the plans and specifications and his own opinions following a perusal and study of Australian building laws and relevant Australian Standards. He relied upon his expertise as an architect in South Africa to disagree with Mr Wegner and Mr Eaves on nearly all issues. He would tolerate little or no departure from those plans, specifications and/or standards.
- During the course of theses communications, he gave conflicting instructions to DFR. Many instances are detailed above. They proceeded from Mr Mulder saying the pour could proceed if the experts agreed to then saying it could not. He regularly interfered in areas he should have left with the builders and it is not difficult to understand that this interference became intolerable and a great waste of time for DFR. This was Mr Mulder’s only project but DRF had other clients to attend to.
- The above description of Mr Mulder’s conduct is only one instance of what has been described by Lord Wright as a ‘shilly-shallying attitude in regard to the contract’. However, his conduct amounted to more than indecisive behaviour. Mr Mulder wanted to impose his opinion on, not only how DFR was to carry out its duties but also on how the engineer and certifier were to perform their respective functions. It was conduct that would reasonably be calculated to have an adverse effect on a reasonable person in the position of DRF.
- I have little difficulty in finding that by his conduct Mr Mulder had repudiated the Contract. The effect of Mr Mulder’s conduct viewed objectively would have caused any reasonable person to have reached a similar opinion. One must not forget that this Contract had not proceeded past the preparation of the slab stage!
- It is not necessary for me to consider whether breaches of Clause 7.4 and 11.12 gave rise to a right to terminate the Contract. I note the submissions on behalf of DRF that the Commission’s submissions that the termination was pursuant to Clause 7.4 was inaccurate and that the determination was pursuant to DRF’s common law right based on Mr Mulder’s consistent failure to comply with Clauses 7.4 and 11.12.
- I have no doubt that the clauses had been breached. Clause 7.4 on Mr Mulder’s own admission. Clause 11.12 on the basis of the evidence I have set out above. I am satisfied that DRF had strong ground to determine the Contract exercising its common law rights following Mr Mulder’s repudiation of the Contract.
The Mulders purported termination of the Contract
- Mr Mulder attempted to engage the contractual termination provisions in Clause 20 of the Contract. He initiated this process on 17 May 2017. It required him to give the appropriate Notice of Intention to Terminate and a Termination Notice to DRF. In each case it is alleged that the Notices were invalid. It is not necessary to set out all the technical deficiencies of the Notices and the manner in which they were given. I find that the Mr Mulder’s attempts to terminate the Contract after his repudiation of the Contract were of no effect.
- It follows that I confirm the Commission’s decision made on 19 July 2017 to disallow the Mulders’ claim under the Queensland Home Warranty Scheme
- In conclusion I make the following orders:
- (a)The decision of the Commission made on 9 March 2018 not to direct rectification of the building work in terms of the Applicant’s complaint is confirmed;
- (b)The Application for Review of a Decision filed 10 April 2018 in GAR119-18 is dismissed;
- (c)The decision of the Commission made on 27 March 2018 to disallow the Applicant’s claim made 19 July 2017 under the Queensland Home Warranty Scheme is confirmed;
- (d)The Application for Review of a Decision filed 1 May 2017 in GAR145-18 is dismissed;
- (e)The Respondents are to file and serve submissions in relation to costs, if any, by close of business 5 February 2020.
- (f)The Applicants are to file and serve their response in relation to costs, if any, by close of business 19 February 2020.
Transcript 1-124 45
 QCAT 260
Then s 45 of the Domestic Building Contracts Act 2000 (Qld) and now s 23 QBCC Act
Transcript 2-88 25
Transcript 2-88 5-10
Transcript 2-89 20
Transcript 2-91 35
Transcript 2-89 5-10
Queensland Building and Construction Commission Regulations 2003
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 The remainder of the message is not produced as it comprises Mr Mulder’s interpretation of the DRF responsibility under the Contract which it is not necessary to detail further.
 Again, the remainder of the message is not produced as Mr Mulder details what he expects of the DRF.
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 (1953) 89 CLR 327
 (1953) 89 CLR 327, 351 - 352
 (1989) 166 CLR 623
 Ross T. Smyth & Co. Ltd. v. T. D. Bailey, Son & Co. [19401 3 All E.R. 60, at p. 71.
 1922 S.C.(HL) 173 at pp. 191-192.
 (1989) 166 CLR 623 at 657 - 659
 Ibid at 647
 (2007) 233 CLR 115
 Ibid at 135 - 136, 
 Ibid at 136, 
  WASC 252
 Ibid  to . His Honour footnoted the following references Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359; Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245, 262 and 274 - 275.
 (1931) 45 CLR 359
 (1990) 1 Qd R 157
 As Lord Herschell LC stated in Carswell v Collard (1893) 9 App Cas 434 at 438-439 “Of course, the question was not what actually influenced the defender, but what effect the conduct of the pursuer would be reasonably calculated to have upon a reasonable person.” The above passage was approved by Brennan J in Laurinda Pty Ltd v Capalaba Shopping Centre Pty Ltd (1989) 166 CLR 623 at 648.
- Published Case Name:
Mulder v Queensland Building and Construction Commission
- Shortened Case Name:
Mulder v Queensland Building and Construction Commission
 QCAT 395
16 Dec 2019