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  4. Murphy v GDS Building Services Pty Ltd t/as Zen Roofing - [2022] QCAT 197

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Murphy v GDS Building Services Pty Ltd t/as Zen Roofing[2022] QCAT 197

Murphy v GDS Building Services Pty Ltd t/as Zen Roofing[2022] QCAT 197

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Murphy and Anor v GDS Building Services Pty Ltd t/as Zen Roofing and Anor [2022] QCAT 197

PARTIES:

Patrick Thomas Murphy and Rachel lyon

(applicant)

v

GDS building services Pty LTD T/as Zen roofing

(first respondent)

THRESHOLD ENVIRONMENTAL SERVICES PTY LTD

(second respondent)

APPLICATION NO/S:

BDL299-19

MATTER TYPE:

Building matters

DELIVERED ON:

31 May 2022

HEARING DATE:

PROCEEDING:

19 November 2021

On the papers hearing

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

  1. GDS Building Services Pty Ltd t/as Zen Roofing is to pay to Patrick Thomas Murphy and Rachel Lyon damages of $6,008.77;
  2. Patrick Thomas Murphy and Rachel Lyon are to pay to GDS Building Services Pty Ltd t/as Zen Roofing the unpaid balance of $5,662.87 owing under the contract dated 7 August 2019;
  3. GDS Building Services Pty Ltd t/as Zen Roofing can set off is cross-claim for $5,662.87 in (2) against the claim by Patrick Thomas Murphy and Rachel Lyon for $6,008.77 in (1) above and there will be judgement for Patrick Thomas Murphy and Rachel Lyon for $345.90;
  4. GDS Building Services Pty Ltd t/as Zen Roofing claim that Patrick Thomas Murphy and Rachel Lyon are to make co-contribution payment under the Civil Liability Act 2003 (Qld) is dismissed;
  5. GDS Building Services Pty Ltd t/as Zen Roofing claim for damages from Threshold Environmental Services Pty Ltd is dismissed
  6. If any party is to make an application for costs in these proceedings then;
    1. (a)
      that party shall file in the Tribunal two (2) copies and will give to each of the other parties in these proceedings one (1) copy of its submissions on costs including a description of the way in which those costs have been calculated and itemising each component of the claim for costs as well as  setting out all relevant matters relied on relating to s.103 and s.107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) by 4.00pm on Friday, 24 June, 2022;
    2. (b)
      any party wishing to respond or reply to the submissions on costs referred to in 6(a) above, shall file in the Tribunal two (2) and will give to each other party in these proceedings one (1) copy of submissions in reply by 4.00pm on Friday, 15 July, 2022;
    3. (c)
      any party wishing to respond or reply to the submissions in reply referred to in 6(b) above, shall file in the Tribunal to (2) copies and will give to each other party in these proceedings one (1) copy of their submissions by 4.00 p.m. on Friday, 5 August, 2022.
  7. If the parties  to the proceedings have not made an application for costs by filing submissions in accordance with 6(a) above by 4.00pm on Friday, 24 June, 2022, then each party to the proceedings must bear that party’s own costs for the proceedings.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicants contract for repairs to the roof of their residence – where roof repairer damages asbestos ceiling – where main bedroom is contaminated by asbestos – removal of contaminated items from the bedroom – contaminated items discarded  – damages claimed for contaminated items discarded ­ proper measure of damages for discarded items – whether applicants liable for co-contribution pursuant to the Civil Liability Act 2003 (Qld) ­– whether third party asbestos assessor liable in damages for breach of duty of care – whether a claim for unliquidated damages can be set off against a cross-claim for liquidated sum.

Civil Liability Act 2003 (Qld) s. 9, 10, 11, 12 and 28

Queensland Building and Construction Commission Act 1991 (Qld), Schedule 1B, s 3, s 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 103 and s 107

Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd and Trakka Pty Ltd (2013) QSC 319

Spencer v The Commonwealth (1907) 5 CLR 418 at 432

State of Queensland v Mowburn Nominees Pty Ltd (2004) QDC 531

McDonnell & East v McGregor (1936) 56 CLR 50

United Dominions Corporations Limited v Jaybe Homes Pty Ltd  (1978) Qd R 111

Forsyth & Anor.v Gibbs (2008) QCA 103

APPEARANCES &

REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    There is no dispute between the parties that on 4 September, 2019, a workman for GDS Building Services Pty Ltd trading as Zen Roofing (Zen Roofing) caused damage to the ceiling of the main bedroom of the home of Patrick Thomas Murphy and Rachel Lyon (the Applicants) when the foot of the workman, while working on the roof, penetrated the ceiling of the room.
  2. [2]
    The ceiling contained asbestos and further damage was caused by asbestos particles and dust falling into the bedroom and causing contamination.
  3. [3]
    The dispute concerns who is liable for that damage and what is the quantum of that damage.
  4. [4]
    The dispute has given rise to a number of claims in these proceedings, namely:
    1. (a)
      the Applicants claim damages under several heads plus from Zen Roofing;
    2. (b)
      Zen Roofing denies liability for the Applicants’ claim and counterclaims for its unpaid contractual price for the works of $5,662.87 from the Applicants;
    3. (c)
      Zen Roofing claims reimbursement under several heads of claims from the Applicants by way co-contribution under provisions of the Civil Liability Act 2003 (Qld) as a consequence of their breaches of duty;
    4. (d)
      Zen Roofing claims that the second respondent, Threshold Enviromental Services Pty Ltd (TES) is liable for the Applicants’ claim of $15,185.33. It also claims from TES an amount of $4,500 being fees charged to Zen Roofing by “470 Group” to remove asbestos contaminated items from the main bedroom of the Applicant’s home.
    5. (e)
      TES seeks the dismissal of Zen Roofing’s claims and costs.

The Contract Between the Applicants and Zen Roofing:

  1. [5]
    The Applicants and Zen Roofing both state that they entered into a written contract and both parties have each filed that contract in identical terms. There is no dispute as to the written terms of the contract.
  2. [6]
    The scope of works in the contract is to remove and dump an old existing tin roof and old flashings, replace 30m of rotten or damaged batons and supply and install a new Zincalume Trimdek roof sheeting and associated works at the Applicants’ home at 2A Blackwood Avenue, North Ipswich.
  3. [7]
    These works were to be undertaken by Zen Roofing at the contractual value of $11,325.75.
  4. [8]
    The parties contract was to carry out domestic building work within the meaning of the Queensland Building and Construction Commission Act 1991.[1] Under that legislation for the contract to be effective it must be in a written form, dated and signed by or on behalf of each of the parties.[2]
  5. [9]
    The contracts in identical terms filed by each party are in writing. The date of the contract is stated as 7 August, 2019. It is signed by or on behalf of Zen Roofing. The problem is that the Applicant’s signature is missing from both written contracts filed by the parties.
  6. [10]
    The contract dated 7 August, 2019, may well be ineffective as at that date by reason of the provisions in the QBCC Act, however, there is other evidence that the Applicants signed that written contract at a later date.[3] That evidence is that the Applicants and Zen Roofing signed the written contract on 13 August 2019. It is common ground that both the Applicants and Zen Roofing each contend in these proceedings that they entered into that written contract.
  7. [11]
    The Tribunal accepts the evidence of the Applicants that the contract dated 7 August 2019 was signed by the parties on 13 August 2019. The Tribunal finds that those parties entered into a valid and enforceable contract, the terms of which are contained in the written contract dated 7 August 2019.

Is Zen Roofing Contractually Liable for the Applicants’ Damage?

  1. [12]
    The general terms and conditions of the contract requires Zen Roofing to carry out and complete the works in accordance with the “Laws and any relevant Australian Standards” applicable to the works.[4] The QBCC Act implies a number of warranties into the contract including the warranty that the work will be carried out in an appropriate and skilful way and with reasonable care and skill.[5]
  2. [13]
    The terms and conditions of the contract provide an express warranty by Zen Roofing in relation to:[6]
    1. (a)
      compliance with legal requirements;
    2. (b)
      carry out work with due diligence.
  3. [14]
    The Special Conditions of the contract contains terms dealing with “Ceiling problems” in these terms:[7]

“… The Contractor does not accept responsibility for any damage caused by reasonable activity and behaviour of its staff while on the roof.…”

  1. [15]
    Zen Roofing provides a description of the cause of damage to the main bedroom ceiling, by stating:

“On 4 September 2019, one of our workers had an accident whereby the worker’s foot penetrated the ceiling of the main bedroom.”.

  1. [16]
    Apart from the Scope of Works in the contract providing that up to 30 metres of rotten and damaged batons be replaced, there is no information to describe how the workman’s foot penetrated the ceiling. Neither of the parties have provided evidence of any investigation into what the workman was doing at the time that his foot caused the damage to the ceiling. There are no facts available to consider whether the workman caused that damage while exercising all due care or otherwise. The circumstances in which the workman’s foot came to penetrate the ceiling, apart from Zen Roofing’s assertion that it was an “accident”, are simply not known from the evidence adduced by the parties. That lack of evidence leaves the Tribunal in a position whereby it is unable to assess and make a finding about what led the workman to damage the ceiling. There is insufficient evidence to make any finding of fact whether that damage was caused by a breach of the warranties in clause 9 of the contract or any of the terms implied into the contract by the provisions of the QBCC Act.
  2. [17]
    However, the position is significantly different under clause 7 of the Special Conditions. Clause 7 in effect provides an exemption from liability for Zen Roofing where the damage is caused by any member of its staff while working on the roof provided the damage was caused by reasonable activity and behaviour of that staff member. The onus is on Zen Roofing to establish that the damage occurred as a result of the reasonable activity and behaviour of its staff.
  3. [18]
    Again, apart from the conclusory statement by Zen Roofing that it was an “accident” there is simply no evidence available to show what reasonable activity or behaviour was being undertaken by the workman at the time his foot penetrated the bedroom ceiling. Zen Roofing makes the submission that its workman was carrying out a reasonable activity and behaviour at the time of the damage. But, that submission is not accompanied by any relevant facts or circumstances demonstrating the conclusion expressed in the submission. The onus of satisfying that requirement has not been established in the evidence provided by Zen Roofing. It accordingly leaves open to the Tribunal to find that Zen Roofing is liable for the damage caused by its workman’s foot penetrating the bedroom ceiling.
  4. [19]
    Both the Applicant and Zen Roofing in their submissions accept that the damage is the responsibility of Zen Roofing. Zen Roofing has paid accommodation costs for the Applicants on the nights of 4 and 5 September 2019 when asbestos contamination of their bedroom prevented them from continuing to reside in the home. A queen size blow-up mattress was purchased for the Applicants at Tentworld following the contamination of their bed and bedcovers. Zen Roofing engaged the “470 Group” to undertake asbestos decontamination of the Applicants’ bedroom.
  5. [20]
    The Tribunal accepts that the damage caused by the contamination of the main bedroom by asbestos has occurred in circumstances where it is not shown that a member of the Zen Roofing’s staff was acting in a way that could be described as reasonable activity or behaviour at the relevant time. The Tribunal finds that the pursuant to clause 7 of the Special Conditions of the contract that Zen Roofing is liable for the damage caused by the contamination to the Applicants’ bedroom.

What are the Applicants’ Damages?

  1. [21]
    The Applicant’s claims are under several heads of damages as follows;
    1. (a)
      discarded personal items from main bedroom$ 15,185.33
    2. (b)
      damage to the main bedroom ceiling, bedroom walls$ 561.00
    3. (c)
      damage to kitchen ceiling near range hood $ NV[8]
    4. (d)
      damage to balcony ceiling $ 400.00
    5. (e)
      repaint to fascia boards and eaves$1,716.00
  2. [22]
    the Applicants admit that the balance $5,662.87 of the contract value has not been paid by them but intend to set off as a deduction against the unpaid balance the Applicants’ damages recovered in these proceedings.
  3. [23]
    Zen Roofing admits that the Applicants have suffered some damage but otherwise denies the Applicants’ claim for damages under the various heads of damage. Zen Roofing also claims that the Applicants are liable to make a co-contribution of 50%  pursuant to the Civil Liability Act 2003 (Qld). Zen Roofing also claim that TES is the party ultimately responsible for the Applicants damages claim of $15,185.33 for asbestos contaminated items discarded from the main bedroom.

The Applicants’ Claim for Contaminated personal items discarded: –

  1. [24]
    The Applicants’ claim under this head of damage is $15,185.33.
  2. [25]
    Zen Roofing admit $5,052.62 (initially the admission was $5047.77) of this claim and dispute the balance of the claim on the basis that:
    1. (a)
      some personal items claimed were not discarded$ 2,320.75
    2. (b)
      prices for personal items claimed should be adjusted$ 5,079.54
    3. (c)
      costs for personal items duplicated by the Applicants$ 189.85
    4. (d)
      the Applicants’ contribution of 50% – Civil Liability Act$2,510.57
    5. (e)
      cost of IKEA boxes $ 32.00
  3. [26]
    On 5 September 2019 TES prepared an “Asbestos Removal Scope of Works” for the “470 Group” who were undertaking the decontamination of the main bedroom.
  4. [27]
    The Scope of Works specified that “470 Group” complete the following tasks:
    1. (a)
      Remove broken ceiling sheet in the bedroom and dispose of as asbestos waste;
    2. (b)
      Removal all soft/porous contents within the bedroom such as mattresses, bedding, clothes, rugs, carpets, books, suitcases etc. and dispose of as asbestos contaminated waste;
    3. (c)
      Remove all items within the bedroom with complex parts such as laptop, bedside radio, vacuum cleaner, table etc and dispose of as asbestos contaminated waste;
    4. (d)
      Hard non-porous items within the bedroom such as hard furnishings etc. are to be wet wiped/HEPA vacuumed and placed into a temporary quarantine storage area for inspection by the Licence Asbestos Assessor;
    5. (e)
      At the completion of the bulk removal work all remaining internal surfaces in the bedroom are to be subject to a thorough cleaning regime including detailed wet wiping/HEPA vacuuming. In some instances this process will have to be conducted multiple times to achieve an adequate level of cleanliness;
    6. (f)
      Remove all Cool n Cosy within and surrounding construction waste stockpile to the front yard of the dwelling and dispose of asbestos contaminated waste.
  5. [28]
    On 6 September 2019, COHLABS, a NATA member accredited to undertake tests, calibration and/or measurements, analysed fibre cement material taken as a sample from the bedroom by polarised light microscopy, including dispersion staining techniques and certified that the sample contained asbestos. This certification contradicts Zen Roofing’s assertion that there is no evidence whatsoever to suggest the broken ceiling actually caused asbestos contamination of the bedroom.
  6. [29]
    On 7 September 2019 TES sent a list of items discarded from the bedroom by “470 Group” to the Applicants. That list did not contain any values attributed to each of the items discarded.
  7. [30]
    On 9 September 2019 the Applicants sent to the “470 Group”, TES and to Zen Roofing a “more comprehensive list of items taken from our house last Friday”. That comprehensive list contained 146 items. It did not attribute a cost or value to any of the items. A second list described as a “full itemised and costed list of the household items belonging to Rachel and myself that were discarded or damaged as a result of the building work” was sent to Zen Roofing. That second list set out the “cost” of each of the 146 items in that list which amounted to a total of $15,204.33.
  8. [31]
    On 14 October 2019 the Applicants’ solicitors wrote a letter of demand to Zen Roofing requiring payment of various amounts which included $15,185.33 (previously $15,204.33) for asbestos contaminated items discarded from the bedroom.
  9. [32]
    On 15 October 2019 the Applicants sent an email to Zen Roofing which, among other claims, attached a “costed” itemised list of asbestos contaminated items discarded from their bedrooms seeking payment of $15,185.33.
  10. [33]
    On 12 November 2019 Zen Roofing’s solicitors advised the Applicants’ solicitors that their client reserved its right to recover $15,257.52 and their client denied “sole liability” for the cost of alleged discarded items.
  11. [34]
    Subsequently, in its Pre-Hearing Submission dated 8 June 2001 Zen Roofing set out its response to the Applicants’ claim of $15,185.33 for asbestos contaminated items discarded from the bedroom making the following deductions from the claim:
    1. (a)
      Table 1 contains alleged items not discarded$ 2,357.60
    2. (b)
      Table 2 Zen Roofing’s re-valuation of discarded items$ 5,079.54
    3. (c)
      Table 3 items alleged to be duplicated in the Applicants’ list$ 189.85
    4. (d)
      Table 4 identifies various items for 50% co-contribution $ 2,510.57
    5. (e)
      Table 5 items alleged not to be exposed to asbestos $ 4,193.95
    6. (f)
      Table 6 non-porous items- wet wiped/HEPA vacuumed $ 662.35
  12. [35]
    In Zen Roofing Submissions of 8 June 2021 its “revaluation” in Table 2 is made on the basis that the Applicants have not provided a purchase receipt or a quote to support the costs claimed for each of the discarded items (except for the bed ensemble). Zen Roofing says it bases the revaluation in Table 2 on identical or closely matching items at a cheaper price on the open market or the price of those items advertised at “sale” prices.
  13. [36]
    These claims relating to the items discarded from the bedroom give rise to at least two issues:
    1. (a)
      what proof is there of which contaminated items were discarded? and
    2. (b)
      what is the proper measure of damages for the contaminated items discarded?
  14. [37]
    At the time of asbestos contamination of the bedroom on 4 September, 2019, the Applicants were not allowed to return to their home and were required to reside in alternative accommodation on 4 and 5 September 2019.
  15. [38]
    Entry to the contaminated bedroom was restricted to those undertaking the decontamination of that room, namely TES and the “470 Group”.
  16. [39]
    Zen Roofing after making an initial attempt to clean the bedroom was denied access to the contaminated bedroom until such time as it had been properly cleaned.
  17. [40]
    The only persons present to observe what contaminated items were discarded was TES and the “470 Group”. A contemporaneous list of contaminated items discarded was prepared by either the “470 Group” or by TES. TES sent that list to the Applicants on 7 September 2019.
  18. [41]
    The Applicants understandably were taken by surprise by the asbestos contamination of their bedroom. There was no warning or opportunity for them to take an inventory of personal items in that room immediately prior to 4 September 2019. They were absent from their home for at least two days to allow decontamination. The doors to their bedroom were left open and the ceiling fan was operating on their return to their home on 6 September, 2019. The Applicants had to reconstruct from their memory and in some cases from photos of items which they say were in the bedroom and found to be missing following the decontamination.
  19. [42]
    Zen Roofing does not appear, from the evidence, to have any knowledge whatsoever of the Applicants’ contaminated items in the bedroom as that 4 September 2019 or during decontamination. Its purpose for being at the Applicants’ home was to replace the tin roof with a new roof and associated works. Even when Zen Roofing entered the Applicants’ bedroom on 4 September 2019 it was for the purpose of inspecting the damage to the ceiling and for the secondary purpose of assessing what rectification and consequential works were required to remedy the damaged ceiling. It was not to assess what personal items the Applicants had in the bedroom although there may well have been casual observation of bedding and other items which were in the bedroom.
  20. [43]
    The persons in the best position to assess what contaminated items were discarded from the bedroom were TES and the “470 Group”. They undertook the task of discarding contaminated items pursuant to a documented “Scope of Works”.  For the period from 4 September to 6 September, 2019 they were substantially the only persons present in the bedroom performing the task of decontamination and discarding contaminated items. By 7 September 2019 they prepared an itemised list of the discarded items and sent it to the Applicants. Both of these persons have the professional responsibility for the removal of asbestos contaminated material and are appropriately trained. TES is a licensed asbestos assessor and has responsibilities for issuing clearance certificates for asbestos impacted areas under the Work Health and Safety legislation. Their work is undertaken in accordance with Safe Work Australia Code of Practice How to Safely Remove Asbestos.
  21. [44]
    The Tribunal accepts the evidence of Joel Franklin, Senior Environmental Scientist, of TES including his email dated 7 September 2019 to the “470 Group” and the Applicants attaching the list of contaminated items discarded from the bedroom including a folder of photographs of 85 items in the bedroom at the time of decontamination. The Tribunal finds that the contaminated items discarded from the Applicants’ bedroom are those items contained in the itemised list attached to the email of Joel Franklin dated 7 September 2019.
  22. [45]
    The quantum of damages claimed by the Applicants is based on the “cost” of a replacement items. There is no, or no sufficient, evidence of that “cost” component or from where it was obtained Further, the clear impression is that the “cost” is for new items to replace the discarded items. There is no evidence whatsoever, apart from the bed ensemble which was said to be approximately 10 years old but still “comfortable”, of the state or condition of each of the contaminated items discarded. The Applicants appear to have had use of the contaminated items for some unspecified time, apart from the bed ensemble. No evidence was provided of prior use or the time during which the relevant items were in use. The Applicants appear to base their damages claim on a “New for Old” without any discount being given for the age, condition, use or other wear and tear, if any, of the discarded items.
  23. [46]
    Zen Roofing’s calculation of the Applicants’ claim for damages has already been discussed above. In that discussion, Table 2 is a list of discarded contaminated items which Zen Roofing accepts as being items which the Applicants can claim but re-values those items at $5079.54. The basis of that re-evaluation by Zen Roofing is to find “identical or closely matching items at a cheaper price on the open market”. The cheaper price includes the price for items in “sale” advertisements.
  24. [47]
    To determine the “value” of personal goods or chattels such as the contaminated items discarded from the Applicants’ bedroom, it is necessary to determine what is their market value.[9] In Conversion and Detinue damages are an available remedy based on the market value of the goods. A determination of what is the “market value” is not the “original value”, “the current value”, “cost price” and neither is it the “replacement cost”. The market value of an item, in this case goods or chattels, is explained in Spencer v The Commonwealth by Griffith C J who said;[10]

“The test of value of land is to be determined, not by enquiry what price a man desiring to sell could actually have obtained it for it on a given day, ie, whether there was in fact on that day a willing buyer, but by enquiring ‘what would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell it for a fair price but not desirous to sell?’

  1. [48]
    In State of Queensland v Mowburn Nominees Pty Ltd,[11] His Honour Judge McGill in the District Court discussed the concept of “market value” in the context of valuation of a chattels and applied the test in Spencer v The Commonwealth. His Honour said after referring to a number of other authorities:”[12]

“But I do not accept that the current price is always appropriate for determining the market value of chattels. The cases I have referred to in relation to valuing chattels suggest that the Spencer test in its traditional formulation (which was originally a test for the value of land) is treated by the courts as ordinarily applying also to the value of chattels. In my opinion it is applicable here.”

  1. [49]
    The Court of Appeal in State of Queensland v Mowburn Nominees Pty Ltd[13] affirmed the decision of McGill D.C.J.  The President said in respect of the Spencer test;

“The Spencer approach in ascertaining “value” has been widely jurisprudentially embraced. It has been accepted in determining “market value”: see ………………Spencer, Boland and James concerned the value of land, not cattle, but, despite Griffith C.J’s. qualifications in Spencer emphasised by the appellant, the Spencer approach to ascertaining value has also been embraced in valuing items other than land, such as options to acquire shares:”

  1. [50]
    The methodology adopted by both the Applicants and Zen Roofing for valuation of contaminated items discarded from the bedroom is not in accordance with the test of market value adopted in Spencer v The Commonwealth. Neither of those parties has provided evidence of the value of the contaminated items discarded the “cost” method adopted by the Applicants and the “cheaper price” for identical or closely matching items adopted by Zen Roofing are not methods of valuation capable of being accepted under the Spencer v The Commonwealth test for market value. Accordingly, there is no evidence before the Tribunal of the value of any of the contaminated items discarded from the Applicants’ bedroom in September 2019.
  2. [51]
    Ordinarily, if there is no evidence of the value of the contaminated items discarded, there would be no finding in favour of the Applicants for any amount of damages which they claim to have suffered. However, in these proceedings there is an admission by Zen Roofing that the Applicants’ damages claim is $5,047.77 for contaminated items after deducting various items from the claim of $15,185.33. That admission is contained in Zen Roofing’s Pre-Hearing Submissions dated 8 June 2021, and elsewhere in the material, as “Total damages accepted by Zen Roofing” in the amount of $5047.77.
  3. [52]
    Under the Applicants’ head of damages for the loss of contaminated items from their bedroom, the Tribunal finds, based upon the admission by Zen Roofing in its “Pre-Hearing Submission dated 8 June 2021”, that the Applicants’ damages are $5,047.77.

Zen Roofing’s “co-contribution” claim under the Civil Liability Act:

  1. [53]
    Zen Roofing first raised its reliance on the Civil Liability Act 2003 (Qld) (CLA) in its response and/or counter-application filed 17 January 2020.[14] It denied liability in relation for damages as a result of the presence in the Applicants’ contaminated items asserting that:
    1. (a)
      by reason of ss. 9-13 of the CLA, the Applicants owe a duty of care to Zen Roofing and breached the duty by not taking necessary precautions arising from hazardous materials such as asbestos being present in their home;
  2. [54]
    Zen Roofing asserts that the Applicants breached their duty of care as:
    1. (a)
      the risk of asbestos in the ceiling being disturbed by workmen is obvious and reasonably foreseeable;
    2. (b)
      precautions were not taken against the foreseeable risk of harm by failing to ensure the ceiling was free of asbestos, failing to inform Zen Roofing about asbestos, failing to take proper protection of personal belongings against potential asbestos disturbance; failing to take appropriate insurance cover to protect Zen Roofing or its workmen from potential damage as a result of asbestos disturbance.
  3. [55]
    Zen Roofing quantifies its claim for co-contribution by the Applicants pursuant to CLA under the following heads of claims:
    1. (a)
      $2510.57[15]  based on a 50% co-contribution for the cost of allegedly “non-bulky” contaminated items removed from the bedroom which allegedly should have been stored in a cupboard or in a plastic bag to avoid asbestos contamination.
    2. (b)
      reimbursement of $7,290.00 for the cost of asbestos removal by the “470 Group”;
    3. (c)
      reimbursement of $417.00 for the Applicants two nights’ accommodation paid for by Zen Roofing;
    4. (d)
      reimbursement of $119.90 for a new air mattress for the Applicants and paid for by Zen Roofing.
  4. [56]
    The Applicants respond that the CLA does not apply and that Zen Roofing failed to refer to which part of CLA supports their claim. They assert Zen Roofing advertised itself as a “Roofing and Asbestos Removalist” and as such would have been more aware than the Applicants that due to the age of their home it would likely contain asbestos. They further assert Zen Roofing never asked or suggested the Applicants should take precautions to protect their belongings or that the ceiling may be damaged by workmen. Further, the Applicants assert that Zen Roofing has admitted liability in accepting their damages claim for removal of contaminated items to the value of $5,047.77.
  5. [57]
    This CLA claim is dependent upon Zen Roofing having an “apportionable claim” or economic loss or damage to property in an action for damages arising from a breach of a duty of care.[16] For these purposes, the “duty of care” means a duty to take reasonable care or to exercise reasonable skill (or both duties).[17] The “duty” includes a duty of care in tort, or a duty of care under a contract that is concurrent and coextensive with a duty of care in tort or another duty under statute or otherwise that is concurrent with either of the two previously mentioned duties.[18] There are other general principles relating to whether a person breaches a duty of care to take precautions against risk.[19]
  6. [58]
    However, the initial enquiry for the claim under the CLA is whether there is an “apportionable claim” for economic loss or damage to property arises from a breach of a duty of care under contract that is concurrent and coextensive with a duty of care in tort.
  7. [59]
    The liability of Zen Roofing has been found by the Tribunal to be based on Special Conditions clause 7 of the parties’ contract and not based on clause 9 of the General Terms and Conditions or any of the implied warranties under the QBCC Act. Although it might be argued that clause 9(b) and/or the implied warranties might give rise to a concurrent or coextensive duty of care in tort it is unnecessary for the Tribunal to embark upon a consideration of that potential argument as Zen Roofing’s liability is not dependent upon any of those warranties. The issue is whether Special Conditions clause 7 of the contract gives rise to a duty of care that is concurrent or coextensive with a duty of care in tort.
  8. [60]
    Special Condition clause 7 exempts Zen Roofing from responsibility for any damage caused by reasonable activity and behaviour of its staff while on the roof of the Applicant’s home. The full terms of that clause are as follows:

“Problems may be encountered with poorly installed ceilings whilst the Contractor’s staff are working on the roof. The Contractor does not accept responsibility for any damage caused by reasonable activity and behaviour of its staff while on the roof. Sometimes with tongue & groove ceilings or boarded ceilings dust can fall through the joins of the timber. It is advisable to cover furniture or anything else that may become exposed to falling dust.”

  1. [61]
    The liability of Zen Roofing based on clause 7 is not based on a claim arising from a duty to take reasonable care or to exercise reasonable skill. The liability arises from circumstances where damage occurs to the ceiling and it is not shown to have occurred by reasonable activity and behaviour of its workmen. In these circumstances, the responsibility of Zen Roofing does not arise from a breach of duty. There is no duty of care under clause 7 of the contract that is concurrent or coextensive with a duty of care in tort. Zen Roofing does not have an apportionable claim under s. 28 of the CLA.
  2. [62]
    In Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd,[20] a new truck was acquired from Zupps by Hobbs Haulage. In subsequent proceedings Hobbs Haulage alleged breaches of the condition as to fitness for purpose or merchantable quality implied under the Sale of Goods Act 1896 (Qld) and breaches of similar implied conditions under the Trade Practices Act 1974 (Cth). Zupps alleged that its liability, if any, should be reduced to nil by reason of the proportionate liability defence under s. 31 of the CLA. In considering Zupps reliance on CLA His Honour Justice Jackson said:[21]

“Thus a claim “arising from a breach of duty of care” may be an apportionable claim. In schedule 2 of the CLA, “duty of care” is defined to mean a duty to take reasonable care or to exercise reasonable skill (or both duties). As well, “duty” is defined to mean a duty of care in tort or a duty of care under contract that is concurrent and coextensive with a duty of care in tort, or another duty under statute or otherwise, that is concurrent with a duty of care of either of those kinds.

None of Hobbs claims for damages for breach of any implied condition, as to fitness for purpose or merchantable quality as previously mentioned, is an “apportionable claim” within the meaning of section 28 (1) (a), because none of them is a claim arising from a duty to take reasonable care or to exercise reasonable skill

  1. [63]
    Justice Jackson considered the notion of “duty of care” in the following terms;[22]

“A promisor’s contractual obligation to render services with due skill and care is, in a general sense, a duty to take reasonable care or to exercise reasonable skill. Therefore, it could be a “duty of care” within the meaning of that expression in schedule 2 of the CLA and section 28(1)(a) of the CLA, provided that the obligation is a duty within the meaning of the definition of “duty” in schedule 2 and section 28 (1) (a).

In order to constitute such a “duty”, the promisor’s obligation must answer the description of “a duty of care under contract that is concurrent and that coextensive with a duty of care in tort”. That is, a duty based in contract is not a “duty” as defined unless there is a coextensive duty of care in tort owed by the promisor to the promisee. The scope of concurrent duty of care in tort was examined by the High Court in relation to a contract for the provision of professional services in Astley v Austrust Ltd. A question exists then whether Zupps arguably owed a duty of care to Hobbs in tort, which is concurrent and coextensive with the implied contractual term under section 74 (1) of the TPA. Zupps contract with Hobbs does not readily fit the description of a contract for the supply of professional services. However, because Hobbs did not argue that Zupps did not owe a duty of care in tort, it is unnecessary to consider that point further in order to dispose of this application.”

  1. [64]
    There does not appear to be any duty arising from the parties contractual arrangements to suggest that under Special Condition clause 7 there is any concurrent and coextensive duty with a duty of care in tort.
  2. [65]
    The evidence is that the Applicants owned an old home in North Ipswich, that Zen Roofing held itself out as conducting a business of roofing repairs and asbestos removal. There is no evidence to suggest that the Applicants had identified asbestos in their home at the time of contracting with Zen Roofing. In its Response filed in the Tribunal Zen Roofing initially says that after the damage to the bedroom ceiling the Applicants “advised us that their ceiling contained asbestos” and then approximately eight months later in an Amended Response changed that version given by the Applicants to state “the Applicant’s alerted us that the ceiling might contain asbestos due to the old age of the house”. The Applicant’s state that they did not know that the ceiling contained asbestos. The business conducted by Zen Roofing suggests that they would have been specialised in identifying the existence of asbestos, or at least, where in a far better position by reason of their business experience than the Applicants to identify the existence of asbestos in this old home. Rather surprisingly, Zen Roofing has contested in these proceedings whether in fact there has been asbestos contamination as a result of its workmen breaking through the ceiling in the bedroom. This denial of any proof the Applicants’ home contained asbestos is contradicted by TES who filed in the Tribunal on 18 January, 2021, a “Certificate of Analysis” from COHLABS identifying that a fibre cement sample taken from the bedroom did contain asbestos identified in a laboratory test.
  3. [66]
    The Tribunal accepts the evidence of the Applicants, TES and from COHLABS. The Tribunal finds that in respect of Zen Roofing’s claims under the CLA that there is no  “apportionable claim” under that legislation established by Zen Roofing.
  4. [67]
    The Tribunal dismisses the claim under the provisions of the CLA for the Applicants to reimburse Zen Roofing under all heads of damages claimed.
  5. [68]
    A consequential issue arises from the dismissal of Zen Roofing’s co-contribution claim for a reduction of $2,510.57 from the Applicants’ contaminated items claim of $15,185.33. As the co-contribution claim is dismissed, should it be added back into the Applicant’s claim? The other claims referred to above for reducing or rejecting the Applicant’s claim $15,185.33 are based on Zen Roofing’s calculation of what it says is the appropriate “cost” or “prices” and it is unnecessary to consider them any further in view of the test for “market value” discussed above.
  6. [69]
    The claim for co-contribution is calculated at “Table 4: Items for contribution” in the Pre-Hearing Submission dated 8 June 2021. The problem is that the list of contaminated items in Table 4 contains a number of contaminated items already included in an earlier Table of calculations relied on by Zen Roofing to “Re-value” the contaminated items[23] To that extent there is “double counting” of the same contaminated items. The remaining items in Table 4 have been taken from a later edition of contaminated items prepared by the Applicants. Those remaining items have not been taken from the list of contaminated items in the email from TES of 7 September 2019. Whether any of the contaminated items in Table 4 correspond in any way with the list circulated by TES is not established. Evidence of “market value” in the Spencer test is not established in Table 4.
  7. [70]
    The Tribunal considers that the consequential issue referred to above should be determined on the basis that the co-contribution claim of $2,510.57 by Zen Roofing should be regarded as lacking any evidence on which the Tribunal could rely either in support of that claim or alternatively as an “add-back” to the Applicants’ claim for contaminated items. In the circumstances the Tribunal does not intend to make any finding relating to whether that co-contribution amount claimed of $2,510.57 should be added back to the Applicants’ claim for damages relating to contaminated items discarded.

Claim for Damage to Main Bedroom Ceiling and Bedroom Walls:

  1. [71]
    The obligation to repair the bedroom ceiling has been accepted by Zen Roofing. It says that the ceiling has largely been repaired by it but is yet to be repainted. The cost of repainting is estimated at $300.00.
  2. [72]
    On 2 October 2019 the Applicants obtained a written painting quotation from Jackson’s Painting Solutions Pty Ltd to undertake painting of the bedroom ceiling and the adjacent wall area in that room at a cost of $561.00.
  3. [73]
    The painting quotation from Jackson’s provides more detail than the estimate provided by Zen Roofing. The interior painting described in the written quotation requires preparation for both the ceiling and the VJ Wall as well as the finish detail of applying two coats of Dulux Professional ceiling paint to the required specifications including applying Dulux Wash & Where Advanced low sheen acrylic paint to the requisite specifications for the VJ Wall.
  4. [74]
    The Tribunal accepts the written quotation supplied by Jackson’s Painting Solutions Pty Ltd of 2 October 2019. The Tribunal finds that cost of painting the bedroom ceiling and adjacent wall is $561.00. Zen Roofing is liable to pay to the Applicants $561.00 for those painting repairs.

Damage to Kitchen Ceiling near the Range Hood:

  1. [75]
    The Applicants obtained a written “Defect Report” from ALL INSPECT who conducted an inspection of the home at North Ipswich on 30 November 2019. The Report identified in item 2 the following as a defect:

“The kitchen area above the stove nook cover strip has some cracking it appears to be due to the roof installed above this area, this will need to be touched up by the painter.”

  1. [76]
    The Report does not provide a quote for the painting repairs to that part of the kitchen ceiling.
  2. [77]
    Zen Roofing says that the cracks along the timber mouldings of the kitchen ceiling were either pre-existing or caused by reasonable activity of its staff working on the roof. It relies on Special Condition clause 7 of the contract and does not accept responsibility for any damage caused by reasonable activity and behaviour of its staff working on the roof. It rejects the Applicant’s claim.
  3. [78]
    There is no evidence provided by Zen Roofing to establish if the damage to the kitchen ceiling was pre-existing. Rather, it appears to be a speculative statement made without the support of any evidence. There is no evidence of what was the reasonable activity and behaviour of its staff working on the roof. It is not known what precautions or attempts were taken by staff to avoid any damage to the kitchen ceiling. Again, its reliance on clause 7 is not supported by any evidence of the reasonable activity and behaviour undertaken by its staff in relation to the kitchen ceiling area. Zen Roofing does not provide any evidence for the basis of its denial of responsibility for alleged damage to the kitchen ceiling.
  4. [79]
    The Applicants provide no evidence of the condition of the kitchen ceiling prior to entry into the contract with Zen Roofing for repairs to the roof of their home. The “Defect Report” is inconclusive as to the cause of “some cracking” of the kitchen ceiling as that Report merely says that it “appears” to be due to the roof installed above the area. But the Report contains no evidence about how the original roof was removed nor how the new roof was installed and how the workmen may have gone about those activities. The Report does not establish a link between what the workmen on the roof were doing and the cracks in the kitchen wall. The Report merely concludes that it “appears” to be due to workmen but does not exclude the old age of the home nor provide any evidence on its provisional opinion as to the cause of the damage to the kitchen ceiling.
  5. [80]
    The Report does not provide a quote for the repair of this part of the kitchen ceiling. Rather, it leaves the impression that the cost of this repair is, if anything, inconsequential as it specifies that the area “will need to be touch up by the painter”. A quote has been obtained from GMP Painters dated 9 October 2019 to paint the kitchen range hood, the ceiling as well as other areas in the Applicant’s home for a total cost of $$4,587.00. In that quote there is no apportionment for the cost to paint the kitchen ceiling area. Rather it is a global price for the carrying out all painting works described in the quote and includes painting of additional areas apart from the kitchen ceiling. There is no way of knowing how much has been allowed in the quote for the painting of individual areas in that home.
  6. [81]
    The Tribunal is not satisfied on the whole of the evidence that the cracks referred to in the kitchen wall area is damage for which Zen Roofing is responsible. As referred to above there is a lack of evidence and the Tribunal could not make a considered decision. In the absence of the relevant evidence the Tribunal dismisses the Applicants’ claim for damage to the kitchen ceiling near the range hood.

Damage to the Balcony Ceiling:

  1. [82]
    Zen Roofing accepts that during the works a workmen dropped a tool and damaged the balcony ceiling. It offers $400.00 to the Applicants as the reasonable cost for the repair of that damage.
  2. [83]
    The Applicants accept the payment of $400.00 as damages for the repair of the damaged balcony ceiling.[24]
  3. [84]
    As the parties have reached agreement on the cost of repair fixed at $400.00 the Tribunal will make an order that Zen Roofing pay that amount to the Applicants.

Damage to Fascia Boards & Eaves:

  1. [85]
    The Applicants contend that Zen Roofing damaged the fascia boards and eaves to their home in the course of carrying out the roof repairs by affixing a safety rail.
  2. [86]
    The cost to repair that damage is contained in a written quotation from Jackson’s Painting Solutions Pty Ltd dated 2 October 2019. The price quoted is $1,716.00. The quote is for the painting of the exterior of the fascia boards including filling of holes and imperfections, sanding and seal with filler and finish with two coats of Dulux Weather shield to the required specification.
  3. [87]
    Zen Roofing rejects this claim. It claims that small holes in the fascia boards were necessarily incurred in order to install the safety rail as required by health and safety legislation. It further says that on completion it patched the holes with proper filler. It contends that the Applicants’ claim for repainting the entire fascia boards and eaves is not reasonable because of the older age of the home, pre-existing marks and holes in the fascia boards and eaves and that any small blemishes left by its workmen in the fascia boards are very minor and negligible.
  4. [88]
    Following the Applicants’ complaint to the QBCC, the fascia boards were inspected by a QBCC officer and no notice to rectify the fascia boards was issued. Zen Roofing contends that the QBCC officer agrees that the repairs that have been done were adequate and it is unreasonable for the Applicants to ask for the repainting of the fascia boards and eaves.
  5. [89]
    The Applicants obtained a “Defect Report” dated 30 November 2011 which notes that at the time of inspection some areas have been damaged during the roof installation and refers to fascia boards as having holes. There does not appear to be any discussion in that Report relating to any requirement for rectification work to the fascial boards. That Report attaches a number of coloured photographs of the fascia boards and a visual inspection of those photographs does not appear to display damage to the fascia boards.
  6. [90]
    The fact that safety rails were installed for the roof renovation should not be a matter of surprise to the Applicants. The written contract between the parties dated 7 August 2019 provided in the Scope of Works for the installation of a safety rail to all areas required by workplace health and safety and to comply with safety regulations. The requirement for the safety rail was not only agreed to contractually by the parties but is also required pursuant to relevant health and safety legislation. There is no evidence to suggest that the fixing of the safety rail to the fascial boards and eaves was other than in the normal Scope of Works to be undertaken by Zen Roofing’s workmen. It would be difficult to appreciate that the fixing of the safety rails to the fascia boards was other than a reasonable activity and behaviour of its workmen while on the roof of the Applicants’ home.
  7. [91]
    In the circumstances the Tribunal accepts the evidence of Zen Roofing that it was necessary to install the safety rail to the fascia boards. The Tribunal further accepts that the installation of the safety rail was a reasonable activity and behaviour of workmen while carrying out the installation of a new roof.
  8. [92]
    The Tribunal rejects the Applicants’ claim for damages of $1,716.00 in connection with the alleged damage to the fascia boards and eaves. The Applicants are bound by the contractual “Scope of Works” and other contractual terms. In the circumstances Zen Roofing has the benefit of Special Conditions clause 7 and is not responsible for any damage to the fascia boards and eaves pursuant to that clause. The Tribunal dismisses the Applicants’ claim under this head of damage for $1,716.00.

Zen Roofing’s Claim for the Balance of the Contract Value:

  1. [93]
    Zen Roofing invoiced the Applicants on 1 October 2019 for the balance of $5,662.87 owing under the contract between the parties dated 7 August 2019.
  2. [94]
    The Applicants admit that the balance of $5,662.87 is owing but have deferred payment of that amount pending finalisation of the amounts of damages to be recovered from Zen Roofing which they intend to set off against the balance owed under the contract.
  3. [95]
    Zen Roofing also seeks to set off the unpaid balance of money due to it against any damages that might be awarded to the Applicants.
  4. [96]
    Can the Applicants set off their damages (unliquidated claim) against Zen Roofing’s unpaid balance of the contract value (liquidated claim)?  In McDonnell & East v McGregor[25] Dixon J. said:

“a liquidated cross-demand cannot be pleaded as an answer in whole or in part to a cause of action sounding in damages or vice versa”.

  1. [97]
    However, in United Dominions Corporations Limited v Jaybe Homes Pty Ltd[26] it was held by His Honour Justice Andrews (as his Honour then was) that unliquidated damages can be set off against liquidated damages when there is such a connection between that transaction and the cross-claim that a court of equity would restrain the plaintiff from proceeding with its claim until the defendants cross-claim had been entertained.
  2. [98]
    In Forsyth & Anor. v Gibbs [27] His Honour Justice Keane (with whom other members of the Court agreed) said it was “essential” for a connection between the claim and the cross-claim to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim. His Honour stated:[28]

“Consistently with the technique of equity, which does not seek to define what an elephant is but knows one when it sees one, the principles governing the availability of equitable set-off of cross-claims are couched in open textured terms, such as “sufficient connection” and “unfairness”. In some cases, it will be necessary to engage in an evaluation of a range off acts which might establish “sufficient connection” or “unfairness” of the relevant kind. But the principles to be applied are not so vague or subjective that it is never possible to determine, for the purposes of an application for summary judgment, that the facts alleged by a defendant simply fall short of what is required.

 It is important to emphasise that the availability of an equitable set-off between cross-claims does not depend upon an unfettered discretionary assessment of whether it would be “unfair” in a general sense for a plaintiff to insist on payment of the debt owed to it while the cross-claim remains unpaid. It is essential that there be such a connection between the claim and cross-claim that the cross-claim can be said to impeach the claim so as to make it unfair for the claim to be allowed without taking account of the cross-claim.”

  1. [99]
    The Tribunal has the power to grant an injunction were it is “just and convenient to do so”.[29] The Tribunal will set off claims where the respondent provides evidence which is sufficient to substantiate the claim.[30]
  2. [100]
    The Claim by Zen Roofing for the unpaid balance due under the contract has a connection with the Applicants’ claim for damages. Both parties claims arise under provisions of the contract dated 7 August, 2019. The essential connection between the claim and the cross-claim  is such that it would be unfair to allow the claim to proceed without taking account of the cross-claim.
  3. [101]
    The Tribunal finds that both parties can set off their respective claim or cross-claim against the other in these proceedings.

Zen Roofing’s Claims against TES:

  1. [102]
    By its Amended Response filed in the Tribunal on 25 September 2020 Zen Roofing added TES as a party and counterclaimed against TES:
    1. (a)
      $15,185.33 for various asbestos contaminated items discarded from the Applicants’ bedroom; and
    2. (b)
      $4,500.00 for fees charged by the asbestos removalist, “470 Group”, for decontamination the Applicants’ bedroom and discarding contaminated items.
  2. [103]
    The basis of this claim against TES is that TES issued an asbestos removal “Scope of Works” and instructed asbestos removal company “470 Group” to remove and dispose of asbestos contaminated material in the bedroom. Zen Roofing contends that all of the Applicants’ personal belongings which were discarded could have been saved because there was never any evidence to suggest that the room was contaminated by asbestos or that any of the items removed were actually contaminated by asbestos. Zen Roofing contends that TES has made a technical error and a misjudgement in discarding contaminated items which resulted in the Applicants claiming $15,185.33 in compensation.
  3. [104]
    The claim for $4,500.00 is a fee charged by “470 Group” in its Invoice dated 23 September, 2019, to decontaminate and remove all of the contaminated items from the Applicants’ bedroom which Zen Roofing alleges should not have been undertaken.
  4. [105]
    In “Pre-Hearing Submission” dated 8 June 2021 Zen Roofing added a further claim against TES seeking payment of $4,856.30 for the alleged removal of the Applicants’ property from their bedroom which was not exposed to asbestos,[31] It is difficult to see why this additional claim has been made as these items are part of the $15,185.33 already claimed for all contaminated items said by the Applicants to be discarded from their bedroom. This new claim of $4,856.30 is already part of the claim of $15,185.33 damages which Zen Roofing seeks to recover from TES. This new claim appears to involve “double counting” and is otherwise misconceived.
  5. [106]
    In a Response dated 24 June 2021 Zen Roofing added a further claim against TES seeking payment for a bed ensemble (for an unspecified amount) and $32.00 for its purchase of IKEA cardboard boxes.
  6. [107]
    TES is a licensed asbestos assessor and provided a “Scope of Works” setting out requirements that needed to be completed before it can issue a clearance certificate for the asbestos impacted bedroom and associated contents. For the issue of a certificate TES had to be satisfied that the impacted area and its contents did not pose a risk to health and safety from exposure to asbestos and that the impacted area is free from asbestos contamination.
  7. [108]
    TES says that on 5 September 2019 it was engaged by “470 Group” to prepare the Scope of Work. The removal of contaminated items from the bedroom was then undertaken by the “470 Group” according to the Scope of Works.
  8. [109]
    TES obtained samples of fibre cement from the broken ceiling and arranged for COHLABS to test those samples on 6 September 2019 for the presence of asbestos. The “Certificate of Analysis” established that the sample contained asbestos.
  9. [110]
    On 7 September 2019 the Applicants were provided with an itemised list of contaminated items removed from the bedroom as part of the asbestos remediation of that site. The Tribunal has already made a finding of fact that this list of contaminated items removed contains a record of all those items taken from the Applicants’ bedroom.
  10. [111]
    Zen Roofing contends that there is no evidence that there was asbestos contamination of the bedroom. This contention is contrary to the laboratory tests conducted by COHLABS which identified the presence of asbestos in the fibre cement sample supplied from the Applicants’ bedroom. The Tribunal rejects this contention by Zen Roofing and finds that at all material times the damage to the bedroom ceiling caused asbestos contamination of that bedroom.
  11. [112]
    Zen Roofing also contends that items removed from the bedroom as part of the decontamination process did not contain asbestos. While that assertion is made, no evidence is provided by Zen Roofing that any items discarded did not contain asbestos. At best the assertion appears speculative. Further, the assertion is made against the knowledge that the bedroom contained asbestos contamination as confirmed by laboratory testing. Zen Roofing engaged specialist asbestos removalists to arrange for the decontamination of the bedroom. Zen Roofing did initially make an attempt to vacuum the bedroom and but in so doing only dispersed the contamination and the made the task of the specialist asbestos removalist more difficult. The “470 Group” undertook the task of decontamination over a period of approximately two days in September 2019 when other person’s such as the Applicants and Zen Roofing, were prohibited from being on the premises during decontamination. The Tribunal rejects this further contention by Zen Roofing and finds that at all material times the items removed from the bedroom were contaminated by asbestos and were appropriately identified within the “Scope of Works” by TES.
  12. [113]
    The claims by Zen Roofing were made on the basis that TES was negligent in respect of both contentions discussed above. However, the factual basis of the negligence claim relies upon the allegation by Zen Roofing that there was no evidence of asbestos in the Applicants’ bedroom and items discarded were not contaminated by asbestos. Both these contentions have not been established. The evidence of asbestos contamination has been established to the satisfaction of the Tribunal. Accordingly, assuming there was a duty of care owed by TES to Zen Roofing (which is unnecessary to decide) the evidence establishes that there has been no breach of a duty of care, if any, owed by TES.
  13. [114]
    The Tribunal dismisses the claims by Zen Roofing against TES for the amounts of $15,185.33, $9,055.75 as well is the claims seeking payment for a bed ensemble and the $32.00 for IKEA cardboard boxes.

Conclusions:

  1. [115]
    In accordance with these Reasons for Decision, the Tribunal finds that the Applicants are entitled to an award of damages from Zen Roofing as follows:
    1. (a)
      damages for the loss of asbestos contaminated items$ 5,047.77
    2. (b)
      damages for painting the bedroom ceiling and wall$ 561.00
    3. (c)
      damages for repairing the balcony ceiling $ 400.00
    4. (d)
      Total damages recovered $ 6,008.77
  2. [116]
    Zen Roofing is entitled to the balance of the unpaid contract value in the amount of $5,662.87.
  3. [117]
    Zen Roofing is entitled to set off its claim for the unpaid balance of the contract value against the damages recovered by the Applicants and vice versa.
  4. [118]
    Zen Roofing’s claim for a co-contribution from the Applicants based upon the Civil Liability Act 2003 is dismissed.
  5. [119]
    Zen Roofing’s counter-claims against TES on all heads of claim are dismissed.
  6. [120]
    The Applicants have made an application for costs relating to an amount of $345.00. TES has made an application that Zen Roofing pay its costs. Zen Roofing in its Amended Response seeks orders that each party pay their own fees and any other legal expenses relating to the proceedings.
  7. [121]
    Insofar as any party wishes to seek an order for costs in these proceedings, Directions will be made for any party, should they be so advised or wish, to file in the Tribunal written submissions by a specified date seeking an order for costs.

Footnotes

[1]  ‘QBCC Act’, Schedule 1B, ss. 3 & 4.

[2]  QBCC Act (n 1), ss. 13(2) and 13(5).

[3]  Application for domestic building dispute filed 4 December, 2019 at page 5, PART B, para 3.

[4]  Clause 1.

[5]  QBCC Act (n 1), Schedule 1B, s. 22.

[6]  Clause 9.

[7]  Clause 7.

[8]The cost of repair claimed is included in a painting quote for several areas of the home.

[9]Halsbury’s Law of Australia  at para. 135-1090 citing Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26.

[10]  (1907) 5 CLR 418 at p 432.

[11]  (2004) QDC 531 (21 December, 2004).

[12]Spencer v The Commonwealth (n 10), at para. 32.

[13](2006)  1 Qd.R. 53

[14]  See the attachment to the Response “Reasons For Orders Sought” at para 4 (a) and (b).

[15]  see Zen Roofing’s “Pre- Hearing Submission” dated 8 June 2021, at para 13, Table 4: Items for co-contribution.

[16]  CLA s. 28.

[17]  CLA Schedule 2.

[18]  CLA Schedule 2.

[19]  CLA ss. 9 & 10.

[20]  (2013) QSC 319.

[21]  Above note 18 at Paris 12 and 13.

[22]  Above note 18 at Paris 15 and 16.

[23]  Table 2: Items Revaluated in the Pre—Hearing Submissions dated 8 June 2021 at paras 7 & 8.

[24]  See Applicant’s Additional Statement at paragraph 2 filed 15 April 2021.

[25]  (1936) 56 CLR 50

[26]  (1978) Qd R 111

[27]  (2008) QCA 103,

[28]  Above note 25 at paras. 9 & 10.

[29]S. 59 of the QCAT Act 2009.

[30]Habul v Mahoney (2011) QCATA 130 at para. [12]

[31]  see Table 5: Items not exposed to asbestos in these Submissions dated 8 June 2021 and paragraph (b) at page 11 of those submissions.

Close

Editorial Notes

  • Published Case Name:

    Murphy and Anor v GDS Building Services Pty Ltd t/as Zen Roofing and Anor

  • Shortened Case Name:

    Murphy v GDS Building Services Pty Ltd t/as Zen Roofing

  • MNC:

    [2022] QCAT 197

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    31 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
Electricity Trust of South Australia v O'Leary (1986) 42 SASR 26
1 citation
Jump To
Cite 1 - (1986) 42 SASR 26
Forsyth v Gibbs[2009] 1 Qd R 403; [2008] QCA 103
2 citations
Jump To
Cite 1 - [2008] QCA 103
Cite 2 - [2008] QCA 103
Habul v Mahoney [2011] QCATA 130
1 citation
Jump To
Cite 1 - [2011] QCATA 130
Hobbs Haulage Pty Ltd v Zupps Southside Pty Ltd [2013] QSC 319
2 citations
Jump To
Cite 1 - [2013] QSC 319
Cite 2 - [2013] QSC 319
McDonnell & East Ltd v McGregor (1936) 56 CLR 50
2 citations
Jump To
Cite 1 - (1936) 56 CLR 50
Cite 2 - (1936) 56 CLR 50
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
State of Queensland v Mowburn Nominees Pty Ltd[2006] 1 Qd R 53; [2005] QCA 220
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 53
State of Queensland v Mowburn Nominees Pty Ltd [2004] QDC 531
2 citations
Jump To
Cite 1 - [2004] QDC 531
Cite 2 - [2004] QDC 531
United Dominions Corporation Ltd v Jaybe Homes Pty Ltd [1978] Qd R 111
2 citations
Jump To
Cite 1 - [1978] Qd R 111
Cite 2 - [1978] Qd R 111

Cases Citing

Case NameFull CitationFrequency
Chand v Gedoun Constructions Pty Ltd [2023] QCAT 3131 citation
Core Concrete Pty Ltd v Murtrack Pty Ltd t/a R & F Steel Building Cairns [2024] QCAT 4752 citations
1

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