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  4. Forrest v Abbott Builders (Qld) Pty Ltd [No. 2] - [2022] QCAT 164

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Forrest v Abbott Builders (Qld) Pty Ltd [No. 2][2022] QCAT 164

Forrest v Abbott Builders (Qld) Pty Ltd [No. 2][2022] QCAT 164

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Forrest & Anor v Abbott Builders (Qld) Pty Ltd [No. 2] [2022] QCAT 164

PARTIES:

Phillip forrest

(applicant)

jan forrest

(applicants)

v

aBbott builders (QLD) Pty Ltd

(respondent)

APPLICATION NO/S:

BDL280-19

MATTER TYPE:

Building matters

DELIVERED ON:

4 May 2022

HEARING DATES:

14 December 2021

15 December 2021

16 December 2021

HEARD AT:

Brisbane

DECISION OF:

A/Member Sammon

ORDERS:

  1. The respondent Abbott Builders (Qld) Pty Ltd must pay the applicants the amount of $42,425.50 in respect of their application.
  2. Costs are awarded to the applicants in the amount of $6,535.80.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – contract for construction of a house – claim for liquidated damages for delay in completion – claim by owner against builder for items not constructed in accordance with contract

Building Act 1975 (Qld), s 99

Building Regulation 2006 (Qld), s 31, s 32, s 46

Building Regulation 2021 (Qld), s 73

Queensland Building and Construction Act 1991 (Qld),      s 67AZN, s 77, schedule 1B

Queensland Building and Construction Regulation 2018 (Qld), s 54

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 8(2)(c)   

Lyons v Dreamstarter Pty Ltd [2012] QCATA 071

APPEARANCES &

REPRESENTATION:

Applicants:

Self represented

Respondent:

Mr Wayne Abbott (Director) and Mr R Paterson (employee of respondent)

REASONS FOR DECISION

Introduction

  1. [1]
    The applicants (the Forrests) have filed an application in the Tribunal against the respondent (Abbott) for damages payable under a contract[1] between the parties in which Abbott contracted to build a home for the Forrests.
  2. [2]
    In summary, the claim by the Forrests consists of a claim for liquidated damages for delay in completion of the contract, and secondly for alleged failures by Abbott to carry out work as required by the contract.
  3. [3]
    The contract, dated 5 December 2016 is in evidence before the Tribunal, in exhibit 18, (first statement of Phillip Forrest, dated 26 July 2020, attachment PF1). It is a Housing Industry Association, Queensland Plain Language New Home Construction Contract.[2]

Summary of issues in the Forrests’ claim

  1. [4]
    A summary of the claims made by the Forrests, taken from their written submissions, filed on 6 January 2022, adopting the item numbers and alphabetic identifiers used by the Forests is as follows:
    1. (a)
      Item A - late completion damages;
    2. (b)
      Item 1 - certification fees;
    3. (c)
      Item 2 - RW2 (retaining wall 2);
    4. (d)
      Item 3 - clerestory window;
    5. (e)
      Items 4, 7, 10, 15 and 17;
    6. (f)
      Items 5, 6, 14 and 20;
    7. (g)
      Item 8 - ensuite shower wall;
    8. (h)
      Item 9 - lower-level fridge stud wall;
    9. (i)
      Item 11 - void cladding not painted;
    10. (j)
      Item 12 - termite protection;
    11. (k)
      Item 13 - wardrobe in bedroom 4;
    12. (l)
      Item 19 - internal staircase timber colour.  
  2. [5]
    I will consider each claim individually.

An early problem - difficulties with the site

  1. [6]
    There was an early problem with construction under the contract at the particular site at Ferny Grove. The block is awkward. It faces north, and according to the survey plan[3] included in the contract documents supplied by the Forrests, the block slopes rising from the left to the right if someone was to look at the site from the street in front of the block.
  2. [7]
    This caused problems early in the life of the contract which appear to have permeated several aspects of the construction, and have an effect on some of the claims made by the Forrests which are the subject of this proceeding.
  3. [8]
    Abbott engaged Professional Certification Group (PCG) to carry out certification under the contract. By 14 December 2016, only nine days after the contract was signed, PCG send an information request to Abbott in particular asking for an amended site plan detailing ‘setbacks to all boundaries and existing buildings (if applicable) measured to the Outermost Projection’.
  4. [9]
    The architect’s plans for the house were included in the contract documents supplied by the Forrests. Clause 13.1 of the General Conditions provides that the owner warrants the accuracy of the contract documents supplied by the owner. Clause 13.2 provides that if either party becomes aware of any error, ambiguity or inconsistency in or between the contract documents, that party must, within five working days of becoming aware of any such issue, give the other party written notice detailing the problem.
  5. [10]
    Clause 13.3 then provides that the owner must, within five working days of becoming aware of such a problem, give to the builder such written instructions as necessary to enable the builder to proceed with the works. Clause 13.4 provides that if the owner does not give written instructions as required by clause 13.3 the owner is deemed to have instructed that the builder carry out the works using the order of precedence listed in clause 13.6.
  6. [11]
    Clause 13.5 provides that if compliance with the owner’s instructions involves more or less cost than a reasonable builder would have anticipated on the signing of the contract and the problem is not solely caused by the documents provided by the builder, the owner is deemed to have also asked for a variation for the builder to comply with those instructions, and clause 20[4] applies.
  7. [12]
    The chronology is taken up by the statement of Mr Ron Paterson,[5] the Construction Manager for Abbott, and the project manager for construction of the house for the Forrests in the early stages of the contract. He said that as the Forrests provided all plans and engineering design, they were responsible for all amendments and changes required by the certifier. Abbott then forwarded the information request to the Forrests to provide amended drawings. Mr Paterson says that Mr Phillip Forrest then provided his response confirming amendments to the plans. That part of the chronology is verified by an email exchange between Mr Wayne Abbott, Director of Abbott, and Mr Forrest on 16 December 2016, which is attached to exhibit 23 as attachment 2.
  8. [13]
    Mr Paterson then says that those drawings were forwarded to PCG for processing. He says the final plans were approved for construction and then used as construction drawings for all construction works.
  9. [14]
    Mr Paterson’s statement continues that he had a meeting with Mr Forrest at his then home directly across the road from the new home site, to explain the additional excavation works, as the cut into the block to accommodate the new home ‘did not match the plan elevations’.  Mr Paterson says that Mr Forrest then decided to arrange his own surveyor to provide completed heights in order to clarify the elevations for the building. Mr Forrest advised that the pad of the house was to be installed 500mm lower than the contract document had provided, meaning that all works were 500mm lower than as originally planned.
  10. [15]
    Mr Paterson says that a checking of the Brisbane City Council amended drawing which Mr Forrest provided revealed that his architects had incorrectly provided to    Mr Forrest, drawings which look identical but had the finished heights altered by 500mm. Abbott provided the drawing to the certifier which were approved and returned for construction to take place. Mr Paterson says that the lowering of the finished pad, required additional material to be removed from the site and higher and wider retaining walls to be installed. The change in the cut height also meant that the start and finish points in the retaining walls moved slightly due to the gradient on the block.
  11. [16]
    The chronology of events given by Mr Paterson about the change in height of the house was not challenged by the Forrests in their written statements admitted into evidence in the hearing. In oral evidence to the Tribunal, Ms Jan Forrest generally agreed with the problem on the difference of height of the pad of the building as explained by Mr Paterson. She added that the footprint of the building did not change due to the change of height of the building on the site by 500mm, only the location on the site. She said that a precise location was fixed in the plan sent by the Forrests to Abbott.
  12. [17]
    When he was cross-examined at the hearing, Mr Forrest also agreed that there was a difference in the height of the building described by the original plans due to the change in height for the pad for the house. He agreed that the end result was that the house was 500mm lower than as had been described in the original plans. I find as a fact that due to an error in the contract documents originally supplied by the Forests to Abbott, the height of the house had to change in that the pad of the house had to be lowered by 500mm. This caused ongoing problems with performance of the contract, which I will describe below.

Item A - late completion damages

The basis for the claim under the contract

  1. [18]
    The Forrests’ claim for this item[6] is for an amount of $12,000 together with interest to the first day of the hearing, 14 December 2021 ($2,006.40), a total of $14,006.40.
  2. [19]
    The basis of the claim is that handover of the home from Abbott to the Forrests as owners occurred 240 days past the contract completion date/expiration of the building period under the contract.[7] The rate is at $50 per day under Schedule 1 to the contract.
  3. [20]
    The relevant clause of the General Conditions of the contract which provides for late payment completion damages to the Forrest is clause 32 which is as follows:[8]

LATE COMPLETION DAMAGES

  1. 32.1If the works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified in item 15 for each day after the end of the building period to and including the earlier of:
  1. (a)
    the date of practical completion;
  2. (b)
    the date this contract is ended; and
  3. (c)
    the date that the owner takes control of, possession of, or use of the site or any part of the site.
  1. 32.2The owner may set-off or deduct its claim for liquidated damages under clause 32.1 from the final claim payment to the builder.
  1. [21]
    All references in the General Conditions of the contract to ‘items’ are to the items contained in Schedule 1 (Particulars of contract). Item 17 provides that the works must reach practical completion within 270 days after commencement, subject to clause 17. In summary, clause 17 entitles Abbott as the ‘builder' to a reasonable extension of time if the works are delayed by a ‘claimable delay’ in clause 17.2. Item 15 specifies the late completion damages for the purposes of clause 32 to be $50 per day. 
  2. [22]
    The Forrest’s basis for calculation of the 240 day period for the delay claim is based on the date that Abbott claimed as the date of reaching practical completion, of 20 June 2018, as 240 days past the ‘contract completion date’.[9] That expression in quotation marks is not a defined term in the contract. In the context, and given the interchangeable description used by the Forrests as described in paragraph [19] of these reasons, it is likely that they mean the end of the ‘building period’ which is a defined term in the contract. It is defined in the interpretation clause (clause 38) of the General Conditions as the number of days stated in item 13, as extended by clause 17.  The number of days stated in clause 17 is 270 days after ‘commencement’, subject to clause 17.  
  3. [23]
    ‘Commencement’ is defined in clause 38 of the General Conditions relevantly to mean when the builder commences physical construction on the ‘site’ of the footing, slab or drainage system. On the other hand, clause 2 of the General Conditions describes when that ‘commencement’ is to take place, which is on or before the ‘anticipated start date’ stated in item 14 or within 20 working days from the date that a number of listed possible events could occur, relevantly in paragraph (e), when the owner gives the builder possession of the site under clause 10, whichever is the later of the events that occurs.  
  4. [24]
    The Forrests contend that Abbott did not issue a ‘commencement notice’ as required by clause 2 of the General Conditions.[10] However, Abbott as builder was not automatically required to do so under clause 2, but may (that is, as a discretionary matter) have issued a notice to the Forrests as owners if none of the required circumstances to begin ‘commencement’ under clause 2.1 are satisfied by the anticipated start date. However, given that the Forrests are prepared to accept:
    1. (a)
      the ‘final handover date’ as nominated by Abbott of 24 October 2017 as the end of the ‘building period’;[11] and
    2. (b)
      the date of practical completion as 20 June 2018, for the basis of the delay claim, nothing turns on this. 
  1. [25]
    The email dated 26 May 2017 from Abbott to the Forrests also adds additional time to the handover date of 24 October 2017 for ‘variation extras’ at five days per variation as a total of 15 days extra time, resulting in what is described as a ‘Final handover date’ of 14 November 2017. In exhibit 18, paragraph 8, Mr Forrest says that there were no agreed variations that added additional days for delays. In cross-examination, Mr Paterson admitted that Abbott did not apply for an extension of time in which to reach practical completion. He explained that Abbott had week-to-week meetings with Mr Forrest, to explain progress on the contract.
  2. [26]
    There is some contention, in the case presented by the Forrests, that practical completion was indeed achieved by 20 June 2018, being the date claimed by Abbott as the date of practical completion. However, given that the Forrest’s delay claim is based on the house reaching practical completion on 20 June 2018, it is not necessary for me to determine that practical completion indeed occurred, as defined under the contract, on that date for the purposes of calculating the period for which the delay claim is made. A date for practical completion of the contract as relied on by the Forrests is substantiated by a certificate on practical completion signed on behalf of each party on 20 June 2018 which is attachment PF9 to exhibit 18. 
  3. [27]
    The Forrests submit that Abbott did not seek any extension of time under the procedures required in clause 17, which requires Abbott as builder to give a notice for an extension of time to the Forrests. That factual matter was not contested by Abbott in the hearing or in its submissions.
  4. [28]
    In its case, Abbott offer a number of reasons why the delay occurred between the contract completion date and practical completion. They put these reasons forward as reasons why there was a ‘claimable delay’ as that term is defined in clause 17.2 of the General Conditions. However, my interpretation of clause 17 is that if a builder wants to claim that a ‘claimable delay’ entitles the builder to an extension of time for the building period, then the builder is to give a written notice of the extension of time to the owner.[12] My interpretation that the requirement to give a notice is a mandatory aspect of obtaining an extension to the completion date is because the written notice is the trigger to the procedures set out in clause 17 that allow the owner to either accept the written notice or to contest it, which can lead to a dispute over the extension of time sought, triggering the dispute resolution clause in clause 37 of the General Conditions.  Failure to give a written notice of the extension of time sought is not a mere ‘paperwork error’: it is an important trigger to the respective rights of each party about an extension of time for completion of the contract.

The position of the parties on the claim for delay payment

  1. [29]
    In its response document[13] Abbot relies on clause 25.7 of the contract to resist the delay claim. That clause is as follows:

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

  1. (a)
    fraud, dishonesty or fraudulent concealment relating to the works;
  2. (b)
    the builder’s liability under clause 27.1;[14] and
  3. (c)
    the builder's liability under a statutory warranty set out in clause 36.   
  1. [30]
    Clause 25.3 provides that subject to clause 25.4, the owner must, within 5 working days of receiving the final claim, pay the amount of the final claim to the builder. The Forrests do not deny making the final payment for the contract, on 20 June 2018,[15] but submit that Abbott should not be able to rely on clause 25.7 because:
    1. (a)
      Abbott was dishonest in its conduct in requiring the Forrests to make the payment of the final claim before giving possession of the house to the Forrests;
    2. (b)
      In the alternative, clause 25.7 should be declared by the Tribunal to be of no effect under s 77 of the Queensland Building and Construction Act 1991 (Qld) (the QBCC Act).
  2. [31]
    Clause 25 of the contract is headed ‘Practical completion’. That term is defined in clause 38 of the contract to have the same meaning as in Schedule 2 of the contract. That definition is that practical completion:

means the day when the subject work is completed-

  1. (a)
    in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work; and
  2. (b)
    without any defects or omissions, other than minor defects or minor omissions that will not unreasonably affect occupation; and
  3. (c)
    if the building owner claims there are minor defects or minor omissions - the building contractor gives the building owner a defects document for the minor defects or minor omissions.   
  1. [32]
    The provisions of clause 25 which precede clause 25.7 describe the process leading to practical completion. That process works on the basis of the builder's opinion on when practical completion has been achieved. Clause 25.2 provides that when the builder believes the works have been completed, the builder must give the owner a ‘defects document’,[16] and a notice of practical completion stating the builder's opinion of the date of practical completion, and the ‘final claim’.[17]
  2. [33]
    Clause 25. 4 provides that if the owner believes that practical completion has not been reached, the owner must, within five working days of receiving the notice of practical completion, give the builder a written notice stating the owner’s requirements for the works to reach practical completion and the provisions of the contract that relate to each requirement.
  3. [34]
    Clause 25.5 states that the builder must, on receiving the owner’s notice (under clause 25.4) complete those requirements that, in the builder’s opinion, are necessary to reach practical completion.

The Forrests’ contentions of dishonesty

  1. [35]
    There are several aspects to the Forrest's contention on this issue which they say points to dishonesty in Abbott requiring payment of the final claim at practical completion as a condition for handover of possession to the Forrest's.
  2. [36]
    Firstly, the Forrests say that Abbott acted dishonestly in preparing the invoice for the final claim without deducting the late completion claim. The Forrests say that Abbott was well aware of the delay claim at the time that the invoice for the final claim was prepared by Abbott. The evidence that the Forrests rely on includes the contents of Jan Forrest's ‘statement in response’[18] in exhibit 4 that ‘late completion damages were discussed many times with the site supervisor’ who by the relevant time was Karl Bell. In his statement in response (exhibit 19),[19] Phillip Forrest says:

... late damages were discussed on several occasions and that we were left in no doubt that if we did not pay the full amount of the final invoice (without deducting the late fees) we would not achieve handover and obtain the keys. 

  1. [37]
    Mr Bell was not called to give evidence at the hearing by Abbott, and therefore was no available to the Forrests for cross-examination on this point. Nor was a statement filed by him in the proceeding. Similarly, Mr Wayne Abbott, a director of Abbott also did not file a statement or give oral evidence and was therefore also not available to the Forrests for cross examination. I find as a fact that Abbott was aware of a claim by the Forrest for late completion when the invoice for the final claim was prepared by Abbott.
  2. [38]
    Having said that, I do not think that there was any contractual obligation on Abbott to complete an invoice for the final claim recognising any deduction for late completion. In my opinion, under clause 32 of the contract (as set out above), the onus is on the Forests as the owner to formalise any claim for late completion damages. 
  3. [39]
    On the other hand, in the written submissions by Abbott, it submits that:[20]

The HIA contract states upon receiving the practical completion tax invoice any offsets i.e., Damages are to be tabled for offset. This clearly was not done and upon taking possession there cannot be any additional claims with standing items 27.1 and 36 in the general conditions.

  1. [40]
    Clause 32.2 does not require the owner to offset a claim for late completion damages from the final claim: The clause uses the word ‘may’ meaning a discretion to do so on the part of the owner, and does not use the word ‘must’ which would connote a requirement to do so.
  2. [41]
    Secondly, the Forrests submit that Abbott dishonestly required the Forrests to pay the invoice for the final claim in circumstances where Mr Bell would not hand over possession of the house unless the payment in full was made by the Forrests without deduction for the late completion claim.  
  3. [42]
    In their submissions,[21] the Forrests refer to evidence given by Phillip Forrest at the hearing that Abbott had notified the Forrests of six completion dates for the completion of the house and failed to make five. Mr Forrest's evidence was that the fifth date was 19 June 2018, one day prior to actual handover. Mr Forrest testified that he flew back from work in Canberra specifically to attend the handover, and it was cancelled on that day without warning by Abbott.
  4. [43]
    This meant that Jan Forrest had to attend the handover on 20 June 2018 on her own with Mr Bell. Mr Forrest's evidence was that it was made clear that Mr Bell would not hand over the house until Abbott had been sent evidence of the final payment. Only after Mr Bell received a phone call did the handover commence and by that time it was dark. That version of events is corroborated by attachment PF31 to the first statement of Mr Forrest (exhibit 18) which refers to an email from him to Abbott dated 20 June 2018 at 5:35pm, attached to which was a copy of the money transfer for the final payment of $20,000.
  5. [44]
    I find as a fact that Abbott insisted on payment of the invoice for the final claim, without deduction for any late completion claim, as a condition for handover of possession to the house on 20 June 2018. Clause 25.3 of the contract allows the owner five working days from receipt of the final claim to pay it to the builder. By insisting on payment of the final claim in full as a condition of handover, which is not a contractual entitlement in favour of Abbott, Abbott deprived the Forrests of the period of five days to make payment of the final claim and also to avail themselves of the opportunity to set off the claim for liquidated damages for late completion under clause 32.2. That conduct also set up, on the face of it, the reliance by Abbott on clause 25.7. 
  6. [45]
    In those circumstances, I find that the conduct on behalf of Abbott in insisting on full payment of the final claim, without deduction for late completion damages, or even giving the Forrests the opportunity to make a claim of that kind by setoff, as a prerequisite for handover, triggering what would otherwise be application of clause 25.7 was dishonest, relating to completion of the works. In those circumstances, I find that cause 25.7 does not prevent the Forrests from a successful claim under clause 32.
  7. [46]
    The third main point made by the Forrests[22] is that Abbott had acted dishonestly in procuring payment of the final claim, was that Abbott acted dishonestly in claiming that the house had reached practical completion when Abbott knew that:
    1. (a)
      the house was not certified as required; and
    2. (b)
      Abbott had not completed the works in compliance with all statutory requirements.
  8. [47]
    In view of the findings I have made about the second basis upon which the Forrests submit that clause 25.7 is inapplicable because of dishonesty in the way Abbott procured payment of the final client, it is not necessary for me to decide the third point relied on by the Forrests.

Application of s 77 of the QBCC Act

  1. [48]
    Section 77(1) of the QBCC Act allows a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute. Section 77(3)(e) relevantly relied upon by the Forrests allows the Tribunal to exercise the following power:
  1. (e)
    declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice.  
  1. [49]
    In case I am wrong in my conclusion that Abbott was dishonest in its approach to procuring payment of the final claim so as to defeat the Forrests’ claim for late completion liquidated damages, I would in the alternative declare that clause 25.7 is of no effect in defeating the Forrest’s claim for liquidated damages, on the basis that its application to defeat that claim is unjust in the circumstances of this case.
  2. [50]
    My basis for doing so is essentially my findings in deciding that Abbott was dishonest in its approach to procuring payment of the final claim as set out above. I would also add further reasoning on application of s 77(3)(e).     
  3. [51]
    Abbott may argue that the causes of the delay in completing the contract were ‘claimable delays’ as described in clause 17.2, in being due to ‘a cause beyond the builder’s sole control that was not reasonably foreseeable at the time the builder entered into the contract.’ If that is so, then Abbott’s remedy was to give the Forrests a written notice of the extension of time required under clause 17.3 of the contract, which, depending on the Forrests’ response, could lead to an extension of the  ‘building period’.
  4. [52]
    Abbott did not do so. Instead, Abbott sought to take advantage of its conduct in  procuring payment of the final claim, and in doing so seeking to deny the opportunity to the Forrests to make a late payment claim, or offset a late payment claim against payment of the final claim, as the Forrests were otherwise able to do under the contract within five working days under a combination of clause 25.3 and clause 32.2 of the contract. That conduct would have the effect of excusing the failure by Abbott to give written notices of extension of time under clause 17.    
  5. [53]
    Clause 25.7 is clearly to the benefit of a ‘builder’ under this type of contract. It was a contract in the form prepared by the Housing Industry Association. It has the effect, on the view submitted by Abbott, of defeating any claim accrued by the ‘owner’ in connection with the ‘subject matter of the contract' except for the specific exceptions. I think there is some ambiguity in the words of clause 25.7, following the effect of the owner’s payment of a final claim that the payment is:

conclusive evidence of the builder’s satisfaction, and discharge, of the builder's obligations in connection with the subject matter of this contract ...  

  1. [54]
    The clause does not say that the payment of the final claim is conclusive evidence of satisfaction of the builder’s obligations under the contract (subject to the specific listed exceptions), which would cover the builder’s obligation to construct the house, as well as any accrued contractual obligation under the contract.  Instead, the clause uses the words ‘the subject matter of this contract’. What is the ‘subject matter of this contract’? On one view, it may be the construction of the house, and therefore, does not immunise the builder from obligations about liability under the contract for liquidated damages for delay in completion of the contract in the ‘building period’, as something separate from the obligations about construction of the house itself.
  2. [55]
    In my view, there is room for application of the ‘contra proferentum’ rule of interpretation of contracts that if a term of a contract is ambiguous, it should be construed against the party by whom, or in whose interest, it was formulated or included.[23] That would have the effect I have indicated, of the immunisation from further obligations of the builder, for construction of the house itself (subject to the specified exceptions) rather than extending to an accrued liability under the contract, for example, for liquidated damages for late completion. However, in view of my alternative basis for decision, on application of s 77(3)(e) of the QBCC Act, it is not necessary for me to decide this point.    
  3. [56]
    In my view, the reliance by Abbott on clause 25.7 is unjust in the circumstances of this case.
  4. [57]
    I allow the delay claim in the amount claimed by the Forrests, of $12,000.

Claim for interest

  1. [58]
    The Forrests have also claimed interest on this amount to the first date of the hearing, 14 December 2021 in the amount of $2,006.40.
  2. [59]
    Section 77(3)(c) of the QBCC Act gives the Tribunal power to award interest on damages at the rate, and calculated in the way, prescribed under a regulation. Section 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld) allows for award of interest as follows:

54 Interest—Act, s 77

  1. (1)
    For section 77(3)(c) of the Act, interest is payable on the amount of damages awarded—
  1. (a)
    if the parties have entered into a contract—at the rate provided under the contract; or
  2. (b)
    at the rate agreed between the parties; or
  3. (c)
    otherwise—at the rate of 10%.
  1. (2)
    The interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid.
  1. [60]
    The contract does contain an interest rate for default interest for late payments by an owner to the builder, under clause 33.1 read with item 8 of Schedule 1, as a default rate of 18% per year. There is no rate for default interest payable on claims by an owner against the builder.[24] In that case, the applicable interest rate is 10% per year.
  2. [61]
    The Forrests have supported their claim for interest with a calculation attached to their written submissions using the Queensland Courts interest calculator, from 20 June 2018 to 14 December 2021, but at the rate of 4% per year, apparently based on the Reserve Bank of Australia rate. At the correct interest rate of 10%, interest for that period amounts to $4,185.21. I award that amount of interest to the Forrests.

Item 1 - certification fees

  1. [62]
    The basis of the Forrests’ claim on this item is a refund for building certification services they paid to Abbott and which they claim Abbott did not provide. The claim amounts to $1,990.80. Abbott refutes this claim and submits that it has done all it was required to do under the contract in terms of certification.
  2. [63]
    Evidence filed by the Forrests proves that Abbott invoiced for obtaining the certification and the invoice was paid by the Forrests[25] in July 2016, which was before the contract was signed, on 5 December 2016.
  3. [64]
    The obligations of the parties under the contract start with clause 2.3 of the General Conditions which provides that the party named in item 10 of Schedule 1is responsible for obtaining:

any planning approval, building permits and/or statutory consent that is required for the contract works. The party obtaining such approvals must take all reasonable steps to do so by the anticipated start date.

  1. [65]
    Item 10 of Schedule 1 provides as follows:

The person to obtain and pay for all planning and building approvals, consent or approval required by a statutory or other authority (clause 2).

Building certification by builder.

  1. [66]
    There is common ground between the parties that Abbott engaged an organisation called Professional Certification Group (PCG) to provide those services. There is also common ground that PCG provided a form 21certificate, and that that the form 21 was defective. The form 21 certificate is in in evidence before the Tribunal as attachment PF73 to the second statement by Mr Forrest (exhibit 19) and also separately as a stand-alone exhibit, exhibit 7. 
  2. [67]
    An explanation of the certificates concerned will assist understanding of this part of these reasons. The purpose of form 21 ‘Final Inspection Certificate' is to implement  s 99 of the Building Act 1975 (Qld).  That section provides that if at the inspection by a building certifier at the final stage of the building work, the certifier is satisfied that the work complies with the building development approval, the certifier must issue a final inspection certificate to the building owner.  
  3. [68]
    The explanatory information contained on the appendix to the form[26] states that the building certifier is required to attach to form 21, all relevant inspection documentation that has been relied on by the certifier to certify the building work complies with the building development approval. ‘Inspection documentation’ is defined in the explanatory information to mean a list of documents, relevantly including a compliance certificate, a certificate about an inspection under the Building Act and a certificate relating to the inspection of the building work relied on by the certifier.
  4. [69]
    Currently, form 15 is headed ‘Compliance certificate for building design or specification’. Currently, it implements s 73 of the Building Regulation 2021 (Qld), which requires that a ‘competent person’ (design-specification) may, for an aspect of building work, give a building certifier a design-specification certificate that states that a building design or specification will, if installed or carried out under the certificate, comply with the ‘building assessment provisions’. Of course, the regulation under the Building Act in force on 20 June 2018 when the form 21 was issued[27] was the Building Regulation 2006 (Qld). However, s 46 of the Building Regulation 2006 is to the same effect as s 73 of the 2021 regulation.   
  5. [70]
    Form 16, headed ‘Inspection certificate’ currently implements s 53 of the Building Regulation 2021.  Section 32 of the Building Regulation 2006, was to the same effect, which provided that an ‘inspecting person’ must give the builder for the work a certificate of inspection for the stage of the work concerned, but only if the inspecting person had complied with s 31 of the Building Regulation 2006.  Section 31 provided  that if an inspecting person inspects a stage of ‘assessable building work’, the inspecting person must inspect the work to ensure the person is satisfied all relevant aspects of the stage under the building development approval have been completed and comply with the approval.  
  6. [71]
    In Mr Forrest’s first statement[28] (exhibit 18), he says that on 22 October 2018, he received a copy of an email from the PCG certifier to Abbott asking Abbott for the forms 15 and 16 for decks (as components of the house). Mr Forrest goes on to say that he has never received those forms.
  7. [72]
    He says[29] that in November 2018, the Forrests filed a complaint to the Queensland Building and Construction Commission (QBCC) against the certifier about his issuing of the form 21 without being accompanied by the required other forms. The outcome was that on 12 February 2020, the QBCC found that the certifier had engaged in unsatisfactory conduct in that he issued the form 21 despite there not being:
    1. (a)
      a form 16 for deck 1;
    2. (b)
      a form 16 for deck 2;
    3. (c)
      a form 15 or form 16 for deck 3;
    4. (d)
      a termite certificate;
    5. (e)
      a form 15 or form 16 for a sandstone boulder wall.
  8. [73]
    Mr Forrest attached the QBCC report to his statement.[30] It confirms failure of the certifier to obtain the forms and certificates required for completion of the form 21.[31] I adopt the reasoning and findings of the QBCC that the relevant forms and certificate was not obtained by the certifier in issuing the form 21. 
  9. [74]
    In their submissions, the Forrests say that four forms are still outstanding and that Abbott has never provided the four certificates for the decks, consisting of a form 15 and form 16 for the rear deck, a form 16 for the upper front deck and a form 16 for the lower front deck.[32]
  10. [75]
    For its part, Abbott submits that it has provided all certificates required under the contract excluding the engineering design and certification that was to be provided by the Forrests’ consulting engineer. The submissions continue that the Forrests  were claiming missing certificates ‘not works not certified’ and all works have been certified excluding the engineer’s form 16.[33]
  11. [76]
    To be sure, the contract documents for the contract include the ‘engineering design drawing F15011’. Schedule 4 lists items excluded from the contract pursuant to clause 22 of the General Conditions, for which those items are excluded from the contract works.  Included in Schedule 4 is:

No allowance for drawings, engineers inspections. All items above are at owner’s expense. 

  1. [77]
    It seems clear that the missing form 16s were to be provided by the engineer, who was originally engaged by the Forrests, and who prepared the engineering design included in the 'contract documents', Mr Lachlan McLean. Mr Paterson says in exhibit 23 that Abbott finally received advice from Mr McLean that he required approximately $1,800 to document and approve the changes made to the decking. It seems clear that this amount was not paid to Mr McLean by either party, and he therefore did not conduct an inspection and the form 16s not provided by him.
  2. [78]
    There is therefore something of a conflict in the requirements of the contract between the requirement on Abbott as builder to provide certification, and that the contract makes no allowance for engineer’s inspections and they are to be at the expense of the Forrests. The sequence of events leading to a certification does depend, for the decks concerned, on an engineer’s inspection taking place first.      
  3. [79]
    Ms Forrest said in her oral evidence that she only found out about the additional cost that Mr McLean would charge for further inspection in approximately November 2018. In her statement in reply[34] (exhibit 4), Ms Forrest refers to attachment 7 to Mr Paterson's statement (exhibit 23) which is an email from Mr Paterson to Mr Abbott dated 22 October 2018. That email refers to a copy of a document for signing off on the front decks and that had been sent to Mr McLean on two previous occasions. The email says that Mr McLean was prolonging the process and advising that new drawings were required with a fee of $1,800. Ms Forrest notes that although the email starts with the words 'Hi Jan’, she was not included as an addressee to that email and that she did not receive it. 
  4. [80]
    However, it is clear that by 22 October 2018, Ms Forrest was aware of Mr McLean's requirements for the engineering certification. On that date, Ms Forrest sent an email[35] to Mr Abbott and Mr Paterson amongst other things, saying that she had contacted Mr McLean as requested on behalf of Abbott, and Mr McLean specified to her what had to be provided and the cost for the additional service. In that same email, Ms Forrest states that it is the responsibility of Abbott to provide the appropriate certifications for the work that was completed by Abbott.
  5. [81]
    There is dispute between the parties about the need for alteration to the rear deck. For its part, Abbott contends that the reason for the change came about because of the difference in the height of the house as designed, and as had to be constructed in the end because of the change of the pad located on the block.[36] The Forrests contend in response that the change amounted to a variation to the contract that did not follow the correct procedure for variations under the contract.
  6. [82]
    Abbott does not contend that a formal variation was prepared for the change to the rear deck, but Mr Paterson says in his statement that the change of position was minor and also that Mr Forrest agreed to the change to the rear deck at a site meeting during construction. Mr Paterson seeks to verify that factual position by referring to attachment 7 to his statement. That is of course the email dated 22 October 2018 from Mr Paterson to Mr Abbott, which although commencing with the words 'Hi Jan’,       Ms Forrest says that she did not receive. However, the email at least verifies Mr Paterson's understanding as of 22 October 2018 that Mr Forrest had agreed to the change to the construction to the deck. Mr Forrest does not refute the fact of that agreement on the site.   
  7. [83]
    The Forrests also submit[37] that one of the outcomes of the alterations that were made to the rear deck from the design to construction included Abbott saying that there would be no additional cost because of those changes, and that extends to being no additional cost for an engineer to provide the form 16 for the rear deck.   
  8. [84]
    The Forrests rely on an email from Mr Paterson to Mr Forrest dated 4 October 2017.[38] Relevantly that says:

Please find attached amended rear patio deck showing the deletion of the Bed 1 Walk way and the reconnection to the living deck ramp. As discussed on site[39] there is no extra charge as we have only reconfigured the existing deck area. Can you please confirm the shape change to the deck.

  1. [85]
    I think that correctly, Mr Paterson's email should be considered in context, which was about the changes that Abbott was going to make to the construction of the deck and that there would be no increased charge by Abbott for the change. I do not think that it can fairly be said that Mr Paterson was representing that there would be no charge of any kind arising out of the change, including the cost of an engineering inspection as excluded from the builder’s obligations under Schedule 4.
  2. [86]
    In the final analysis, I do not consider that it is necessary for me to decide the cause for the change in the rear deck from the construction plans. I do infer from the fact that Abbott considered that it had to change from the construction plan was due to the change in height of the pad. I consider that it is unlikely that a builder would depart from the plan for the construction unless there was a good reason to do so. Whatever the practical cause for the change, there was a need for an engineer to inspect the work and issue a form 16 certificate. 
  3. [87]
    Clearly, Abbott was responsible for certification for the works. However, a prerequisite is that any necessary drawings and engineer’s inspections were required for the form 16 for the decks. For that, there is a specific exclusion for drawings and engineer’s inspections which are to be at the owner's expense because of the exclusions in Schedule 4. The Forrests were not prepared to pay for the further inspections by Mr McLean, as a prerequisite for Abbott to provide the certification for that part of the work.
  4. [88]
    Between the obligation on Abbott as builder to provide certification under item 10 of Schedule 1, and the exclusion for drawings and engineer’s inspections in schedule 4, neither is higher than the other in the order of precedence contained in the contract in clause 13.6. Those respective obligations are of equal contractual standing. However, in my view, the exclusion for drawings and engineer’s inspections is more specific than the general obligation on the contractor to provide certification. That tends to support my finding that before the builder is required to provide certification relevantly accompanying form 21, it may be necessary for the owner to provide a form 16 as a result of an engineer’s inspection and any further drawings.
  5. [89]
    My finding on this item of the Forrest’s claim is to reject it, because the four missing certificates are the form 15s or form 16s for the decks, and the reason why they were not provided is because an engineer had not inspected the relevant work or had access to further drawings, which were the responsibility of the Forrests to provide under the contract.

Item 2 - retaining wall 2

  1. [90]
    The basis of the Forrests’ claim is that the retaining wall (RW2) as drawn in the contract plans was 3.7m long. Abbott did not construct RW2 as specified in those plans and built it at 1.4m long. The claim is for the cost saving to Abbott for not constructing the remaining 2.3m as calculated by the quantity surveyor engaged by the Forrests, Mr Paul Burgess, amounting to $2,190.46.   
  2. [91]
    The Forrests say that the relevant north face of RW2 does not directly support the house (and therefore does not have that type of structural purpose). They say it is primarily a retaining wall for landscaping purposes and to provide greater access in and around the front stairs and under the office.[40] The Forrests say that Abbott did not consult or notify them about changing the length of RW2 and there is no variation relating to that change.  
  3. [92]
    Abbott does not dispute the facts of the work that it did, in these contentions. It does say[41] that the reason for the change in the length of RW2 was because of the change in height of the building as against the elevation (meaning the natural ground level in relation to the building). However, the designer only changed the height and not the elevation, so the elevation shown in the plans does not give a true representation of what was actually approved in the approved plans.
  4. [93]
    Mr Forrest’s first statement (exhibit 18) records that he drew the issue to Mr Paterson's attention in his email dated 23 July 2017 (attachment PF20 to that statement) which was almost a year before practical completion.   
  5. [94]
    Mr Paterson elaborates on Abbott’s position in his statement (exhibit 23), in paragraph 11 on page 4. There he says that a drop in the designated height for the slab moves the junction of the slab (with the surrounding ground) which is unavoidable. I agree with that proposition.  
  6. [95]
    He illustrates this in attachments 8 and 9 to his statement. Attachment 8 is the northern elevation of the house prepared by the Forrests’ architect, with a line drawn on it by Mr Paterson indicating how the slab level of the house moved down 500mm. Attachment 9 is a floor plan (bird’s eye or aerial view) of the 'granny flat' level of the house drawn by the Forrests’ architect. Mr Paterson has drawn a 'new point' line to illustrate where lowering of the house, and also matched with it, RW2 would reach a lower contour drawn on the floor plan. It appears that the purpose of this is to show that the retaining wall was relocated to meet the lower contour, meaning that the retaining wall need not be the full length as designed, because the shorter length will marry up with the ground reached at the lower contour. During Mr Paterson's cross- examination of Mr Forrest, Mr Paterson described that as the 'break point' where the ground level intersects with the level of the pad. 
  7. [96]
    However, that presumes rather than understands the purpose RW2 was intended to achieve. Abbott would have gained that understanding if it had submitted a variation document to the Forrests under clause 20 of the contract.
  8. [97]
    It must have been possible for the retaining wall to be built to the full design length, since the Forrests say they incurred considerable cost constructing block walls to retain ground that otherwise would have been removed during construction or retained by RW2.[42]
  9. [98]
    I propose to allow the claim made by the Forrests for the difference between what the contract required, which was a length of 3.7m compared to what was built which was 1.4m. Ms Forrest gave evidence at the hearing that while the contract documents did not provide a specific dimension for the length of RW2, she arrived at the length contracted for by means of scaling the length from the plans. I accept that as a valid method of calculating the length contracted for. 
  10. [99]
    The quantity surveyor who gave evidence for the Forrests, Mr Burgess, calculated an amount of $2,190.96 for the shortfall of RW2.[43] In his comments on this item,             Mr Burgess records that the owner instructed him to allow for the costs of RW2 only and not any costs relating to redesign of landscaping, or support to the upper level driveway including additional landscape walls. That appears to me to be an appropriate basis to calculate the shortfall. I will allow this amount as part of the claim by the Forrests.

Item 3 - clerestory window

  1. [100]
    The Forrests’ claim for this item is that the contract documents specified installation of a motorised clerestory window in the main bathroom, but Abbott did not supply and install a motorised window.[44] 
  2. [101]
    The Forrests’ claim for damages is for the cost estimate of removing the existing window and supply and installation of a motorised window in accordance with the contract documents. Mr Burgess’ estimate for this item in exhibit 1 is $3,228.47.
  3. [102]
    During the hearing, Abbott agreed that it did not supply and install the motorised window and admitted liability for this item. Abbott also agreed to the cost estimated by Mr Burgess. I therefore allow this item of the Forrest's claim in the amount of $3,228.47.

Items 4, 7, 10, 15 and 17

  1. [103]
    This aspect of the Forrests’ claim is put on the basis that Abbott was, under the contract, obliged to supply and install the following items, but did not:
    1. (a)
      Item 4 - external tap;
    2. (b)
      Item 7 - exhaust fans;
    3. (c)
      Item 10 - metal toe flashing;
    4. (d)
      Item 15 - washing machine platform;
    5. (e)
      Item 17 - security bolts.
  2. [104]
    The Forrests’ claim is for the amount calculated by Mr Burgess needed to put the Forrests in the position they would have been, had Abbott provided those items.

Item 4 - external tap

  1. [105]
    The claim made for this item is for $561.44. In their written submissions, the Forrests say that during the hearing, Abbott agreed that it did not supply those items.[45] That is not so, at least concerning the external tap. Instead, the evidence which emerged at the hearing was that the tap was installed, but in what the Forrests said was the wrong place. The same point is asserted in the Forrests’ written submissions.[46]
  2. [106]
    There was agreement in the evidence at least that the tap was installed, next to the hot water system. In his statement (exhibit 23), Mr Paterson said that the reason for the tap being placed where it was, again was due to the change in the location of the house on the block. He said that as a result, there was very little access to the rear of the dwelling and Mr Forrest advised to move the hot water system to an alternative position. The plumbing pipes were accordingly moved to that position and the plumber installed the tap relative to the new position of the hot water system. The written submissions by Abbott, state that this location was ‘as detailed on the plan’.[47]
  3. [107]
    The Forrests’ written submissions do not contest the evidence that Mr Forrest agreed to the relocation of the hot water system. However, that is not the same as evidence that Mr Forrest also agreed to the relocation of the rear external tap. The Forrests’ case was that an external tap at the rear was required for the bushfire plan for the house. In those circumstances, I allow the claim of $561.44.

Item 7- exhaust fans

  1. [108]
    It was common ground at the hearing that Abbott did not supply the exhaust fans required by the contract for each of three bathrooms. The only issue, then, is about the quantum of the claim which should be allowed for this item.
  2. [109]
    The original claim made for this item was for $4,971.01 but reduced at the hearing by $1,200, resulting in a final claim for $3,771.01.
  3. [110]
    In his report (exhibit 1) Mr Burgess made an allowance of $499 for each exhaust fan of a specified brand. At the hearing, the Forrests acknowledged that no specific brand had been nominated in the finishing schedule as part of the contract documents.          Mr Paterson said that Abbott could supply an exhaust fan for $100 per fan. Accordingly, the Forests agreed with that amount and the reduction in the claim of the fans were to be fitted.
  4. [111]
    The evidence given on behalf of Abbott for this item is contained in attachment 22 to the statement of Mr Paterson (exhibit 23). That is a pricing from an electrician for $825 plus tax, consisting of three external vents, flexi duct, connections and cable, all to be switched from the existing light switches. Abbott supported that pricing with an email dated 10 May 2021[48] from Mr Jordan Rogers of GRC Quantity Surveyors, who describes himself in that email as a ’Junior Quantity Surveyor’. Mr Paterson asked   Mr Rogers to review a number of quotes supplied to Abbott ‘from our normal contractors and are at normal industry rates’ for several items which were part of the claim made by the Forrests. 
  5. [112]
    Mr Burgess’ report (exhibit 1) contains an itemised and costed breakdown for this item.  He would allow an hour’s labour to cut out the ceiling in each bathroom, three hours for each bathroom to ‘chase out wall’ electrical supply, assuming the most direct route and allowing a combination of plasterboard and tile finishes. He would also allow two hours per bathroom for electrical labour to replace these switches to suit both lighting and exhaust fan, including running cabling, but in addition to that, would allow four hours labour for each bathroom to install the fans and flexi duct in the ceiling void, to the external walls. He would also allow three hours labour for each bathroom to ‘make good ceiling and walls including paint and tile replacement’.
  6. [113]
    There is therefore a conflict in the evidence of what is a fair and reasonable amount for this item.
  7. [114]
    For their part, the Forrests submit[49] that Mr Burgess spent four hours on the site assessing the scope of works (required overall in preparing his report, not confined to the exhaust fans, but other items of work which the Forrests claim was not completed as part of the contract work).
  8. [115]
    The Forrests also submit that Mr Rogers is a ’junior quantity surveyor’ and had not been to the site. The latter fact was confirmed in oral evidence when Mr Paterson was cross-examined. They submit that Mr Rogers’ email[50] only says that he considered the quotes provided by Mr Paterson as fair and reasonable. The Forrests submit that for each of the quotes reviewed by Mr Rogers, the person providing a quote does not indicate that they had any appreciation for the scope of works involved, including the site aspect or the bushfire requirements. Finally, the Forrests note that Mr Rogers was not available for cross-examination
  9. [116]
    Generally, for the reasons submitted by the Forrests, I prefer the evidence of                Mr Burgess over that of Mr Rogers. That does not mean that I should accept the evidence of Mr Burgess in an unquestioning way, where other objective facts or considerations apply. For example, Mr Burgess allowed an amount of $499 for each of the exhaust fans, where the Forrests, quite properly, accepted that no specific exhaust fan had been selected in the specification and a $100 exhaust fan would suffice. That does tend to suggest some extravagance on Mr Burgess’ part, at least in respect of the item concerning the exhaust fans. 
  10. [117]
    In oral evidence, Mr Burgess said he considered all costs in installing the exhaust fans, including that the house was rated for Bushfire Attack Level (BAL) 29, which had an effect on openings to external walls which would be required to install the exhaust fans.
  11. [118]
    In his report, Mr Burgess said he based the rates he used on industry publications ‘Cordell’ and ‘Rawlinsons’, as well as a rate methodology developed in his firm. He said that his preference is to use Cordell. His evidence was that like all publications, it can be faulted, but its extensive circulation, wide publishing base and regularity of issue make a compelling case for its use. I would accept the rates applied by Mr Burgess in his report.
  12. [119]
    On the other hand, I think the hours adopted by Mr Burgess to install the exhaust fans is another matter. He would allow a total of 39 hours labour to install three exhaust fans. He would allow one hour for each bathroom to cut a hole in the ceiling. That seems to me excessive. As well as an allowance to cut out the ceiling and ‘chase out’ the wall in each case, he also would allow a total of six hours labour to replace the switches and a further 12 hours labour to install the fans and duct to the external wall.  
  13. [120]
    Overall, the hours of labour allowed by Mr Burgess do appear to me to be extravagant, perhaps in keeping with his adoption of $500 per exhaust fan when the Forrests accepted that $100 was fair and reasonable.
  14. [121]
    Even allowing for the additional complexity of ensuring the house complies with the BAL rating, I would allow half the hours allocated by Mr Burgess, as being fair and reasonable to install the three ceiling fans. Using the rates allowed by Mr Burgess, I would deduct an amount of $1,463.88 for labour from the original claim made by the Forrests, as well as the deduction conceded by the Forrests of $1,200. I allow a total of $2,307.13 for item 7 of the Forrests’ claim, to install three exhaust fans.

Item 10 – metal toe flashing

  1. [122]
    Abbott agreed[51] with this item of the Forrests’ claim. The amount of the claim is for $1,093.68, which I allow.

Item 15 - washing machine platform

  1. [123]
    As with other items in this category, the Forrests claim that the platform was not provided and installed by Abbott when the contract required it.
  2. [124]
    The Forrests’ claim is based on a specific item for a washing machine platform being included in the contract, as contained in the ‘specification list of inclusions’ which is attachment PF3 to Mr Forrest’s first statement, exhibit 18. Item 28.4 of the specification does indeed require Abbott to install a ‘Washing Machine Platform to mount front loader washing machine’.
  3. [125]
    The evidence given on behalf of Abbott by Mr Paterson amounts to an explanation of why this item was not provided, rather than a response that it was not required to be provided. In cross-examination, Mr Paterson agreed that this item is in the specification, although it is unusual to do so. In her evidence, Ms Forrest said that the design work for the kitchen cabinets was done with Kingswood Cabinets, but was not in the specification for the cabinet work to be done by Kingswood, since the item was an ‘off the shelf’ item, to be supplied by Abbott.
  4. [126]
    In Abbott’s written submissions, Abbott says that the Forrests are relying on a note in the specification, not the final construction drawing. However, the specification is part of the contract documents. I will allow this item.
  5. [127]
    The amount claimed by the Forrests for this item is $98.99, based on Mr Burgess’ report. I allow the amount of $98.99 for this item.

Item 17 - security bolts

  1. [128]
    The Forrests’ claim for this item is for security bolts required by the contract to be fitted to sliding doors, but not provided and installed by Abbott. In cross-examination, Mr Paterson agreed that a total of eight security bolts should have been fitted. The Forrest’s claim is that five security bolts were not provided when they should have been.
  2. [129]
    The substantive dispute about this item is for the cost of providing the five security bolts which were not supplied and installed.
  3. [130]
    Mr Burgess’ report allows a title of $966.34 for this item, consisting of supply of five security bolts at $107.06 each, and six hours labour to install at $71.84 per hour.
  4. [131]
    The evidence given by Mr Paterson at the hearing was that he considered that the cost of making good on this oversight would amount to $75 for the cost of five barrel bolts at $15 each in accordance with a cost supplied by Bunnings Warehouse which is exhibit 15. He would also allow a total of $40 to install the five barrel bolts.
  5. [132]
    The Forrests’ written submission about use of the barrel bolts from Bunnings is that if they were used there would be different keys for the bolts. The specification which is attachment PF3 to Mr Forrest’s first statement (exhibit 18), for the sliding doors as well as containing a reference to ‘bolts for security’, contains no specification of a particular barrel bolt, but does have the requirement that the sliding doors on the top floor be keyed alike. That being the case, individual packs of barrel bolts from Bunnings would be unlikely to meet the specification that the five barrel bolts for the top floor be keyed alike.
  6. [133]
    However, the difference in cost between the $15 variety proposed by Abbott and the cost suggested by Mr Burgess when no specific brand of bolt had been specified, to achieve common keying, seems excessive.  I would allow half the cost of the bolts as adopted by Mr Burgess, at $53.53 each. For five bolts at that cost, I allow $267.65.
  7. [134]
    The discrepancy between the cost of fitting the bolts between Mr Paterson, of $41 for five bolts, and six hours at $71.84 per hour adopted by Mr. Burgess is great. I have difficulty accepting that it would take one hour and 12 minutes to install each barrel bolt as suggested by Mr Burgess. However on the other hand, an estimate of $41 proposed by Mr Paterson is not realistic. That would amount to a little over half an hour to install the five barrel bolts at the rate adopted by Mr Burgess.
  8. [135]
     I will allow half the time suggested by Mr Burgess of three hours, at the rate he suggests, of $71.84 per hour, a total of $215.52. Added to the allowance for the barrel bolts themselves, for this item of the Forrests’ claim, I allow the amount of $493.17.

Items 5, 6, 14 and 20

  1. [136]
    The common factor to these items is that the Forrests claim that the work for the items was contractually required to be provided by Abbott, but was not performed.
  2. [137]
    The item numbers, a short description of them, and the amount claimed by the Forrests are as follows:
    1. (a)
      Item 5 - external power point - $404.16;
    2. (b)
      Item 6 - field gullies (combined with item 18 - storm water pipes) - $610.00;
    3. (c)
      Item 14 - floor safe installation - $250.00;
    4. (d)
      Item 20 - laundry linen cupboard - $2,150.00.

Item 5- external power point

  1. [138]
    The Forrests submit that the external power point was specified to be installed in the specification (attachment PF3 to the first statement of Mr Forrest, exhibit 18), row 40.27. My review of the specification confirms that requirement.
  2. [139]
    The Forrests claim that after the warranty period expired, they had the power point installed by another contractor at a cost of $404.16. They state that they provided the contractor’s invoice/receipt to Mr Burgess who assessed the work and stated in his report that the amount paid to the contractor was reasonable.
  3. [140]
    In his statement (exhibit 23), Mr Paterson said that the external power point could not be completed at the relevant time since no landscaping was completed[52] and was positioned into rock. He said that ‘The point was terminated at the time to be installed at a future time’. The same point is essentially made in the written submissions on behalf of Abbott, that ‘We were not able to install and prewire too, as close as possible to complete at a future time’. This is an admission that the external power point was not installed as required. Even if it was not possible to install the power point when other construction was occurring at that part of the site, it should have been completed during the defects liability period.
  4. [141]
    Mr Burgess verifies the amount for this claim in his report (exhibit 1). I allow the amount claimed of $404.16.

Item 6 - field gullies

  1. [142]
    The Forrests’ claim under this item is that field gullies required to be provided under the contract for drainage of the site were not provided. The claim is made in conjunction with item 18, that a stormwater drainage pipe to service the field gully behind the house workshop ran uphill, instead of draining to the street at the front of the house.[53] That meant that part of the site had to be re-excavated and the drainage pipe relocated to flow to the street, and for field gullies to be installed to connect with the drainage pipes.
  2. [143]
    The evidence by the Forrests was that they first identified the issue to Abbott in November 2017 (some seven months before the date of practical completion) in a ‘House issues tracking sheet’, which is attachment PF25 to Mr Forrest’s first statement (exhibit 18). That document indicates that there was a problem with a field gully in three separate locations for the building, and in the case of the field gully behind the workshop, that there was also a problem with ‘stormwater to street’.
  3. [144]
    Evidence also provided by the Forrests was that the defect of the surface field gullies not being installed, and also at least a potential problem with stormwater outfall, was identified to Abbott in the list of defects provided to Abbott at practical completion on 20 June 2018.[54]
  4. [145]
    The plans and drawings for the house, which were part of the contract, clearly indicate a series of field gullies, to be installed along the western side of the house.[55]
  5. [146]
    Under the contract, the Forrests were responsible for landscaping of the site. The chronology then, is that it appears that in October 2018, the Forrests had arranged for a concreter to pour concrete as part of the landscaping. The concreter told the Forrests that the pipes laid at the rear of the workshop were running uphill. The Forrests immediately notified Abbott that the pipes were therefore defective.
  6. [147]
    Attachment PF35 to the first statement of Mr Forrest (exhibit 18) is an email from   Ms Forrest to Abbott dated Thursday October 25, 2018. She notes that the concreting contractor had found that the drainage pipes installed by the plumber ran uphill and that there was no grate on top of the PVC piping. Ms Forrest informed Abbott that the concreter engaged by the Forrests had been booked for the Saturday, two days away and asked for Abbott’s plumber to rectify the issue.
  7. [148]
    The same email records that Mr Paterson sent an email to Abbott’s plumber asking him to contact Ms Forrest about her email.
  8. [149]
    Mr Paterson’s statement (exhibit 23) says that the problem with the field gullies was again attributable to the incorrect heights in the initial drawings, which meant that field gullies were set in rock. However, he does not rely on any variation to the contract to excavate rock for the field gulley drains. He continues that he contacted the plumber but due to the relevant timeframe, Abbott’s plumber could not attend to alteration of the drainage pipe behind the workshop and that the Forrests therefore arranged for the alteration.
  9. [150]
    In his statement, Mr Paterson refers to attachment 21, which is an email from   Abbott’s plumber to Abbott dated 30 September 2020. In that email, the plumber says that he called Mr Forrest and it was arranged for the plumber to attend on the Saturday morning. He then received a call that the Forrests had attended to adjustment of the pipe and the plumber’s services were not required as the Forrests wished to lay concrete immediately. The plumber says that the gulley grate covers were never installed in ‘raw ground’ as the owner/landscaper set them in position to their finished landscape heights. The plumber’s email nominates a price of $132 for six galley grates.
  10. [151]
    I take the plumber’s email to be an explanation relied on by Mr Paterson that the reason that the gulley grate covers were not installed was that since under the contract, landscaping was the responsibility of the Forrests, the level at which the covers would be installed would depend on the level finally achieved by the landscaping.
  11. [152]
    However, this overlooks three aspects. Firstly, Abbott had a contractual obligation to install field gullies that would work, by following the flow of gravity, in this case to the street, and not against gravity, as in flowing uphill. Secondly, the obligation was not just to install gulley grates, but gulley drains themselves, which would work. Thirdly, Abbott had been on notice at least since November 2017 that the field gulley drains had not been installed. Had they been installed under the contract, and the Forrests wished to alter the height at which the grates would be set, then they would have no claim against Abbott. As it was, the field gullies were not installed and the uphill-flowing drainage pipe needed to be re-laid. 
  12. [153]
    Finally in his statement, Mr Paterson says that the Forrests did not give the Abbott plumber ‘appropriate time to attend’ (which I take to mean essentially the one day notice for the plumber to attend, on either the Friday which was the next day following the Thursday email, or at some time on the Saturday morning before the concreter would attend). I agree that this is too short a time to expect a plumber to attend a site in normal circumstances. However, as the evidence states, Abbott was on notice to carry out the field gulley installation since November 2017.
  13. [154]
    The Forrests put into evidence[56] the cost incurred by them to have the concreter          re-lay the stormwater plumbing to connect the surface pits (gulley drains) to the stormwater system, of $610 plus GST. That invoice was provided to Mr Burgess, who considered that amount to be reasonable.[57] As against that, Abbott refers to the cost of six gulley grate covers totalling $132. However, as I have considered above, the work required to be done for this item was not simply supply of six drain covers, but to install gulley drains (including covers) that would work. I allow the amount of $610 for this item.

Item 14 - floor safe installation

  1. [155]
    The basis for the claim by the Forrests was that Abbott had contracted to install a floor safe (in the concrete slab of the house) but did not. The Forrests were to supply the floor safe itself. It was not contested at the hearing that Abbott did not install the floor safe. The amount of the Forrest’s claim of $250 is based on the amount quoted by Abbott to provide this item of work, contained in a list of ‘Additional inclusions’ dated 3 November 2016.[58]
  2. [156]
    Mr Paterson’s statement (exhibit 23) is that the Forrests did not supply the safe at the time the concreter would have installed it. He said he was on site during the concrete slab pour as was Mr Forrest. Essentially, the position of Abbott is that this part of the contract was frustrated in its performance by the Forrests because they did not supply the safe for installation when required during the pour of the concrete slab.
  3. [157]
    Abbott’s written submissions state that Mr Forrest was on site during the concrete pour and he lived directly across the road. The submissions continue that Mr Forrest was fully aware of the concrete pouring schedule as he was coordinating the engineer for inspection.
  4. [158]
    In Ms Forrest’s statement in reply,[59] she says that the Forrests were unaware of the concrete schedule. She says that in response to a point by Abbott that because they lived in close proximity to the site, they would have been aware of the concrete schedule, but that Abbott had not provided evidence on why that would be the case. I agree that the Forrests simply living across the road from the site is no reason why they would have been aware of the concrete schedule. However, the case put by Abbott goes beyond that, and Mr Paterson’s evidence is that Mr Forrest was on site during the pour. Also, the submissions by Abbott were that Mr Forrest was fully aware of the concrete pouring schedule as he was coordinating the engineer for inspection.
  5. [159]
    In the Forrests’ submissions in reply, they did not respond to the submissions by Abbott in any detail, but instead relied on their earlier written submissions in chief.
  6. [160]
    In all the circumstances, I accept the evidence of Mr Paterson that Mr Forrest was on site for the concrete pour. That is not contested by the Forrests. I accept that at least because of that fact, and to the extent that Mr Forrest was coordinating the engineer, that Mr Forrest would have been sufficiently aware of the concrete pour, so as to provide the safe for installation. I therefore find that performance of this aspect of the contract was frustrated by the non-supply of the safe. I do not allow any amount for this item of the claim.

Item 20 - laundry linen cupboard

  1. [161]
    The basis for the Forrest’s claim is that the contract specified a broom cupboard and a linen cupboard with four shelves in the laundry. They say Abbott put four shelves in the broom cupboard and did not install the linen cupboard as required.
  2. [162]
    Abbott, in its written submissions, conceded that it had omitted this cupboard.
  3. [163]
    The Forrest’s submissions state that they engaged another contractor to install the cupboard to rectify the omission. Their claim is for $2,150, which is the amount paid by the Forrests to install the linen cupboard. They supplied Mr Burgess with the receipt for the work and he has stated in his report that the cost paid was reasonable.
  4. [164]
    In attachment D to his report, Mr Burgess refers to the cupboard not being installed as required, and that the Forrests had the cupboard installed for $2,150 excluding GST. He does not make any specific comment in attachment D that the cost was reasonable, although, in a general sense, in the body of his report, he sets out his opinion that the value for the total rectification cost for the house was reasonable.
  5. [165]
    As the Forrests note in their written submissions in chief, Abbott did not contest the costing for this item. In any event, the amount of $2,150 was what it cost the Forrests to have the cupboard installed as required under the contract. In all the circumstances, the amount appears to be to be fair and reasonable. I allow the claim for this item in the amount of $2,150.

Item 8 - ensuite shower wall

  1. [166]
    The basis for the Forrest’s claim is that they contend the contract documents specify a tiled stud wall in the ensuite shower, not a shower screen with a door that Abbott installed.[60] Their claim for this item, of $3,928.91 is calculated by Mr. Burgess, for the cost of removing the existing shower door and screen and replacing it with a tiled stud wall which they contend was specified in the contract documents.[61]
  2. [167]
    For its part, Abbott contend that the contract documents specify what it installed, and the specification did not call for a stud wall. The issue for determination on this item is what the contract documents specified.
  3. [168]
    Mr Paterson’s statement (exhibit 23) refers to attachment 11 which is the floor plan of the entry level for the house, and is a copy of that document as contained in the contract documents which is attachment PF2 to Mr Forrest’s first statement (exhibit 18). Mr Paterson’s statement was that the ensuite shower wall was not drawn as a solid wall, but was drawn as a lightweight divider screen. In oral evidence at the hearing, Mr Paterson explained that it is industry practice that all solid walls are drawn as a double-sided line but the relevant wall of the ensuite was drawn as a single line, which means that it was not intended to be a double wall.
  4. [169]
    When Mr Burgess, the Quantity Surveyor who gave evidence on behalf of the Forrests was cross-examined on the point, he agreed that two lines drawn on a plan would reflect a stud (two-skinned) wall. He also accepted that the drawing of the ensuite shows only one line.
  5. [170]
    I agree that the relevant plan drawing shows the third wall in the ensuite as only a single line, and not a double line. I find that the single line drawing would not mean a solid stud wall.
  6. [171]
    That is not the end of the matter. The Forrests also rely upon the specification which is attachment PF3 to exhibit 18. In particular, they rely upon clause 21.7 which is the specification for the shower recess wall in the ensuite. That describes the specification as being ‘stud wall, rectified tiles as per Beaumont tile spec’.
  7. [172]
    The order of precedence in the contractual documents, as described in clause 13.6 of the General Conditions of the contract, is that the specification prevails over the plans. This means that the specification in clause 21.7 which describes the requirement for the ensuite shower wall as being a stud wall prevails over the drawing which does not show it as a stud wall. 
  8. [173]
    The Beaumont tile specification is attachment PF7 to exhibit 18. It is the specification for the tiles for the building. There is a line item which does specify tiles for an ensuite wall, although that is ambiguous as to whether it applies to the ensuite walls, which on either party’s view, were required to be stud walls.
  9. [174]
    Attachment 11 to Mr Paterson’s statement circles the number 3 which appears in column (b) of the specification, with the suggestion being that the number refers to the number of stud walls for the shower recess, with the fourth wall to be a glass screen. However, that is to misread the numbers in column (b), as being the number of the things to be delivered as the part of the specification concerned. Reading the rest of the specification, the numbers in column (b) are meant simply to be a numerical identification of items for the particular part of the specification concerned, not the number of the items to be constructed under the specification. 
  10. [175]
    In oral evidence at the hearing, Mr Paterson referred to attachment PF75, to                  Mr Forrest’s second statement (exhibit 19) which is a colour selection document for the house as prepared by Abbott for the construction of the house. Mr Paterson referred to an item adjacent to ‘shower screen glass’ referring to clear glass or obscure glass. However, that item also has following it, the notation in handwriting ‘n/a’ and what appears to me to be a handwritten line intended to be drawn through the item. I take the notation ‘n/a’ to be a reference that clear or obscure glass for a shower screen was ‘not applicable’. That is consistent with the drawings for the ensuite shower wall to be a single thickness level such as a glass shower screen, but was overridden by the specification that the wall be a nib wall.
  11. [176]
    I find that the contract required a solid (stud) wall for the ensuite shower. The evidence demonstrates that the Forrests had raised this issue with Abbott in August and November 2017 prior to practical completion in 2018.
  12. [177]
    The rectification costs for this item were calculated by Mr Burgess[62] in the amount of $3,928.91, by particularising each component of work which he considered was required. His calculations appear to me to be generous, allowing 36 hours labour to carry out the work, including, for example, a total of four hours labour to sheet the stud wall. However, Abbott did not contest the costing calculation for this item of the Forrest’s claim. I allow the amount of $3,928.91 for this item.

Item 9 - lower-level fridge stud wall

  1. [178]
    The basis of the claim by the Forrests for this item is that the side wall of a fridge cavity on the lower level of the house should have been constructed as a stud wall, but Abbott installed a painted 16mm thick panel instead of a stud wall. The Forrest’s claim is for the cost of removing the panel and replacing it with a stud wall, calculated by Mr Burgess in his report to be in the amount of $3,797.95.
  2. [179]
    The written submissions by the parties[63] I think correctly acknowledge that the position by Abbott is that the contract drawings for the lower-level kitchen were incorrect in not showing any provision for a vertical duct for the sewer pipe network to the bathroom above. Abbott contend that the need to install a vertical duct there had the effect of reducing the space available for the fridge in the lower kitchen. Abbott’s position is that since the adjacent door could not be made narrower, because of lack of room, Abbott had to delete the stud wall and instead install the 16mm painted panel.
  3. [180]
    An alternative argument made by Abbott is that the construction drawings do not show a solid wall to be constructed in the fridge space. I will deal with this alternative argument first. The point raises a similar issue as I considered in item 8, which is that double parallel lines means a two skin, or nib wall, but a single line means only a single skin wall, or panel.
  4. [181]
    Mr Paterson’s statement (exhibit 23) at paragraph (18) refers to attachment 17, which is a design drawing for the (dimensioned) lower level prepared by the Forrest’s architect JMA Queensland Pty Ltd dated 12 December 2016 and which bears a stamp as being approved by the Professional Certification Group. Attachment 17 has the hand written notation ‘no solid wall’ and an arrow drawn to the left-hand wall of the fridge space, when looking at the plan as a bird’s eye view. There is also a handwritten notation ‘drain duct installed’ and an arrow pointing to a location on what appears to be a laundry cupboard drawn in the kitchenette for the lower level.[64] That appears to be a reference to the drain duct installed, because of what Abbott submits, which is that the plans did not include a drain duct in that location, but it had to be installed there because of what Abbott says in its first argument on this item of the claim as set out above.
  5. [182]
    There is no direct copy of that drawing which is also included in the design plans for the building in attachment PF2 to Mr Forrest’s first statement (exhibit 18). However, one document which forms part of the contract in PF2 is a drawing for the ‘General arrangement plan: sub + lower level’, drawing number CD-2-01.01. That drawing is consistent with attachment 17 to Mr Paterson’s statement in showing only a single line for the fridge space on the left hand (from a bird’s eye view) side, where the drawing for the cupboard on the right hand side of the fridge space is drawn with two parallel lines which I find to mean a nib wall.
  6. [183]
    However, as with item 8, the Forrests contend that the design drawing is overridden by the specification, pursuant to the order of precedence of the contract documents in accordance with clause 13.6 of the General Conditions of the contract. 
  7. [184]
    The Forrests refer to page 26 of the specification,[65] item 6 described as the ‘Bottom floor fridge wall’. There, the specification is, relevantly, to:

Make fridge side wall a stud wall to match laundry wall at opposite end. … Cabinets overhead to be made by Kingswood Cabinets to match overhead cabinetry in kitchenette. Bulkhead over cabinets to match kitchen.

  1. [185]
    There is some potential for ambiguity in that specification. From a bird’s eye view, on attachment 17 to Mr Paterson’s statement and in drawing CD-2-01.01, from the left there is a fridge wall which stands by itself in the sense that it is not in common with a laundry cupboard wall. Then, moving from the left to the right, from a bird’s eye view, is a common wall between the fridge space and the laundry cupboard wall. This is shown with two parallel lines, meaning it is a nib wall. Again, moving to the right of it on those drawings is the end wall for the laundry cupboard which is not in common with anything else. It too is shown with two parallel lines.
  2. [186]
    On the one hand, the specification could mean, in favour of Abbott, that the reference to a ‘fridge side wall’ means the wall in common with the laundry wall (in other words, the fridge side of the laundry cupboard wall), so that it matches the stand-alone laundry wall at the opposite end of the laundry cupboard. On the other hand, in favour of the Forrests, the expression ‘fridge side wall’ could mean the stand-alone fridge wall, so that it matches the common laundry and fridge wall at the opposite end of the stand-alone wall.
  3. [187]
    Either interpretation is viable as a matter of appearance and design of the laundry cupboard. It would be symmetrical if either end of the laundry cupboard wall was a nib wall, and the fridge space would appear to be simply a separate space, which is what it is. On the other hand, a nib wall for each of the three walls would also have about it the look of uniformity.
  4. [188]
    In the case of ambiguity in the specification, clause 13.6 of the General Conditions of the contract refers to the plans, and if any ambiguity in the plans, then other documents, in the order listed in item 16 of the of Schedule 1 of the contract. Relevantly in order come out they are:
    1. JMA Architects Qld Pty Ltd (construction drawings)
    2. Specification list of inclusions
    3. Joinery Kingswood Cabinets.
  5. [189]
    As I have analysed above, the plans identify that the stand-alone fridge space wall is drawn with a single line, meaning a single skin or panel wall.
  6. [190]
    The Forrests also place reliance on the ‘Joinery Kingswood Cabinet’ within item 16 of Schedule 1 as a contract document. To be sure, those documents are contract documents, but below the plans, in order of precedence, in the case of resolving ambiguity.
  7. [191]
    For the sake of completion, the Forrests refer to the Kingswood Cabinet drawings which are in attachment PF4 to exhibit 18, at pages five and six. The drawings on each of those pages describe the relevant room as ‘kitchen’, and not ‘kitchenette’ which is otherwise used in the contract documents to describe the kitchenette on the lower or ground level. PF4 is careful to distinguish rooms on the lower or ground level from rooms on the upper floor: for example, a drawing describing a room as ‘Ground Floor Bathroom + Ensuite’, compared to a drawing describing a room as ‘Upper Floor Bathroom 2’.
  8. [192]
    The only link from the terms of item 6 of the specification from the kitchenette to the (upper level) kitchen, is that the bulkhead of the kitchenette is to match the bulkhead of the (upper level) kitchen. Page 6 of PF4 shows a drawing of the ‘fridge provision’ again for the ‘kitchen’ rather than the ‘kitchenette’.  The description of the bulkhead on page 6 of PF4 is ‘colour bulkhead’, meaning, in application of item 6 of the specification, no more than that the colour of the bulkhead is to match the colour of the bulkhead in the upstairs kitchen.    
  9. [193]
    The Forrests also refer to part of item 16 of Schedule 1 that lists as ‘Attachment B’, the lower laundry layout, as a contract document. I agree that it is a contract document, but several levels below the contract document which is ‘Joinery Kingswood Cabinets’ which is itself several level levels below the plans in order of precedence. That layout is attachment PF6 to exhibit 18. The Forrests appear to rely upon PF6 since it shows the stand-alone fridge wall to be ‘stud wall painted’. However, clause 13.6 does not allow reliance on a document at that level of precedence, if ambiguity is resolved at the level of the relevant plans. On this item of the Forrest’s claim, it is resolved at the level of the relevant plans.
  10. [194]
    For those reasons, I do not allow this item of the claim.

Item 11 - void cladding not painted

  1. [195]
    The Forrests’ claim for this item is that two fibre cement sheet walls were not painted when Abbott was contractually required to do so. The claim for damages for this item is the cost of preparing and painting the void walls. In exhibit 1, Mr Burgess values this claim as being at $232.08.
  2. [196]
    Paragraph 2.4 of the General Notes contained on PF2 to exhibit 18, being the plans for the building require that:

External walls shall be constructed to comply with Section 7.4 of AS 3959 for BAL-29[66] sites. For additional information relating to the selected cladding, reference shall be made to James Hardie Bushfire construction Manual: construction for bushfire attack BAL 29 (pg 3).

  1. [197]
    The Forrests submit that to achieve BAL 29 Fire Protection under AS 3959, there must be no gaps on external surfaces greater than 3mm.  Attachment PF68 to exhibit 19 shows photographs of the relevant walls which I agree show that the gaps have not been filled.
  2. [198]
    The Forrests rely on exhibit 21 which is a James Hardie technical specification for external cladding products manufactured by it. Clause 2.3. 3 states that ‘James Hardie external cladding must be painted within 90 days of installation’. In its written submissions, Abbott says that ‘Hardies website notes it is recommended to paint; it is not law.’ Abbott give no specific reference to the website content. Certainly, the James Hardie technical specification is not law, but it is the specification directing how its product is to be used.
  3. [199]
    There is no specific clause in the contract that requires Abbott, as builder, to use a product in accordance with the manufacturer’s specification. However, clause 36.1 of the General Conditions relevantly requires that the builder warrants, to the extent required by the QBCC Act, a number of things listed in that clause. One of them, in paragraph (a) requires that all materials supplied by the builder will be ‘having regard to the relevant criteria, suitable for the purpose for which they are used’.
  4. [200]
    The expression ‘relevant criteria’ is not defined in the interpretation clause (38.1) of the contract. However, the term is defined in the QBCC Act which clause 36.1(a) intends to capture. Section 67AZN of the QBCC Act provides that domestic building contracts are regulated under schedule 1B of that Act, and the provisions of that schedule apply to domestic building contracts and to the parties to a contract of that kind are required to comply with that schedule. The contract in this case is a ‘domestic building contract’ within the meaning of that term as defined in ss 3 and 4 of schedule 1B.
  5. [201]
    Section 20(1)(a) of schedule 1B is the warranty that clause 36.1(a) is intended to reflect, although s 20(1)(a) of the QBCC Act schedule 1Bstands as a legal obligation of the parties to the contract in its own right, as a matter of law, independent of what clause 36.1 of the contract might say. Section 20(1)(a) of the QBCC Act schedule 1B is effectively repeated in clause 36.(1) of the contract, except that s 20(6) defines the meaning of ‘relevant criteria’ as including the specifications, instructions or recommendations of the manufacturer of the relevant material. I therefore find that the James Hardy specification was required to be complied with by Abbott.
  6. [202]
    Abbott also responds to this item submitting that the relevant walls cannot be considered to be ‘external walls’, because they are under cover. Attachment 16 to Mr Paterson’s statement (exhibit 23) is drawing number CD-2-01.01, on this document, labelled ‘General arrangement plan: sub + lower level’. There is a handwritten notation on attachment 16 with an arrow pointing to an area on the lower level immediately adjacent to the ‘store’. Abbott’s written submissions contend that the relevant panel is installed between two block walls covered 6 metres from any external walls. 
  7. [203]
    The relevant panel may be under overhead cover, but in my view, it is an external wall as contrasted with an ‘internal wall’ in the living areas of the building. I allow the claim for this item in the amount of $232.08, as calculated by Mr Burgess.

Item 11 - termite protection

  1. [204]
    On this item, the Forrests submit[67] that Abbott installed a physical barrier termite system which has a design life of 50 years. However, the Forrests contend that during construction, Abbott both damaged and removed parts of the physical barrier. Abbott then installed a termite baiting system (called an ‘Exterra’ system, installed by Bittn Pest Control) to rectify the defect created rather than repairing the physical barrier system. The baiting system must be monitored by the termite company to maintain the termite protection insurance and warranty. The Forrests claim is put on the basis of the servicing costs for the first ten years of the baiting system, at the rate of $949 per year, a total of $9,490.
  2. [205]
    Abbott does not contest the proposition that the physical barrier termite system was damaged, and that the Exterra system was installed by Bittn.
  3. [206]
    In contractual terms, Abbott has agreed that it breached the contractual obligation to provide a termite protection system, by damaging the physical barrier. The law of contract recognises that damages are payable on the basis of a comparison between the position that would have been achieved if the contract had been performed as required, and on the other hand, the position that remains after the breach of contract.
  4. [207]
    Mr Forrest’s statement (exhibit 18) commencing at paragraph 29 states that he raised the issue about termite protection with Abbott on 6 July 2018 when he emailed Abbott to advise that the termite report prepared by Bittn at handover stated that the termite protection had been compromised in multiple places. The Bittn inspection report is contained in attachment PF66 to Mr Forrest’s second statement. Mr Paterson responded that Bittn would rectify the item.  Subsequently, on 3 August 2018, Mr Forrest emailed Bittn asking:

Given that we should have had a system that didn’t need maintenance or ongoing cost other than inspections, what is the ongoing cost for the wood and baits?

There is no evidence before me on what, if any, cost there would have been for inspection of the physical barrier system that was to be installed under the contract.

  1. [208]
    Bittn responded in an email dated 10 August 2018, describing the characteristics of the baiting system, and presenting two options for ongoing cost and maintenance. The first option, described as ‘full system renewal’ would cost $949.00 per year. This consists of a complete termite inspection and written report, a monitoring package including inspection and baiting of stations at four week intervals if any termite activity was detected or 12 week intervals without any termite activity, and extension of the Exterra $100,000 termite damage cover (where applicable).
  2. [209]
    Option two was described as the ‘economy system renewal (you monitor)’ at a cost of $395 per year. This option included a complete termite inspection and written report, renewal of the contents of the baiting stations, but monitoring required to be carried out by the Forrests. The option also included cancellation of the extra $100,000 termite damage cover (where applicable). This exchange of emails is contained in attachments PF18 and PF19 to exhibit 18.
  3. [210]
    The Bittn inspection report on handover (attachment PF66) describes an inspection of the premises conducted on 7 June 2018. It reports that the physical termite barrier had been removed, not installed or damaged and these areas may impact on warranty requirements not complying with installed guidelines. The report refers to several areas where the defect had occurred, and may require ‘further termite management options’.[68]
  4. [211]
    The Forrests’ written submissions note that during cross-examination, Mr Paterson agreed that Abbott signed the agreement with Bittn for installation of the Exterra system, and Abbott paid the annual fee of $949.00 for the first year. The Forrests submit that the first time they were notified that the Exterra system had been selected was after the agreement had been signed by Abbott on the Forrests’ behalf.
  5. [212]
    In his statement (exhibit 23), Mr Paterson says that Bittn was engaged to provide termite protection to the construction and install barriers where required:

and as part of their warranty they require to inspect yearly to ensure there is no breaches to and works or evidence of active termites in the area. Due to the High Bal 29 Bushfire rating all lower areas of the dwelling MUST be enclosed and visual inspections are not satisfactory.

  1. [213]
    Mr Paterson refers to attachment 28 to his statement. That is a Warranty Activation Form issued by Bittn. A further copy of the document also became separate exhibit 13. It states that to initiate the Termite Protection System warranty, the recipient must complete the form in full and return it to Bittn within 30 days of taking possession of the new property. The form also states that the product manufacturer of the termite protection system requires the property to be inspected annually by the authorised installer to extend the cover.
  2. [214]
    Attachment PF65 is a ‘Certificate of Subterranean Termite Treatment Report’ prepared by Bittn about the installation of the termite treatment system which it records was performed/completed on 31 October 2018. The report recommends that inspections be carried out at intervals of 12 months. It certifies that the subterranean termite procedures described in it have been carried out in accordance with Australian Standard AS 3660.2.
  3. [215]
    The Forrests have not provided any evidence that there was insurance cover of $100,000 included by Bittn for the physical barrier system. To the extent that the insurance cover for the baiting system was in addition to what would otherwise replicate the protection that would have been offered by the physical barrier system, the insurance cover was something additional to what the contract would have provided, had the breach not occurred. A party in breach of a contract is not required to enhance the position of the innocent party, by providing more than the equivalent of what would have been provided had the contract being performed correctly.
  4. [216]
    Mr Paterson agrees that the baiting system would require annual inspection. I will therefore allow the amount of $395 per year for annual inspection of the baiting system for 10 years, a total of $3,950.

Item 12 - wardrobe in bedroom 4

  1. [217]
    The Forrest’s claim under this item is that a wardrobe to be constructed in bedroom 4 was not constructed in compliance with the relevant specification. They contend that the wardrobe was constructed with two hanging rails instead of three and is the wrong configuration. They claim the amount of $361.75 as calculated by Mr Burgess in his report (exhibit 1).
  2. [218]
    For the requirements of the contract, the Forrests refer to the specification (PF3) attached to Mr Forrest’s first statement (exhibit 18). Item 3 at page 26 describes the wardrobe of bedroom 4 and that the shelving and hanging was to be ‘as per attached drawing’. The drawing the Forrests rely upon is attachment PF6 to exhibit 18, the relevant part of which contains a drawing of a ‘Bed 4 Wardrobe layout’. They submit that the drawing was part of the contract documents listed in schedule 1, item 16. That item includes a number of documents, including the ‘Joinery Kingswood Cabinets’ documents as relevant, I presume, to the wardrobe layout.
  3. [219]
    Drawing PF6 includes the notation ‘Please install a single shelf at approx 1700mm high to blue filled area. Hanging under shelf as illustrated in red’. There are no clear colours of that nature on PF6. However, there is a colour copy of the same drawing attached to the application filed by the Forrests dated 21 January 2020 as attachment 13a. The drawing shows what appear to be three long horizontal shelves, with one of them in red in the middle of the shelves. There are no dimensions approximate or otherwise on the drawing.
  4. [220]
    The drawing shows two tall vertical spaces alongside each other, separated by a tall vertical panel. If the intention of the drawing was to require an additional shelf in this tall space, at a height of 1700mm, the simplest thing to do would have been to draw a line illustrating the shelf and marking the location as approximate only. That was not done. Attachment 13a to the 2020 Application shows long horizontal shelves with a red shelf in the middle in red, as apparently intended to be fitted. The same document, in the ‘tall’ part of the cupboard also shows a horizontal shelf in red. The drawing in PF6 also includes a notation ‘Approximate shape. Not to scale’.
  5. [221]
    The evidence submitted by both parties on this item is unsatisfactory. Unfortunately, given that neither party tendered a photograph of the wardrobe as constructed, it is difficult for me to work out exactly how the Forrests say that the wardrobe as constructed differed from the layout as illustrated in PF6. The Forrests’ submissions say that one hanging rail is lacking, but also, unhelpfully, say it is the ‘wrong configuration’, without describing exactly what is wrong with the configuration as constructed.
  6. [222]
    When Ms Forrest cross-examined Mr Paterson, she asked him about attachment PF25 to Mr Forrest’s first statement. That document is headed ‘Forrest - House Issues Tracking Sheet’. The purpose of it is to demonstrate how defects that the Forrests complained of were identified to Abbott. It does refer, under item 75, to ‘Bed 4 wardrobe layout’ but a column headed ‘description’ is of no help at all in describing the defect, because for the wardrobe, that column is blank, offering no description of the alleged defect.
  7. [223]
    For its part, Abbott responded to the claim, submitting that drawing PF6 is not to scale and has only ‘approximate measurements’. I do not accept that as a valid response to a claim that a wardrobe has not been constructed in accordance with a drawing which sets out the required arrangement of a wardrobe. A drawing and the verbal descriptions should be enough to describe the general arrangement, the structure and look of a wardrobe. The drawing marked ‘not to scale’ means that the precise dimensions of the wardrobe as constructed may not completely replicate the drawing. However, that does not excuse a component of the wardrobe not being constructed. I do infer from the response by Abbott that the drawing in PF6 was not to scale, is an admission that the wardrobe was not constructed as illustrated in PF6, as a matter of the required components.
  8. [224]
    In his statement (exhibit 23), Mr Paterson, on this item of the Forrest’s claim, refers to attachment 20 of his statement. That document is some sketches containing dimensions for a ‘laundry linen’ cupboard. That document is of no assistance in understanding the requirements or actual construction of the bedroom 4 wardrobe.
  9. [225]
    I gain some assistance from Mr Burgess’ report (exhibit 1) about the work required to rectify the wardrobe. He describes this as removing existing shelving and making good to the walls in preparing for repainting. His report then allows for installing a new single shelf at 1700mm and installing a new ‘vertical splitter 600mm wide’.[69] There is no mention there of an additional hanging rail.
  10. [226]
    In the circumstances as I have described above, I accept the evidence of Mr Burgess as identifying the defects to the wardrobe. I accept his evidence as a fair and reasonable estimate of the costs to repair the defect. I therefore allow the amount of $361.75 for this item.

Item 19 - internal staircase

  1. [227]
    The internal staircase is constructed of timber. The Forrests’ claim, for $2,573.55 (as calculated by Mr Burgess) for this item is to sand and stain the timber stairs to match the colour of the timber floor which the staircase serves. 
  2. [228]
    The internal stairs were a provisional sum item in the contract, for $9,000 (Schedule 3 of the contract). No species of timber was described in the provisional sum. However, the specification (PF3), page 11, item 16 for the stairs does describe the timber for both the riser and the treads of the stairs to be hardwood. The Forrests say that Abbott asked the Forrests what timber they wanted the stairs made from. The Forrests say they specified a timber (Kwila) but Abbott used a different timber that is very light in colour (Durian), requiring the timber staircase to be sanded and stained to match the timber floor. The specification (PF3), item 11.4 describes the timber strip flooring for the upper floor to be thick bamboo flooring of a prescribed dimension.
  3. [229]
    The evidence is clear that the Forrests chose Kwila as the timber for the internal staircase. In an email dated 28 July 2017, Abbott asked the Forrests to confirm the species of timber for the internal staircase. Mr Forrest responded in an email dated 31 July 2017, for the timber to be ‘Kwila please’. This exchange of emails is attachment PF21 to Mr Forrest’s first statement (exhibit 18).
  4. [230]
    In paragraph 22(b), of her first statement (exhibit 3), Ms Forrest says that in response to her query about the timber used for the internal staircase, she was notified that the timber used was Durian. She refers to attachment PF26 to Mr Forrest’s first statement  (exhibit 18) which is an email from Abbott to her dated 7 December 2017 which confirms that the timber was Durian. The email from Abbott to Ms Forrest attaches an email from the suppliers of the stair timber stating that:

Durian is a Malaysian species not unlike Kwila. However, Durian is a very versatile species, in the fact in [sic] can be stained or tinted to match most other species available in the market. Durian is a hardwood timber and most builders use this, as it is compatible with clients [sic] flooring choices.

  1. [231]
    In his statement (exhibit 23, page 4), Mr Paterson says that during the contract, the Forrests provided the colour they required and the stairs were then accordingly stained with the advised colour. He says that was advised to the Forrests on 6 December 2017, and refers to attachment 10 to his statement. That is a copy of the email from the timber suppliers to Abbott dated 6 December 2017 contained in attachment PF26 to Mr Forrest’s first statement. That email says nothing about any colour chosen by the Forrests. It does not amount to proof of what Mr Paterson says, that the Forrests provided the colour they required. Mr Paterson does not contest the proposition that the staircase timber should match the flooring.
  2. [232]
    In her statement in response (exhibit 4, paragraph 19) Ms Forrest says that the timber for the staircase has not been stained to match the floor colour; only a clear varnish has been applied. In the same paragraph, Ms Forrest refers to Mr Paterson’s statement, that the Forrests provided the colour selection for the stair finish, but Abbott had not provided any evidence on the point. She refers to attachment PF75 to Mr Forrest’s second statement (exhibit 19) as a true and correct copy of the colour selection that the Forrests completed at Abbott’s offices. That document does not specify a colour for the interior staircase. For the bamboo flooring, there is a reference to contacting a person at a flooring supply firm.
  3. [233]
    In Abbott’s written submissions, it says that with timber being a natural product, colours may differ from board to board. That may be accepted as a general proposition, but also as clearly, there can be a difference between lighter coloured timber and darker coloured timber and a fair match between timber at each end of the spectrum.
  4. [234]
    There is objective evidence on the difference in colour, as asserted by the Forrests, in the QBCC inspection report dated 19 February 2019 which is attachment PF34 to     Mr Forrest’s first statement (exhibit 18). On page 108, the note made by the inspector is that:

Visual inspection noted a distinct colour variation between elements.

That part of the report also includes a photograph showing the floorboards and the internal stairs, which does show a distinct difference between the overall dark colour of the floorboards, compared with the much lighter colour of the timber stairs.

  1. [235]
    I find that the colour of the timber stairs does not match the surrounding floorboards in a way where the timber stairs could be considered to be a fair match with the floorboards. In cross-examination, Mr Paterson said that he did not know what treatment (clear varnish or stain) was used on the staircase timber.
  2. [236]
    It is true that the QBCC did not take any remedial action over the complaint made by the Forrests about the colour of the timber staircase. However, the reason for that response, contained in the QBCC report at page 108, is that the work was not defective, because non-compliance with specifications is not deemed to be ‘building work’ under the QBCC Act, which meant, in the view of the inspector, the complaint was outside the jurisdiction of the QBCC. The conclusion of the QBCC report on this issue is that the complaint was identified as a ‘contractual issue’ and the QBCC was unable to adjudicate the issue.
  3. [237]
    Abbott’s written submissions note that the staircase was specified as a provisional sum item. As such, the Forrests were issued a credit for the funds remaining, stating the timber used and the credit amount applied. The contract contains an amount of $9,000 as a provisional sum for the staircase. Abbott submits that ‘Mr Forrest was fully aware of this variation’.
  4. [238]
    If that is intended as a defence to the Forrest’s claim that the staircase timber was not stained to match the floorboards, then I do not accept it. Adjustment between the amount allocated as a provisional sum, and the eventual cost is a matter of correct accounting. It does not explain or excuse a failure to stain the staircase to match the floorboards. Moreover, Abbott does not offer any evidence that there was a correct variation done under the provisions of the contract to explain a variation in the colour.
  5. [239]
    Since Abbott changed the species of timber without agreement from the Forrests, including for the reason that Durian is easier to stain, then it must take responsibility for the outcome of the colour not matching.
  6. [240]
    Mr Burgess calculated the work required to sand and stain (two coats) the staircase timber in his report (exhibit 2). He allowed a total of $2,573.55 for the item. The hours claimed by Mr. Burgess for the work required appear to me to be exorbitant. For sanding a single timber stair post, the dimensions of which are 1.7m high, and 250mm x 250mm, he allowed three hours. Even allowing for sanding between coats of the stain, this appears to me to be excessive. For sanding 16 risers and treads, and applying two coats of stain, he allowed 14 hours and 16 hours respectively. That amounts to one hour to apply two coats of stain to each tread and riser. From the photograph at page 108 of the QBCC report, the treads and risers are simply of the kind found in any residential house. There does not appear to be anything extraordinarily wide or unusual about them. The claim made for labour appears to me to be plainly excessive. I will reduce the labour component for the cost of sanding and staining by one half. Mr Burgess separately allowed $250 for the cost of ‘stain, masking tape etc’ which I allow.  
  7. [241]
    In total, I allow $1,587.01 for this item of the Forrest’s claim

Calculation of the successful claim by the Forrests

  1. [242]
    In their written submissions, the Forrests helpfully set out their calculation of the total amount they say is payable by Abbott in four separate tables, summarised as follows:

Table 1, which sets out claims for damages for items not included in Mr Burgess’ report. This includes the claim for late completion and interest on that item, and items 1, 5, 6, 12 and 14 as described above. What these items have in common is that they do not require remedy by a contractor in order to achieve compliance with the requirements of the contract. There is therefore no claim made for the items under this table for preliminaries, margin/overheads, contingency/risk or GST.

Table 2, which does list damages for items included in Mr Burgess’ report. This table includes items for work not done by Abbott, but required to be done by it under the contract. The table includes a claim for preliminaries,[70] margin/overheads, contingency/risk and GST, except for items 6, 7 and 20 which the Forrests say they will project manage themselves, and which therefore do not attract a claim for the 10% for the additional factors of margin/overheads, contingency/risk and GST.

Table 3, which is a claim for the costs of the filing fee for the application in the Tribunal and costs for engaging Mr Burgess to provide his report and give evidence at the hearing.

Table 4, which is the addition of the claims made in each of tables 1-3 above.

Table 1

  1. [243]
    The amount claimed by the Forrests in this table is $26,751.36. The total I have allowed for the items in this table as I have decided above is $21,149.37.

Table 2

  1. [244]
    The total of the rectification claims made by the Forrests in this table amounts to $24,945.13. To that amount they add preliminaries totalling $1,500, margin/overheads at 10% (but not for items 6, 7, 16 and 20 of their claim, which they propose to project manage for themselves) a further contingency/risk allowance at 10% on that subtotal and a further 10% GST on that subtotal.
  2. [245]
    Before I can calculate what I would allow for the total for table 2, it is necessary for me to decide whether the additional amounts of preliminaries, margin/overheads, contingency/risk and GST should be awarded on the amounts that I would allow.

Preliminaries

  1. [246]
    In his report (exhibit 2), Mr Burgess explains the basis for this amount, albeit, only briefly, in paragraph 13(c). He says that the amount of $1,500 is for ‘miscellaneous preliminary costs for example rubbish removal and temporary protection’. Presumably, temporary protection means protection of the areas of the house where the rectification works will be carried on. I will allow the amount of $1,500. However, this means that the other items referred to in his report which I have allowed should not be considered to include any allowance for protection of the surrounding areas of the house, which will be covered exclusively in the amount I have allowed for preliminaries.

Sub-contractor’s margin and overheads

  1. [247]
    At paragraph 13(a) of his report, Mr Burgess says he has applied a factor of 10% in calculating the subcontractor’s margin and overheads which he considered reasonable for the type of rectification work involved, in particular relating to taking ‘ownership’ of another contractor’s construction works. I consider this reasonable in respect of the matters included in a subcontractor’s margin and overheads involved in the rectification works, including the margin for profit that a subcontractor could reasonably be expected to receive in undertaking the rectification works. I allow this factor at the rate of 10% of the rectification works I have allowed.

Subcontractor’s contingency

  1. [248]
    In paragraph 13(b) of Mr Burgess’ report, he says that he has allowed a contingency of 10% (in addition to the subcontractor’s margin and overheads factor) for works associated with the rectification of defects. He says this includes an element of risk associated with rectifying defects where intrusive surveys have not been carried out and the full scope of works required to rectify is not fully known.
  2. [249]
    The question for me is whether an amount should be allowed for this additional factor, in addition to the factor of 10% for the subcontractor’s margin and overheads I have already allowed above.
  3. [250]
    Review of the items under Table 2 for which I have allowed a claim by the Forrests reveals that they are a miscellany of minor rectification works. None of them appear to me to be complicated. None of them involve large amounts of material for which there is a possibility of an un-expected price rise, or shortage of material. Several items appear to be ‘off the shelf’ items such as an external tap, security bolts and the washing machine platform.
  4. [251]
    In his statement given to the Tribunal (exhibit 1), Mr Burgess said he spent four hours inspecting the property. In his report (exhibit 2), Mr Burgess said in paragraph 13(d), he relied upon the drawings contained in the building approval dated 2 August 2016. He said at paragraph 13(h) that he had undertaken some measurements on site while others were measured from the architectural and engineering drawings (presumably for the contract).
  5. [252]
    Having done that, when Mr Burgess calculates in his report the work required to rectify each item, he has not identified any particular unknown factor or specific area where further intrusive surveys would be required to properly calculate an amount for the rectification works.
  6. [253]
    Given the straight-forward nature of the defects for which I have allowed a claim by the Forrests categorised in Table 2, and that Mr Burgess has not identified in his report any particular areas of difficulty or unknown factors, I do not propose to allow a claim for the contingency/risk factor in addition to the margin/overhead factor of 10% I have already allowed.  A claim for this factor is not there simply for the asking. The onus of establishing that a claim for this factor should be allowed is on the Forrests. I am not satisfied on the relevant standard of the balance of probabilities that an amount should be awarded for this item.
  7. [254]
    For the items in Table 2, I have allowed a total of $18,233.59. For those items to be carried out as rectification works by a subcontractor, the total is $16,083.59.[71]  To that amount is to be added the claim for the preliminary allowance of $1,500, a total of $17,583.59. I then add an amount of $1,758.35 for margin/overhead at the rate of 10%, leaving a total of $19,341.94. 
  8. [255]
    I am satisfied that GST at the rate of 10% should be added to that amount, on the principle that damages should be awarded for a breach of contract as if the contract had been performed, meaning the Forrests would have to pay GST on those amounts, to reach the position as if Abbott had performed the contract. That makes a total of $21,276.13.
  9. [256]
    The total of the amounts I allow in respect of Tables 1 and 2 is a total of $42,425.50.

Claim for costs

  1. [257]
    The Forrests claim the costs of filing their application in the Tribunal together with the cost of Mr Burgess’ report and him giving evidence.
  2. [258]
    Unlike the law applicable to costs in other jurisdictions, where costs ‘follow the event’, where the successful party to a dispute is ordinarily entitled to an order for costs, the starting position for costs in the Tribunal under s 100 of the QCAT Act, is that relevantly other than as provided under the Act ‘or an enabling Act’, each party to a proceeding must bear the party’s own costs of for the proceeding.
  3. [259]
    In Lyons v Dreamstarter Pty Ltd,[72] the then President of the Tribunal, A Wilson J decided that the QBCC Act was an enabling Act that gave the Tribunal jurisdiction to hear and determine a ‘building dispute’. Further, he decided that what was then               s 77(2)(h) of the QBCC Act[73] giving the Tribunal the power to ‘award costs’, was a provision that indicates that the question of costs for building disputes for which jurisdiction on the Tribunal is conferred by the QBCC Act indicates that the question of costs is to be addressed in markedly different terms from s 100 of the QCAT Act.[74]
  4. [260]
    A Wilson J considered that the discretion to be exercised under what is now s 77(3)(h) of the QBCC Act start with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.[75] He awarded costs to the party who was successful in that case.
  5. [261]
    Neither party in the present case has addressed the specific criteria of s 100 of the QCAT Act or s 77(3)(h) of the QBCC Act in their submissions. However, in addressing the relative strengths and success of each party’s case, the Forrests have been substantially, but not completely, successful in their claims.
  6. [262]
    The costs claimed by the Forrests for the filing fee to commence this proceeding in the Tribunal, and the costs for Mr Burgess in preparing his report and giving evidence. In my view, it was necessary for the Forrests to incur those expenses in commencing this proceeding and obtaining the substantial success which they have achieved. I have not accepted all of Mr Burgess calculations on rectification, but I have substantially accepted his evidence. It would have been necessary for the Forrests to engage             Mr Burgess to prepare the report and to give evidence for them in order to succeed in their application to the extent that they have.
  7. [263]
    For these reasons, I grant the application by the Forrests for the filing fees, and preparation of Mr Burgess’ report as far as it concerns this application and for him to give evidence.
  8. [264]
    Section 107(1) of the QCAT Act provides that if the Tribunal makes a costs order, the Tribunal must fix the costs if possible. The application filing fees are simple enough to determine, since they are prescribed under s 8(2)(c) of the Queensland Civil and Administrative Tribunal Regulation 2019. However, when the Forrests filed their application, the fee, as recorded on the application were $345.80, and not $358.00 as claimed by the Forrests in their written submissions. I allow $345.80 for the filing fees.
  9. [265]
    The most significant element of the claim for costs is for the fees for Mr Burgess to prepare his report, in the amount of $5390.00. In their written submissions in chief, the Forrests say that for Mr Burgess’ fees. ‘see attachment to application’. His invoice for those fees was attached, not to the original application filed in 2019, but to an           ‘Amended Application for domestic building disputes’ filed on 27 August 2020.
  10. [266]
    That invoice, dated 30 June 2020 contains Mr Burgess’ invoice for total labour of 24.50 hours at the rate of $200 per hour. That amounts to $4,900 to which GST is added of $490, leaving a total of $5,390. I find that hourly rate to be reasonable. As to the hours, I have already referred to the evidence from Mr Burgess that he spent four hours at the site inspecting the claimed defects. That leaves 20.5 hours to consult the documents he refers to in his report including the architectural drawings, finishes specification, engineering drawings and other contractual documents, then to consult the building industry reference material he referred to in his evidence, carry out the relevant calculations and prepare his report. 20.5 hours seems generous for that work, but not excessive. I allow the costs for the report in the amount of $5,390.
  11. [267]
    The Forrests claim $800 for the costs of Mr Burgess giving evidence, comprising four hours at $200 per hour. In an email dated 26 August 2020[76] from him to the Forrests, he describes his rate for giving evidence also to be $200 per hour and that he would typically need an hour or so for preparation beforehand. Mr Burgess gave evidence at the hearing for a little over an hour. However, added to that would also have to be the cost of travel to and from the Tribunal. I find four hours to be a reasonable allowance for giving evidence and I allow the Forrest’s claim for Mr Burgess to give evidence at $800.
  12. [268]
    I allow the Forrest’s costs in the total amount of $6,535.80.

Order

  1. [269]
    The formal orders will be that Abbott must pay the Forrests the amount of $42,425.50 for their claim, and $6,535.80 for costs.

Footnotes

[1]  Terms defined in the contract (by clause 38 of the General Conditions) are identified in the contract by italicised text. When I refer to a term defined in the contract for the first time, I will do so in italicised text.

[2]  QC1 (2015).

[3]  Contained in attachment PF2 to the first statement of Phillip Forrest which is exhibit 18.

[4]  Clause 20 deals with the process and liabilities for a variation to the contract.

[5]  Exhibit 23.

[6]  Paragraph 9 of the Forrests’ written submissions.

[7]  Paragraph 8(d) of the Forrest’s written submissions.

[8]  In the contract, defined terms are indicated by italicised text.

[9]  Paragraph 31 of the Forrest’s written submissions.

[10]  Forrest’s submissions at paragraph 31.

[11]  Email dated 26 May 2017 from Abbott to the Forrests which is attachment PF8 to the first statement of Mr Forrest which is exhibit 18.

[12]  See clause 17.3.

[13]  Dated 21 May 2021, paragraph 9.

[14]  Clause 27 concerns the ‘defects liability period’ under the contract which provides that the liability period for any non-structural defects is 12 calendar months from the date of practical completion.

[15]  Paragraph 41 of their written submissions.

[16]  That lists minor defects and minor omissions that are (i) agreed to exist and when those items will be completed or rectified, (ii) that the owner claims to exist but the builder does not agree with, and (iii) that is signed by the builder.

[17]  For payment that the builder contends is then owing.

[18]  Filed 25 November 2020, paragraph 3.

[19]  Paragraph 9.

[20]  Page 3.

[21]  Paragraph 42.

[22] Paragraphs 45-54.

[23]  Seddon NC and Ellinghaus MP, Cheshire and Fifoot's Law of Contract, (9th Australian edition, 2008), LexisNexis Butterworths, Sydney, 10.33.

[24]  Another example of how the contract is written in favour of the builder, rather than the owner.

[25]  First statement of Phillip Forrest (exhibit 18), attachments PF12 and PF13.

[26]  available on the website of the Queensland Department of Housing and Public Works.

[27]  See attachment PF16 attached to Mr Forrest’s first statement (exhibit 18), paragraph 5(g).

[28]  Paragraph 22.

[29]  Paragraph 23.

[30]  Attachment PF16.

[31]  Section 8 (a)-(kkk).

[32]  Written submissions, paragraph 82.

[33]  Written submissions, page 4.

[34]  Paragraph 11.

[35]  Attachment 7 to Mr Paterson's statement, exhibit 23.

[36]  Mr Paterson's statement (exhibit 23), page 3.

[37]  Paragraph 72 of the Forrests’ written submissions.

[38]  Mr Forrest’s statement in response (exhibit 19), attachment PF62.

[39]  That also tends to confirm Mr Paterson’s statement that Mr Forrest agreed to the alteration to the rear deck.

[40] Paragraph 93 of the Forrests’ written submissions.

[41]  Abbott written submissions, page 4.

[42]  Forrest's written submissions at paragraph 94.

[43]  Exhibit 1, attachment C, item 2.

[44]  Forrest's written submissions at paragraph 104.

[45]  Paragraph 112.

[46]  Paragraph 118.

[47]  Written submissions, page 5.

[48]  Attachment 27 to Mr Paterson’s statement (exhibit 23).

[49]  Paragraph 114 of the Forrests’ written submissions.

[50]  Meaning the email dated 10 May 2021, attachment 27 to exhibit 23.

[51]  Abbott’s submissions, page 5.

[52]  Landscaping was the contractual obligation of the Forrests - see the contract Schedule 4: excluded items.

[53]  The Forrests’ written submissions, paragraph 155.

[54]  Attachment PF31 to the first statement of Mr Forrest exhibit 18, items 11 and 16.

[55]  Attachment PF2 attached to Mr Forrest’s first statement (exhibit 18), (general arrangement plan: sub and lower level).

[56]  Attachment PF37 to Mr Forrest’s first statement, exhibit 18.

[57]  Exhibit 1, attachment D, page 2 under defect number 6.

[58]  Attachment PF17 to Mr Forrest’s first statement, exhibit 18.

[59]  Exhibit 4, paragraph 16.

[60]  The Forrest’s written submissions in chief, paragraph 178.

[61]  The Forrest’s written submissions in chief, paragraph 179.

[62]  Exhibit 1, attachment D, pages 2- 3.

[63]  Forrest’s written submissions at paragraph 199 and Abbott’s written submissions in response on paragraph 18.

[64]  A helpful illustration of what the general arrangement of the laundry cupboard and fridge space is intended to look like is contained in attachment PF6 to exhibit 18. It shows the general arrangement as if the viewer was standing in the kitchenette looking at it, with the laundry cupboard on the left hand side, and the fridge space to the right of that.

[65]  Attachment PF3 to exhibit 18.

[66]  Bushfire Attack Level 29.

[67]  Paragraph 253 of the Forrest’s written submissions in chief.

[68]  Pages 11 and 14 of the report.

[69]  That seems to be a dimension for the location of the splitter rather than the dimension of the splitter itself.

[70]  At a fixed, set amount of $1,500.

[71]  Excluding item 20 which the Forrests arranged to be carried out themselves as described by Mr Burgess in paragraph 6 of his report, and for which he says does not attract a claim for margin/overheads, and contingency/risk.

[72]  [2012] QCATA 071.

[73]  Now s 77(3)(h) of that Act.

[74]  Paragraph [10] of Lyons.

[75]  Paragraph [11].

[76]  Also attached to the Amended Application filed on 27 August 2020.

Close

Editorial Notes

  • Published Case Name:

    Forrest & Anor v Abbott Builders (Qld) Pty Ltd [No. 2]

  • Shortened Case Name:

    Forrest v Abbott Builders (Qld) Pty Ltd [No. 2]

  • MNC:

    [2022] QCAT 164

  • Court:

    QCAT

  • Judge(s):

    A/Member Sammon

  • Date:

    04 May 2022

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
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71
2 citations
Jump To
Cite 1 - [2012] QCATA 71
Cite 2 - [2012] QCATA 71

Cases Citing

Case NameFull CitationFrequency
Abbott Builders (Qld) Pty Ltd v Forrest [2023] QCAT 4291 citation
Abbott Builders (Qld) Pty Ltd v Forrest [2023] QCATA 1411 citation
1

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