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Monsour v C & R Darvill Pty Ltd[2022] QCAT 302

Monsour v C & R Darvill Pty Ltd[2022] QCAT 302

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Monsour & Anor v C & R Darvill Pty Ltd [2022] QCAT 302

PARTIES:

marie monsour

(first applicant)

bruce monsour

(second applicant)

v

C & R Darvill Pty Ltd atf c & r darvill family trust

(respondent)

APPLICATION NO/S:

BDL065-18

MATTER TYPE:

Building matters

DELIVERED ON:

27 July 2022

HEARING DATE:

27-30 October 2020, 16-17 February 2021, 24-25 June 2021

HEARD AT:

Brisbane

DECISION OF:

Member Howe

ORDERS:

  • The applicants pay the respondent the sum of $134,407.62 within 14 days of the date hereof.
  • The parties file in the Tribunal and give to each other any submissions on costs within 21 days of the date hereof and file in the Tribunal and give to the other any submissions in response within 21 days thereafter.
  • The decision on costs will be determined on the papers.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – where expert opinion evidence given – where the expert failed to explain in his reports the basis of his conclusions – where the expert quantity surveyor admitted at hearing to being instructed by the client to insert certain reduced figures in his reports – where the expert appeared to lack independence and a suspicion the expert’s report lacked independence in other respects – whether weight was to be given to the reports or the evidence excluded.

CONTRACT – GENERAL CONTRACTUAL PRINCIPLES – DISCHARGE, BREACH AND DEFENCES TO ACTIONS FOR BREACH – REPUDIATION AND NON-PERFORMANCE – REPUDIATION – where the  builder issued a progress claim – where the owners challenged the claims made as to stage of completion of work – where the builder issued an amended progress claim – where the owners refused to pay – where – where the general conditions excluded any retentions save at practical completion stage – whether the owners repudiated their obligations under the contract – where the builder was entitled to terminate the contract for breach – where the builder was excluded from site – where notice of intention to terminate the contract was given – where it was found the builder was entitled to terminate the contract on that alternate ground as well – where the builder was entitled to recover for outstanding value of work done but not the full amount of the amended progress claim.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – where the builder claimed payment of variations – where the provisions of the Domestic Building Contracts Act (2000) (Qld) (repealed) applied – where variation claims did not comply with the statutory requirements – where application was made for payment on the grounds of exceptional circumstances – where the grounds of exceptional circumstances were established – where the owners were ordered to pay for variations as assessed by the Tribunal

Domestic Building Contracts Act 2000 (Qld) (repealed), s 84

Uniform Civil Procedure Rules 1999 (Qld), r 428

Allaro Homes Cairns Pty Ltd v O'Reilly & Anor [2012] QCA 286

Finance and Guarantee Company v Auswild (2019) 59 VR 288

Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19

Robinson v Harman (1848) 1 Ex Rep 850

Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11

APPEARANCES &

REPRESENTATION:

Applicants:

Self-represented

Respondent:

G Sheahan of Counsel instructed by All Building Law

REASONS FOR DECISION

  1. [1]
    Mrs Monsour owns a residential property in Brisbane. She and her husband Dr Monsour (together ‘the Monsours’) entered into a building contract with C & R Darvill Pty Ltd (‘the builder’) on 19 December 2014 for substantial renovations and additions to the home. It was a fixed price contract for $1,407,268.13.
  2. [2]
    Building work commenced on 27 January 2015. The date for practical completion was 9 February 2016.
  3. [3]
    There were numerous variations to the contract according to the builder. The builder’s variation claims did not comply with the requirements applying at the time under the Domestic Building Contracts Act (2000) (Qld) (repealed) (‘DBCA’). The Monsours paid some but not all.
  4. [4]
    The work slowed. The builder claimed the Monsours, in particular Dr Monsour, were interfering with its work, its workers and subcontractors and causing further disruption by failing to supply agreed services and contractors in a timely fashion.
  5. [5]
    In result, the builder proposed that the contract change from fixed price to cost plus. The Monsours refused to do that.
  6. [6]
    Over the course of the project the builder submitted monthly progress claims. The Monsours paid the builder for the first eleven but not progress claim 12.[1] They challenged that claim. The builder issued a reduced amended progress claim 12 but the Monsours still refused to pay.
  7. [7]
    The Monsours had formed a suspicion that they were being overcharged by the builder for the work being done.
  8. [8]
    On 28 June 2016 the Monsours gave notice terminating the contract.
  9. [9]
    On 30 June 2016 the builder gave notice terminating the contract in turn.
  10. [10]
    The parties do not dispute that the contract was terminated by 30 June 2016.
  11. [11]
    The Monsours initiated proceedings in the Tribunal and as at date of hearing seek to recover an amount of $152,480.46 as an overpayment to the builder, to recover $71,446.37 paid for variations, and they seek damages of $36,019.42 as the cost of rectification of defective work. They also seek relief from payment of the monies claimed owing by the builder.
  12. [12]
    By way of amended counter application the builder claims $70,958.41 owed for amended progress claim 12, unpaid variations of $113,584.71 on the basis of exceptional circumstances applying pursuant to s 84(4) of the DBCA, and costs. The builder had reduced its initial claim for unpaid variations from $159,052.71 in the amended counter application and at hearing also resiled from a claim for loss of profit of $42,961.92.

Background

  1. [13]
    Dr Monsour lives and works away from Brisbane from Monday to Thursday inclusive. He returns to Brisbane for Friday, Saturday and Sunday of each week.
  2. [14]
    Dr Monsour was responsible for drawing up the specifications (schedule of finishes) under the contract.
  3. [15]
    By Appendix Part J - special conditions to the contract, there was to be a two hour site meeting each week and “all other correspondence by email for refences (sic)”. The email address for the builder was that of Mr Darvill, its director, and for the owners the email address of Dr Monsour.
  4. [16]
    By Appendix Part D the parties agreed that there would be monthly progress payments “as per progress claim schedule”. The progress claim schedule identified 93 different aspects of the scope of work making up the contract price.
  5. [17]
    The Monsours lived on site throughout the construction, or at least Mrs Monsour did, with Dr Monsour there for site meetings each Friday and then over the weekend.
  6. [18]
    According to Dr Monsour, he and his wife made few changes to the project during the course of the build, but he identified numerous mistakes made by the builder through the course of construction and he required they be fixed.

The issues

  1. [19]
    The following, I determine, are the relevant issues to be decided in the dispute:
    1. (a)
      Which party was in breach when the contract was terminated, which party was entitled to terminate, with what result?
    2. (b)
      Are the Monsours entitled to recover an amount of $152,480.46 from the builder as an overpayment?
    3. (c)
      Are the Monsours entitled to $36,019.42 for costs of rectification of defective work?
    4. (d)
      Is the builder entitled to recover $70,958.41 for progress claim 12 as amended?
    5. (e)
      Are the Monsours entitled to recover $71,446.37 paid for variations?
    6. (f)
      Is the builder entitled to payment for variations in an amount of $113,584.71 on the grounds of exceptional circumstances?

Which party was in breach when the contract was terminated, which party was entitled to terminate, with what result?

  1. [20]
    The most significant document in building disputes is usually the building contract. That holds true here.
  2. [21]
    By clause 11.6 of the general conditions the builder was entitled to claim payment of the contract price progressively on completion of the stages set out in Part D of the Appendix to the Schedule to the contract.
  3. [22]
    Part D provided two methods for the contractor to claim payment at designated stages of construction. The first and most common, Method A, was not used here.
  4. [23]
    Instead the parties agreed on Method B which provided for payment of a 5% deposit and then “monthly progress payments as per progress claim schedule – 90% – $1,266,541.32; practical completion stage 5% – $70,363.40.”
  5. [24]
    The builder issued 12 progress claims over 12 months of work. The last was progress claim 12 issued on 15 January 2016 in the sum of $100,246.86. Part of that was an amount of $12,158.85 claimed for a variation (variation 14).
  6. [25]
    Dr Monsour queried progress claim 12. He maintained some of the work claimed for payment had not been done. In response the builder issued a revised progress claim 12 on 22 March 2016 in the amount of $70,958.41. The claim for payment of  variation 14 did not change but the claim for the value of work done under the original scope of work was reduced by $29,288.45.
  7. [26]
    The Monsours refused to pay the builder however. In their statement of evidence, the Monsours give the reason for that as the “unrealistically hasty reissuing of the amended progress claim 12”.[2] There was no specific challenge to any particular item of claim.
  8. [27]
    The required time for payment of progress claims was 5 business days.[3] Given amended progress claim 12 was issued on 22 March 2016, if valid, it was required to be paid by Tuesday 29 March 2016.
  9. [28]
    On 24 March 2016 the builder claimed additional payment of a number of further variations. None of them were paid either.
  10. [29]
    The parties by this stage had entirely fallen into. The Monsours claimed the builder had deliberately slowed work on site over January and February 2016. The builder denied that and said that essential owner supplied goods and services were not being made available to it.
  11. [30]
    The builder had written to Dr Monsour on 28 October 2015 to say the job had reached a critical point given the numerous changes being made by the Monsours and through their delay in providing required owner supplied goods and services. That was proving frustrating and in consequence the builder asked for their approval to move from the fixed price contract to a costs plus arrangement.
  12. [31]
    The Monsours refused. The Monsours claimed it was that refusal which triggered the builder’s slow down. The Monsours denied the slowdown was caused by them.
  13. [32]
    On 10 May 2016 the builder issued a notice of intention to terminate the contract based on the failure of the Monsours to provide necessary goods and services as required under the contract.
  14. [33]
    On 3 June 2016 the Monsours issued their own notice of intention to terminate the contract based on the builder’s substantial breach of contract in failing to proceed appropriately with the work under the contract.
  15. [34]
    On 28 June 2016 the Monsours gave notice of termination of the contract based on a number of claimed substantial breaches of contract.
  16. [35]
    On 30 June 2016 the builder gave notice of termination of the contract accepting the repudiation of the contract by the Monsours on failure to remedy the builder’s notice of intention to terminate. The builder issued its own notice of termination on 28 June 2016.

The failure to pay amended progress claim 12

  1. [36]
    As stated, Part D of the Appendix to the Schedule to the contract provided for two methods for the builder to claim payment. The parties agreed on Method B which provided, after deposit, for “monthly progress payments as per progress claim schedule – 90% – $1,266,541.32; practical completion stage 5% – $70,363.40.”
  2. [37]
    The stages for progress claims were perhaps necessarily arbitrary and broad brush in the sense that they were not linked to completion of work at defined stages of construction, such as would be the case under Method A.
  3. [38]
    Apart from the time consideration (monthly), I determine that what was required of the builder to make valid progress claims was to claim an honest and reasonable estimate of the value of work done across the 93 items of work listed in the progress claim schedule as at time of charge.
  4. [39]
    Mr Darvill for the builder said at hearing that the initial progress claim 12 was based on the calculations of work done recorded by then site foreman, Mr Carstens. Mr Carstens had left the builder’s employ at about that time. The percentage calculations of completed work, Mr Darvill admits, were wrong in a number of respects. When the rather obvious inaccuracies were raised by a representative of Dr Monsour, the builder recalculated the claim and re-issued amended progress claim 12 for a lesser amount. Mr Darvill said in cross-examination concerning the mistaken initial progress claim:

Damian oversaw that.  Damian had it at 100 per cent.  Damian left the company.  The progress claim was put through based on Damian’s information.  When it was brought to my attention about that, I was a little bit taken aback, so I mustered the troops into the office – being Darren, I think Steve Paikin was there, Peter the estimator, and myself – and we went through and revised progress payment 12.[4]

  1. [40]
    I accept Mr Darvill’s evidence about the circumstances resulting in amended progress claim 12 being issued. His evidence that his site foreman was responsible for calculations finds some support in an email from Mr Carstens dated 28 May 2015 to Mrs Darvill back at the builder’s office with the subject line “Dickson progress claim 4 percentages”, and his comment “I have spent some time with Darren today looking at variations that we can bill.”[5]
  2. [41]
    I accept amended progress claim 12 was an honest estimate by the builder of the value of work done and unpaid as at date of issue.
  3. [42]
    Was the amended progress claim a reasonable estimation of work done and unpaid however?

The evidence of the quantity surveyors

  1. [43]
    After the contract was terminated the Monsours engaged Mr Davies of Michael Davies Consulting Pty Ltd to assess the value of work done by the builder. Mr Davies advised the Monsours that in his opinion they had overpaid for the work done to the date of termination of the contract by $152,480.46.
  2. [44]
    Mr Davies gave evidence at the hearing. He claimed expertise as a quantity surveyor. He provided reports. His evidence troubles me.
  3. [45]
    By Tribunal Practice Direction 4 of 2009 concerning expert evidence:
  1. 4.
    An expert owes a duty to assist the tribunal which overrides any obligation to any party to the proceeding or any person who is liable for their fee or expenses. The expert’s role is to assist and advise the tribunal on issues in dispute within the expert’s area of expertise. A person must not give, and an expert must not accept, instructions to adopt or reject a particular opinion in relation to an issue in dispute in a proceeding.

Conclaves and joint reports

  1. 5.
    All experts engaged for a hearing must attend a conclave convened by a member, adjudicator or the principal registrar. The purpose of the conclave is to identify and clarify areas of agreement and disagreement amongst the experts on any issue in dispute, and the reasons for any disagreement.

…

  1. 17.
    Each expert must prepare a written statement of their evidence.

…

  1. 22.
    The statement of evidence must satisfy the requirements of rule 428 of the Uniform Civil Procedure Rules.
  1. [46]
    Rule 428 of the Uniform Civil Procedure Rules referred to provides:

428 Requirements for report

  1. An expert’s report must be addressed to the court and signed by the expert.
  2. The report must include the following information—
  1. (a)
    the expert’s qualifications;
  1. (b)
    all material facts, whether written or oral, on which the report is based;
  2. (c)
    references to any literature or other material relied on by the expert to prepare the report;
  3. (d)
    for any inspection, examination or experiment conducted, initiated, or relied on by the expert to prepare the report –
    1. a description of what was done;
    2. whether the inspection, examination or experiment was done by the expert or under the expert’s supervision;
    3. the name and qualifications of any other person involved; and the result
  4. (e)
    if there is a range of opinion on matters dealt with in the report, a summary of the range of opinion, and the reasons why the expert adopted a particular opinion;
  5. (f)
    a summary of the conclusions reached by the expert;
  6. (g)
    a statement about whether access to any readily ascertainable additional facts would assist the expert in reaching a more reliable conclusion.
  1. The expert must confirm, at the end of the report—
    1. (a)
      the factual matters stated in the report are, as far as the expert knows, true;
    1. (b)
      the expert has made all enquiries considered appropriate;
    2. (c)
      the opinions stated in the report are genuinely held by the expert;
    3. (d)
      the report contains reference to all matters the expert considers significant;
    4. (e)
      the expert understands the expert’s duty to the court and has complied with the duty.
  1. [47]
    Two reports by Mr Davies were tendered in evidence. They are similar although the second, which purports to address the requirements of the Practice Direction, is a little more detailed. The second report adds a summary of his calculations and singles out and lists some items he identifies as incomplete.[6]
  2. [48]
    Mr Ray, another quantity surveyor engaged by the builder, attended the hearing. On the first day the parties’ two expert quantity surveyors were asked to engage in a conclave arranged for the following morning. Both parties had filed expert evidence late and there had been no conclave between them.
  3. [49]
    A Senior Member of the Tribunal was made available for the conclave the following day to assist them to prepare a joint report. The builder’s expert, Mr Ray, was prepared to go into conclave, but Mr Davies would not, which left the experts to give separate independent evidence.
  4. [50]
    Mr Davies was asked by Counsel about the variations claimed by the builder. He answered that he had not given any consideration to variations. He said he was instructed to ignore variations by his client. He had been given copies of the variation claims, but only for the purpose of information, not to consider whether the variation work was done.
  5. [51]
    That the contract was varied is beyond doubt. There were very significant engineering changes made at minimum.
  6. [52]
    A Form 16 certificate prepared by the project engineers was put into evidence.[7] That disclosed 28 inspections on site by the engineers over the period 4 February 2015 to 20 January 2016, when the builder was working there.
  7. [53]
    The Form 16 also lists 16 additional engineering drawings prepared during the course of construction. According to Mr Davies reports, none of those engineering drawings were provided to him.
  8. [54]
    Regardless that Dr Monsour denies instructing the engineers to do most of the additional engineering work, Mr Davies’ failure to consider the scope of work as varied by engineering changes limits the value of his evidence to the Tribunal.
  9. [55]
    It was put to Mr Davies by Counsel that his reports give no indication of the methodology adopted to make his findings about percentile completion of various items of work, and they should have done so to persuade the Tribunal. Surprisingly Mr Davies agreed:

I put it to you that a properly prepared expert report, from a quantity surveyor as experienced as you are, would have included some method or record of the analysis by which you arrived at these various component percentages in order for this to be in any way persuasive?‑‑‑I have to agree with that – with what you’re saying. [8]

  1. [56]
    For example, where the builder reduced its claim from 100% completion of concrete in progress claim 12 to 92.2% in amended progress claim 12, Mr Davies further reduced it to 85%, but without explaining why. He made numerous similar reductions across many of the 93 items comprising the progress claim schedule, none with an explanation why the percentile completion amounts were reduced in his reports.
  2. [57]
    Mr Davies does make some very broad brush comments about 19 specific items of work. One is about a boulder wall. He describes that as ‘not installed’.
  3. [58]
    In fact the boulder wall was the subject of an agreed variation to remove it from the scope of work and allow the Monsours a credit of $34,100.[9] The parties agreed to substitute a block wall instead. Given Mr Davies had the benefit of visiting the site after the builder left, and presumably saw the block wall constructed instead of boulder wall, and that he was given a copy of the variation claim documents from the builder for information purposes, it seems somewhat bizarre to then focus only on the original boulder wall specification and describe that as “not installed”.
  4. [59]
    Then there was an exchange between Mr Davies and Counsel concerning scaffolding costs, a matter of some marked contention between the parties:

Can I ask you to turn to the schedule again and, specifically, item 44?‑‑‑Yes.

That shows the contract price of $51,102.26?‑‑‑Yes. 

The Darvill claim is 80 per cent of that?‑‑‑Yes.

Coming to $40,000-odd.  Now, in the next column where you have otherwise ascribed percentages, including zero per cent on some occasions, there is no percentage figure there but you have come up with a figure of $1584?‑‑‑Yes.

And what’s that – and what is that based on?‑‑‑It was based on information provided by my client ‑ ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ as to an agreement reached on a rate.

Can you remember precisely what you were instructed?‑‑‑Yes.  I was requested to insert – insert that in the claim. 

You were requested to insert a figure into your report?‑‑‑I was given information.  Yes.

No.  You said you were instructed ‑ ‑ ‑?‑‑‑Yes.  Okay.

‑ ‑ ‑ to insert a figure?‑‑‑Yes.[10]

  1. [60]
    An expert is entitled to seek information from a party, but not to be instructed by the party as to what his opinion should be. If that is the case, then the expert opinion is not an expert opinion but that of the non-expert client and that adds nothing to the evidence to assist the Tribunal in determining issues of fact in dispute.
  2. [61]
    Mr Davies admission that his very large reduction (near $40,000) of the builder’s claim for scaffolding costs was based on nothing more than an instruction to put a reduced figure creates the suspicion that his reports may be similarly affected in other respects. It is certainly evidence of a partisan attitude adopted by Mr Davies in completing his reports. Mr Davies gives every appearance of acting, not as independent expert, but as advocate for the Monsours.
  3. [62]
    The sanction for failure to fulfill the obligations imposed on experts set out in Practice Direction 4 is not the exclusion of the expert’s evidence, but rather the failure to persuade.[11]
  4. [63]
    I give little weight to Mr Davies reports and evidence generally in consequence, not only on the basis of perceived lack of objectivity and independence in respect of opinions held, but also his failure to explain the basis of his calculations.
  5. [64]
    Mr Ray was the expert quantity surveyor who gave evidence for the builder. Where Mr Davies’ reports and evidence conflicts with that of Mr Ray’s, I prefer the latter.
  6. [65]
    Mr Ray impressed me as an expert witness. He had been asked to prepare an independent assessment of the level of progress made on site as at termination of the contract. His reports[12] set out and explain in detail the information he was provided and its source (from the contractor, given Mr Ray was engaged many months after the builder had left the site and another builder had commenced working there) and his calculations and conclusions based on the information provided are also set out in significant detail.
  7. [66]
    Mr Ray concludes from his assessment that the value of original work done (no variations included) to date of issue of amended progress claim 12 was $1,112,206.37. He notes the builder’s calculation for that same work was $1,149,496.59. The difference is $37,290.22, a difference of 3.24 percent.
  8. [67]
    With variations 1 to 37 inclusive added, he calculates the value of that work was $1,310,240.65. The builder’s total for that was $1,353,372.47, a difference of $43,031.82, or 3.28 percent across the project.
  9. [68]
    Mr Ray calculates the cost to complete as at date of termination by reference to the original contract price of $1,407,268.13 (excluding variations) as $237,970.94 meaning 16.9 percent of the contract was yet to be performed.
  10. [69]
    He calculates the cost to complete as at date of termination on an adjusted contract price of $1,629,871.71 (including variations) as $319,631.06, meaning 19.6 percent of the contract was yet to be performed.
  11. [70]
    I accept Mr Ray’s figures as correct. That means the builder’s amended progress claim 12 was inaccurate. Nevertheless, I find it was a valid progress claim.
  12. [71]
    I find it was an honest and reasonable assessment by the builder of the value of work outstanding in circumstances where the site foreman, who usually took responsibility for calculating the value of work done, had but recently left beforehand, and the builder immediately acted to correct acknowledged inaccuracies in progress claim 12 using the resources available. The builder’s estimates throughout the project were generally within range given the regime of monthly progress claims was always going to be very much an estimate of partially completed items of work. That was why Method B was adopted.
  13. [72]
    Amended progress claim 12 claimed in respect of 26 separate items of work. Mr Darvill reassessed those 26 items of work and re-issued amended progress claim 12 in respect of those 26 items. As at the date of claim the value of work completed over the 26 items concerned totalled $228,724.73. Mr Ray’s calculations for the same 26 items he assessed as worth $216,159.47, a difference of only $12,565.26.
  14. [73]
    Generally, as stated, over all 12 progress claims, the builder’s calculations as compared with Mr Ray’s were not far apart, within 3.2% of the value of the contract without variations and 3.28% with variations.
  15. [74]
    Based on Mr Ray’s calculations there remained 16.9 percent of the value of the contract excluding variations, and 19.6 per cent of the value of the contract with variations, yet to be performed and billed where discrepancies, including overclaims, could be reconciled.
  16. [75]
    Indeed the scheme of the contract general conditions addresses and provides for such inexactitudes of claim. The scheme ensures the builder is appropriately financed throughout the project to cover the costs of the build with guaranteed progress payments, whilst also guarding that the owners pay no more than the agreed fixed price (plus variations, if any) at end of day.
  17. [76]
    By clause 11.8 of the general conditions:

No retentions or set off

The Owner acknowledges that, subject to Clause 18.2,[13] the Owner has no right of set off under the Contract or otherwise, that is to deduct any amount from a progress payment due to the Contractor under Clause 11.7, or to hold any retentions for defects or omissions.

  1. [77]
    A reconciliation of payment and work done is specifically provided for at practical completion stage. By clause 17.7:

On giving the defects document to the owner, and notwithstanding that Practical Completion Stage may have been reached with minor omissions or defects, the owner must pay the Practical Completion Stage claim to the contractor in accordance with the contract.

If the owner wishes to take possession of the works but disputes the amount payable to the contractor and the contractor is a member of the Master Builders Queensland, the owner may pay the disputed amount into the Master Builders Queensland Holding Account.

The owner is to then give the contractor a receipt showing that the disputed money has been deposited and the owner must pay the undisputed amount to the contractor. On receiving the receipt and payment, the contractor is to hand the keys to the owner and give the owner vacant possession of the works.

Master Builders Queensland must ensure that any money received into the Holding account by the Association is released:

  1. (a)
    upon receipt of written instructions signed by the contractor and owner;
  2. (b)
    upon receipt of a determination or order from the Tribunal;
  3. (c)
    by order of a court; or
  4. (d)
    by a written decision of an adjudicator.
  1. [78]
    Clause 17.7 applied regardless that the Monsours were in occupation of the premises throughout the construction. The builder was a member of Master Builders Queensland. Amended progress claim 12 was valid and the Monsours had no right to withhold payment. They did not have Mr Davies report available to them at the time. They had no evidence to challenge the validity of amended progress claim 12 at the time. They simply refused to pay it.
  2. [79]
    I find the Monsours were in substantial breach of the contract in failing to pay amended progress claim 12 when it fell due on 29 March 2016.
  3. [80]
    Before considering what follows from that finding I address the issue of scaffolding which featured as an issue in dispute of significance between the parties and to the detriment of Mr Davies evidence.

Scaffolding

  1. [81]
    Mr Ray calculated the value of scaffolding to date of termination at $46,005.36. Mr Davies calculation was $1,584 as instructed by Dr Monsour.
  2. [82]
    Under the contract, scaffolding was a prime cost (‘pc’) item and the amount allowed was $51,102.26.
  3. [83]
    According to Mr Darvill there were a number of different aspects to the scaffolding requirements on this site. One was hire of fixed scaffolding. The rest described by Mr Darvill as builder’s scaffolding, either owned by the builder or built as required on site as the profile of the construction required.
  4. [84]
    The cost of scaffolding claimed by the builder in amended progress claim 12 was $10,220.45, taking the total claimed for scaffolding to 80% of the total pc amount.
  5. [85]
    Dr Monsour claimed the builder did not have significant use for builder’s scaffolding and the cost of hire was very much less than charged or should have been much less than charged.
  6. [86]
    In respect of hire charges, Dr Monsour tendered an email from the scaffold hire company dated 13 April 2016 forwarding copies of invoices to the builder. The invoices total $9,570.[14] I accept these were reasonable hire charges.
  7. [87]
    I also accept Mr Darvill’s explanation however about the use of builder’s scaffolding and the labour cost associated with its use over the period of one year of construction leading up to termination. I reject the claim by Dr Monsour that little use would have been required of such. Dr Monsour was only on site on Friday of each week and the weekends, and he has no building experience. The site was difficult, on the side of hilly land, as evidenced by the change in construction of the roof from truss to rafter due to the difficulty in raising trusses on the site.
  8. [88]
    Similarly I give little weight to the view expressed by Mr Girdis in support of the position adopted by Dr Monsour. Mr Girdis, who described his occupation as a development manager, and who only acted as Dr Monsour’s representative in dealings with the builder over the late period February and March 2016, seemed, as with Dr Monsour, to have little understanding of the concept of builder’s scaffolding as explained by Mr Darvill. Mr Girdis thought scaffolding was limited to something that remained fixed in place and not generally moved through the course of construction.[15]
  9. [89]
    I accept Mr Ray’s estimate of the cost of scaffolding.

The builder’s notice of intention to terminate

  1. [90]
    Even if the Monsours were not in breach in failing to pay amended progress claim 12, I find the builder was in any case entitled to terminate the contract pursuant to its notice of termination given on 30 June 2016.
  2. [91]
    The builder gave notice of intention to terminate on 10 May 2016 on the grounds the Monsours had refused the builder free and uninterrupted access to the site and on the grounds the Monsours had failed to provide owner supplied items and services within a reasonable time to avoid the builder being obstructed, interfered with, delayed or hindered in the performance of the contract work.[16]
  3. [92]
    By clause 7.2 of the contract:

Contractor to have free and uninterrupted access to Site and existing buildings

As soon as practicable after the date of this contract, and by the time stated in item 13 of the Schedule, the owner must provide to the contractor free and uninterrupted occupation of, and access to, the site and to any existing buildings necessary to carry out the works.

  1. [93]
    By clause 11.12:

Owner not to interfere with the carrying out of the Works

  1. (a)
    The owner must not obstruct, interfere with or hinder the carrying out of the works. The owner must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of the works.
  1. [94]
    Mr Paikin was employed in January 2016 by the builder as a project manager for various of the builder’s jobs. Mr Darvill said that at the time he had eight other construction projects on foot. When Mr Paikin became involved in the subject site he prepared a project schedule input sheet (a Gantt chart)[17] to organise and coordinate the supply of goods and work by the builder, its contractors, and Dr Monsour’s separately engaged contractors and owner supplied goods required under the contract.
  2. [95]
    Mr Paikin said the builder was not being informed about the activities or scheduled attendances of Dr Monsour’s contractors, and the owner supplied goods were not forthcoming.
  3. [96]
    The Gantt chart was prepared after Mr Girdis, the Monsours’ representative, asked on 10 March 2016 for a “schedule of works to complete”.[18] In the email Mr Girdis said the Monsours were:

…concerned with the drop off in workforce at the jobsite generally during February but particularly during the past week or so. We also noticed builders (sic) tools being removed off site. Are you able to provide any information that might explain above?[19]

  1. [97]
    Mr Paikin forwarded an initial draft of a project schedule to Mr Girdis later that same day asking him to complete the start and finish times for the owner supplied items listed.[20]
  2. [98]
    Not having received a reply by 21 March 2016, Mr Paikin asked Mr Girdis about completion of the schedule.[21] He reminded Mr Girdis the latter had agreed at a site meeting on 11 March 2016 to provide the information.
  3. [99]
    Mr Paikin said no dates were ever provided.[22]
  4. [100]
    Accordingly Mr Paikin had to make various assumptions about the work being done by Dr Monsour’s contractors and the timing for that and he prepared a progress schedule to take the project through to near completion.[23]
  5. [101]
    The initial and final draft of the progress schedule[24] shows the Monsours with numerous responsibilities for work outstanding and to be done on site: the supply of windows and doors, tiling, kitchen cabinetry and appliances, painting, drainage, air-conditioning, exterior ceiling linings, gutters and downpipes and water tanks.
  6. [102]
    Mr Girdis was asked in cross-examination:

Mr Girdis, can I ask, did Mr Darvill – or perhaps it was Mr Paikin – ask you at some stage for detailed drawings to be provided for the various changes or whatever works  were being done at the time.  Do you recall Mr Darvill or Mr Pakin if they could be provided with drawings, detailed, working drawings? --- 

There was – we’ve touched – we’ve discussed this earlier and it – there was a constant – between Steve Paikin and I, there was this call for, “We can’t proceed because we don’t have drawings.” And that was the subject of – of a – that email that you showed me earlier.  This was a theme running through, shall we say, they – the builders expressed concern to us as to – our concern was there was nobody on the site.  Their – their address to our concern is, “We don’t have drawings,” or, “We don’t have specifications,” or, “We don’t have owner-supplied” – you can have owner-supplied fittings or – I think in this case, for example, windows.  So there’s – that’s the conflict that we had.

Well, in terms of being asked about drawings --- ? ---  Drawings.

---  to provide drawings, did you ask Dr Monsour for the provision of those drawings?  Do you recall doing that? ---Well, that was our discussion in the – having been asked, I would then refer ---     

Yes? --- --- anything that I was asked to Dr Monsour.  I mean, I wouldn’t keep it from them.  If I felt that drawings could get the builder re-established and all would be moving forward again, then – I mean, that would have been the – that would have been the easiest thing to do.  I don’t recall there being sufficient – there were – I did see some sketches around for some architectural changes and I have seen A4 size engineering changes, as I mentioned before.  I don’t recall we were waiting on change drawings, in the sense, but there were detailed changes.

Do you recall asking – I’ll ask it again in a different way.  Do you recall asking Dr Monsour for those detailed drawings that were being requested by Roger Darvill?--- Well, I would express to Dr Monsour that that is – that is what I’m hearing from---  

Yes? --- the builders.  I wouldn’t keep – as I think I said before, I didn’t keep it to myself.

And so the outcome of that was did Dr Monsour refuse to give you those ---  ? ---  I don’t ---     

---  direct drawings? --- --- I don’t regard it as a matter of refusing to give it to me.  I don’t – I don’t think that Dr Monsour entirely believed that that was the reason for our lack of progress on site.  That’s – that is – it wasn’t a matter of refusal.  I mean, it wasn’t – it’s not – it wasn’t as if I said, “I need the drawings and I’m not getting them.”[25]

  1. [103]
    On 21 March 2016 Mr Paikin specifically asked, again, for information previously requested about the pool bathroom and BBQ areas to enable the builder’s scaffolders to set up for work in those areas.
  2. [104]
    On 24 March 2016 Mr Girdis wrote to the builder to say the Monsours were considering their position. He said the variation requests made by the builder were unacceptable. He noted no work had been done on site that week and then said that the Monsours requested “…no re-establishment on site occur prior to resolution of all outstanding contract matters between the principals.”[26]
  3. [105]
    On 30 March 2016 the builder advised Mr Girdis that the scaffolders had been postponed and re-scheduled for 4 April 2016.
  4. [106]
    Mr Paikin said in evidence that by the end of March the site was “demobilised”.[27]
  5. [107]
    The scaffolders returned as advised on 4 April 2016, but by email that day Mr Girdis informed the builder:

… By our email of 24/3/16 we repeat our instruction no work is to re-establish on site until further notice. Please contact your scaffolder immediately and request they leave site.[28]

  1. [108]
    I make the following findings.
  2. [109]
    The builder did not purposely slow construction on site at any time. Though the builder asked the Monsours to change the contract from fixed price to cost plus, I determine the refusal by the Monsours to do that did not cause the builder to slow or stop work.
  3. [110]
    Rather the builder’s construction schedule was initially hindered then brought to a stop by the failure of the Monsours to provide owner supplied goods and trade services required by the builder to continue work.
  4. [111]
    The builder’s exclusion from the work site on and from 4 April 2016 and the failure to supply requested necessary goods and trade services was a repudiation by the Monsours of their obligations under the contract. The builder was entitled to serve the notice of intention to terminate the contract on 10 May 2016.
  5. [112]
    The failure of the Monsours to rectify the identified breaches within the time set under the notice then entitled the builder to terminate the contract, which it did on 28 June 2016.
  6. [113]
    A number of consequences follow from my finding that the contract was validly terminated by the builder because of the breaches of contract by the Monsours.

A party in substantial breach

  1. [114]
    By clause 20.3 of the general conditions the owner is not entitled to terminate the contract if the owner is in substantial breach.
  2. [115]
    “Substantial breach” is defined in clause 1 of the general conditions as “a contracting party’s failure or refusal to perform a substantial obligation under the contract (e.g. owner fails to make payment on time)”.
  3. [116]
    The Monsours were in substantial breach of their obligations under the contract when they purported to issue their notice of intention to terminate on 3 June 2016 and when they issued the following notice of termination on 28 June 2016. Such notices were therefore ineffective, and indeed in themselves constituted repudiation of the contract.
  4. [117]
    The builder is entitled to rely upon the failure to pay amended progress claim 12 as a substantial breach of the contract and as grounds to terminate, regardless that it was not referred to in the notice of intention to terminate of 10 May 2016.
  5. [118]
    As explained by Mason J in Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11; (1989) 166 CLR 245:

26. Shepherd v. Felt & Textiles of Australia Ltd [1931] HCA 21; (1931) 45 CLR 359 stands as authority for the general proposition that a termination of a contract may be justified by reference to any ground that was valid at the time of termination, even though it was not relied on at the time and even though the ground actually relied on is found to be without substance.[29]

  1. [119]
    Given I find the Monsours were in breach of contract and I accept Mr Ray’s estimates for the value of work done up to and including amended progress claim 12 rather than Mr Davies’ figures, there are two consequences that follow.
  2. [120]
    The Monsours are not entitled to recover $152,480.46, or any other amount, from the builder as an overpayment. There was no overpayment, and even if there had been, given the Monsours were in breach, they are not entitled to claim general law damages.
  3. [121]
    As to the builder’s claim to recover the outstanding amended progress claim 12, by clause 22.4 the builder is entitled to recover all loss, costs, expenses and damages in connection with the owners’ breach. Clause 22.2 provided that the right of the builder to rely on the notice of termination procedures set out in clause 22 was without prejudice to any other rights or remedies available to the builder, which means an action claiming general damages was also available.
  4. [122]
    Regardless which avenue is taken, any assessment of damages follows the general rule, which is that a claimant is entitled to be placed, so far as money can do it, in the same position they would have been in had the contract been performed.[30] The amount claimed in amended progress claim 12 cannot be considered in isolation. On Mr Ray’s figures, which I accept, there was an overclaim across all progress claims when considered together, which means the builder is not entitled to the simple difference between the value of amended progress claim 12 and variation 14 ($58,799.56).
  5. [123]
    According to Mr Ray, the builder’s total progress claims excluding variations was $1,149,496.59. Mr Ray’s calculation for that work was $1,112,206.37,[31] a difference of $37,290.22. That is the amount outstanding to the builder and that amount is allowed.

Claim for rectification of defective work

  1. [124]
    As stated, given the Monsours were in breach under the contract, they have no entitlement to claim general law damages against the builder. Clearly the Monsours are not entitled to damages for incomplete work. Any such was yet to be done and the builder would have been entitled to charge for it.
  2. [125]
    However the builder is not entitled to be placed in better position than it would have been in had the contract been performed. Any cost of rectification of defective work the builder has saved in terminating the contract must be taken into account in assessing the builder’s entitlement to damages.[32]
  3. [126]
    A consequence of the Monsours’ breach of contract and builder’s entitlement to terminate is that the builder was deprived of the opportunity to rectify defective work during the defects liability period. A contractor’s cost of rectification is generally acknowledged to be less than that charged by a third party contractor called in to do the work later.
  4. [127]
    The Monsours claim $36,019.42 for costs of rectification of defective work. There is little evidence offered in support of the claim.
  5. [128]
    Mr French, who trades under the name Featherstone Constructions, was engaged by the Monsours to finish work at the site after the contract with the builder was terminated. It is not clear whether he entered into a building contract with the Monsours. If he did, it was not put into evidence. His experience and qualifications are unclear. He gave no indication what his qualifications were in his statement of evidence and described himself at hearing as a building supervisor rather than a building contractor or a site supervisor. If his only qualification is site supervisor, he is not qualified to enter into building contracts, only act as an employee to a contractor.
  6. [129]
    Mr French said in evidence that he worked for the Monsours on an hourly rate (not an entirely dissimilar arrangement, I note, to the cost plus contract proposal suggested by the builder in its letter of 28 October 2015 but rejected by the Monsours).
  7. [130]
    In his statement of evidence Mr French merely says “… a lot of the work done by C & R was either defective or not up to the requested standard and therefore had to be completely redone.”[33] He gives no details about that defective or substandard work save in a separate document entitled Featherstone Repairs to Defective Works (‘the French schedule’) which is to be found attached to a statement of evidence by the Monsours rather appended to the statement of evidence by Mr French.[34] Mr French however refers to that document in his statement of evidence.
  8. [131]
    The French schedule is one single page divided into columns. There are 25 items of claimed defective work noted. The columns are variously entitled Description, Hours allocated, Labour cost, Material and Total cost. Item 1 for example describes the item of claim as copper downpipes, hours allocated 64, labour cost $5,984, material $715 and total cost $6,699.
  9. [132]
    There is another document attached to the Monsours statement of evidence called a Defective Works Table (‘the table’)[35] which refers to and purports to add to these 25 items of claim. It is unclear who prepared it, most probably the Monsours.
  10. [133]
    In this document the claim for cost of repairs for item 1 is increased to $9,465.50 with the addition of a cost of an engineering firm to replace two “columns“ (the copper downpipes) and refixing the bases. Here the repair work is described as “replace galv. Post. Insert PVC pipe in galv post to prevent electrolysis. Recentre post. Provide adequate support. Redo base.” The description of the defect is also expanded as follows:

Copper downpipes at back of house. QBCC found the istallation (sic) of support posts not completed to an acceptable industry standard. The posts were not centred. Copper joined to galv steel will cause electrolysis. Posts not fixed properly at the base creating area that could hold water. Post not protected with protective coating.[36]

  1. [134]
    Fourteen items refer to a Queensland Building and Construction Commission (‘QBCC’) report.
  2. [135]
    There were two QBCC reports however, an initial report and a second report (‘review report’), the latter reviewing and setting aside in large part the initial report. The final review report reduced the directions to rectify defective work given the builder to three, those items listed 1, 2 and 4 in the table.

Items 1,2 and 4

  1. [136]
    Item 1 concerning copper pipes was canvassed in some detail at hearing. QBCC identified the problem as follows:

the installation of the galvanised steel posts (x2) to the rear of the dwelling supporting the roof to the outdoor patio have not been completed in accordance with acceptable practice for construction using dissimilar metals as the copper downpipes are discharging directly into the galvanised steel posts, which will cause accelerated galvanic corrosion to the posts and a subsequent reduction in the structural performance of the dwelling.

  1. [137]
    Item 2 is described as:

the installation of the reinforced concrete columns (x2) to the front of the dwelling in the outdoor area have not been completed to a reasonable standard expected of a suitably qualified and competent tradesperson, as the faces of the columns are bowed and out of square, most likely due to formwork movement during the concrete pour. The columns require rectification via grinding and/or building out the face with render to achieve a satisfactory finish.

  1. [138]
    Item 4 is described as:

the installation of the infills to the concrete patio slab to the top verandah at the front of the dwelling have not been completed in accordance with good building practice, as the use of material (fibre cement sheet) which is dissimilar to the surrounding substrate (concrete) will result in an unacceptable finish to the subsequent tiling works due to the need for movement joints to be incorporated right through the bedding and the tiles for the full perimeter of the junction between the dissimilar materials.

  1. [139]
    With respect to item 1, the builder proposed to solve the problem of stormwater running from copper to galvanised steel by running a plastic flexible product called stormflex inside the galvanised steel post to connect with an existing PVC stormwater line. There is no direction concerning the method of rectification. QBCC does not do that. How a builder complies with a direction to rectify is a matter left to the builder.
  2. [140]
    The builder proposed its solution. Dr Monsour disagreed.
  3. [141]
    I find that Mr Darvill’s proposal would have proven adequate to address Dr Monsour’s primary complaint about electrolysis. The proposal was supported by an engineer, Mr Tanner, who provided a statement of evidence. Mr Tanner attached to his statement a copy of a hand drawn sketch on the builder’s letterhead paper showing the proposed connection between stormflex and PVC pipe. Mr Tanner refers to the sketch in his report. He does not see any problem with the design.
  4. [142]
    There is also a statement of evidence by an engineer, P C Wisowaty, who states the welded join of the columns concerned had been reviewed and the joining method proposed by the builder was structurally adequate.[37]
  5. [143]
    Finally there is a statement of evidence from welding contractors certifying successful trial welding performed to test the rectification work (which involved welding on site) proposed by the builder.[38]
  6. [144]
    Though Mr Tanner and the other professional and tradesmen providing statements of evidence were not called and subject to cross-examination, I accept their evidence to the objections of Mr French and Dr Monsour unsupported by independent expert evidence.[39]
  7. [145]
    Mr French said the proposal wouldn’t work because the stormflex had a diameter of 70mm and therefore it could not connect with an adequate seal to a 100mm fixed PVC stormwater pipe. He said under the contract specifications it required a sealed connection.[40]
  8. [146]
    Dr Monsour was of similar view. He required 100mm PVC used inside the columns, not 70mm stormflex, because, as he stated in cross-examination:

--- The diameter there is different to the diameter here.  It’s specified by 100 mil PVC pipe.  So down to the ground – you’ve got a PVC pipe sitting down there.  That won’t go through it.  So if you want to put a reduction column in that to get through that part, you’re left with then a smaller diameter;  right?  Then you’ve got a pipe down to the ground and then you’ve got a PVC pipe.  You can’t glue them.  You can’t join them.  So you – the problem – the reason why I designed this was to stop ... electrolysis.

Excellent.  Well ‑ ‑ ‑?‑‑‑And ‑ ‑ ‑

‑ ‑ ‑ assuming that’s right – assuming that’s right;  okay?‑‑‑And that’s a structural column.

Yes?‑‑‑Not only that, as soon as you weld that, you get rid of the – you get rid of the galvanising.  And you can’t regalvanise this once you weld it – weld it – the inside of that column.[41]

  1. [147]
    According to Mr Darvill at hearing however, who had hand drawn the diagram attached to Mr Tanner’s statement of evidence, the water from the stormflex fell into a sump or transition box and then got away via the PVC piping. Mr Darvill said he had taken further advice from the engineer to the job, Mr Sheedy, and raised the issue of condensation with him. They had agreed he would seal the area with a special 80 MPa high strength grout in liquid form to take it up above ground line.[42]
  2. [148]
    In the builder’s drawing attached to Mr Tanner’s statement there is a diagram of the baseplate of the galvanised column with the notation “Sikaflex seal gal. baseplate to concrete footing.”
  3. [149]
    There is no evidence that the steel columns would ever be affected by storm water using the builder’s proposed solution.
  4. [150]
    The engineer, Mr Tanner, was happy with the design. In his statement of evidence he commented he holds the position of Adjunct Associate Professor, Advanced Water Management Centre, University of Queensland. He said in his statement that the drainage works were likely to have sufficient capacity for the required flow as set out under Australian Standard AS 3500.
  5. [151]
    I accept the engineers’ opinions that the builder’s proposed solution would have been structurally sound. I prefer the evidence of the witnesses for the builder about this issue rather than the opinions expressed by Dr Monsour and Mr French.
  6. [152]
    In fact however, the remedial work proposed by the builder was never done. The issue of the galvanised columns was one of the three matters of defective work the QBCC directed the builder to rectify. Mr Darvill and his workers attended on site to do the work but were told by Mr French, who was on site, they were not to attempt to rectify the stormwater issue using the builder’s solution. Mrs Monsour was there at the time. She said they could continue with other rectification work but not the galvanised columns. Mr Darvill and his workers left the site however.
  7. [153]
    By clause 19.3 of the contract general conditions:

19.3 Contractor must rectify defects identified during the defects liability period

Subject to reasonable access being provided, the contractor must within 20 business days of the expiry of the defects liability period, rectify any defects notified to the contractor under clause 19.2 during usual business hours and at no cost to the owner. The contractor is not responsible for rectifying any alleged defects which arise from the fact that something is still to be supplied or done by the owner or which relate to the maintenance of an item which is to be performed by the owner or is the responsibility of the owner.

  1. [154]
    In respect of rectification of the stormwater problem I find no reasonable access was provided to the builder, and on that alternate basis as well, the builder had no further responsibility to rectify it.
  2. [155]
    The refusal of access did not apply to the other two items singled out for rectification by QBCC however. They form the Monsours’ claims for rectification of defective work, items 2 and 4. I find the builder could have attended to them on the day. The nature of the defects is explained in the review report and supported by photographs. I accept both defects would have required remediation during the defects liability period had the contract continued to completion.
  3. [156]
    In respect of item 2, the complaint about bowed columns, there is an invoice from Kennards Hire for hire of a large handheld concrete mower together with a diamond disc, industrial vacuum cleaner and safety welding respirator. I consider the builder would have been required to make similar hire and therefore I accept the Kennards Hire cost. As to labour, I accept the time claimed by Mr French to grind off the bowed surfaces of 11 hours. The builder made no comment about this item of claim, and similarly with respect to item 4, because the builder relied on exclusion from site to remove responsibility to rectify, which I reject.
  4. [157]
    Mr French claims an hourly rate of $93.50 however, almost double that charged by Mr Darvill, who consistently charged at $55 per hour in his variation claims,. I allow 11 hours at $55 per hour which totals $550 and cost of hire of $311.90, which totals $861.90.
  5. [158]
    With respect to item 4, the complaint about fibre cement sheeting infill, Mr French claims six hours work and the cost of materials at $99. Again I have no evidence about the hours claimed or work done from the builder and therefore accept the time claimed and work done by Mr French, which is 6 hours, but reduced to $55 per hour.
  6. [159]
    In the table there is an additional claim of $646.80 for “saw cut and drill”. There is no receipt to support that extra charge in the referenced document[43] nor does Mr French make reference to it. I limit the claim to six hours at $55 per hour which totals $330, plus the outlay of $99 referred to in the French schedule, which makes a total of $429.

Items 6, 7, 8, 9, 10, 12, 13, 17, 19 and 22

  1. [160]
    Generally, all these claimed items of defective work suffer from a paucity of evidence in support. There are only the comments found in the table, whose authorship is unclear, the unhelpful broad brush evidence given by Mr French that a lot of the work done by the builder was defective, and the separate French schedule apparently based on hours of work performed by Mr French.
  2. [161]
    I find that the Monsours generally fail to prove the items of complaint amount to defective work by the builder in respect of the scope of work under the contract, fail to prove that the work done by Mr French was necessary to remedy such defective work, and fail to prove that such charges were reasonable costs of rectification. The mere existence of an invoice for work done in the absence of evidence that establishes the original work was defective, that it was within the scope of work of the contract, and that the remedial work and its costs are reasonable, is not enough. This is especially so in the matter at hand given the claims by the builder that the Monsours were constantly changing the scope of work of the contract and that the claimed remedial work was work done a long time after the builder had left the site.
  3. [162]
    The table refers to the initial QBCC report in support of a number of the claims, but the report does not offer any support for the claims. The original report states, rather, that the claimed rectification work had already been done before the QBCC inspector attended, and the inspector offered no observation or comment.
  4. [163]
    I note in respect of item 17, a claim for $477.62 for drilling 18 holes to remedy the incorrect spacing of hob lights that there is an email from Dr Monsour to the builder of 28 November 2015 referring to the problem but limiting the issue to only one light.[44] How the claim is increased to 18 lights is not explained.
  5. [164]
    In respect of item 22, the builder says the grates used are custom made and that would have been attended to in due course of the build.[45] I accept this is incomplete work yet  to be performed under the contract.
  6. [165]
    The claim for cost of rectification in respect of these items is refused.

Item 3

  1. [166]
    Item 3 is described in the table as:

block wall retaining wall western side of property. QBCC found the retaining wall not waterproofed properly and not built as per AS 4678. Negative waterproofing membrane applied has cracked. Water and salts penetrating through the wall.

  1. [167]
    The claim is for $6,545 to:

Apply positive membrane. Excavate behind accessible retaining wall. Install adequate pit and slotted pipe. Allow proper drainage. Plug and waterproof all penetrations. Backfill and make good.

  1. [168]
    The QBCC review decision in fact found something entirely different. Apparently the parties had agreed on site that no waterproofing had been undertaken. The main point of contention was the adequacy of drainage behind the wall and whether or not the waterproofing method proposed by the builder would prevent moisture seeping through the wall and affect a proposed rendered finish.
  2. [169]
    In the review decision it was accepted that photographs established standard agriculture pipe had been installed behind the wall and was considered sufficient for the application. There was no finding that the wall was not built to standard, but rather that it was performing appropriately. Given the wall did not form part of the dwelling there was no requirement to waterproof it.
  3. [170]
    Backfill behind the wall was incomplete, not defective. The first report suggested that a  stormwater surface drainage or subsurface drainage at a high level might improve the situation.
  4. [171]
    I conclude this was not defective work but work in progress and as such it was no responsibility of the builder to complete.

Item 5

  1. [172]
    Item 5 is described in the table as: beading strip under soffit fitted and glued before render. In the repair undertaken column of the table the following appears: removing beading strip damaged the soffit as a beading strip had been glued to soffit. The Monsours’ claim $6,032 as the cost of rectifying defective work.
  2. [173]
    There is no explanation why the render beading strip required removal. Beading strips are normally fixed in place before rendering to provide a good edge to the render. The render normally covers the beading. Glue or like substances are often used to fix the beading in place. There is simply not enough information to understand either the complaint or why rectification was required.
  3. [174]
    The claim is not allowed.

Item 11

  1. [175]
    Item 11 is described in the table as: concrete slab at the front of the house above stair landing rough and drummy. The repair undertaken is said to be: clean, pour, finish and remove form. The cost of two hours labour is claimed.
  2. [176]
    The QBCC review report concludes the face of the new work is not in line with the face of the surrounding existing surfaces. The finish to the new work is not to a standard reasonably expected of a competent tradesperson. On site the builder accepted that further rectification work was necessary in the area and that he planned to grind the surface to achieve a suitable finish.
  3. [177]
    I have nothing from the builder to contradict the statement made to QBCC. I accept this was defective work. The builder does not say anything about the amount of claim.
  4. [178]
    I allow two hours at $55 per hour, making a total of $110.

Item 14

  1. [179]
    This item description is: brick wall on Western side bowed. The remedial work done is described as: place protection curtain. Grind back area of bow.
  2. [180]
    The work was apparently done by Mr French after the initial QBCC report and the review report. The bow was observed by the QBCC inspector in the initial report. He said  the top section had a bow of 10mm measured over the length of a 2 metre straight edge. That is fairly significant.
  3. [181]
    I accept this was defective work on the part of the builder. The cost claimed is 2 hours work. I allow that at $55 per hour, which totals at $110.

Item 15

  1. [182]
    Item 15 is described as: vent pipe not flashed. The rectification work is described as: install lead flashing on the vent. Outlets on roof. The claim is for a plumber’s cost of $495.
  2. [183]
    The supporting invoice is for an amount of $1,943.70. Part of the work is to “install lead flashing on the vent outlets on the roof.” There is nothing more and there was no breakdown of the costs attributing $495 to the installation of lead flashing.
  3. [184]
    I conclude this is incomplete work which was yet to be performed by the builder. The claim is not allowed.

Item 16

  1. [185]
    Item 16 is described as: storm water connection inappropriately held together with roofing screws. No stormwater pipe put in for drain in front of garage. The costs claimed are $550 for a plumber.
  2. [186]
    This work is said to be supported by a plumber’s invoice of 9 March 2017 charging a global figure of $3,556.22. The plumber notes in the invoice however: also repair the main stormwater line and add an extra branch to pick up the groundwater outside of the garage.
  3. [187]
    Mr Gannon, who was at the relevant time employed as supervisor and site foreman for the builder, said in evidence that he had installed a “boss junction” to a 150 mm storm water pipe. He had glued it with Sikaflex then added tek screws approximately 25 mm long. He said the boss junction came with screws but he had used the tek screws instead. He said given it was storm water rather than sewerage pipe, the screws were no problem. Dr Monsour disagreed, and said the screws were long batten screws. Mr Gannon denied using long roofing screws.
  4. [188]
    I accept the wrong screws were used. I accept the plumber used the words “repair” in describing the work to the storm water line, and therefore it was necessary. I am not satisfied however that the claim for $550 out of $3,556.22 is reasonable. The other work charged for in the invoice was extensive by comparison, namely finishing the water and sewer rough in of a bathroom, modifying the shower waste in another ensuite and running the storm water line from the pool area under the garage to the existing line.
  5. [189]
    Doing the best I can I allow an amount of $250 for the cost of the repair of the junction.

Items 20, 21 and 23

  1. [190]
    I determine these items of claim are to be regarded as incomplete work – fixing lights to soffit; removing insulation around downlights; pressure testing and making good water lines. Had the contract continued through to completion they would have been attended to in due course as required and determined appropriate by the builder.
  2. [191]
    In respect of pressure testing and making good the water lines, the plumber’s invoice for the work is dated 26 October 2017, some 1 ½ years after the builder left site. I am not persuaded that the accumulated debris suggested to have been sitting there for some time is due to failure on the part of the builder in some way. How accumulation of debris in water lines is due to commission or omission on the part of the builder is unexplained. Nor am I persuaded the debris could not have occurred after the builder left site.

Item 18 is described as: damaged new window frames as hard timber studs have been screwed to them.

  1. [192]
    There is no explanation why this claim is said to be defective work by the builder. The builder claims the windows were boarded up at the direction of the Monsours pending locksets being selected. I accept that.
  2. [193]
    The claim is refused.

Item 24

  1. [194]
    The description of the claim here is: storm water pipe in front of water tank area not connected to main stormwater pipe. Stormwater pipe terminates underground unconnected to main stormwater.
  2. [195]
    The remedial work claimed is:

locate the main storm water pipe with the aid of cctv camera. Hand saw and drill concrete 250mm thick in 3 locations inaccessible due to thickness of concrete. Third attempt at penetration located main water pipe. Prepare surface chase to accept smaller gage (sic) pipe to then connect to main storm water. Repair all penetrations. Re-steel and repair all 3 penetrations.

  1. [196]
    The claim is for 34 hours labour, drilling costs of $413.60 plus plumbing cost of $1,014.96.
  2. [197]
    There are two invoices from a drilling and sawing contractor charging for a 150mm cut on 8 November 2017, and another charging for hand sawing concrete and separately floor sawing concrete.
  3. [198]
    I am not satisfied that this work would have been necessary had the builder been allowed to continue working on site to complete the contract. The concrete cutting work was performed more than 1 ½ years after the builder was refused access, and I find was more probably than not necessitated by the new contractors (and Mr French) not having sufficient knowledge of the site to locate already laid pipes.
  4. [199]
    The plumbing work (running stormwater from the flower garden, fitting off a bathroom and butler’s pantry sink and installing a fridge and fridge water) I find is incomplete work, not defective work.
  5. [200]
    This claim is refused.

Item 25

  1. [201]
    Item 25 is described as: new frieze buckeld (sic). The rectification work is to remove the frieze, clean the area and install new frieze.
  2. [202]
    There are supporting photographs. The frieze does appear damaged. The claim is for the cost of labour of 5 hours and material costs of $120.
  3. [203]
    The labour charge seems excessive given the defect is limited to one fairly small, short section. The work was apparently performed by Mr French. He does not claim plastering qualifications. The builder’s workers would, I determine, have performed the work fairly quickly.
  4. [204]
    I accept this is defective work by the builder. I allow 3 hours at $55 per hour making the labour cost $165. I allow the claim for $120 for materials. The total is $285.
  5. [205]
    The following costs of rectification of defective work must be allowed by the builder in calculating any monies due the builder from the Monsours:

ItemCost

2$861.90

4$429.00

11$110.00

14$110.00

16$250.00

25$285.00

Total$2,045.90

Variations

  1. [206]
    The builder says there were 37 variations of the contract in the course of the build.
  2. [207]
    Variations 1 to 5 inclusive, 8, 9, 11 and part of 14 ($24,317.70 out of the total claimed of $48,635.40) the value of which totals $61,664.07, were paid by the Monsours on 6 November 2015. Dr Monsour claims more was paid, but adding the variations the total seems to be $61,664.07.
  3. [208]
    Variation 13 was a credit to the Monsours for a boulder wall which was not proceeded with, a block wall being decided on instead.
  4. [209]
    Variations 6, 7, 16 to 25 inclusive, 28, 29 and 32 to 36 inclusive were not paid and are the subject of a claim for payment in the proceedings by the builder.
  5. [210]
    It is not disputed that the parties entered into a domestic building contract for renovations to the Monsours’ home. None of the variation claims complied with the strict requirements then applying pursuant to the DBCA. At hearing the builder applied for, and was granted, leave to amend its response and counter application to clarify its claim for payment of variations was pursuant to s 84(2) DBCA.[46] I note the right of the builder to recover variations through application to the Tribunal utilising s 84 DBCA process was flagged from outset by solicitors acting for the Monsours when the purported notice of termination was issued by the Monsours on 30 June 2016.[47]
  6. [211]
    By s 84 of the DBCA:

Right of building contractor to recover amount for variation

  1. (1)
    This section applies if—
  1. (a)
    the building contractor under a regulated contract gives effect to a variation of the contract; and
  2. (b)
    the variation consists of—
    1. an addition to the subject work; or
    2. an omission from the subject work that results in the building contractor incurring additional costs.
  1. (2)
    If the variation was originally sought by the building owner, the building contractor may recover an amount for the variation—
  1. (a)
    only if the building contractor has complied with sections 79, 80, 82 and 83; or
  1. (b)
    only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
  1. (3)
    If the variation is not a variation that was originally sought by the building owner, the building contractor may recover an amount for the variation—
  1. (a)
    only if—
    1. the building contractor has complied with sections 79, 80, 82 and 83; and
    2. the ground of unforeseen circumstances applies; or
  1. (b)
    only with the tribunal’s approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor.
  1. (4)
    The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that—
  1. (a)
    either of the following applies—
    1. there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation;
    2. the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and
  1. (b)
    it would not be unfair to the building owner for the building contractor to recover an amount.
  1. (5)
    For subsection (3)(a)(ii), the ground of unforeseen circumstances applies if the variation became necessary because of circumstances that could not have been reasonably foreseen by the building contractor when the contract was entered into.
  2. (6)
    If the building contractor is entitled to recover an amount for the variation of a fixed price contract, the amount is—
  1. (a)
    the increase in the contract price stated, or worked out in the way stated, in the appropriate variation document for the variation; or
  1. (b)
    if paragraph (a) does not apply—the cost of carrying out the variation plus a reasonable profit.
  1. (7)
    If the building contractor is entitled to recover an amount for the variation of a cost plus contract, the amount is the amount worked out in the way stated in the contract.
  1. [212]
    As stated, none of the variations complied with ss 79, 80, 82 and 83 and therefore the builder requires and now seeks by counter application the Tribunal’s approval to recover payment.
  2. [213]
    The DBCA does not prohibit or make illegal non-compliant variations if the parties agree to such. The restriction imposed by s 84(2) applies only to the recovery of payment by the builder.
  3. [214]
    I have previously noted that there is nothing in s 84 of the DBCA or generally Part 7 to suggest that where the owner has voluntarily paid the builder the price for non-compliant variations, s 84 operates to restrict or prevent the builder from receiving and retaining such and explained the reasons for that.[48]
  4. [215]
    By s 8(1) DBCA domestic building work involves the renovation, alteration, extension, improvement or repair of a home.
  5. [216]
    By s 16 of the DBCA:

Meaning of variation

  1. (1)
    A variation, of a domestic building contract, is –
  1. (a)
    an addition of domestic building work to the subject work; or
  1. (b)
    an omission from the subject work.
  1. (2)
    However, for a cost plus contract, an addition or omission is a variation only if the addition or omission is not reasonably contemplated by the contract.
  1. [217]
    By s 6(5) of the DBCA, if a domestic building contract is varied the contract price is the total amount payable under the contract as varied.
  2. [218]
    The builder claims there were exceptional circumstances with respect to the performance of work under the subject contract which should entitle the builder to payment for the variations claimed, and it would not be unfair to the Monsours if they pay for the variations.
  3. [219]
    I agree, for the reasons set out below.

Exceptional circumstances

  1. [220]
    The expression ‘exceptional circumstances’ was considered by the Court of Appeal in Allaro Homes Cairns Pty Ltd v O'Reilly & Anor [2012] QCA 286:

The phrase “exceptional circumstances” is not defined. It is found in an act whose purpose or object is to achieve a reasonable balance between the interests of building contractors and building owners and to maintain appropriate standards of conduct in the industry.[14] It may be vague[15] but the matters that might be considered relevant to such an inquiry will be indicated by the particular way in which the Act was not complied with and the circumstances particular to the dispute. In this Act, it directs attention to those circumstances which are exceptional and warrant conferring upon the building contractor an entitlement to recovery for the variation which its conduct, by failing to meet the obligations imposed by the statute, deprived it. It would therefore suggest, in the context of this dispute, attention might be directed to the circumstances that applied that prevented compliance or explained non-compliance with s 80(2)(e), which required the building contractor to state the change of the contract price because of the variation or how the change in price might be worked out. Circumstances such as an unanticipated event requiring work to be done urgently might, for example, afford an explanation and constitute an “exceptional circumstance”. But this comment should not be regarded as exhaustive, the term is broad and it is not desirable to attempt an exhaustive statement of what might be in any given dispute an exceptional circumstance.[49]

  1. [221]
    It is appropriate to say something first about the evidence of the parties and credibility.
  2. [222]
    The principal witnesses for the owners were Dr and Mrs Monsour. For the builder, it was Mr Darvill and Mr Gannon.
  3. [223]
    I consider Mr Darvill gave open and frank evidence. He made appropriate concessions where required. He admitted he was not across all aspects of the project. He is the director of the builder company and at the time had something in the order of 9 or 10 building projects on foot. He said he had considerable dealings however with both Dr and Mrs Monsour on this job.
  4. [224]
    His evidence about experiencing frustrating delays and changes made to the scope of work by Dr and Mrs Monsour, their constant interference and their habit, or at least Dr Monsour’s habit, of giving unauthorised directions to his workers and subcontractors I found convincing. He gave clear and responsive answers to questions.
  5. [225]
    By contrast, I found Dr Monsour’s evidence generally difficult to follow,  broad-brush, imprecise and confusing. I found this intentionally so at times, obfuscating where simple direct answers to reasonable questions apparently did not suit his narrative.
  6. [226]
    His narrative varied but maintained a theme that the Monsours had not requested any changes be made[50] and the work was built to original plan.[51] He denied any engineering changes were made save to correct an error on the part of the engineers.[52] When challenged by Counsel that there had been 28 site visits by the engineers and 14[53] revised or additional drawings done by them, his responses became vague, imprecise and unsatisfactory, finishing, when asked whether there had been invoices received from the engineers, with a claim to loss of memory and that his wife was responsible for payment of such things.[54] This was the only claim to loss of memory by Dr Monsour and it was unconvincing. Dr Monsour had boasted many times during the hearing about his extremely good memory, amongst other attributes.
  7. [227]
    Generally, where Dr Monsour’s evidence conflicts with that given by Mr Darvill, I prefer the latter.
  8. [228]
    Mr Gannon gave evidence for the builder. He had worked for Mr Darvill for 25 years but as at date of hearing no longer did so. He acted as supervisor and site foreman on this job. He said he attended the site most days. I felt he was an honest witness and his evidence supported Mr Darvell’s in all significant respects.
  9. [229]
    Mr Paikin also gave evidence for the builder. He acted as a project manager for the builder for some 14 months from January 2016 to February 2017. He described his occupation as engineering project manager. He gave evidence about his preparation of the Gantt Chart to try to bring the project back on track and moving forward, which failed. He gave forthright evidence and again his evidence supported that given by Mr Darvill.
  10. [230]
    Mrs Monsour filed joint statements of evidence with Dr Monsour and accordingly her evidence was on all fours with Dr Monsour. She was not cross-examined at any length at hearing.
  11. [231]
    Mr Girdis gave evidence for the Monsours. He was engaged by them towards the end of the involvement of the builder on site, in February 2016. Mr Girdis’ point of contact was Mr Paikin. Mr Girdis also struck me as an honest witness who answered as best he could, though he had no long term involvement in the dispute. He said as much. After giving evidence on the first day of hearing he returned on day five pursuant to notice to appear given by the builder who asked him about issues arising from the evidence given by Dr Monsour.

Constant changes

  1. [232]
    Counsel for the builder submits the frequent and constant changes requested by Dr Monsour meant the builder struggled to keep up with paperwork to properly document changes, including variations.
  2. [233]
    Mr Darvill gave the following evidence:

How was – Dr Monsour wasn’t there for four days during the week, so how would it be communicated to you that changes needed to be made when he wasn’t there?‑‑‑Basically, we’d have the meeting on the Friday, then he would then proceed to have a meeting with Darren or William first up, and Damian.  So I would usually have at least a couple of hours – hour to a couple of hours – just depending on what I was up to – to talk to him.  Then he would then proceed to talk to the other site foreman – site supervisor on site.  Then we would receive numerous emails over the weekend.  Quite often, we’d have post-it notes and little diagrams left and all that on the site when we’d turn up on the Monday that were left over the weekend.  A couple of occasions, we’ve turned up and our subcontractors have been turned away because he informed us that – Darren – that – you know, “Oh no, that was wrong, so I sent them away.  And we’ll fix it now, then they come straight back”.  Well, doesn’t work that way, Mr Monsour.  The subcontractor is now gone for the day.  “Well, we want them back tomorrow.”  Well, hold on a second.  Now, the subcontractor has another job to do. 

…

So there were daily changes to the specifications you were otherwise going to be ‑ ‑ ‑?‑‑‑I’d like to say daily ‑ ‑ ‑

‑ ‑ ‑ working towards ‑ ‑ ‑?‑‑‑but I could even – probably even say – there – there was – Christ, I’d even start going into the word hourly.  You know, and I – and I use that literally.  Because, you know – you know – what we found – what we ended up coming across – was Marie would come out and quiz us.  And then go back inside and then unbeknownst to us, she’s ringing Bruce, and then come out and re-quiz us.  But I – I think there was a lot of miscommunication between them on what they were trying to achieve, and Marie’s trying to get across to the supervisors and the other people on site.  So it’s – it’s – it’s hard to pinpoint it that way, but it was – it was one of the hardest sites I’ve ever had to run with a client in my career ‑ ‑ ‑ [55]

  1. [234]
    Mr Darvill said the contract provided for a weekly site meeting of 2 hours duration and all other correspondence to be by email, but within 2 months he was spending in excess of 20 hours each week on changes to layouts, drawings and variations due to requests by the Monsours. He said they would frequently question and then adjust the adjustments already made at a recent meeting.[56]
  2. [235]
    Mr Darvill said he had a computer and printer and email facility placed on site in an attempt to manage the volume of changes being made and to update the list of contractors, office staff and on site workers impacted.[57]
  3. [236]
    Mr Gannon talked about “changes” as well:

Mr Monsour … quite regularly sent me drawings and notes and long emails discussing where he would want to move things.  Like, some things he would want to move 10 mills, some things he would want to move 20 mill.  I mean, it was just off the top of his head things would change all the time.[58]

  1. [237]
    The evidence on the part of both parties was vague in failing to draw a distinction between changes associated with variation claims and other general, perhaps minor changes, not the subject of variation claims. Certainly the builder’s witnesses described the changes generally as changes to the scope of work under the contract, but not all resulted in variation claims.
  2. [238]
    Dr Monsour generally denied making any changes at all. He said in cross-examination in answer to a challenge about this from Counsel:

So you never raised any suggested way or alternative way of doing things ‑ ‑ ‑?‑‑‑What like?

‑ ‑ ‑ proposed any changes?‑‑‑No.  The house was being built to plan.

Right?‑‑‑And you can go and have a look at it, look at the plans, if you want to.  You’re entitled to come my house.

So you never raised any issue suggesting or requesting a change to the existing architectural ‑ ‑ ‑?‑‑‑No.

‑ ‑ ‑ design or layout or ‑ ‑ ‑?‑‑‑The ‑ ‑ ‑

‑ ‑ ‑ plans?‑‑‑The only changes made was a back portico area, and Roger Darvill and the roofing guy, Clint – I can’t remember his last name – said it’ll be easier with the roof to do the gutters, the – do the – the valleys and it’ll be easier.  I have it on the original plans that we reuse the skylights we had and we had Dutch gables on both sides, right, of the east and the western side, like the previous portico we had pulled down.  And they said, “That’s difficult to build.”  And in an email to Damian, I said, “Look, I’ve got photos of what it looks like, if you wanted.”  And Roger wanted to change it.

Okay?‑‑‑It wasn’t me.[59]

  1. [239]
    The Form 16 certificate prepared by the project engineers[60] has already been mentioned. That disclosed 28 inspections by the engineers over the period 4 February 2015 to 20 January 2016. Mr Darvill said, on an average site, one might expect four inspections throughout a build.
  2. [240]
    This Form 16 supports the builder’s assertion that there were many changes made to the work over the course of the build.
  3. [241]
    The Form 16 showing the numerous attendances by the engineers was put to Dr Monsour. He agreed there had been engineering changes, but he claimed none of them were made with his permission or knowledge or with that of his wife. He attributed all engineering changes, save one with respect to a perimeter beam, to the builder.[61]
  4. [242]
    In support of this claim he said the engineers had waived their bill for the roof framing redesign. I accept that the change to the roof framing design was made without consultation between the builder or engineer and the Monsours. However I do not accept that the many other engineering changes were made without Dr Monsour’s knowledge or input or initiated by the builder to correct mistakes.
  5. [243]
    A bundle of emails concerning engineering changes were tendered by the builder.[62] They make clear that Dr Monsour was both a recipient of and privy to many emails discussing engineering changes on site throughout 2015. There is no suggestion from the emails that they involve changes required because of mistakes made by the builder in performing scripted work. In a number of instances Dr Monsour is seen to initiate changes and asks for input from the engineer and builder. In some emails the engineer asks for Dr Monsour’s approval to make necessary changes, such as construction of a new wall and footing to support an existing retaining wall found to be cracked and leaning.
  6. [244]
    There is also in evidence a three page email of 28 October 2015 in which Dr Monsour writes to the builder[63] starting:

I have been doing a lot of thinking about the the (sic) top deck and the drainage and have a couple of thoughts that may or may not be of some benefit. I have done a drawing and explained it to Marie if the below is hard to follow.

I spoke to a tiler/stone mason ….

  1. [245]
    The email goes on to document in long and elaborate detail Dr Monsour’s proposed changes to the top deck and drainage giving distance measurements, and talking about the thickness of concrete and hob size amongst other things.
  2. [246]
    Perhaps this email prompted, on the same day, 28 October 2015, an email from Mr Darvill to Dr Monsour[64] detailing the problems with the progress of the job caused by Dr Monsour’s constant changes. The builder noted the strict deadlines for completion of work by subcontractors and the weekly site meetings and decisions made there which would then be yet further changed by the Monsours:

Unfortunately, in the vast majority of cases, the agreement and progress made during these meetings are for the most part undone, meaning that the same job has to be repeated several times and the progress made on the job regresses. … As you are still living on-site, we frequently have checking on progress throughout the week and changing items as required.

Increasingly, we find ourselves at a stage that we are unable to move forward on the vast majority of construction items as decisions are pending by yourself and Marie. We are at a stage now where there are more regular decisions relating to building works on the run and the manner in which they are to be carried out which has a significant impact on the flow and progression of the construction. These delays are accruing extra labour work far in excess of what was originally proposed and is not within the original plans and specifications for the construction. This is often due to you seeking further clarification of measurements that are or were not as per original drawings and specifications.

Often, it is quite a battle to get these trades to return as they have moved to other jobs…. Bruce, the delays are regrettably caused by the constant changes and departure from plans and points as discussed and agreed during our weekly meetings and as outlined on the construction plans.

  1. [247]
    The letter concluded with the builder proposing to convert the contract from fixed price to cost plus, which proposal the Monsours rejected.
  2. [248]
    Counsel put to Dr Monsour that he had not challenged the builder’s claims made in that letter.[65] Dr Monsour said that was because he didn’t want conflict with the builder and because he had a fixed price contract and required the builder to abide by it, regardless that it might cost the builder twice the amount.[66]
  3. [249]
    I accept that Dr Monsour relied on the fixed price contract to resist the request to change to a cost plus arrangement, but otherwise conclude he accepted the truth of what was said. I do not accept that Dr Monsour failed to challenge the assertions about constant changes because he wanted to avoid conflict with the builder.
  4. [250]
    The evidence given by Mr Gannon and Mr Paikin suggest something to the contrary, namely that Dr Monsour did not avoid confrontation.
  5. [251]
    Mr Gannon said that he felt intimidated by Dr Monsour. He would sit in his car during lunch breaks because of Dr Monsour’s interference. He said there were occasions, such as when an issue arose concerning Telstra, that Dr Monsour would throw things, kick things, slam doors. After that Mr Gannon didn’t feel comfortable on site being there by himself.[67] He added he had feedback from some of his sub-contractors and tradespeople that they didn’t want to come to site on Fridays because Dr Monsour would be there.[68]
  6. [252]
    Mr Paikin gave similar evidence about Dr Monsour engaging in intimidating behaviour, and recalled gratuitous comments by Dr Monsour that he was a boxer and able to “sort things out if required,” which Mr Paikin took as a form of intimidation.[69]
  7. [253]
    Mr Darvill gave similar evidence about feeling intimidated by Dr Monsour.[70]
  8. [254]
    I accept that there were constant and numerous changes made to the scope of work of the contract, some changes founding variation claims, and others not. I find the Monsours were overwhelmingly responsible for the changes.

Interference

  1. [255]
    Mr Darvill claimed Dr Monsour (and Mrs Monsour) constantly interfered with and micro-managed the work done on site. The Monsours remained in residence on site, or at least Mrs Monsour did, throughout the construction. Dr Monsour was present each Friday, Saturday and Sunday.
  2. [256]
    According to Mr Darvill, the Monsours maintained a constant vigil looking for miscalculations or inaccuracies of measurement. He said this interfered with the work of the builder, its workers and sub-contractors. Dr Monsour challenged Mr Darvill about that and Mr Darvill responded:

Yes, so constant changing of positions, movements – it went on consistently through the job.  Post-it notes, emails, scribbles on the side – the bulk of them were – were collated on a Friday due to the fact that was your meeting day.  Then they followed over the weekend with emails and notes left and then they were followed up by emails during the day – stuff sent from you, then they were followed up by Marie asking and watching and asking questions.[71] 

  1. [257]
    The letter from the builder to the Monsours of 28 October 2015 referred to the delay caused by their “clarification of measurements that are or were or were not as per original drawings and specifications”.
  2. [258]
    In a statement of evidence Dr and Mrs Monsour say “(t)he Applicant never obstructed or interfered with the contractors’ daily work but had to point out mistakes as they were done and that caused delays.”[72]
  3. [259]
    Mr Gannon, the builder’s site supervisor, said it became increasingly difficult to maintain the level of productivity on site because of the interference of the Monsours. His evidence was that they would often override his role as site supervisor and direct the builder’s contractors without his knowledge, which resulted in frequent reworks and loss of production.[73]
  4. [260]
    Mr Weeks, a formwork contractor engaged by the builder, gave similar evidence. He said in a statement of evidence that on this site his company would complete formwork pursuant to the plans provided only for the plans to be changed by the Monsours after the work had been finished. He said the Monsours liaised directly with his staff, changing things without his knowledge. He said because of the issues with the Monsours, several of his staff refused to work on the site.[74] He said the constant changes meant the job took twice as long as it should and caused substantial wastage.
  5. [261]
    Dr Monsour put to Mr Weeks that he had identified a 20mm error with formwork erected by Mr Weeks formworkers for an extension of a concrete slab. Mr Weeks disagreed. He said it was nothing unusual. It would have been checked before pouring and corrected if required.
  6. [262]
    Dr Monsour put to Mr Weeks that he had found other errors made by the formworkers. Mr Weeks disagreed that any input from Dr Monsour had been required. He said necessary adjustments to formwork were routinely made prior to pouring concrete. He said Dr Monsour’s interference had simply resulted in the job taking weeks longer than expected or required.
  7. [263]
    I note a number of other statements of evidence made by employees of the builder and subcontractors who worked on site voicing similar concerns about the interference and changes made by the Monsours throughout the project.[75] These witnesses did not attend for cross-examination however, which reduces the weight to be given the evidence, though does not entirely discount their statements from consideration.[76]
  8. [264]
    I do not accept that Dr Monsour’s constant checking and measuring and fault finding was necessary to ensure the builder performed work in accordance with the plans and specifications of the job. It is recognised that some imprecision invariably occurs and is to be expected in construction. The work may still be acceptable and satisfy the builder’s warranty to perform work in an appropriate and skilful way and with reasonable care and skill.[77] A simple perusal of the QBCC Standards and Tolerances Guide evidences that truth.
  9. [265]
    Rather, I find Dr Monsour’s constant checking and measuring and fault finding  resulted in the work taking far longer than necessary and made the work far more difficult than would otherwise have been the case.
  10. [266]
    I accept that Dr and Mrs Monsour directed workers and subcontractors on site absent permission from the builder, which caused the builder additional problems.
  11. [267]
    I determine that the interference by the owners, particularly Dr Monsour, caused the worksite to become dysfunctional.

Assurances to pay

  1. [268]
    Mr Darvill said he raised the problem of the constant changes being made by the Monsours causing a cost blow out on six occasions. He said Dr Monsour’s response was “No, that’s okay.  We just want a good job.  That’s all we want”.[78]
  2. [269]
    This evidence was not challenged by the Monsours.
  3. [270]
    Mr Darvill said he relied on the assurances from Dr Monsour. I understand that what Mr Darvill was assured about was that the Monsours would pay for the changes being made.
  4. [271]
    Mr Darvill said it was only after he sent the email of 28 October 2015, where he proposed the contract change from fixed price to cost plus, and the Monsours refused, that he understood their previous assurances could not be relied on.[79] That was late in the construction.

Failure to document

  1. [272]
    I accept the builder’s submission that constant changes made by the Monsours to the builder’s scope of work on a daily, if not more frequent basis, meant documenting such would have been very difficult, if not impossible.
  2. [273]
    The confusion caused by constant changes, delay, unhelpful oversight by the Monsours and inability to coordinate the scheduling of various trades on site, both the builder’s and those engaged directly by the Monsours, added a further layer of complexity to all tasks, including that associated with variations and the obligation to appropriately document variations.
  3. [274]
    It seems likely that, had the builder sought prior documented agreement to variations, that would have added further significant delay to the completion of the work. A simple request by Mr Darvill of Dr Monsour to check the plans before framing commenced caused an unscripted delay of three days work to the builder awaiting a response.

Conclusion on exceptional circumstances

  1. [275]
    In light of the foregoing, I find that there are exceptional circumstances to warrant conferring an entitlement on the builder to recover money for variations to the scope of work of the contract.
  2. [276]
    I find allowing such would not be unfair to the Monsours. The Monsours were at fault in repudiating the contract and their conduct during construction a primary cause of the difficulties that beset the builder. The Monsours have had the benefit of the variation work and there is no suggestion of any financial hardship on their part if ordered to pay. The Monsours assured the builder the changes would be paid for.
  3. [277]
    I turn to consider the builder’s variation claims.

Variation or interference causing delay

  1. [278]
    Before doing so, the distinction between variation of the scope of work under the contract and interference by the Monsours causing delay and expense should be addressed. At hearing I raised the issue whether the variations claimed added to or omitted from the scope of work under the contract. If they did not, they are not variations as defined by s 16 DBCA.
  2. [279]
    Reworking of schedules and loss of production are not necessarily valid subject matters for variation claims. The general conditions make provision for interference by owners in clause 11 of the contract. By clause 11.12:

Owner not to interfere with the carrying out the works

  1. (a)
    The owner, must not obstruct, interfere with or hinder the carrying out of the works. The owner must take all reasonable steps to prevent all others from obstructing, interfering with or hindering the carrying out of the works. If the owner or any person authorised by the owner obstructs, interferes with, or hinders the performance of the works, the owner is liable to the contractor for any delay, and any additional costs incurred by the contractor, if the contractor gives the owner a written notice advising of the delay or the additional cost within five (5) business days of the contract are becoming aware of the obstruction, interference or hindrance.
  1. [280]
    I have accepted the builder’s claim that the Monsours interfered with the construction work in a number of ways causing delays and ruining the scheduling of work. Indeed Dr Monsour admitted he pointed out mistakes and that caused delays.[80]
  2. [281]
    The appropriate course for the builder, where the owners’ conduct amounted to interference, was to give notice as provided under clause 11.12, not claim for such by way of variation.

Paid variations

  1. [282]
    The builder says it was paid an amount of $61,664.07, not the amount of $71,446.37 stated by the Monsours. The paid variations are 1-5, 8-10, 13-14, with 13 being a credit. My calculation of the total of those[81] is $61,664.07. The Monsours do not explain how they calculate a greater sum was paid. I accept the relevant amount is $61,664.07.
  2. [283]
    I expressed my view on attempting to recover paid non-compliant variations in Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19 as follows:
  1. [110]
    As explained in Greer v Mt Cotton Constructions Pty Ltd, the limitation imposed on a builder permitting ‘recovery’ of non-compliant variations is to be contrasted with section 42 of the QBCC Act, which precludes all entitlement ‘to any monetary or other consideration for doing (building work)’ in contravention of licensing requirements (save for the cost of material and labour to the builder).
  1. [111]
    There is nothing in s 84 of the DBCA or generally Part 7 to suggest that where the owner has voluntarily paid the builder the price for non-compliant variations, that s 84 operates to restrict or prevent the builder from receiving and retaining such voluntary payments.
  1. [284]
    The issue is whether the Monsours paid for the variations by mistake. A voluntary payment is not recoverable on the grounds of mistake. A voluntary payment is one where the payer makes a conscious choice to make a payment regardless of  possible defects in the claim for payment.
  2. [285]
    The party asserting mistake has the onus of proof.
  3. [286]
    Dr Monsour said at hearing he paid the variations voluntarily, without regard to whether or not the builder was entitled to payment because it was easier for him to do that and avoid conflict with the builder and because his wife desperately wanted the house finished.
  4. [287]
    Dr Monsour said in cross-examination:

‑‑‑So I thought, “Just pay the money and that will be the end of it.”  I thought, “70,000 bucks, that’s a small price to pay for my wife to be able to live in a house and be able to go overseas and, you know, I can do extra work, I can, you know” – so the issue to me wasn’t the money.  It was the emotional cost.[82]

…

MEMBER:   Dr Monsour ‑ ‑ ‑?‑‑‑Sorry.

‑ ‑ ‑ can I ask this ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ you paid, regardless whether it was a deserving payment or not ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ simply because it was easier for you ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ to clear away the issues at home?‑‑‑Yes.  Yes.  And we wouldn’t have conflict with Darvills.  I didn’t want conflict with them.  I wanted – my wife desperately wanted the house to be finished.[83]

  1. [288]
    In Dr Monsour’s statement of evidence he said:

The Applicant had great reservations as to the validity of the variations, however at the time didn’t want to have a fight with the builder. These variations were not in compliance with Clause 12 of the Contact (sic) (Doc 8) and sections 79-83 of the Domestic Building Contracts Act 2000 (Doc 9)[84]

  1. [289]
    Refusal to pay the variations apparently came to mind, but Dr Monsour chose to pay rather than contest the claims. He made a choice. The Monsours are not entitled to recover the monies paid voluntarily, regardless that the variations were non-compliant with the requirements of the DBCA.

Unpaid Variations

  1. [290]
    The builder’s variations 6, 7, 10, 12, 14, 16-25, 28, 29, 32-36 are unpaid and claimed. Whilst variation claim documents were prepared and given to the Monsours, they were given after the work was done and otherwise did not comply with the requirements of the DBCA.
  2. [291]
    The builder tendered copies of the variation claim documents. On the documents the builder had written short notes explaining from the builder’s perspective how the claim was made up with respect to work done and materials used. Dr Monsour took issue with the notations on the basis they were not on the documents when he was given the variation claims. The issue was canvassed in detail at hearing and Mr Darvill confirmed the information set out was only added to assist the Tribunal understand how the claim amount was calculated. It is not in issue that the notes on the claim documents did not appear on the original variation claim documentation.
  3. [292]
    The builder charged out its labour at $55 per hour for variation work, which I accept was reasonable.

Variation 6 – rear roof framing

  1. [293]
    The claim is for $8,964.86. The variation document is dated 2 July 2015. It is not signed by the Monsours.
  2. [294]
    The builder’s evidence is that the engineer opposed raising the pre-made trusses in sections as intended by the builder. The builder and the engineer agreed to hand-pitch the rear roof framing, which meant instead of pre-built trusses, individual rafters would be made on site. I accept that discussion occurred.
  3. [295]
    There is an email from the engineer to the Monsours dated 23 February 2015, with a copy to Mr Darvill, saying:

I have also received some sketches from Roger Darvill for my checking where he proposed to use timber rafters for the roof instead of timber trusses. He mentioned his proposal to us on the 6th of February 2015.[85]

  1. [296]
    There is also an email of 11 March 2015 from the engineer to Mr Darvill, with a copy to the Monsours in which the engineer states:

Attached is the revised roof framing plan incorporating your proposal to use a rafter design instead of a truss design. The change you have requested is for access and installation purposes.[86]

  1. [297]
    At hearing Mr Darvill gave the following evidence:

No.  In terms of the unpaid variations, you’re familiar with them?‑‑‑Yeah.  Most of them, yes.

The unpaid variations came about as a consequence of requests by the Monsours?‑‑‑This one here is a bit of a fuzzy one, because due to the fact that it was raised on site and I keep calling – I’m sure it’s Nango.  The original engineer attending the site.  I raised the issue with him about trusses to the rear of the property.

This is a variation what?‑‑‑Number 6.

Right?‑‑‑So I put it to him how we were going to attack the trusses, and he said, “That’s a little bit of an oversight when we designed it”.

The engineer said that?‑‑‑That’s correct.  And we were at the top and – well, he, virtually, said, “Do you have any suggestions”, and I said, “Well, we can hand pitch it”, and I don’t think we talked much more about it.  We talked about other things and I just said to him from that, “Can you please discuss it with the owner”, because the engineer is operating with the owner direct, so my instruction to the engineer was to discuss it with the owner.

Yes?‑‑‑To my life, I don’t know if it ever was, but he mentioned to me about doing a drawing up and designing it.  “Okay”, and then I don’t know how Bruce was made aware of it turning into hand pitch, whether it was the engineer or whether one of my boys on site, I don’t know, but from that it turned into be, like, a loft setup, a storage area, he goes and buys an access ladder, so we’re installing an access ladder doing – you know, so the hand pitching grew to a fact that it could store all these – and I remember him saying he can store all his medical files in there.  So it became, like, a big loft with beams and everything.[87]

  1. [298]
    Mr Girdis gave evidence about this. He said he spoke to Mr Darvill and Mr Darvill told him it was changed from truss to rafter at the request of the Monsours to give the Monsours a storage space in the attic. He said Mr Darvill also said they couldn’t get a crane big enough on site to lift the trusses over the front to the rear of the house.[88]
  2. [299]
    Dr Monsour said the engineers never raised the issue of trusses with him. I accept that prior to the engineer making the necessary engineering changes to the roof to change to rafters Dr Monsour was not asked about it. However it is clear he was privy to the email correspondence set out above, which was exchanged before the work was done.
  3. [300]
    I note the email correspondence from the engineer refers to the change being Mr Darvill’s proposal and that Mr Darvill had requested the change for access and installation purposes. I also accept Mr Girdis’ evidence that he was informed by the builder that there were problems lifting trusses over the roof. Finally, I note the comment made by Mr Darvill at hearing that he had raised the issue with the engineer on site, not the other way around, and that this (claim) “was a bit of a fuzzy one”.
  4. [301]
    I am not persuaded the change was a variation that the Monsours would have agreed to had it been put to them before the work was done. They would have been entitled to rely on the fixed price of the contract and any difficulty about installation of trusses was a problem for the builder, not them, and it should have been addressed from outset in pricing the job.
  5. [302]
    The claim is not allowed.

Variation 7 – power pole

  1. [303]
    The builder’s variation claim dated 20 April 2015 is $5,807.59 (including builders margin and GST) for the installation of a new power pole to run mains power underground, including electrical work.
  2. [304]
    The Monsours say this was part of the original scope of work and not a variation. There is a reference in the schedule of finishes to “Ergon Energy Electricity Supply” and “To be redirected underground to meter box”. There was no provision made for a power pole. Similarly, according to Mr Darvill, there was no reference to such in the plans. Accordingly it was not priced into the job.
  3. [305]
    It may have been discussed between the parties after the contract was signed, but that does not make it part of the scope of work under the contract. The schedule of finishes was prepared by Dr Monsour. If it was deficient, it is not the builder’s fault.
  4. [306]
    It is not disputed that the pole was supplied by the builder. I accept this was a variation to the contract. I allow the variation claim by the builder in the sum of $5,807.59. The builder provides invoices to justify the amount of the claim.

Variation 10 -  additional electrical 1

  1. [307]
    The variation document is dated 13 August 2015, the description of the additional work is the supply of electricity to the garage area, a new three phase metal power board and other three phase circuitry and additional conduit. The amount claimed is $6,111.60.
  2. [308]
    After the contract was signed Dr Monsour decided to install a larger pool heater. That required different circuitry. Dr Monsour agreed this was a variation, but said none of the work was done.[89]
  3. [309]
    I accept that some of the work was done. The builder says 39% valued at $2,402.40.
  4. [310]
    The supporting documentation provided by the builder shows new power mains were supplied with conduit by a subcontractor, but not the meter box or power board. The contract was terminated before the variation work was completed. There is a supporting invoice from an electrician for installation of “new mains and conduit works” in the sum of $1,820 plus 10% GST.
  5. [311]
    The builder is entitled to add a margin of 20%[90] on $1,820,  plus 10% GST which totals $2,402.40.
  6. [312]
    That amount is allowed.

Variation 12 – additional electrical 2

  1. [313]
    The builder advised in closing submissions that this claim is no longer pursued.

Variation 14 – western side retaining wall and slab

  1. [314]
    Under the original scope of work this was to be a boulder wall. The parties agreed to vary this and in lieu a block retaining wall was constructed. This was the wall which formed a complaint to QBCC considered above. It is not in dispute that the work was done and is variation work.
  2. [315]
    The variation claim document is dated 10 November 2015 in an amount of $44,214 (no GST). The Monsours were credited with the value of the boulder wall construction in variation 13 and the builder claims a balance owing for the block wall of $12,158.85. That is allowed.

Variation 16 – steel beam

  1. [316]
    The variation claim document is dated 11 February 2016 and the description given in that document of the work is “straighten curved beam to correct engineers stipulated camber.” The amount claimed is $3,115.20.
  2. [317]
    Dr Monsour agreed this was work  resulting from an error on the part of the engineers, not the builder’s fault. Dr Monsour claims he was told by the engineers before he received the variation claim that they had already paid for it, and therefore he ignored the claim. It is not clear who the engineers paid money to, if anyone, but the builder says the variation remains unpaid by the Monsours. Their contract is with the Monsours, the Monsours knew the builder was required to do the additional work and indeed complained about how long they took doing the work. The builder is entitled to be paid by the Monsours.
  3. [318]
    The claim amount is supported by an invoice from BB Fabrication Services Pty Ltd  in the sum of $1,628 and the builder claims a labour cost of $880 plus builder’s margin and GST. The charges seem reasonable and are allowed at $3,115.20.

Variation 17 – rear grate

  1. [319]
    The builder claimed the cost of labour including trenching of $2,811.60 required to prepare an area for a new stormwater grate to be supplied and installed by the Monsours. The variation document is dated 11 February 2016.
  2. [320]
    Dr Monsour maintained no trenching was necessary, the area having already been dug out in the construction of a wall in that area. All that was needed, he maintained, was that the builder supply 3 lengths of 100mm PVC pipe.
  3. [321]
    Attached to variation 17 are photographs of trenching and PVC pipes laid in the trenches. The photographs suggest the trenching leads away from the wall depicted in one of the photographs. One photograph shows horizontal soil layers in the wall of the trench, suggesting the area concerned had not been disturbed prior to trenching. I accept this was additional work to that associated with construction of the nearby wall and the claim is made out.
  4. [322]
    The trenching seems fairly extensive. The cost of excavation is not supported by contractor invoices, however the trenching and pipelaying work seems not insignificant. Mr Darvill said the work of the boxing prepared to take the stormwater grates is included as well. I accept the cost claimed for the work is reasonable in the circumstances. The amount of $2,811.60 is allowed.

Variation 18 – insulation

  1. [323]
    The variation document claiming for removal of existing ceiling insulation and dumping it in a skip bin is dated 11 February 2016. The amount claimed is $1,452.00 for 20 hours labour plus 20% builder’s margin plus GST.
  2. [324]
    Dr Monsour said he was the person who did most of the work removing the old insulation. He was aided in part by one of the builder’s workers. He said it took him about one half hour to remove the insulation and other bits and pieces and pass it to the other worker, and then Dr Monsour took it away. He is not clear about whether he put it in a skip bin.
  3. [325]
    Dr Monsour said he got into the roof space because the other worker was a big man and Dr Monsour smaller. He added there was no great amount of insulation involved. Most had been previously removed by Dr Monsour following a storm some two years earlier.
  4. [326]
    There are photographs of the insulation. It does seem to me that even if the builder’s worker had done the work himself, and I will accept Dr Monsour was primarily responsible for that, it would not take 20 hours.
  5. [327]
    I am satisfied that this variation claim is made out, however not the amount claimed. I allow 2 hours at $55 plus 20% margin plus 10% GST, which totals $145.20.

Variation 19 – extra steel reinforcement

  1. [328]
    The claim is $21,326.20 for extra steel reinforcement. The claim document is dated 11 February 2016 and the builder makes note on the copy claim tendered in evidence that the claim is for extra steel to the ground floor associated with adding steel to accommodate drains in columns, lighting and electrical, hobs to fit up lights and other adjustments “made” by the engineer.
  2. [329]
    Dr Monsour challenged the amount of steel claimed in the variation as excessive. The position he took about the claim was based on and expressed in this way:

…there was enough steel in that variation to run from the GPO to the bridge that goes across to Redcliffe.[91]

  1. [330]
    Dr Monsour found that remarkable and unlikely but failed to explain how his linear length calculation was of any practical utility in calculating the amount of extra reinforcement (of varied size and type) used by the builder. His comparison is unhelpful.
  2. [331]
    Dr Monsour was of the view that, given the engineers had said nothing to him about extra steel being necessary, the builder had miscalculated the steel needed in quoting on the job and it could not be claimed as an extra via variation.
  3. [332]
    It may be true that the engineer said nothing to Dr Monsour, given he was only on site on Fridays and there is no information about the days the engineers attended on site. However, I have already discounted Dr Monsour’s claimed ignorance of additional engineering work being necessary because of changes made to the scope of work under the contract. The numerous inspections or attendances by the engineers on site and the many revised engineering drawings during the course of the construction have already been noted.
  4. [333]
    I find much extra steel would be required to accommodate the significant changes made by the Monsours to the scope of work of the contract during the course of construction.
  5. [334]
    The builder lists numerous invoices for cost of steel with dates through 2015 in support.[92] I accept the invoices accurately reflect the cost to the builder. The total cost of extra steel over the initial amount allowed under the contract was $23,672.50 excluding GST. Some $8,000 of that was claimed in variation 2 and it has been paid. The balance is $16,156.21. Adding builder’s margin of 20% and then 10% GST, the total outstanding is $21,326.20.
  6. [335]
    The variation claim is allowed in that amount.

Variation 20 – Engineering changes 1

  1. [336]
    The variation document is dated 11 February 2016 and the claim is for on site meetings with the engineer to discuss changes to plans in an amount of $4,356.
  2. [337]
    As stated, I accept there were numerous inspections or attendances by the engineers on site and many revised engineering drawings prepared.
  3. [338]
    The claim is for 60 hours with builder’s margin and GST added totalling $4,356.
  4. [339]
    The Form 16 from the engineers showing 28 attendances by the engineers on site over the period 4 February 2015 to 20 January 2016 has been referred to.  The Form 16 goes on to note ‘… and subsequent email correspondence and sketches of instruction for revisions to the design drawings or rectifications of inspected items.’ The Form 16 also lists an additional 16 drawings (Counsel calculated 14, but there are 16 on my count), presumably documenting changed engineering work.
  5. [340]
    The Form 16 supports the builder’s claim that significant changes were made and required significant additional work by the builder outside the scope of work of the original contract. Undoubtedly the builder would have been required to have many discussions and significant interaction with the engineers to facilitate such. Emails exchanged between the engineers, the builder and the Monsours[93] support that conclusion.
  6. [341]
    I accept the builder’s claim for 60 hours for site meetings with the engineer as reasonable in the circumstances. The builder’s hourly charge is $55. The cost for 60 hours is therefore $3,300. Adding builder’s margin of 20% and GST of 10%, the claim of $4,356 is allowed.

Variation 21 – Engineering changes 2

  1. [342]
    The claim document is dated 11 February 2016, the description of the work involved is placing steel to enable electrical and downlight fitting and other associated services, and the amount claimed is $1,742.40.
  2. [343]
    Dr Monsour said there was only one light involved and the builder had made a mistake putting in the steel too tightly without making adequate provision for the light canister. He said it was the builder’s error and he had picked it up. To fix the problem the builder simply had to undo some starter bars, undo some ties and move the steel slightly.
  3. [344]
    There is no evidence tendered by the builder in support of this claim other than a notation on the claim document stating, “labour to move bar and ligatures to place steel to fit canisters for lights – many changes.”
  4. [345]
    I am not persuaded that this claim is justified in the absence of more information clarifying what changes were made to require the additional work.
  5. [346]
    The only other reference to lights in the evidence was the claim for defective work with respect to hob lights, and that was refused on the grounds that the builder pointed to only one light being moved. I am not informed whether these are the lights concerned or how the lights in issue required changes made to steelwork.
  6. [347]
    I do not allow this claim.

Variation 22 – pool penetrations

  1. [348]
    This is a claim for $554.40 for the supply and installation of pool pipes and services because the pool contractor was not available at the time. The variation document is dated 11 February 2016.
  2. [349]
    According to the builder, a representative from the pool company installing the pool, Mr Salter, was not available and in lieu Mr Salter informed the builder’s representative, Mr Gannon, what size pipes to install and the position for the pool drain. Mr Gannon’s evidence was that he and another of the builder’s employees installed the pipes at the time of installing formwork and steel fixing.
  3. [350]
    Mr Colville, the supervisor for the pool company which designed and installed the pool gave evidence. He said Mr Salter told him that the Mr Salter had installed the pipes concerned.
  4. [351]
    Mr Salter did not given evidence.
  5. [352]
    I found Mr Gannon to be a truthful witness. I accept what he says about being responsible for the pipework here.
  6. [353]
    I allow the claim for $554.40 representing materials of $200 and labour of $220 plus builder’s margin plus GST.

Variation 23 – copper gutter and fascia replacement

  1. [354]
    The builder claims $726 for ‘sorting of unacceptable gutters and fascia, repacking in crate for return to supplier, and unloading of same when re-delivered.’
  2. [355]
    The copper was an owner supplied item. When it arrived on site, the crate was opened by the builder’s workers and the copper fittings inside were found to be scratched. It had to be returned. The builder repacked the crate.
  3. [356]
    The builder claims labour of 10 hours. There are photographs attached to the variation claim. The copper has clearly been unloaded and set on work horses and on the floor. It would take some careful handling.
  4. [357]
    Dr Monsour says the claim is excessive. There was only one crate involved. Mr Gannon says there were two. Dr Monsour was not there at the time and therefore I accept there were two boxes.
  5. [358]
    Under the contract these were an owner supplied item but the pipes and guttering were to be installed by the builder as part of the original scope of work. The time taken to unload and remove the items from the boxes, and perhaps to inspect them, should have been taken into account in the original pricing of the job. The repacking and reloading however, I determine, was additional work.
  6. [359]
    I am not persuaded that the time required for that is 10 hours as claimed however.
  7. [360]
    I allow 3 hours at $55 per hour, which is $165, plus margin of 20% and then GST of 10% which totals $217.80.

Variation 24 – gutter, fascia, measure

  1. [361]
    The variation document is dated 11 February 2016 in the amount of $290.40 for labour to measure and supply drawings for owner supplied gutters, fascia and accessories.
  2. [362]
    The variation document tendered has a number of drawings depicting gutter clips, droppers, gutter detail, fascia detail and barge plate detail attached.
  3. [363]
    The builder claims Mr Gannon was responsible for the drawings. Dr Monsour challenges that. He says he drew them and gave them to the builder who has written measurements over the various pages. The matter was not put to Mr Gannon.
  4. [364]
    I am not persuaded that the additional measurements added to the various drawings is evidence of labour to measure and supply drawings for owner supplied gutters, fascia and accessories as claimed.
  5. [365]
    I do not allow the claim.

Variation 25 – window variation

  1. [366]
    The variation document, which is dated 11 February 2016, claims the cost of labour assisting the contractor, engaged directly by the Monsours to supply windows, in the design.  The amount of $2,904 is claimed for 40 hours work.
  2. [367]
    The variation document tendered has a note added by the builder describing the work involved as attending site meetings with the contractor, drawings and emails backwards and forwards,  discussing the size of timber sills, angles and fixings with the contractor and Dr and Mrs Monsour.
  3. [368]
    Dr Monsour denies the builder’s input into such things.
  4. [369]
    The contractor engaged by the Monsours, Mr Kirkham, gave evidence. He said in a statement of evidence that he liaised with Darren from the builder on several occasions discussing and working out final sizes and details concerning the windows. They spent perhaps 6 to 10 hours discussing details.
  5. [370]
    There was also a change in the depth of windows, and Mr Kirkham said the builder assisted loading the windows on site, which I take to mean assisting him unload them and assist to hold them whilst he fixed them in place in the frames.
  6. [371]
    I accept Mr Kirkham’s estimate of the hours of contact between him and the builder’s representative. I find there was also most probably discussion about changing design and size between the builder and Dr and Mrs Monsour, but I am not persuaded that the work done by the builder on this was 40 hours.
  7. [372]
    I allow 12 hours at the rate of $55 per hour (commonly charged by the builder across the variations), plus builder’s margin of 20% plus 10% GST, which comes to $871.20.

Variation 26 – replacement window variation

  1. [373]
    The variation claim document is dated 11 February 2016, and the work is described in the document as labour to pull out existing new windows, reframe and refit new replacement windows, including brick sills and replastering. The amount claimed is $2,323.20.
  2. [374]
    At hearing Dr Monsour admitted this change was agreed as the cost of two men for 2 days at an hourly rate. He said he would pay if two men took 2 days to do the work,  but he had never received an invoice. Mr Darvill said that work had been done. I accept that was the case.
  3. [375]
    The claim is allowed at $2,323.20.

Variation 28 – Telstra pit

  1. [376]
    The variation document is dated 11 February 2016 and claims $2,904 for “on site discussion re Telstra pit, services, NBN, conduits, etc.”
  2. [377]
    Mr Darvill said this claim was based on the repetitive discussions on the subject with Dr Monsour.[94]
  3. [378]
    Mr Gannon explained the basis of the variation claim during cross-examination by Dr Monsour:

You stood there for five full working days and had on site discussions with Telstra?‑‑‑I had ‑ ‑ ‑

Five full working days?‑‑‑There’s a vari – the variation is actually for all the site meetings with yourself, myself, Roger Darvill, Charged Electrical.  All the emails, all the handwritten drawings, all the pit sizes, all the condu sizes, all the sizes – all the direction and the bends – you’re not allowed to use so many 90 degree bends.  All those conversations that were all put together due to not just the conversations with them, but the conversations with you, me, electricians, everyone that followed that just exploded in downtime and a waste of time for me – sorry, not a waste of time, but a downtime for me.  So I couldn’t proceed with my work and that’s the time that was allocated for my time with – with yourself trying to clarify that information.[95]

  1. [379]
    This is essentially a claim for time wasted attributable to the interference by Dr Monsour in the builder’s work on site. There is no element of addition or omission to the scope of work of the contract.
  2. [380]
    As explained above, the remedy available to the builder was not to subsequently claim a variation to the contract but to give notice under clause 11.12 requiring Dr Monsour to stop interfering in the works and putting him on notice that, in default, a claim would be made for any additional costs incurred pursuant to clause 11.12.
  3. [381]
    The claim is not allowed as a variation. The notice was not given under clause 11.12 and cannot be claimed on that alternate basis either.

Variation 29 – pool change

  1. [382]
    The variation claim is dated 11 February 2016 in an amount of $5,808 for additional labour associated with pool changes and design.
  2. [383]
    Attached to the variation document tendered are some detailed drawings of the pool. They show changes with the position and shape of the pool, principally concerning the position, shape and dimension of the pool entry steps.
  3. [384]
    Dr Monsour says he did the drawings before contract. The pool steps were no concern to the builder. All the builder was providing was a slab upon which Dr Monsour would build the pool. Dr Monsour said he had no discussions with the builder about pool shape or design. The only discussion was about the position of formwork when he pointed out they had put it in the wrong place.
  4. [385]
    Mr Darvill explained the basis of this claim in the following terms:

We – all I can tell you – that was immense discussions on how we got to the last sprayed product.  So a pool is spray, technically, so we were the go-between between creating form work in an air space, putting it all together so it was all correct and ready for the people, which is his pool builder, to build the pool later on.  So that’s the time we spent.  The form workers were happy just to follow the drawings, but that was just untenable due to the fact that Mr Monsour needed to get heavily involved in every nook and cranny angle and everything ‑ ‑ ‑

All right?‑‑‑ ‑ ‑ ‑ of the project.

So do I understand what you’re saying is not so much the change in design but the extra time taken accommodating the owner ‑ ‑ ‑?‑‑‑That’s correct.

‑ ‑ ‑ to do the original design?‑‑‑That’s correct.[96]

  1. [386]
    Again, what was called for here was a notice under clause 11.12 of the contract, not suffering the interference of Dr Monsour and then making a claim for variation, given the absence of any aspect of adding or omitting to or from the scope of work under the contract.
  2. [387]
    The claim is not allowed.

Variation 30 – top level variation

  1. [388]
    The variation document is again dated 11 February 2016 and the description of the work given as adjustments to top level suspended concrete beams (all labour associated to this area). The builder’s claim is for the cost of 400 hours labour totalling $29,040.
  2. [389]
    On the variation document tendered by the builder, the builder has added a note outlining the work involved as – change height of beams; changed the width of beams; added drains; added extra drains; alter steel for electrical; alter layouts of electrical; formwork adjustment by C&R; delay of information by engineer.
  3. [390]
    Dr Monsour gave evidence that he changed the design on the top level. Instead of RSJ perimeter beams supporting the floor as designed by the engineers he instructed the engineer to redesign the top level using concrete corbels and one concrete perimeter beam.
  4. [391]
    His complaint is that his revised design offered a saving to the builder and that was not credited to him with the variation claim. Dr Monsour says the cost of the steel RSJs was a saving. He does not challenge that the builder quoted his costs on the original RSJ design and that that design subsequently changed during the course of the build because of the design change he instructed the engineers to make.
  5. [392]
    It is not clear however that there was any overall cost saving due to Dr Monsour’s redesign to be credited to the owners. Dr Monsour offers no evidence about the cost difference to support his assertion. I have nothing before me to allow me to make that finding.
  6. [393]
    Furthermore, the variation covers more than the work associated with the beams. There were changes to the hob and drainage in the area of the top level concrete floor amongst other things. Dr Monsour wrote to the builder about such in an email dated 18 October 2015.[97]
  7. [394]
    There is also a document described as a Works Authorisation Form dated 16 October 2015 signed by Dr Monsour and Mr Gannon forwarded under cover of that email which authorises the builder to proceed with work described as:

Remove hob and slab to first floor level (cut concrete)

Extend beam step out to 600mm and widen CB 22 to ??? size.

Adjust formwork to suit

Pour new beams and hob in one

Make reinforcing wider to suit

Move formwork heights to suit Bruce’s measurements

?? Extend CB25 sideways/laterally if need be.

  1. [395]
    I accept the variation work noted by the builder on the variation document was done. I do not accept the changes resulted in a saving for the builder in the absence of evidence supporting that assertion. I conclude, rather, that the changes were significant. I allow the claim of the builder for the changed work as noted in the variation based on 400 hours at $55 per hour, plus 20% builder’s margin plus 10% GST, which totals $29,040.

Variation 32 - insulation variation

  1. [396]
    The variation claim document is dated 11 February 2016 and the claim is for $263.74 for the supply and installation of R2.5 insulation to a sub-floor mezzanine storage area. This was work done by a subcontractor and the variation claim is supported by an invoice from the contractor.
  2. [397]
    Dr Monsour claimed the schedule of finishes provided for this already. That cannot be the case given the mezzanine was a change to the contract added during construction. The batts referred to in the schedule of finishes were added to the ceiling. The batts the subject of the present variation were added to the sub floor mezzanine below the ceiling.
  3. [398]
    I accept this was variation work. The costs are explained and reasonable and allowed at $263.74.

Variation 33 – kuniseal variation

  1. [399]
    The variation claim document is dated 11 February 2016 and the claim is for $2,512.96 for the supply and installation of extra Kuniseal sealant.
  2. [400]
    Dr Monsour challenged that extra Kuniseal (which seals concrete construction joints) was required regardless of changes to design by the engineers. He said the only relevant change in any case was the concrete perimeter beam which replaced steel RSJs and if you measured round that it was perhaps 23 metres, not the 52 metres claimed by the builder.
  3. [401]
    There are three supporting invoices from the Kuniseal applicator. One is dated 29 July 2015 charging $298.56 for 12 metres; another is dated 4 September 2015 and charges $288.80 for 10 metres; and the final is dated 22 October 2015 for 30 metres and the cost is $866.40.
  4. [402]
    The work done on the concrete perimeter beam was done in October 2015, after the first two invoices.
  5. [403]
    I accept extra Kuniseal was required. Mr Gannon explained where in giving his evidence and I accept his evidence that the substance was required in additional areas other than simply the perimeter beam due to changes in the engineering works.[98] The claim is allowed at $2,512.96.

Variation 34 -  sewer and storm water drains

  1. [404]
    The builder claims $5,121.60 in a variation claim document dated 12 February 2016 and the additional work undertaken is described as:

Drain camera to stormwater and sewer, high pressure water jetter used to clear blocked sewer in 2 places, use drain camera to locate sewer & stormwater, use high pressure jetter to 150mm stormwater line. Found line to be blocked in two places, discussed whether to dig up or try jetting with camera. Darvill labour include (sic) in above. Jetting this line was done at a later date and charged on V9.[99]

  1. [405]
    The claim has invoices from the plumber attached. The plumber’s charge was $3,000 and the builder claimed 16 hours labour on top of that.
  2. [406]
    Dr Monsour says he had already paid for the work in variation 9. Dr Monsour said when he received variation claim 34 he went round to the plumber’s home to speak to him about it. The plumber wasn’t there but came over to Dr Monsour’s house to see him. Dr Monsour said he showed the plumber the two separate variation claims. He said the plumber told him he had only attended the site once. He asked the plumber how long he had worked there and he was told less than two hours and the usual charge would have been $270 or $275 plus GST.
  3. [407]
    Dr Monsour did not show the plumber the supporting invoices. There were two and they were issued on different dates. Had he done so he may have been given a very different response to his enquiry.
  4. [408]
    The work done in variation 34 predated the work claimed in variation 9. The builder was slow in issuing variation 34.
  5. [409]
    The plumber’s invoice supporting variation 9 lists dates of attendance by the plumber on site on 14 and 15 May 2015, which was subsequent work to that done and claimed for in variation 34.
  6. [410]
    The invoice from the plumber supporting variation 34 lists attendances by the plumber on site on 9 separate occasions before 14 May 2015.
  7. [411]
    Clearly the plumber attended on more than one occasion and for far longer than two hours.
  8. [412]
    I accept the charges made by the plumber are for different jobs on different days. I accept the charges are reasonable and the builder is entitled to be paid for variation 34 in the sum of $5,121.60.

Variation 35 – Living/Study bulkheads

  1. [413]
    The description in the variation claim which is dated 23 March 2016 is extra ply, plasterboard, cornices and labour to construct bulkheads to owners’ details. The claim is for $7,884.36. There is a hand drawing entitled Kitchen Bulkheads and there is also an invoice to the builder from a supplier for cornice and frieze. The notes added by the builder to the variation claim document shows a claim for 20 hours labour by the builder, $2,620 for a subcontractor plasterer’s charges and cost of materials for the balance.
  2. [414]
    Dr Monsour denies any such bulkheads (in the kitchen) were built. I accept they were not built in the kitchen, but I find they were built elsewhere and the kitchen bulkheads hand drawing is misleading and largely irrelevant.
  3. [415]
    Attached to the variation claim document is a copy of a facsimile from the builder dated 22 March 2016, presumably forwarded to the Monsours about this item of claim. In the facsimile there is a breakdown of the work given as frieze, cornice, moulds and labour and setting costs, all described as “Extra material - Living/Study”.
  4. [416]
    Mr Gannon gave evidence about this, although the exchange between Dr Monsour and Mr Gannon in cross-examination did not enlighten much. Mr Gannon said they finished work at the rear of the house. Then in concerning the front bulkheads, Dr Monsour wanted “to manufacture the same – the same look in that area. But there was nothing on any drawings with the detail of what the bulkheads were supposed to look like or how we were to construct them. All they had was a dotted line which showed a LED light.”[100]
  5. [417]
    In respect of the added frieze, he said that was a change to the original drawings whereby a frieze was to be added to all bulkheads in areas with recessed ceilings.[101]
  6. [418]
    In cross-examination Mr Darvell said Mr Gannon knew about the matter but that:

I know that we had to change the construction because of what Mr Monsour wanted on site.  Then we got the sheeting there to sheet it.  Then we had to return it.  So there is a portion sitting in there and Darren can clarify that, because he was the one physically on site.

So you may still be pursuing the $9133?‑‑‑A portion.

A portion of it?‑‑‑A portion of it.  Yeah.[102]

  1. [419]
    The evidence by both parties is unsatisfactory. On the evidence led I accept the claim save for the costs of the plasterer. There is no invoice in evidence to support a claim that a plasterer attended to do work. The sheeting was returned, and presumably these were the sheets to be set by the plasterer. I accept the builder’s own costs for building bulkheads however.
  2. [420]
    I allow the variation claim in the amount of $3,353 for labour and costs plus 20% builder’s margin on that plus 10% GST which totals at $4,425.96.

Variation 36 – Extra plastering

  1. [421]
    The variation claim document is dated 23 March 2016 and the work done described as “extra plastering to kitchen area as advised by email from Damien”. The claim is for $1,709.40.
  2. [422]
    The email (Damien Carstens worked for the builder) referred to is addressed to Dr Monsour and copied to Mr Gannon and Mr Darvill and a copy is with the builder’s tendered variation document. The email is dated 12 October 2015 and as relevant states:

Subject: Minutes of meeting 9th of October

Bruce Marie

Notes form (sic) Friday’s meeting.

…

Item 7 kitchen ceiling to be replaced; Bruce and Marie would prefer full removal and reinstatement. I explained that this will come at extra cost.

  1. [423]
    When the email was put to Dr Monsour he did not agree it was accurate. He said that the kitchen had been built to the specifications of the house. He was not informed about any plastering being required. When pressed by Counsel Dr Monsour changed his evidence. He said the builder did not take the whole ceiling out of the kitchen right down to the end where the bench was. “They joined the ceilings up, old with new but they left old down there.”[103]
  2. [424]
    I find extra work was done in the kitchen and I accept the builder’s claim for $1,709.40 for this variation.

Variation 37 – top level bulkheads

  1. [425]
    The variation claim document is dated 23 March 2016 and the description of the work is extra ply, blueboard, hardiflex, shadow line, setting, cornices and labour to construct bulkheads to owners’ details. The amount claimed is $9,133.94.
  2. [426]
    Mr Darvill said at hearing that the builder resiled from pursuing this claim.

The variations allowed the Builder

  1. [427]
    I find the builder is therefore entitled to be paid the following amounts for variations:

VariationAmount

7$ 5,807.59

10$ 2,402.40

14$12,158.85

16$ 3,115.20

17$ 2,811.60

18$    145.20

19$21,326.20

20$ 4,356.00

22$    554.40

23$    217.80

25$    871.20

26$ 2,323.20

30$29,040.00

32$    263.74

33$ 2,512.96

34$ 5,121.60

35$ 4,425.96

36$ 1,709.40

Total $99,163.30

Conclusion

  1. [428]
    The claim by the Monsours to recover an overpayment of money to the builder fails. Similarly their claim to recover the payments already made for variations.
  2. [429]
    The builder is entitled to payment of $37,290.22 for outstanding amended progress payment 12, less the value of defects that would have been required to be rectified at practical completion in the sum of $2,045.90. That leaves a balance of $35,244.32. I determine the builder should also be entitled to recover variations to the value of $99,163.30.
  3. [430]
    The total amount therefore owed the builder is $134,407.62.

Costs

  1. [431]
    Both parties claimed costs.
  2. [432]
    The parties shall make submissions about that.

Footnotes

[1]Ex 68.

[2]Ex 13 [17].

[3]Contract schedule item 20.

[4]Transcript (‘T’) 6-99 Line (‘L’) 7-12.

[5]Ex 37 email attached to paid variation 1 and 2 concerning excavation and concrete.

[6]Ex 19.

[7]Ex 69.

[8]T2-46 L41.

[9]Variation 13.

[10]T2-49-L35 – T2-50 L11.

[11]Finance and Guarantee Company v Auswild (2019) 59 VR 288 [59-60] citing Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622 and Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4) (2012) 202 FCR 564, 570 [35]: In my opinion, relevant authority establishes that while (as reflected by the Federal Court Practice Note and like curial protocols) objectivity and independence are sought of expert witnesses, such qualities are not preconditions of competence, even in the case of expert witnesses. The sanction for failure to fulfil the obligations imposed by relevant authority and curial protocols is not the exclusion of the expert’s evidence, but rather, the significant risk that it will fail to persuade.

[12]The initial report of 20 October was superseded by an amended report of 12 February 2021.

[13]Clause 18.2 concerns liquidated damages and is not relevant to the matter at hand.

[14]Ex 16 document 74.

[15]T1-37 L2.

[16]Ex 36.

[17]A Gantt chart or project schedule is not uncommonly used in construction projects to coordinate and facilitate timely supply of products and trade services which are often interdependent.

[18]Ex 48.

[19]Ex 48.

[20]Ex 28.

[21]Ex 48.

[22]T6-132 L19.

[23]Ex 47.

[24]Ex 28 and Ex 47.

[25]T1-57 L46 – T1-58 L41.

[26]Ex 48.

[27]T6-138 L46.

[28]Ex 48.

[29][26].

[30]Robinson v Harman (1848) 1 Ex Rep 850.

[31]Ex 31Appendix E.

[32]As we explained in Worthington v Ryan; Ryan v Worthington [2021] QCATA 138 [95].

[33]Ex 7 [4].

[34]Ex 13 document 26.

[35]Ex 13 attached but not identified by number.

[36]Ex 13 unpaginated A3 sheets.

[37]Ex 74.

[38]Ex 75 and 76.

[39]s 28(3)(b) and (c) QCAT Act, the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.

[40]T1-81 L7.

[41]T4-147 L25-40.

[42]T6-46 L9-15.

[43]Ex 15 document 29.

[44]Ex 37 Part H document 3.

[45]Ex 37 Part D annotated defective work table.

[46]T1-5 L21 – Amended Response and counter application filed 28 June 2021.

[47]Ex 13 document 53.

[48]Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19 [111].

[49][15].

[50]Save for a perimeter beam on the top level of the house.

[51]T3-27 L44 – T3-28 L18.

[52]T3-111 L25.

[53]It appears in fact to be 16.

[54]T2-94 L16 – T95 L36.

[55]T5-86 L18 – T5-88 L9; T6-19 L12.

[56]Ex 32 [3-5].

[57]Ex 32 [20].

[58]T8-27 L17-21.

[59]T3-27 L44 – T3-28 L18.

[60]Ex 69.

[61]T2-93 L4.

[62]Ex 83.

[63]Ex 34.

[64]Ex 38.

[65]T3-33 L23.

[66]T3-33 L25-41.

[67]T8-30 L23.

[68]T8-30 L14.

[69]T6-124 L6-17.

[70]T5-109 L11;24.

[71]T6-19 L13-18.

[72]Ex 14 [8].

[73]Ex 69 [2].

[74]Ex 70.

[75]Exs 77, 78, 79, 80, 81, 82.

[76]s 28(3)(b) and (c) QCAT Act.

[77]s 44 DBCA and clause 10 general conditions of contract.

[78]T5-94 L34.

[79]T5-103 L35.

[80]Ex 14 [8].

[81]Ex 37 Part F.

[82]T2-100 L37-41.

[83]T2-101L12-22.

[84]Ex 14 [7].

[85]Ex 37 part G.

[86]Ex 83.

[87]T5-118 L40 – T5-119 L20.

[88]T1-32 L16.

[89]T3-85 L10.

[90]Contract schedule item 6, nothing stated, therefore 20%.

[91]T3-106 L24.

[92]Ex 29.

[93]Ex 83.

[94]T7-47 L4.

[95]T8-65 L24-35.

[96]T7-42 L10-24.

[97]Exhibit 21.

[98]T8-47 L19.

[99]Ex 37 variation 34.

[100]T8-28 L18.

[101]T8-44 L30.

[102]T7-65 L39-46.

[103]T4-131 L34.

Close

Editorial Notes

  • Published Case Name:

    Monsour & Anor v C & R Darvill Pty Ltd

  • Shortened Case Name:

    Monsour v C & R Darvill Pty Ltd

  • MNC:

    [2022] QCAT 302

  • Court:

    QCAT

  • Judge(s):

    Member Howe

  • Date:

    27 Jul 2022

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2022] QCAT 30227 Jul 2022-

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Allaro Homes Cairns Pty Ltd v O'Reilly [2012] QCA 286
2 citations
Jump To
Cite 1 - [2012] QCA 286
Cite 2 - [2012] QCA 286
Ananda Marga Pracaraka Samagha Ltd v Tomar (No 4) (2012) 202 FCR 564
1 citation
Jump To
Cite 1 - (2012) 202 FCR 564
Finance and Guarantee Company v Auswild (2019) 59 VR 288
2 citations
Jump To
Cite 1 - (2019) 59 VR 288
Cite 2 - (2019) 59 VR 288
Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
3 citations
Jump To
Cite 1 - [2022] QCATA 19
Cite 2 - [2022] QCATA 19
Cite 3 - [2022] QCATA 19
Robinson v Harman (1848) 1 Ex Rep 850
2 citations
Jump To
Cite 1 - (1848) 1 Ex Rep 850
Cite 2 - (1848) 1 Ex Rep 850
Rush v Nationwide News Pty Ltd (No 5) [2018] FCA 1622
1 citation
Jump To
Cite 1 - [2018] FCA 1622
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
1 citation
Jump To
Cite 1 - (1931) 45 CLR 359
Shepherd v Felt & Textiles of Australia Ltd [1931] HCA 21
1 citation
Jump To
Cite 1 - [1931] HCA 21
Sunbird Plaza Pty Ltd v Malone (1989) 166 CLR 245
1 citation
Jump To
Cite 1 - (1989) 166 CLR 245
Sunbird Plaza Pty Ltd v Maloney [1988] HCA 11
2 citations
Jump To
Cite 1 - [1988] HCA 11
Cite 2 - [1988] HCA 11
Worthington v Ryan [2021] QCATA 138
1 citation
Jump To
Cite 1 - [2021] QCATA 138

Cases Citing

Case NameFull CitationFrequency
Monsour v C & R Darvill Pty Ltd [2024] QCATA 1032 citations
Monsour v C & R Darvill Pty Ltd ATF C & R Darvill Family Trust [2024] QCATA 1102 citations
1

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