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Gedoun Constructions Pty Ltd v Agius[2022] QCAT 446

Gedoun Constructions Pty Ltd v Agius[2022] QCAT 446

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446

PARTIES:

GEDOUN CONSTRUCTIONS PTY LTD

(applicant)

v

Mark Elliot Agius

(respondent)

APPLICATION NO:

BDL308-18

MATTER TYPE:

Building matters

DELIVERED ON:

14 February 2022

HEARING DATES:

24 August 2020

25 August 2020

26 August 2020

27 August 2020

8 September 2020

15 September 2020

27 January 2021

28 January 2021

12 April 2021

13 April 2021

14 April 2021

15 April 2021

16 April 2021

19 November 2021

HEARD AT:

Brisbane

DECISION OF:

Member McVeigh

ORDERS:

  1. The applicant must pay the respondent:
    1. (a)
      damages of $190,140;
    2. (b)
      liquidated damages of $32,050; and
    3. (c)
      interest at the rate of 10% from the date of this decision until the date of payment.
  1. Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision.
  2. If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision.
  3. The application for costs will be determined on the papers and without an oral hearing.

CATCHWORDS:

CONTRACTS – BUILDING ENGINEERING AND RELATED CONTRACTS – THE CONTRACT GENERALLY – whether Australian Standard 4055 can be used to give a wind classification to a house if the prescribed geometric limits had been exceeded – whether Australian Standard 1684.3 can be used to derive a general wind classification to design both cladding and timber frame

Bellgrove v Eldridge (1954) 90 CLR 613 followed

McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178 applied

APPEARANCES &

REPRESENTATION:

 

Applicant:

Mr L Campbell with Ms B Vass instructed by Connolly Suthers Lawyers

Respondent:

Mr N M Cooke instructed by Becker Watt Lawyers

REASONS FOR DECISION

Background to the hearing

  1. [1]
    In 2013 a developer subdivided land in Mt Louisa, a suburb of Townsville. The developer prepared concept plans for houses in the subdivision and made them available to prospective purchasers of the subdivided blocks.
  2. [2]
    In 2017 Mark Agius (owner) bought a block of land in that subdivision. The concept plans for the block, which had been provided by the developer, were the basis of negotiations of a building contract between the owner and Gedoun Constructions Pty Ltd (builder).
  3. [3]
    On 4 October 2017 the owner and the builder signed a residential building contract. Under the contract the builder was responsible to provide the final design, to obtain council approval to build, and then to construct the house in accordance with the design.
  4. [4]
    In January 2018 the design was approved and construction commenced.
  5. [5]
    In August 2018 the builder claimed that the work was practically complete. Disputes regarding the quality of the work came to a head. The builder claimed its final progress payment. The owner refused to pay because of numerous alleged defects in the work. The owner complained to the Queensland Building and Construction Commission (QBCC). The QBCC issued a direction to rectify some of the defects and the builder undertook some rectification.
  6. [6]
    Meanwhile, the owner engaged Mr Hutton, a structural engineer and principal of FortisEM, to undertake a design review. Mr Hutton recommended that the owner obtain a specialist report regarding the classification and design wind speeds for the site. Based on the opinions of Mr Hutton and WindTech, the wind specialist, the owner formed the view that the house had not been designed, or built, to withstand wind loads to which it might be subject. In layperson’s terms – the owner thought that the house had been designed to a C2 wind classification when it should have been designed to a C3 wind classification. There is a significant difference between a house built to withstand wind speeds covered by a C2 rating and a house built to withstand wind speeds covered by a C3 rating. This difference lies at the heart of these proceedings.
  7. [7]
    In November 2018 the builder filed its claim for payment of the outstanding final invoice for $60,000, interest and indemnity costs under the contract.
  8. [8]
    Shortly after the builder’s claim was filed the owner paid the builder $46,256.82, having deducted $6,643.18 for negative variations and $7,100 for liquidated damages.
  9. [9]
    In March 2019 the owner’s counterclaim was filed. The owner:
    1. (a)
      defended on the basis of set-off of his counterclaim; and
    2. (b)
      counterclaimed for liquidated damages and damages for breach of the statutory warranties.
  10. [10]
    In its reply filed in April 2019 the builder admitted the claim for negative variations and denied that the owner was entitled to liquidated damages, alleging that the part of its claim remaining unpaid was $7,100 (including GST) and interest and costs under the building contract. As to the allegations regarding breach of the statutory warranties, the builder:
    1. (a)
      did not respond due to lack of particularity; and
    2. (b)
      noted that it remained committed to rectify legitimate defects.
  11. [11]
    The dispute was managed through the usual procedures of this tribunal. Unfortunately, each party became more entrenched in its position over time.

The hearing

  1. [12]
    The hearing commenced on 24 August 2020. As the quantum of the owner’s claim far exceeded the builder’s claim, the parties agreed that the owner’s claim be addressed first.
  2. [13]
    On the third day of the hearing, in response to the builder’s objection to the expertise of the person the owner intended to call to give evidence about the wind classification of the site, the owner sought and was granted leave to file a report from an alternative expert.
  3. [14]
    In order not to waste allocated hearing time, the hearing continued to deal with evidence going to issues other than wind classification.
  4. [15]
    In January 2021, following a conclave of the wind experts and the production of a joint report, I heard concurrent evidence from the wind experts. This was a very useful process, first because the joint report significantly narrowed the issues in dispute between the experts and second as it assisted me to understand the reasons for the remaining differences between the experts regarding the complex technical issues of wind loads, site classification and design wind speed for the site.
  5. [16]
    The evidence concluded in the week commencing 12 April 2021.
  6. [17]
    Written submissions were provided. Unfortunately, there was considerable delay in the production of the written submissions, caused first by the owner and then by the builder. The owner’s submissions and supporting spreadsheet was provided on 4 August 2021. The builder’s submissions on liability were provided on 15 November 2021 and on quantum with a supporting spreadsheet on 18 November 2021. I heard oral submissions on 19 November 2021. The owner’s written submissions in reply were provided on 26 November 2021.

Witnesses of fact

Agius

  1. [18]
    Mr Agius’ evidence in chief is contained in statements made on 13 December 2019[1] and 16 July 2020.[2] The documents referred to in Exhibit 1 are Exhibit 15 and the documents referred to in Exhibit 2 are Exhibit 16. He was cross-examined on 24 August 2020.
  2. [19]
    It must have been obvious to the builder, and it is hardly surprising, that Mr Agius had a keen interest in both the design and construction of his home. He spent four months discussing details of the design and specifications.[3] As issues emerged on site, e.g. geotechnical issues, he expressed his concerns.
  3. [20]
    Mr Agius kept good records.
  4. [21]
    Mr Agius does not have qualifications in residential construction. However, it is plain that after construction of his home, he has gained considerable knowledge about such matters from various industry experts. However, his evidence about technical matters is not expert evidence and in many instances is hearsay.
  5. [22]
    As is the case with any witness, no doubt in the years that have passed since the events in question occurred, Mr Agius has placed emphasis on some memories which advance his case and forgotten things that were of no significance to him at the time.

Gedoun

  1. [23]
    Mr Gedoun is a director of the builder. His evidence in chief is contained in statements made on 10 June 2019,[4] 9 July 2020[5] and 19 October 2020.[6] He was cross-examined on 12 April 2021.
  2. [24]
    He holds QBCC licence number 76784.[7] The builder holds QBCC licence number 23628.[8]
  3. [25]
    Mr Gedoun has worked in the construction industry for over 27 years. He supervised design and construction through his staff.
  4. [26]
    For Mr Gedoun there was nothing remarkable about the contract for, or construction of, this house. He followed his usual business practices relying on appropriately qualified professionals for design input. There was a suggestion that he deliberately chose to construct this house to a C2 wind classification for the builder’s financial gain, however there is no logical reason for him to have downgraded the specification as the contract price reflected the house as designed; had the house been designed to a C3 wind classification, the contract price would have been higher.
  5. [27]
    I reject the owner’s submissions that I should not accept Mr Gedoun’s evidence on defects because it is self-serving. The tribunal is not bound by the rules of evidence.[9] My approach is to consider his statements, his cross-examination and contemporaneous documents and then to attribute appropriate weight to the material in making my findings.

Expert witnesses

Boughton

  1. [28]
    The owner relied on expert evidence from Dr Boughton, an adjunct associate professor and senior research engineer at the cyclone testing station at James Cook University. His PhD, awarded in 1989, was on performance of full-scale timber-framed houses in cyclonic winds. His career focus is on performance of buildings during tropical cyclones and providing technical and research support to the timber and building industries. Among his many contributions to science in the field of wind and timber engineering and most relevantly for this dispute, he chairs the Technical Committee BD/99, Wind loads on housing for Standards Australia (AS 4055), is a member of the sub-committee BD/6.2 Wind loading for Standards Australia (AS 1170.2) and a member of the Technical Committee TM/10 Design of Timber Structures, Standards Australia.[10]
  2. [29]
    Dr Boughton is without doubt pre-eminent in his field. He is more than well qualified to express opinions on wind loading.
  3. [30]
    His evidence in chief is found in Exhibit 31.
  4. [31]
    I reject the builder’s criticism of Dr Boughton that on questions in respect of which he and Mr Wright differed he attempted to justify conclusions by selective reliance on parts of, or subjective interpretation of, the relevant Australian Standards. Dr Boughton provided careful and detailed explanations of the science behind the Standards and where he had different opinions to those held by Mr Wright provided considered explanations for the reasons for the difference. He was not intransigent and was prepared to modify his opinions when persuaded to do so by the opinions advanced by Mr Wright, e.g., relating to shielding.

Wright

  1. [32]
    The builder relied on expert evidence from Mr Wright. He holds a Bachelor of Engineering (Civil) obtained in 1976. He has been a member of the Institution of Engineers Australia since 1980. He is registered as a professional engineer in Queensland. Since the early 1990s he has been involved in the investigation of various forms of building failures involving geotechnical, structural and building issues.[11]
  2. [33]
    His evidence in chief is found in:
    1. (a)
      his report regarding footings and other structural issues dated 3 July 2020;[12]
    2. (b)
      his report attaching LiDAR data and contour details derived therefrom dated 28 July 2020;[13]
    3. (c)
      his report dated 13 October 2020, responding to Dr Boughton’s report;[14] and
    4. (d)
      a schedule showing topographic calculations and some photographs.[15]
  3. [34]
    He was cross-examined in relation to footings and other structural issues on 13 April 2021.
  4. [35]
    I note the owner’s submission that Mr Wright is a ‘professional witness’ called instead of the original design engineer. It is a matter for each party how it chooses to run its case. Typically, it is the case that the tribunal finds greater assistance from an independent expert than a witness of fact, as the original engineer would be.
  5. [36]
    I find that Mr Wright is qualified to express opinions on wind loading, footings and other structural issues.
  6. [37]
    I reject the owner’s criticism that Mr Wright provided dogmatic evidence and only made concessions as he gave his evidence. I found his written reports considered. I appreciated his engagement in the intellectual discussions with Dr Boughton. He concurred with most of the reasoning advanced by Dr Boughton and made proper concessions at the appropriate time. I accept the builder’s submissions that Mr Wright took a practical and common-sense approach to interpretation of the Standards; however, in my view an expert should take an appropriately technical and scientifically reasoned approach to the Standards.

Hutton

  1. [38]
    The owner relied on expert evidence from Mr Hutton. Mr Hutton holds a Bachelor of Engineering (Civil) with first class honours and is a registered professional engineer in Queensland. He has over 10 years industry experience[16]. He has the qualifications and experience to express expert opinions on civil and structural engineering issues in this case. He is not expert in design wind speed analysis. He based his opinions about structural integrity on the assumption that the design wind speed analysis carried out by WindTech was correct.[17]
  2. [39]
    Mr Hutton provided assistance to the owner since May 2019 when he was engaged to provide a desk top design review.
  3. [40]
    His evidence in chief is found in:
    1. (a)
      his report dated 7 June 2019;[18]
    2. (b)
      his report dated 24 April 2020;[19]
    3. (c)
      his affidavit dated 13 August 2020;[20] and
    4. (d)
      a letter dated 20 August 2020.[21]
  4. [41]
    He was cross-examined on 26 and 27 August, 8 and 15 September 2020.
  5. [42]
    I reject the owner’s submissions that the cross-examination of Mr Hutton was ‘unfair and unhelpful’. The owner was represented by counsel during Mr Hutton’s cross-examination. It was open to Mr Cooke to object to the questioning if he thought an objection warranted. Indeed, on some occasions he did just that. I also reject the suggestion that by the end of his evidence Mr Hutton was ‘clearly exhausted and confused as to what assumptions were facts he had agreed with or not’.
  6. [43]
    I found Mr Hutton to be a careful, well-prepared expert witness, alert to his obligations to the tribunal. In reports made after his original desktop review, and during cross-examination, he made some frank and proper concessions which I will address in detail when dealing with individual elements of the claim. In other instances, when his opinions were tested in cross-examination, he remained steadfast for reasons he explained.

Helisma

  1. [44]
    The owner relied on expert evidence from Mr Helisma. Mr Helisma holds an Associate Diploma of Applied Science (Building) and a Master of Construction Management. He holds a QBCC open builder’s licence.[22] He has decades of experience in the residential construction industry in Queensland. He is well qualified and experienced to express opinions regarding construction defects and the quantum of rectification costs.
  2. [45]
    Mr Helisma approached the task of pricing rectification as if he were a builder submitting a quote for the work to be done.
  3. [46]
    He provided expert reports dated 24 October 2019[23] and 29 April 2020[24]. He also participated in the production of a joint quantum experts’ report.[25]
  4. [47]
    Mr Helisma was cross-examined on 25 August 2020.
  5. [48]
    He also gave joint evidence with Mr Thompson, a quantum expert called by the builder, on 14 and 15 April 2021.
  6. [49]
    In the builder’s submissions he was criticised for making a scandalous and baseless allegation in an expert report[26] that the builder deliberately ‘downgraded’ the wind category to cut costs. It was submitted that this allegation typified his adopting the role of an advocate rather than an independent expert assisting the tribunal, particularly as to issues of liability. The task of deciding questions of liability is mine. Rather than acting as an advocate I find that Mr Helisma made a poor choice of words in his report. It would have been better had Mr Helisma said, as he confirmed was the case during cross-examination, that he believed that it had been established that the house should have been designed to C3 and based his report on that assumption. I note the builder’s submissions that his evidence was more tempered on issues of quantum.
  7. [50]
    I proceed on the basis that Mr Helisma’s costings are based on the assumption that there had been a breach of contract and of the statutory warranties. I find that his views were genuinely held based on the material before him at the time. I have the benefit of considerably more material on which to determine the issues in the proceedings and will address conflicts in the quantum evidence when dealing with individual claims below.

Carpenter

  1. [51]
    The builder relied on expert evidence from Mr Carpenter. He is a licensed building inspector. He holds QBCC licence no. 613563. He has worked in the construction industry since 1973, since 1989 in Australia. He is qualified and experienced to express opinions regarding whether or not work is defective, and the scope of work needed to rectify defective work.
  2. [52]
    His evidence in chief is found in his report dated 16 March 2020.[27]
  3. [53]
    He was cross-examined on 12 April 2021. Quite properly, he accepted that when it came to the methodology for rectification, it is essential to have regard to the engineers’ opinions in matters within their expertise.
  4. [54]
    While Mr Carpenter professed that he was aware his paramount duty was to assist the tribunal, rather than the party who paid his fees,[28] there were instances in which he put the most favourable gloss he could on facts to favour the builder which could not withstand scrutiny. For example,
    1. (a)
      although he expressed an opinion that it would be possible to nail the cladding board showing 530mm between the nail heads if 45mm studs were used at 450mm spacings, in cross-examination he conceded it would not be good practice;
    2. (b)
      although he recommended that windows be replaced from inside the house to reduce costs of scaffolding, he failed to explain it would be necessary to remove some cladding around each window during the rectification.

Thompson

  1. [55]
    The builder relied on expert evidence from Mr Thompson. Mr Thompson is a quantity surveyor. He holds a Diploma of Applied Science (Building) and a Graduate Diploma in Quantity Surveying. He has worked in the construction industry since 1985. He is experienced and well qualified to express an opinion regarding the quantum of rectification costs.
  2. [56]
    His evidence in chief is found in his report dated 25 June 2020.[29] He provided construction costs for alternative options for rectification of windows and cladding[30] and for internal lining.[31]
  3. [57]
    He gave joint evidence with Mr Helisma on 14 and 15 April 2021.
  4. [58]
    Not surprisingly he approached the costing exercise from the point of view of a quantity surveyor, pricing the scope before him using industry rates from Cordells and quotes. While it is not unreasonable for a professional quantity surveyor to approach the task in this way, taking account of the nature of rectification work by allowing an increased margin, it is not the methodology I prefer in this case.

Vision Surveys

  1. [59]
    The owner relied on evidence from surveying firm Vision Surveys. Their report dated 17 September 2020 was admitted without objection.[32]
  2. [60]
    Staff employed by Vison Surveys undertook field work to produce detailed survey plans which were used by Dr Boughton and Mr Wright.

Brazier Motti

  1. [61]
    The builder relied on evidence from surveying firm Brazier Motti. A statement of Peter Murphy[33] and a surveyor’s report[34] were admitted without objection. Data produced was used by Mr Wright and Dr Boughton.

Relevant legislation and Australian Standards

Queensland Building and Construction Commission Act

  1. [62]
    The contract is a regulated contract under Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).
  2. [63]
    Relevantly, the following provisions apply:

20 Suitability of materials

  1. (1)
    The building contractor warrants that all materials to be supplied for use in the subject work—
  1. (a)
    will be good and, having regard to the relevant criteria, suitable for the purpose for which they are used; and
  1. (b)
    unless otherwise stated in the contract, will be new.

21 Compliance with legal requirements

The building contractor warrants the subject work will be carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975.

22 Standard of work and exercise of care and skill

The building contractor warrants the subject work will be carried out—

  1. (a)
    in an appropriate and skilful way; and
  1. (b)
    with reasonable care and skill.

23 Adherence to plans and specifications

  1. (1)
    This section applies to a regulated contract if plans and specifications form part of the contract.
  1. (2)
    The building contractor warrants the subject work will be carried out in accordance with the plans and specifications.

25 Carrying out work with reasonable diligence

The building contractor warrants the subject work will be carried out with reasonable diligence.

AS 4055-2012

  1. [64]
    Australian Standard 4055-2012 (AS 4055)[35] has the stated objective of providing designers, builders and manufacturers of building products that are affected by wind loading, with a range of wind speed classes that can be used to design and specify such products for use in housing, within the limitations imposed in the standard.
  2. [65]
    AS 4055 imposes five geometric limits on houses to which the Standard might apply. They are:
    1. (a)
      the distance from the ground level to the underside of eaves is not to exceed 6.0m;
    2. (b)
      the distance from the ground level to the highest point of the roof is not to exceed 8.5m;
    3. (c)
      the width, including roofed verandas, excluding eaves, is not to exceed 16.0m;
    4. (d)
      the length is not to exceed 5 times the width;
    5. (e)
      the roof pitch is not to exceed 35°.[36]
  3. [66]
    Wind loads for houses not complying with the geometric limits are outside the scope of AS 4055.[37]
  4. [67]
    AS 4055 establishes a system of classification with associated design gust wind speeds for the serviceability and ultimate limit states for both cyclonic and non-cyclonic winds. The ultimate limit state for wind class C2 is 61 m/s and the ultimate limit state for wind class C3 is 74 m/s.[38]
  5. [68]
    The selection of wind speed class for a house depends on the conditions at the site of the house. AS 4055 sets out the means by which the following site conditions are determined:
    1. (a)
      geographic wind speed region;
    2. (b)
      terrain category;
    3. (c)
      topographic class;
    4. (d)
      shielding.[39]
  1. [69]
    The informative commentary in Appendix A to AS 4055 states:

This Standard has been derived for houses as a group …In general, the level of reliability for the group is similar to that found by applying AS/NZS 1170.2. However, it is recognised that a correct application of this Standard may lead to some houses with more conservative design loads, and others with less conservative design loads.

It is important to categorise each building on a case-by-case basis. Each site should be assessed individually for its wind classification. Each building must be assessed for compliance with geometry and for wind evaluation pressures.[40]

AS 1170.2-2011

  1. [70]
    Australian/New Zealand Standard AS/NZ 1170.2:2011 (AS 1170)[41] has the stated objective of providing wind actions for use in the design of structures subject to wind action. It is to be used where houses do not comply with the stated geometric and other limitations of AS 4055.[42]
  2. [71]
    It provides that the procedure for determining wind actions on structures is to:
    1. (a)
      determine site wind speeds;
    2. (b)
      determine design wind speed from the site wind speeds;
    3. (c)
      determine design wind pressures and distributed forces;
    4. (d)
      calculate the wind actions.[43]
  1. [72]
    The site wind speeds defined for the 8 cardinal directions are determined by applying the prescribed formulae.[44]
  2. [73]
    The building orthogonal design wind speeds are taken as the maximum cardinal direction site wind speed linearly interpolated between cardinal points within a sector ±45° to the orthogonal direction being considered.[45]
  3. [74]
    The note to clause 2.3 provides:

A conservative approach is to design the structure using the wind speed and multipliers for the worst direction…. To simplify the design, this value could then be used as the design wind speed for all directions on the building.

  1. [75]
    The design wind pressures and distributed forces are determined by applying the prescribed formula.[46]
  2. [76]
    Wind actions are calculated by considering wind from no fewer than four orthogonal directions and by applying the prescribed formula.[47]
  3. [77]
    The wind direction multiplier in cyclonic regions is:
    1. (a)
      0.95 for determining the resultant forces and overturning moments on complete buildings and wind actions on structural elements; and
    2. (b)
      1.0 for all other cases, including cladding and immediate support members.[48]
  4. [78]
    Cladding is defined as material that forms the external surface over the framing of a building.[49]
  5. [79]
    The exposure multipliers for site conditions related to terrain/height, shielding and topography are calculated having regard to:
    1. (a)
      the assessment of terrain by reference to prescribed category descriptions,[50]
    2. (b)
      values given for fully developed profiles;[51]
    3. (c)
      averaging of terrain categories and terrain/height multipliers when the upwind terrain varies for any wind direction;[52]
    4. (d)
      shielding parameters determined by applying the prescribed formula;[53]
    5. (e)
      the hill shape multiplier assessed for each cardinal direction considered, taking into account the most adverse topographic cross-section occurring within a range of directions within 22.5° on either side of the cardinal direction being considered, determined by applying the prescribed formula.[54]
  6. [80]
    Terrain over which the approach wind flows towards a structure is assessed on the basis of the following descriptions:

…

Terrain Category 2 (TC2) Open terrain, including grassland, with well-scattered obstructions having heights generally from 1.5m to 5m, with no more than two obstructions per hectare, e.g. farmland and cleared subdivisions with isolated trees and uncut grass.

Terrain Category 2.5 (TC2.5) Terrain with a few trees or isolated obstructions. This category is intermediate between TC 2 and TC 3 and represents the terrain in developing outer urban areas, or large scale developments with fewer than ten buildings per hectare…

Terrain Category 3 (TC3) Terrain with numerous closely spaced obstructions…The minimum density of obstructions shall be at least the equivalent of 10 house-size obstructions per hectare, e.g. suburban housing…

…

Selection of terrain category shall be made with due regard to the permanence of the obstructions that constitute the surface roughness.[55]

  1. [81]
    Obstruction is defined as:

Natural or man made objects that generate turbulent wind flow, ranging from single trees to forests and from isolated small structures to closely spaced multi-storey buildings.[56]

  1. [82]
    The variation with height of the effect (z) of terrain roughness on wind speed (terrain and structure height multiplier (Mz,cat)) is taken from the values for fully developed profiles given in Table 4.1. Intermediate values of height and terrain category use linear interpolation.[57]
  2. [83]
    When the upwind terrain varies for any wind direction an averaging of terrain categories and terrain height multipliers is to be adopted. The terrain height multiplier (Mz,cat) is taken as a weighted average over an averaging distance, depending on the average height of the structure. The formula for the averaging procedure is set out in Clause 4.2.3.
  3. [84]
    The hill shape multiplier is to be assessed:

… for each cardinal direction considered, taking into account the most adverse topographic cross-section that occurs within the range of directions within 22.5° on either side of the cardinal direction being considered.[58]

AS 1684.3 – 2010

  1. [85]
    The Australian Standard for residential timber-framed construction in cyclonic areas is AS 1684.3 – 2010 (AS 1684.3).[59] The Standard specifies requirements for building practice and the selection, placement and fixing of structural elements used in the construction of timber framed Class 1 and Class 10 buildings within the limitations given in clause 1.4.[60]
  2. [86]
    Clause 1.16 provides:

Prior to using the Standard, the design gust wind speed and corresponding wind classification shall be determined. It shall include consideration of terrain category building height and topographic and shielding effects (see Clause 1.4.2). The wind classification is the primary reference used throughout this Standard.

NOTE: … The flow chart shown in Figure 7 provides guidance.

  1. [87]
    The flow chart in Figure 7 reinforces the requirement to first determine the maximum design gust wind velocity under AS 1170 or AS 4055 before referring to Table 1.1 for wind classification.
  2. [88]
    Clause 1.4.2 addresses wind loads for structural elements. It provides:

For wind loads, the simplified wind classifications for cyclonic areas Cl to C3, as described by AS 4055, shall be used with the corresponding maximum design gust wind speeds given in Table 1.1.

Either AS 4055 or AS/NZS 1170.2 shall be used to determine the wind classification necessary for the use of this Standard.

The wind classifications covered by this Standard shall be determined as follows:

  1. (a)
    Where the wind classification is determined from AS 4055, the maximum building height limitation of 8.5 m, as given in AS 4055, shall apply to this Standard. The maximum building width is specified in Clause 1.4.5.
  1. (b)
    Where AS/NZS 1170.2 is used to determine the maximum design gust wind speed, a wind classification shall be adopted in accordance with Table 1.1. The ultimate limit state design gust wind speed determined from AS/NZS 1170.2 shall be not more than 5% greater than the ultimate limit state wind speed given in Table 1.1 for the corresponding wind classification adopted.

NOTES: 1. The determination of the design gust wind speed and wind classification should take into account the building height, terrain category, topographic classification and shielding classification given in AS/NZS 1170.2 or AS 4055.

…

  1. [89]
    Table 1.1 provides under the heading maximum design gust wind speed:
    1. (a)
      for wind classification region C2, the ultimate limit state is 61m/s; and
    2. (b)
      for wind classification region C3, the ultimate limit state is 74m/s.
  2. [90]
    Where the wind classifications are determined from AS 4055 the maximum width of a building, excluding eaves is 16,000 mm.[61]

The contract

General conditions

  1. [91]
    On 4 October 2017 the owner and a representative of the builder signed a residential building contract (the contract).[62]
  2. [92]
    The order of precedence of the contract documents was relevantly:
    1. (a)
      special conditions set out in Part J of the Appendix;
    2. (b)
      the general conditions;
    3. (c)
      the Specifications;
    4. (d)
      the Plans, and
    5. (e)
      other contract documents.[63]
  3. [93]
    The builder warranted that it would carry out the work:
    1. (a)
      in an appropriate and skilful way;
    2. (b)
      with reasonable care and skill;
    3. (c)
      in accordance with the Plans and Specifications;
    4. (d)
      with reasonable diligence, and
    5. (e)
      in accordance with all relevant laws and legal requirements, including the Building Act 1975.[64]
  4. [94]
    The statutory warranties provided by part 3, division 2 of Schedule 1B of the Queensland Building and Construction Commission Act 1991, formed part of the contract.[65]
  5. [95]
    The builder was responsible for obtaining building approval.[66]
  6. [96]
    The date for commencement of the works was within 10 business days of the builder receiving various approvals and notices, including building approval.[67]
  7. [97]
    The prescribed process for practical completion involved the following steps:
    1. (a)
      the builder giving the owner a final inspection notice not less than five business days before the day on which the builder anticipated bringing the works to practical completion;
    2. (b)
      the parties attending a final inspection on a mutually agreed time and day;
    3. (c)
      the builder giving the owner a list of defects identified at the mutual inspection stating which defects it would remedy and when that would occur.[68]
  8. [98]
    Practical Completion is defined as the stage of the Works when:

The Works are completed in compliance with this Contract, including all Plans and Specifications and all statutory requirements applying to the Works, without any defects or omissions other than minor defects or minor omissions that will not unreasonably affect occupation; and

If the Owner claims there are minor defects or minor omissions, the Contractor gives the Owner a defects document for the minor defects or minor omissions;[69]

  1. [99]
    The builder was required to remedy agreed defects in a reasonable period.[70]
  2. [100]
    If the builder failed to bring the works to practical completion by the Date for Practical Completion (DfPC) the owner had an entitlement to claim liquidated damages (LDs) at a rate of $50 per day.[71] The DfPC was to be the last day of a 180-day period after commencement.[72]
  3. [101]
    The builder had the right to claim extensions of time in certain circumstances.[73]

Specifications

  1. [102]
    The contract included an 8 page specification. The builder was to provide ‘full working drawings’.

Plans

  1. [103]
    The contract included 14 plans supplied by the builder and prepared by Etchd Building Design.[74]
  2. [104]
    Each of the 14 contract Plans was marked:

Preliminary. Not for construction. Plans are subject to change to comply with relevant covenant & building certification approvals. Building methods, materials & plan re-arrangement are also subject to change. Building designer & builder may change plans to suite (sic) the above at any time.

  1. [105]
    Each of the contract Plans bore a note that required compliance with local authority, standard building bylaw and all relevant Australian Standards and legislation.
  2. [106]
    Three of the 14 contract Plans bore the notation: ‘WIND CATEGORY C2’:
    1. (a)
      Site plan drawing DD 02 rev 11;
    2. (b)
      Floor plan DD 03 rev 11; and
    3. (c)
      Floor plan DD 04 rev 11.[75]

The wind classification issue

Pre-contract background

  1. [107]
    Although resolution of this issue turns on interpretation of the contract, it is useful to set out the history of the contract negotiations to provide background.
  2. [108]
    In 2013 the developer of the subdivision had concept plans for lot 155 prepared.[76] Those concept plans designated the wind category as C3. Neither the builder,[77] nor the owner was involved in the preparation of those concept plans.
  3. [109]
    In August 2017, while the building contract was being negotiated, the builder engaged a building designer to prepare plans for the house based on the developer’s original plans.[78]
  4. [110]
    Between August and September 2017, a series of revisions of the plans were created, up to revision 9.[79] Each of those revisions designated the wind category as C3.
  5. [111]
    In early to mid-September 2017, as was its usual business practice, the builder had the design wind classification for the site and structural design for the proposed house assessed by a structural engineer.[80] At 3:24pm on 26 September 2017 an employee of the builder sent an email to Northern Engineering enquiring about the wind classification for lot 155. At 10:52am the following morning, a senior engineer at Northern Engineering responded:

After having completed a review from first principles we would be content to certify the structure for a C2 wind speed.[81]

  1. [112]
    There was no evidence from the engineers as to how the first principles review was carried out.
  2. [113]
    On 29 September 2017 the owner emailed the builder the owner’s mark up of revision 9 of the plans.[82] The wind category in revision 9 of the plans had been changed from C3 to C2. The owner did not make any mark-up regarding the wind category.
  3. [114]
    As a matter of logic, revision 10 of the plans must have been created between 29 September 2017 and 3 October 2017. Only 2 sheets of the rev 10 set of plans were put into evidence.[83]
  4. [115]
    In the afternoon of 3 October 2017, the builder emailed revision 11 of the plans to the owner.[84]
  5. [116]
    On 4 October 2017 the owner attended the builder’s office to sign the building contract. The owner’s evidence was that he felt flustered by the extent of the changes and did not query the change in wind classification.[85]
  6. [117]
    The owner stated that although revision 11 of the plans was said to incorporate all the changes marked up by him, that was not so.[86] The owner and a representative of the builder made and initialled hand written changes and substituted 2 sheets of revision 11 with revision 10.
  7. [118]
    Mr Gedoun’s evidence was that on a few occasions he mentioned to the owner that the site was classified C2, not C3.[87] The owner’s evidence was that there may have been a minor mention of the classification.[88]
  8. [119]
    As the issue of site classification did not assume any importance until after the house was built, it is not surprising that neither gentleman has any particular recollection regarding what was, or was not, said about it. In any case it matters not what was said, or not said. The parties are bound by the terms of the contract they signed.

For construction drawings

  1. [120]
    As required by the Specification, the builder engaged Etchd to prepare final detailed drawings for the house.[89]
  2. [121]
    Etched prepared drawings numbered WD01 to WD23. Revision C of the drawings was dated 4 December 2017.[90]
  3. [122]
    The notes on drawing WD 01 rev C, general notes and front façade, stated:

General

3 Comply with local authority, standard building law and all relevant Australian Standards & legislation.

…

Construction

2 Roofing battens to be supplied and installed to manufacturers specifications.

3 Batten spacing to manufacturers specifications.

4 Provide roof trusses designed by truss manufacturer to suit nominated wind category.

5 Bracing of trusses to be in accordance with truss manufacturers specifications.

  1. [123]
    Drawings WD 02 rev C, WD 03 rev C, WD 04 rev C and WD 05 rev C identified the wind category as C2.
  2. [124]
    The overall dimensions of the house on Drawing WD13 rev C were 16380mm by 17430mm.[91]
  3. [125]
    The builder engaged Northern Consulting Engineers to prepare engineering drawings and specifications for the house.[92]
  4. [126]
    Northern Consulting Engineers issued a Form 15 Compliance Certificate dated 15 December 2017 covering, inter alia, footings, timber joists, steel bearers, bracing, timber load bearing walls and truss tie-downs.[93] Items listed as relied on as the basis of the certification included: ‘AS1170.0, 1-2002, 2-2011, … AS4055-2012, … publications by Lysaght… manufacture bracing design manuals … Design considerations included wind design for C2… truss hold down report 7997 – 4/12/2017.
  1. [127]
    The truss hold down report 7997 referred to in the Form 15 was a reaction report (limit state design) for the trusses at lot 155 Elford Place (quote number 7997) prepared by Supatruss and dated 4 December 2017.[94] The report specified truss types, spans, supports, required tie downs and bearing member supports. Desmond Summers of Supatruss issued a Form 15 Compliance Certificate covering roof truss design and manufacture which referred to the specifications in quote 7997.[95] Items relied on as the basis of the certification included ‘AS1170.0’. The reference documentation was ‘Multinail engineering report pages and Multinail truss layout page’.

Approved drawings

  1. [128]
    On 8 January 2018 Regional Certification Group issued a development application decision approving construction of the house based on the designs prepared by Etchd and Northern Consulting Engineers.[96] Condition 8 of that approval required: ‘The structural aspects of this application must comply with the Requirements of C2’.

Complaint to QBCC

  1. [129]
    In about November 2018 the owner lodged a complaint about various matters with the QBCC. The list of items complained about prepared by the QBCC does not mention wind classification, but lists issues regarding certificates as contractual matters.[97]
  1. [130]
    The owner stated that at a meeting with the QBCC in December 2018 the builder produced a Form 15 Compliance Certificate dated 27 September 2018 relating to site wind speed.[98] A complete copy of that Form 15 was attached to Mr Gedoun’s statement.[99] Mr Messer of Northern Consulting Engineers certified that the relevant Australian Standard was AS 1170 and that the cardinal direction site wind speed was 56 m/s.

Allegedly incorrect wind classification

  1. [131]
    Mr Gedoun’s evidence was that the first occasion on which he became aware of the owner’s allegation that the site wind classification provided by the engineers was allegedly incorrect was when the builder’s solicitors received a letter from the owner’s solicitors on 28 June 2019,[100] almost a year after construction had ended.
  2. [132]
    The owner had formed the view that the C2 site wind classification was incorrect based on the expert opinion of Mr Hutton of FortisEM, who in turn relied on a report from WindTech Consultants Pty Ltd which investigated the classification and design wind speed for the property.[101] Windtech had provided a report on the site wind climate dated 20 February 2019.[102] The report classified the site-specific wind classification under AS 4055 as C3 and the site-specific design wind speed under AS/NZ 1170 as 68m/s.
  3. [133]
    Mr Hutton conducted a full design review to determine if the house was structurally adequate for the design wind speeds calculated by WindTech. In his opinion, dated 7 June 2019,[103] the design was insufficient and inadequate in the following ways:
    1. (a)
      insufficient battens in the 1200mm edge zones to support roof sheeting;
    2. (b)
      trusses certified to C2, not C3;
    3. (c)
      specified truss connections inadequate;
    4. (d)
      inadequate stud spacing and fastener installation in the Axon cladding;
    5. (e)
      inadequate stud spacing and fastener installation in the Scyon cladding;
    6. (f)
      inadequate batten spacing for the eaves in the 1200mm corner zones;
    7. (g)
      inadequate roller door (specified to C2, not C3);
    8. (h)
      all windows need replacement as specified to C2, not C3;
    9. (i)
      inadequate spacing for common studs for external cladding;
    10. (j)
      inadequate bathroom lintel;
    11. (k)
      inadequate lintel trimmers to bathroom, southern kitchen and sliding glass;
    12. (l)
      external bottom plates inadequate for the load;
    13. (m)
      Smartjoist and cyclone rods connections in some places need rectification; and
    14. (n)
      absence of necessary certifications for truss support beams and eave overhang blocks.
  4. [134]
    The builder engaged Peter Wright of Hughes, Beal & Wright Pty Ltd, consulting engineers, to prepare a desk top review into the wind classification for the site. It was Mr Wright’s opinion that the site wind classification was C2 as defined in AS 4055.

Dr Boughton’s opinion – Exhibit 31

  1. [135]
    Dr Boughton set out his opinion regarding wind actions at the site in his report dated 17 September 2020,[104] which annexed a previous report he had made regarding his review of the wind classification.
  2. [136]
    In the previous report Dr Boughton summarised his opinion as follows:
    1. (a)
      as the house does not satisfy two of the limitations on building geometry set by AS 4055: height from natural ground to the underside of the eaves and width, AS 4055 cannot be used to evaluate the wind classification;
    2. (b)
      the designers could have used AS 1170 to determine the wind speeds and pressures for the site and then determined an equivalent AS 4055 site wind classification;
    3. (c)
      although there is no documented process for converting AS 1170 wind speeds to an equivalent AS 4055 classification, the designers could have:
      1. used the highest pressures on the building envelope to choose a wind classification that would lead to equal or higher pressures on the same element; or
      2. selected the highest of the four envelope design wind speeds from AS 1170 and matched it to table 2.1 of AS 4055;
    4. (d)
      the site has a wind classification of C3 under AS 4055.[105]
  3. [137]
    In forming his opinion that the width of the house exceeded the permissible width under AS 4055, Dr Boughton had regard to:
    1. (a)
      approved drawing WD 13 rev C;[106] and
    2. (b)
      as constructed drawings.[107]
  4. [138]
    In forming his opinion that the height to eaves of the house exceeded the permissible height under AS 4055, Dr Boughton had regard to:
    1. (a)
      scaled height from approved drawing WD 08 rev C;[108] and
    2. (b)
      as constructed surveys.[109]
  5. [139]
    He took his measurements from the natural ground line, which in his opinion is what is required in accordance with Figure 1.1 of AS 4055.[110]
  6. [140]
    Dr Boughton disagreed with Mr Wright’s suggestion[111] that raising the finished ground level by adding fill in the south west corner of the building would reduce the maximum eave height above the ground level to less than 6 metres under the parts of the eaves that exceed 6.0m above the ground. Dr Boughton observed that it is not possible to affect the height of the eaves from the natural ground line by placing additional fill on the site.[112]
  7. [141]
    Dr Boughton explained the reasons, in his view, it is unacceptable to apply AS 4055 if any geometric limit is exceeded. Because AS 4055 is a simplified standard based on AS 1170 it makes a number of assumptions which are only valid for houses that meet the geometric limitations. As the geometric limitations are presented to one decimal place, that indicates the limit of freedom of interpretation to one decimal place. Further, because AS 4055 incorporates a mixture of conservative and unconservative assumptions and a ‘grace’ margin of 5%, users who fail to rigorously interpret the Standard will lose the balance between conservative and unconservative assumptions.[113]
  8. [142]
    If the house fell within the geometric limitations of AS 4055, then based on information available at the time the design was done, and applying the following parameters, Dr Boughton was of the opinion the wind classification was C3:
    1. (a)
      Townsville is in wind region C;
    2. (b)
      terrain category 2 was appropriate for the site;
    3. (c)
      the topographic classification was T3; and
    4. (d)
      although the site is fully shielded it could only be awarded its classification based on the maximum allowable shielding, i.e., partial.[114]
  9. [143]
    Dr Boughton also considered LiDAR based information about contours which had not been available at the time the design was done, but did not change his opinion about the topographic classification.[115]
  10. [144]
    Dr Boughton noted that evaluations using AS 1170 do not result in a wind classification. They require detailed evaluation of wind actions from eight cardinal directions to calculate the design wind speed on each face of the building, which are converted to pressures based on the shape and size of the building, which in turn are used to determine forces on building elements and to order cladding and windows that have the capacity to resist those pressures.[116]
  11. [145]
    Dr Boughton’s calculations using the formula prescribed by AS 1170 were that the maximum design wind speed was 68.4 m/s for the south and west faces of the building.[117] The parameters Dr Boughton applied to perform the calculations were:
    1. (a)
      Townsville was in wind region C;
    2. (b)
      the average roof height taken above the natural ground level under the centroid of the building footprint was 5.5m;
    3. (c)
      terrain categories evaluated by quadrant as set out in Table 2 of his report;
    4. (d)
      shielding multiplier evaluations by quadrant as set out in Table 3 of his report; and
    5. (e)
      topographic multiplier evaluations by quadrant using LiDAR 1m contours as set out in Table 5 of his report.
  12. [146]
    In his opinion, cladding elements with a wind classification of C3 are required to resist wind speeds of 68.4 m/s.[118]
  13. [147]
    Dr Boughton observed that elements specified as C2 wind classification will only resist wind speeds of 61 m/s.[119]
  14. [148]
    Dr Boughton observed that there is no documented process for converting AS 1170 wind speeds into an equivalent AS 4055 wind classification. He suggested two ways that a designer might make the conversion:
    1. (a)
      use the envelope design wind speeds to determine pressures on the building envelope elements, using the highest of the pressures to choose a wind classification that will lead to equal or higher pressures on the same element; or
    2. (b)
      select the highest of the four envelope design wind speeds from AS 1170 and match them to table 2.1 of AS 4055 to the wind classification that will give an ultimate wind speed that is equal to or greater than the selected envelope design wind speed.[120]
  15. [149]
    Dr Boughton noted that if the whole building was designed to AS 1170 there may be other differences in pressures compared to those derived using AS 4055 as local pressure zones in designs using AS 1170 are a function of building geometry and will be significantly larger than the nominal areas presented in Figures 3.1. and 3.2 in AS 4055.[121]

Mr Wright’s opinion – Exhibit 37

  1. [150]
    Mr Wright responded to Dr Boughton’s report in a report dated 17 September 2020.[122]
  2. [151]
    Mr Wright agreed that the house does not satisfy two of the limitations on building geometry set by AS 4055, however was of the view that:
    1. (a)
      it was not unreasonable, unsafe or unconservative to ignore a 1% exceedance of the building width limit for 12% of the length of the building;[123]
    2. (b)
      83% of the eaves length lie within the 6 metre height limit;[124] and therefore it was reasonable, safe and not unconservative for the designer to have used AS 4055 given the limited area of eaves exceeding the 6m height limit.[125]
  3. [152]
    He disagreed with Dr Boughton’s use of the natural ground line as the point from which the height measurement should be taken, on the basis that AS 4055 does not refer to the natural ground line. Mr Wright based his measurement from the horizontal surface of the ground at the side of the house at completion, i.e. the finished ground level.[126]
  4. [153]
    Mr Wright concluded that AS 4055 could be used because:
    1. (a)
      the commentary on the Standard states:

This Standard has been derived for houses as a group or large number of buildings. In general, the level of reliability for the group is similar to that found by applying … AS 1170. However, it is recognised that a correct application of this Standard may lead to some houses with more conservative design loads, and others with less conservative design loads.

  1. (b)
    it provides a less complicated procedure for determining a site wind classification;
  2. (c)
    the peak design wind gust has a duration of 0.2 seconds;
  3. (d)
    the annual probability of exceedance is 1 in 500; and
  4. (e)
    as an experienced and cautious practitioner, regularly using Australian standards in real world applications, he considered it appropriate, safe and not unconservative to use AS 4055.[127]
  1. [154]
    In Mr Wright’s opinion the site wind classification carried out in accordance with the procedures set out in AS 4055 is C2.[128] He applied the following parameters:
    1. (a)
      Townsville was in wind region C;
    2. (b)
      terrain category 2.5 (not TC2) was appropriate for the site;
    3. (c)
      the topographic classification was T1 because the site is not in the top third of the hill; and
    4. (d)
      the site is fully, not partially shielded.
  2. [155]
    Mr Wright opined that Dr Boughton’s classification was based on incorrect inputs including:
    1. (a)
      assessment of the terrain category to the south and west of the site;[129]
    2. (b)
      identification of the RL of the bottom of the hill as 15m;[130]
    3. (c)
      choosing RL 42m as the top of the hill when the highest point on the hill is 43m;[131]
    4. (d)
      using the floor level of the house, not the site level, to assess topographic classification;[132]
    5. (e)
      adopting topographic classification T3 which only allows for partial shielding.[133]
  3. [156]
    The disagreement about the RL of the top and bottom of the hill inevitably leads to a difference in calculation of the maximum slope in the top half of the hill which results in a different topographic classification.[134]
  4. [157]
    In Mr Wright’s opinion, under AS 1170, the maximum design wind speed at the time of original design was 64.0 m/s.[135] When he took account of the shielding provided by two houses recently constructed nearby, his opinion was that the maximum design wind speed from the east and south was 61.4 m/s.[136]
  5. [158]
    Mr Wright observed that different procedures are used to derive wind pressures on various building elements. He agreed with Dr Boughton that when designing using AS 1170 local pressure zones are a function of geometry whereas when designing using AS 4055 local pressure zones are of fixed dimensions.[137]
  6. [159]
    He referred to AS 1684.3, the Australian Standard for residential timber-framed construction, noting that where AS 1170 is used to determine the maximum design gust wind speed, Table 1.1 equates an ultimate limit state wind speed of 61 m/s to a wind classification of C2. He then applied a 5% allowance to equate a site design wind speed of up to 64 m/s to a site wind classification of C2 for the design of the timber frame.[138]
  7. [160]
    Based on his years of experience Mr Wright observed that most manufacturing and building processes have inherent redundancies built in which almost invariably make elements resistant to greater loads than the minimum design load. The ultimate capacity of the building element is determined as the load at which only a small percentage of samples of the material will fail. He observed that in the case of wind load the application of a load higher than the design wind load would result in a momentary exceedance of the design capacity. He suggested that this was the likely basis for the allowance of wind speeds 5% higher than the basic 61 m/s wind speed defining wind classification C2 in AS 1684.3.[139]

Joint report of wind experts – Exhibit 32

  1. [161]
    Dr Boughton conferred with Mr Wright on 22 October 2020 and together they produced a joint report in which they identified areas of agreement, areas of disagreement and the reasons for their differences of opinion.[140]
  2. [162]
    The experts agreed that the house is within three of the five geometric limits prescribed by AS 4055, in respect of:
    1. (a)
      height;
    2. (b)
      aspect ratio; and
    3. (c)
      roof slope.[141]
  3. [163]
    The experts agreed that at design stage the eaves exceeded 6.0m.[142] The experts also agreed that as built the eaves exceed 6.0m.[143]
  4. [164]
    The experts disagreed about the location of the ground level from which the measurement of the distance to the underside of eaves is to be taken. In Dr Boughton’s opinion the measurement of the distance from the ground level to the underside of eaves is to be taken from the natural ground line.[144] In Mr Wright’s opinion the measurement of the distance from the ground level to the underside of eaves should be taken from the designed finished ground level, not by ignoring designed cut and fill.[145]
  5. [165]
    Dr Boughton’s opinion is based on his interpretation of clause 1.2(a) and the sections in Figure 1.1 of AS 4055. He says that the Figure shows local cut and fill to demonstrate that it is excluded from the ground line in the context of the application of clause 1.2.[146] Mr Wright’s interpretation is based on an alternative reading of Figure 1.1 of AS 4055, supported by a similar diagram at Figure 1.1 in AS 1684.3-2010, which shows the measurement from the horizontal line.[147] He observes that if it was not the intention of AS 4055 that the eaves height be measured from the horizontal line outside the building wall on the low side of the building in Figure 1.1, the inclusion of the line is superfluous and misleading.[148]
  6. [166]
    Dr Boughton acknowledged that some readers of AS 4055 have interpreted Figure 1.1 as Mr Wright has done. He noted that the forthcoming version of AS 4055 will address this issue.[149]
  7. [167]
    AS 4055 prescribes that the width, including roofed verandas, excluding eaves, is not to exceed 16.0m. The experts agreed that the maximum building width is 16.18m.[150]
  8. [168]
    In Dr Boughton’s opinion the prescribed dimensions are absolute,[151] therefore AS 4055 should not have been used to award a wind classification to the house because as designed the house exceeded two of the five geometric limits prescribed by AS 4055.[152] Mr Wright disagreed because in his opinion, for all practical purposes, AS 4055 could be used to provide a wind classification.[153]
  9. [169]
    Mr Wright is of the opinion that AS 4055 could have been used to award a wind classification to the house, because:
    1. (a)
      a 1% exceedance of the width limit for 12% of the building length for all practical purposes ought not exclude the application of AS 4055;[154]
    2. (b)
      applying a high precision to a limitation, ie 16.0m on the building width, is inconsistent with the inexact art of trying to determine a wind speed at this location which has a 1 in 500 year probability of occurring and has a duration of 0.2 seconds;[155]
    3. (c)
      the 6.0 height limit is only exceeded in one corner of the building; 88% of the length of the eaves is less than 6.0m above finished ground level.[156]
  10. [170]
    The experts agreed that for the purpose of determining wind action under AS 1170 by:
    1. (a)
      determining site wind speeds;
    2. (b)
      determining design wind speed from the site wind speeds;
    3. (c)
      determining design wind pressures and distributed forces, and
    4. (d)
      calculating wind actions

the site lies in Wind Region C[157] and that the regional wind speed is 69.3m/s.[158]

  1. [171]
    It was common ground that the building height is 5.3m.[159]
  2. [172]
    While the experts agreed that the Terrain Category (TC) from the north is TC2.5 and from the east is TC3,[160] they disagreed about the predominant Terrain Category beyond the lag distance to the south, south west and west. Dr Boughton’s opinion is that much of it is TC2, not TC2.5.[161] Mr Wright’s opinion is that it is TC2.5, not TC2.[162]
  3. [173]
    Dr Boughton’s opinion is based on:
    1. (a)
      the description of terrain categories in clause 2.3 of AS 4055; and the commentary on terrain categorisation in clause A3.2 of Appendix A to AS 4055; [163]
    2. (b)
      the fact that the terrain category descriptions in AS 4055 and AS 1170 are identical;
    3. (c)
      his opinion that the area south and west of the subdivision does not fit the description of TC 2.5, i.e. does not have scattered houses or large acreage developments;[164]
    4. (d)
      the open nature of the vegetation to the south and west, which is likely to become thinner over time due to burning;[165] and
    5. (e)
      his analysis of street view and satellite images.[166]
  4. [174]
    Mr Wright’s opinion is based on:
    1. (a)
      the description of terrain category 2.5 in clause 4.2.1(d) of AS 1170, i.e. terrain with a few trees or isolated obstructions;
    2. (b)
      the fact that ‘tree’ is not defined in AS 1170;
    3. (c)
      the Oxford dictionary definition of tree;
    4. (d)
      his opinion that there are more than a few trees to the south and west,[167] as shown in photographs of the terrain he took on 28 August 2020.[168]
  5. [175]
    As a consequence of the disagreements regarding terrain category to the south, south west and west, Dr Boughton’s [169] and Mr Wright’s [170] calculations of the terrain category multipliers for the various sectors differ.
  6. [176]
    The experts agreed that at the time of design there were 10 shielding buildings around the site.[171] The experts agreed that by the time they prepared the joint report (October 2020) two additional buildings had been constructed, a house to the south west and another house to the west.[172] They recalculated the shielding values for each wind direction to take account of the two additional houses.
  7. [177]
    The experts disagreed about the contribution to shielding of buildings that straddled sector boundaries, in particular to the west and north west. Dr Boughton assigned one shielding house to each of the west and north west quadrants.[173] Mr Wright assigned two shielding houses to each of the west and north west quadrants.[174]
  8. [178]
    Dr Boughton assigned buildings that straddle sector boundaries to the sector that had the majority of the roof area of the building.[175] Mr Wright believed that buildings that straddle sector boundaries contribute to shielding for wind in each of the sectors on either side of the boundary.
  9. [179]
    Dr Boughton’s approach was based on:
    1. (a)
      the definition of buildings that provide shielding in clause 4.3.2 of AS 1170, i.e., only buildings within a 45° sector of radius 20h (symmetrically positioned about the directions being considered) and whose height is greater than or equal to z shall be deemed to provide shielding;
    2. (b)
      his conclusion that any building that may have been 2 storeys or with a wall height of around 6m as potentially shielding.[176]
  10. [180]
    Mr Wright’s opinion was based on:
    1. (a)
      the fact that AS 1170 is silent on how to manage the shielding effect of buildings that straddle sector boundaries;
    2. (b)
      avoiding an excessively conservative outcome which would result if neighbouring buildings that straddle sector boundaries were ignored.[177]
  11. [181]
    The experts agreed on the methodology for calculation of the topographic multiplier but used different reference positions for the site.[178] Dr Boughton used the location of the house on the site that characterised the floor elevation relative to the topography.[179] Mr Wright used the centroid of the building footprint as the reference position for calculation of the topographic multipliers.[180]
  12. [182]
    Dr Boughton’s data points for the top of the slope and the bottom of slope[181] differ from Mr Wright’s data points for the top of the hill and the bottom of hill.[182] Mr Wright analysed the cross sections with the aid of AutoCAD taking the highest point on the cross section as the top of the slope.[183]
  13. [183]
    The experts agreed on the methodology to arrive at the design wind speed.[184] However, as Dr Boughton and Mr Wright used different terrain categorisations and topographic multipliers it is inevitable that each arrived at a different design site wind speed. Using LiDAR data and considering only those houses eligible for shielding at the time of the design, Dr Boughton calculated the design site wind speed for the house at 71.5 m/s.[185] Mr Wright calculated the design site wind speed for the house at 64 m/s.[186]
  14. [184]
    Taking account of the two extra shielding buildings constructed after the design was done, Dr Boughton recalculated the design site wind speed for the house at 68.1 m/s.[187] Mr Wright recalculated the design site wind speed for the house at 61 m/s.[188]
  15. [185]
    The experts agreed that design wind speed derived using a wind direction multiplier of 1 is the wind speed to be used to determine wind classification.[189] As a consequence of deriving different design wind speeds the experts disagreed as to the appropriate wind classification.
  16. [186]
    Dr Boughton said that at the original design stage the design wind speed was 71m/s (rounded from 71.5 m/s), hence the appropriate wind classification from table 2.1B of AS 4055 was C3.[190] His view remained unchanged after considering the revised design wind speed of 68 m/s (rounded from 68.1 m/s).[191] Mr Wright said that at the original design stage the design wind speed was 64 m/s. With the two shielding houses he said the design wind speed was 61 m/s, equivalent to a wind class of C2.[192]
  17. [187]
    The experts disagreed about the application of AS 1684.3, the Standard for residential timber frame construction. In Dr Boughton’s opinion AS1684.3 cannot be used to derive a general wind classification because it is only appropriate for the design of timber framing, and not for ordering windows, cladding or garage doors. In his opinion those elements require a wind classification from AS 4055.[193] Accordingly, Dr Boughton disagreed with Mr Wright’s opinion that AS 1684.3 equates to a design site wind speed of 64 m/s a wind classification of C2. In Mr Wright’s opinion, at design stage it would have been appropriate to design the timber framed construction of the house to a C2 classification.[194]
  18. [188]
    In summary, the experts disagreed about:
    1. (a)
      whether AS 4055 should have been used by the designer to give a wind classification to the house as the geometric limits for distance from the ground level to the underside of eaves and width had been exceeded;
    2. (b)
      design wind speeds calculated in accordance with AS 1170, because each had:
      1. categorised some of the terrain differently,
      2. calculated the topographic multiplier based on different data points for the top of the hill; and
      3. calculated different shielding values based on the contribution to shielding of houses that straddle sector boundaries;
    3. (c)
      whether AS 1684.3 could be used to derive a general wind classification to design the house, i.e., the cladding as well as the frame.

Concurrent evidence of wind experts

  1. [189]
    Dr Boughton and Mr Wright gave concurrent evidence on 27 and 28 January 2021. I commend the experts for the open and frank manner in which they conducted themselves which assisted me to understand crucial issues for determination in the proceedings.
  2. [190]
    At the commencement of the first day of concurrent evidence Dr Boughton provided some comments on additional material that had been supplied to him on 25 January 2021.[195]
  3. [191]
    During the concurrent evidence the experts reached agreement on some additional areas.
  4. [192]
    The experts agreed that Mr Wright’s suggestion that fill be placed under the parts of the eaves that exceed 6.0m above the ground would have no impact on the wind loads on the house.[196]
  5. [193]
    The experts agreed that if a designer used AS 4055 there would be one wind classification for the site, and all aspects of the building would have had to be designed for that wind classification. Whereas if a designer used AS 1170, the designer could have carried out what Mr Wright described as the laborious process of calculating the wind pressures on all the faces of the building and on all the faces of the roof and designed accordingly.[197]
  6. [194]
    The experts agreed that general wind classification for cyclone regions, including Townsville, can be obtained from table 2.1B in AS 4055. They agreed that table 2.1B equates design gust wind speed (m/s) with wind class. It was common ground that having determined the wind speed using AS 1170, a designer may determine an equivalent AS 4055 site wind classification by using the highest design site wind speed.[198]
  7. [195]
    The experts explained that cladding elements include windows, timber cladding and the studs to which it is fixed, the garage door,[199] roof sheeting and the battens or purlins to which it is fixed. The trusses and anything below the trusses, which would include the truss-to-wall connections or roof cladding connection to the purlins, lintel trimmers or lintels and footings are structural elements.[200]
  8. [196]
    Dr Boughton agreed that a designer could order cladding, which includes windows, to resist the pressure calculated for a particular face of the house, but noted that design wind speed alone was not sufficient information. He explained the process when using AS 1170 was to first establish the design windspeeds on each of the faces and then to establish pressure coefficients having regard to the unique geometry of the building being considered.[201] Mr Wright concurred.[202]
  9. [197]
    Dr Boughton explained that when windows are ordered, the glazing manufacturer can be given:
    1. (a)
      a single C classification under AS 4055, or
    2. (b)
      the design wind pressures calculated as prescribed by AS 1170.[203]
  10. [198]
    Dr Boughton accepted that his approach to converting AS 1170 wind speeds into an equivalent AS 4055 wind classification; i.e., selecting the highest of the four envelope design wind speeds from AS 1170 and matching it to the wind classification table 2.1 of AS 4055 to give an ultimate wind speed that is equal to or greater than the selected envelope design wind speed, was a conservative approach .[204]
  11. [199]
    Dr Boughton summarised the process that had been undertaken in the joint report as follows:

If you choose to use AS4055, you can use AS4055 in its entirety and derive a wind classification. If you choose or are prevented from using AS4055 and you must – or … opt to use AS/NZS1170 part 2, you can calculate wind speeds, as both Mr Wright and I have done, in accordance with AS/NZS1170 part 2 and allocate a single wind classification based on the 10 highest wind speed that we obtained on the four orthogonal faces of the building. Which is what both of us have done in the joint expert report.[205]

  1. [200]
    Mr Wright agreed that if it was assumed that the design wind speeds calculated by Dr Boughton applied, and if the designers ordered the cladding using the classification system under AS 4055, then all the cladding for the house would have had to have been C3.[206]
  2. [201]
    Counsel for the builder explored the possibility of identifying which parts of the house might be defective by considering every individual window or door element and calculating a pressure to decide whether or not the product installed is acceptable or not. The experts agreed that would be possible,[207] however, neither of them had undertaken that work.
  3. [202]
    The experts agreed that their use of different reference positions for the site for calculation of the topographic multiplier for AS 1170 was a minor difference.[208]
  4. [203]
    During the discussion of shielding in the context of AS 1170, Dr Boughton acceded to the fact that houses constructed since the subject house had been designed to the west and north west quadrants may offer extra shielding to the north-western sector.[209] As a consequence of this concession, over the lunch break, the experts reviewed their calculations of the shielding multiplier. The recalculated shielding multipliers for the west and north-west quadrants became Exhibit 39.
  5. [204]
    Taking account of those changes in the shielding multiplier, each expert again recalculated his site wind speed data. The highest design site wind speed for the house calculated by Dr Boughton was 67.5 m/s from the south and west.[210] The highest design site wind speed for the house calculated by Mr Wright was 61.5 m/s from the east and the south.[211]
  6. [205]
    While the experts reached agreement on some additional points their opinions continued to differ in other respects.
  7. [206]
    Quite some time was taken up with a discussion regarding the wind classification that might be attributed if the house came within the dimensions prescribed by AS 4055, in particular exploring the reasons why each expert took a different view regarding topographic classification under AS 4055. At the end of the discussion neither expert altered his position regarding the three variables that have to be considered to select a topographic class from table 2.3 in AS 4055.
  8. [207]
    During the concurrent evidence it became clear that the fundamental difference between the experts regarding terrain categorisation under AS 1170 arose because of their different approaches to categorising terrain, which each based on his interpretation of AS 1170. Dr Boughton identified the terrain category along a particular line of sight for the orthogonal segment whereas Mr Wright considered the particular terrain proportion in the entire segment.[212] If there was a line of sight that Dr Boughton assessed as TC 2, regardless of the fact there may be more surface roughness in parts of the quadrant, he applied TC 2. Whereas Mr Wright considered the surface roughness in the quadrant and assigned a category to the quadrant.
  9. [208]
    Dr Boughton provided a detailed explanation of the concept of surface roughness, the reason the word “obstruction” is used in AS 1170, what is meant aerodynamically by an obstruction, and the role that trees play as obstructing elements. He explained:

.. it is important to evaluate the wind speed at a lowish height to the terrain – in the air column. In terms of the matters pertaining to houses, that is at a height of about six metres. And there’s a transition between zero – at zero metres and at hundreds of metres, about 200 metres – we’re talking hundreds of kilometres an hour. So it’s very important to work that transition out in order to represent the wind speed at the structure height. And that’s what the terrain categories do. It’s a means of categorising surface roughness that enable wind engineers to choose appropriate factors to determine what the wind speed is at particular heights. Now, the – the mechanism of that transition is turbulence. And as Mr Campbell explained yesterday, if we have an obstruction, which is something solid on the ground, as the wind is going past that obstruction, immediately behind that obstruction – and if it’s a large obstruction like a house, it’s probably easier to – to picture – as the air goes past the obstruction, immediately adjacent to the obstruction, the air is whistling by, but immediately behind the obstruction there is no air movement because the obstruction has stopped it. That causes an eddy to develop and that creates mixing in the airstream which mixes the low wind speed with the high wind speed and it evens the – the wind speed out. So the transition is caused by turbulence that is induced by …– obstructions. And as Mr Campbell pointed out yesterday, it’s what’s happening immediately behind the obstruction that introduces the turbulence. If the obstruction is moderately large, like a – a building, then that introduces a lot of turbulence and that’s able to make a big transition or big change to the transition and slow the air down at this height level. If, on the other hand, the obstruction is something small, like a pole or a tree, then obviously the eddy it can generate is quite small and there is less mixing involved with it.

The words in the standard relate to openness because the more you can see through the landscape, the less or the smaller the turbulence introduced by those obstructions actually is, the less mixing there is and the less transition there is between the high speeds higher in the atmosphere and the zero wind speed at the ground, and hence the wind speed for low-rise structure is higher, so that the rougher the terrain, the bigger and the more plentiful the things that interrupt the air flow, the slower the wind speed is at structure height where the structures are quite close to the ground. So the concept introduced for the low categories in the standard uses the word “openness”. Yesterday, I was using the word “opacity” as the opposite of “openness”. So for the higher terrain categories, then there are large numbers of obstructions that the wind cannot penetrate. Now, in general, if you can see through the landscape, then the wind is going to be able to blow through the landscape and have less interruption.[213]

  1. [209]
    Dr Boughton explained:

I looked at the range of different lines of sight which correspond to wind direction. So any radial line from the site is a single wind direction passing through the site. And the words of clause 4.2.3 say when the upwind terrain varies for any wind direction, an averaging of the terrain categories and terrain height multipliers shall be adopted. So that indicates that what we’re looking at in figure 4.1 is a radial line corresponding to a single wind direction and again in order to work out the maximum windspeed, which is required in clause 2.3, I use the terrain – the line of wind direction that is going to give me the lowest terrain category consistent with what is required in clause 2.3.[214]

  1. [210]
    Mr Wright disagreed with the line of site method and maintained his opinion that the proper approach was to categorise the terrain category for an entire quadrant by reference to the definition of terrain category 2.5 in AS 1170.[215]
  2. [211]
    Dr Boughton rejected that approach because the wind blows from a single direction at any point in time. He noted that while in a tropical cyclone if the wind is blowing generally from a south-westerly direction, it can move around within a quadrant, so that it is likely that at some stage there will be wind passing along single lines approaching a building. He said that in very open country there is little to slow the wind so it is important for a designer to design a building to be able to resist the wind blowing from any direction within a quadrant, because it does.[216]
  3. [212]
    Effectively, Dr Boughton takes a worst-case scenario approach. His view is that if you can see through the vegetation the wind can blow through it, and he categorises this as open terrain.
  4. [213]
    During the concurrent evidence it became clear that the fundamental difference between the experts regarding the topographic multiplier under AS 1170 arose in respect of the location of the most adverse topographic cross-section in each sector as a result of using different points as representing the top or crest (the experts agreed the words were interchangeable) of the hill. Dr Boughton measured to the last point on the cross section in which he had confidence as the height of the hill[217], i.e., the highest contour line. He explained that he did this in order to calculate the slope using a known height. In his opinion the slope above the highest measured contour line has no influence on the topographic multiplier because it is not sufficient to accelerate the wind.[218]
  5. [214]
    Mr Wright’s approach was to actually measure the highest point on the cross section that goes through the site to derive the topographic multiplier.[219] He disagreed with Dr Boughton that the hill was flat topped based on his site investigations. He relied on photographs[220] to demonstrate that there were points higher than the highest measured contour line, albeit not one metre higher.[221]
  6. [215]
    At the conclusion of the concurrent evidence, in summary, the experts still disagreed about:
    1. (a)
      whether AS 4055 could be used to give a wind classification to the house as the geometric limits for distance from the ground level to the underside of eaves and width had been exceeded;
    2. (b)
      design wind speeds calculated in accordance with AS 1170, because each had:
      1. categorised some of the terrain differently;
      2. calculated the topographic multiplier based on different data points for the top of the hill; and
    3. (c)
      whether AS 1684.3 could be used to derive a general wind classification to design the house, i.e., the cladding as well as the frame.
  7. [216]
    The disagreement about the contribution to shielding of houses that straddle sector boundaries had been resolved.

Liability findings – wind

  1. [217]
    Preparation of the drawings and specification was part of the work of the builder under the contract as the builder was responsible for obtaining building approval.[222]
  2. [218]
    The builder was obliged to comply with the requirements of AS 4055 and AS 1170:
    1. (a)
      because the contract is a regulated contract under Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld), which means that the builder warranted that the work would be carried out in accordance with all relevant laws and legal requirements and with reasonable care and skill; and
    2. (b)
      pursuant to the terms of the contract, in particular the warranty given in clause 10.1 to carry out the work in accordance with all relevant laws and legal requirements.
  3. [219]
    There is no doubt that, as designed, the house exceeded the geometric limits prescribed by AS 4055 in one, if not two, of the five prescribed dimensions.
  4. [220]
    First, addressing the eaves height. The experts agreed that at design stage the eaves exceeded 6.0m[223] but disagreed about the location of the ground level from which the measurement of the distance to the underside of eaves is to be taken. If this were the only difference regarding dimensions, I would need to decide whether the reference to ground level in the 2012 version of AS 4055 means natural ground or design finish level ground. The fact that there will be a change to AS 4055 to address this issue in the future indicates that a reasonable reader of AS 4055 could take the view that Mr Wright takes. It does not mean that Dr Boughton’s view is correct. However, I need not resolve this question because the experts also agreed that another of the geometric limits of AS 4055 had been exceeded.
  5. [221]
    Second, addressing the prescribed width, it was common ground that at design stage some portion of the house exceeded the maximum prescribed width of 16.0m.
  6. [222]
    I accept Dr Boughton’s opinion that the dimensions prescribed in AS 4055 are absolute, and that as the geometric limitations are presented to one decimal place that the limit of freedom of interpretation is to one decimal place.[224] I note that clause 1.4.5 of AS 1684.3, which prescribes 16000mm as the maximum width of a building where wind classification is determined under AS 4055, is even more precise.
  7. [223]
    Dr Boughton is clearly the better qualified of the two experts regarding the application of AS 4055 so it is appropriate that I adopt his opinion which is consistent with the plain meaning of clause 1.1 of AS 4055 which states:

Wind loads for houses not complying with the geometric limits given in Clause 1.2 are outside the scope of this Standard.

  1. [224]
    I reject Mr Wright’s opinion that a 1% exceedance of the width limit for 12% of the building length for all practical purposes ought not exclude the application of AS 4055.
  2. [225]
    The experts agreed that AS 4055 is intended to be used by builders and others working in the domestic construction industry. Users of AS 4055 need not have engineering qualifications. This fact highlights the problem with Mr Wright’s approach. While a person with Mr Wright’s skill and experience might be comfortable departing from the precise geometric limits imposed by AS 4055, this does not mean that all, or any, users of AS 4055 should be allowed to exercise their own discretion regarding geometric limits.
  3. [226]
    I note that Dr Boughton’s approach is also consistent with the informative commentary to AS 4055[225] which makes it clear that it is important to categorise each house on a case-by-case basis. While the commentary recognises that a correct application of AS 4055 may lead to some houses with more conservative design loads, and others with less conservative design loads, it makes it clear that the starting point must be to assess each site individually for its wind classification and each house for compliance with geometry and for wind evaluation pressures. This house does not comply with the geometric requirements regarding width and arguably not with the distance from the ground level to the underside of the eaves.
  4. [227]
    As the house as designed did not fall within the prescribed geometric limits of AS 4055, I find that the builder, through its designer for whom it takes contractual responsibility, should have used AS 1170 to determine wind actions on this house.
  5. [228]
    The question of whether, had the house been designed within the geometric limits of AS 4055, it might have had a wind classification of C2 or C3 is hypothetical. Accordingly, I cannot see any utility in making findings on any of the other differences between the experts that might have had to be addressed had the house been designed within the dimensions prescribed by AS 4055.
  6. [229]
    I reject the owner’s submissions that the Australian Standards ‘require the specifications and plans to be to a C3 standard’. If the house had been designed within the geometric limits of AS 4055 then the designers would have had to specify material that met the requirements of AS 4055. However, this was not the case as some dimensions on the plans exceeded the absolute dimensions prescribed by AS 4055.
  7. [230]
    I reject the builder’s submission that, based on Mr Wright’s calculations, the house falls within the ultimate limit state for wind class C2. This submission is based on the argument that the effect of part 1.4.2 of AS 1684.3 is to provide that the maximum design wind speed calculated under AS 1170 for this timber framed house is no more than 5% greater than 61 m/s, which is 64 m/s. I reject this argument for the following reasons:
    1. (a)
      One need only consider clause 1.1 of AS 1684.3 to appreciate that that standard addresses requirements for selection, placement and fixing of structural elements used in the construction of timber framed buildings; it does not address cladding. It is clear from Clause 1.16 of AS 1684.3 that prior to using the Standard, the design gust wind speed and corresponding wind classification is to be determined. This is reinforced by the flow chart in Figure 7 which first requires determination of the maximum design gust wind velocity under AS 1170 or AS 4055.
    2. (b)
      In order to comply with AS 1684.3 as mandated by the NCC, a designer must first have regard to AS 1170 or AS 4055 as appropriate. Section 2.5 of AS 1170 makes provision for the 5% difference between the ultimate limit state design gust wind speed determined from AS 1170 and the ultimate limit state wind speed referred to in clause 1.4.2 of AS 1684.3 by providing that the wind direction multiplier for determining the resultant forces and overturning moments on complete buildings and wind actions on structural elements in cyclonic regions is 0.95.
  8. [231]
    If I am wrong in rejecting the submission that based on Mr Wright’s calculations the house falls within the ultimate limit state for wind class C2, then because he is the better qualified of the two experts, I prefer Dr Boughton’s calculation of the design wind speeds using the formulae from AS 1170 based on his allocation of terrain categories and his calculation of the topographic multiplier.
  9. [232]
    Dr Boughton’s opinion regarding the terrain height multiplier value to be used in the site wind speed equation was based on clause 2.3 of AS 1170 which requires the building orthogonal design wind speeds to be taken as the maximum cardinal direction site wind speed linearly interpolated between cardinal points within a sector ±45° to the orthogonal direction being considered. His approach in order to work out the maximum windspeed, which is required in clause 2.3, was to look at the range of different lines of sight within each segment which correspond to wind direction such that any radial line from the site was a single wind direction passing through the site. He then chose the line of wind direction that gave him the lowest terrain category consistent with the requirements of clause 2.3 of AS 1170.[226] Mr Wright eschewed the approach of identifying any radial line.[227] His approach was to consider the definitions of terrain categories in AS 1170 and exercise his professional judgement in order to categorise each segment under consideration.[228] That approach fails to consider the likelihood that in a cyclone in a segment of open terrain the wind will pass along a single line. I prefer Dr Boughton’s approach that it is important for a designer to design a building to be able to resist the wind blowing along any radial line from any direction within a segment.
  10. [233]
    Likewise, I prefer the opinion of Dr Boughton about topographic multipliers. When establishing the appropriate hill shape multiplier, I prefer Dr Boughton’s approach of identifying the top of the hill by reference to known contour lines, above which the slope is so low that it has no topographic effect.[229] I note that AS 1170 does not call for actual measurement of the crest of the hill, being the methodology advanced by Mr Wright.
  11. [234]
    I find that had the builder properly performed its obligations under the contract and met legal requirements, the house would have been designed for site wind speeds of 71.5 m/s, i.e., the design site wind speed calculated by Dr Boughton. I find that if the designers had used Table 2.1B of AS 4055 to specify cladding materials, they should have specified cladding materials to resist wind speeds of 71.5 m/s, which are within the C3 classification.

Damages findings - wind

  1. [235]
    Having found the builder in breach of its contractual obligations, the next step is to establish the damages flowing from that breach in order to put the owner in the position he would have been in had the builder properly performed its obligations under the contract.
  2. [236]
    As the house exceeded the geometric limitations prescribed by AS 4055, the designers, for whom the builder bears contractual liability, should have used AS 1170 to determine wind actions on this house. As set out in the note to clause 2.3 of AS 1170, the house could have been designed by taking a conservative approach using the wind speed and multipliers for the worst direction.
  3. [237]
    Alternatively, once the designers had the wind speed and multipliers for each cardinal direction, they could have undertaken the laborious calculations necessary to calculate pressure coefficients for each face of the building to determine forces on building elements, in order to specify building materials for each face that had the capacity to resist those pressures.
  1. [238]
    There was no evidence that the designers undertook such calculations. Indeed, it seems from the Form 15 Compliance Certificate dated 27 September 2018[230] that the designers adopted a single direction site wind speed of 56 m/s. If the designers actually used a wind speed of 56 m/s then they used a speed less than that calculated by either Mr Wright or Dr Boughton.
  1. [239]
    Dr Boughton adopted the simple approach of using the wind speed and multipliers for the worst direction as the design wind speed for all directions on the building. Although the builder’s counsel criticised Dr Boughton for taking a conservative approach it is clearly an approach contemplated by AS 1170. In effect Mr Wright took the same approach. He did not consider differences in local pressure zones that may have occurred as a function of building geometry had the whole building been designed using AS 1170. He did not identify the individual elements of the house that were not designed to withstand the pressures calculated using the methods required by AS 1170 despite agreeing that it would have been possible to undertake the exercise and knowing that Dr Boughton had taken the simple approach.
  2. [240]
    I accept Dr Boughton’s opinion and find that it would have been reasonable for the designers to have taken the simple approach. Knowing that the house exceeded the geometric limitations prescribed by AS 4055 the designers could have taken the approach of using the wind speed and multipliers determined using AS 1170 for the worst direction as the design wind speed for all directions on the house when specifying materials. The designers could have used the wind direction multiplier of 0.95 to determine wind actions on structural elements and 1.0 for cladding and immediate support members as required by clause 3.5.2 of AS 1170.
  3. [241]
    Once they had determined the design gust wind speed for the worst direction using AS 1170, the designers could have taken the approach, agreed to be reasonable by the experts, of specifying materials having regard to Table 2.1B in AS 4055 to identify an equivalent wind class for all the cladding. However, contrary to the owner’s submissions they need not have specified all the components of the house having regard to that table.
  4. [242]
    In the joint expert report, at the time of design:
    1. (a)
      Dr Boughton calculated the highest design wind speed at 71.5 m/s;[231]
    2. (b)
      Mr Wright calculated the highest design site wind speed at 64 m/s.[232]
  5. [243]
    I find that whether the highest design site wind speed was 71.5 m/s or 64 m/s, when using Table 2.1B in AS 4055 to specify cladding materials, the designers should have specified cladding materials to withstand C3 wind conditions because the ultimate limit state for wind class C2 is 61 m/s.
  6. [244]
    I need not repeat my reasons[233] for rejecting the builder’s submission that, based on Mr Wright’s calculations, a design wind speed of 61 m/s is to be converted to a design wind speed of 64 m/s, with the consequence that the house falls within the ultimate limit state for wind class C2.
  7. [245]
    For completeness I note that while the designers might have used AS 1684.3 to design the timber frame, they could not have used it to specify the cladding elements. Had the builder’s design obligations been properly performed, the owner would have had a house, i.e., both frame and cladding, designed for the site conditions to be experienced from any and every direction.

Mitigating effect of shielding houses

  1. [246]
    When assessing damages, it is necessary to take account of the mitigating influence of the houses constructed after the house in question. By the time the concurrent evidence was concluded the experts’ opinions about the shielding impact of houses which will impact the rectification, was:
    1. (a)
      Dr Boughton calculated the highest design wind speed at 67.5 m/s;[234]
    2. (b)
      Mr Wright calculated the highest design site wind speed at 61.5 m/s.[235]
  2. [247]
    Whether the highest design wind speed for the rectification work is 67.5 m/s or 61.5 m/s, having determined the design gust wind speed for the worst direction using AS 1170, the designers could use the wind direction multiplier of 0.95 to determine wind actions on structural elements and 1.0 for cladding and immediate support members as required by clause 3.5.2 of AS 1170. Having determined the design gust wind speed for the worst direction using AS 1170, the designers could take the approach to specifying materials, agreed to be reasonable by the experts, of having regard to Table 2.1B in AS 4055 to identify an equivalent wind class for all the cladding.
  3. [248]
    I find that whether the highest design site wind speed for the rectification work is 67.5 m/s or 61.5 m/s, when using Table 2.1B in AS 4055 to specify materials, the designers should specify cladding materials to withstand C3 wind conditions because the ultimate limit state for wind class C2 is 61 m/s.
  4. [249]
    Again, if I am wrong in rejecting the submission that based on Mr Wright’s calculations relying on AS 1684.3 that the house falls within the ultimate limit state for wind class C2, then I prefer Dr Boughton’s calculation of the highest design wind speed based on his allocation of terrain categories and his calculation of the topographic multiplier.
  5. [250]
    Although the houses constructed after the house in question might provide some extra protection, they have no impact on the rectification required as the highest design wind speed for the rectification work under AS 1170 is 67.5 m/s. The designers should use the wind direction multiplier of 0.95 to determine wind actions on structural elements and 1.0 for cladding and immediate support members as required by clause 3.5.2 of AS 1170 and have regard to Table 2.1B in AS 4055 to determine an equivalent AS 4055 wind class for the materials specified to withstand C3 site wind conditions.

Loss suffered

  1. [251]
    The decision of the High Court in in Bellgrove v Eldridge[236] established the relevant principle:

In the present case, the respondent was entitled to have a building erected upon her land in accordance with the contract and the plans and specifications which formed part of it, and her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. This loss cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract. The qualification, however, to which this rule is subject is that, not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt.[237]

  1. [252]
    In McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd,[238] Daubney J (as he then was) quoted from Hudsons Building & Engineering Contracts (12th edition), regarding the circumstances in which a court will find unreasonableness as follows:

To state that the prima facie rule applies unless it would be unreasonable for the building owner to insist on reinstatement of the defective work, although accurate, does not identify the circumstances in which a court will find unreasonableness. The following factors either individually or in combination may be relevant, although not of equal importance, namely:

  1. (a)
    whether the work actually carried out is reasonably satisfactory for its purpose;
  1. (b)
    whether the building Owner has carried out or in fact intends to carry out the work of reinstatement;
  1. (c)
    whether the defect or omission has substantially affected either the market value or the amenity value to the building Owner of the works; and
  1. (d)
    whether the cost of reinstatement is wholly disproportionate to the advantages of reinstatement.

If condition (d) is satisfied, the court will not adopt cost of cure as the appropriate measure. Factors (a)-(c) are indications as to whether or not it would be unreasonable for the building owner to insist on reinstatement as the correct measure of damages.[239]

  1. [253]
    In oral submissions counsel for the builder accepted that if his client was liable, then the cost of reinstatement was the relevant measure of damages, but submitted that it would be disproportionate to require the whole house to be rectified to a C3 standard if Dr Boughton’s evidence was accepted, due to a lack of evidence that the north and east sides of the house require rectification in order to produce conformity with the contract.
  2. [254]
    He submitted that on the owner’s best case, the house complies as designed and built with the maximum directional wind speed from the north and east. This submission relies on Mr Wright’s addition of a fourth column to Table 1.1 in clause 1.4.2 of AS 1684.3 in which he adds 5% to the ultimate limit state for wind classification C2 (becomes 64.05 m/s) and C3 (becomes 77.7 m/s). It is submitted, (on the assumption that Mr Wright’s addition of a fourth column to Table 1.1 in clause 1.4.2 of AS 1684.3 is correct), that the maximum directional wind speed based on revised shielding calculated by Dr Boughton, i.e., 67.5 m/s from the south and west, should be converted to 64 m/s under AS 1684.3, which is said to be within the C2 wind classification for a timber framed house.
  3. [255]
    It was submitted that it would be unnecessary and unreasonable to order damages to enable the rectification of large sections of the house as such work is not necessary to produce conformity with the requirements of the contract, so far as compliance with relevant wind Standards is concerned. It was submitted that such work would be out of all proportion to the extent which the house is said to be non-compliant.
  4. [256]
    There are four flaws in this argument.
    1. (a)
      First, it ignores the fact that AS 1684.3 is limited to addressing selection, placement and fixing of structural elements in timber framed buildings. AS 1684.3 does not address cladding. The contract called for a timber framed house clad with material that formed the external face over the framing. As agreed by the experts, cladding elements include windows, timber cladding and the studs to which it is fixed, the garage door, roof sheeting and the battens or purlins to which it is fixed. In order to conform with the contract, the house must be rectified so that the cladding materials will withstand wind loads determined by application of the relevant Australian Standard, which is not AS 1684.3.
    2. (b)
      Second, it ignores the fact that AS 1170 allows the entire structure to be designed using the wind speed and multipliers for the worst direction, the very approach taken by both experts.
    3. (c)
      Third, it is based on an assumption, which has not been the subject of any evidence, that the pressure coefficients for the north and east sides of the house, calculated using the design wind speeds determined by Dr Boughton, would result in forces on building elements which would be such as to make it unreasonable to rectify the north and east sides of the house.
    4. (d)
      Finally, it is inconsistent with the experts’ agreement that if the cladding is specified by reference to a wind classification under AS 4055 then the whole building must be clad with material to conform to the chosen classification.
  5. [257]
    Subject to the owner meeting the onus for each item claimed, I find it is reasonable to award damages to rectify the defects complained of so as to give the owner the equivalent of a building which is substantially in accordance with the contract. While the owner has submitted that the rectification should be to bring the whole house to a C3 standard that is not the approach I have taken. I have addressed each item in the Scott Schedule in accordance with my findings on the expert evidence and having regard to the evidence regarding quantum.
  6. [258]
    As to quantum, generally, I prefer the approach of Mr Helisma when assessing the measure of damages. In order to be put in the place he would have been in had there been no breach of contract, the owner will have to engage a builder to carry out the rectification. Mr Helisma has approached the costing exercise on that basis.
  7. [259]
    At the hearing the owner’s claim was quantified in the Scott Schedule.[240] The total of the items claimed was $316,096.62 plus QBCC fees plus GST.
  8. [260]
    The builder’s submissions admit that the owner is entitled to a margin of 20% and that for claims in respect of which a locality cost factor is to be awarded the percentage to be applied is 13.1% on the amount awarded.

Roof structure - additional battens (Scott Schedule 1.1 – 1.6)

  1. [261]
    Mr Hutton stated that the design wind load exceeded the structural capacity of the installed roof sheeting. He observed:

The battens as installed are structurally adequate, however there has been no Form 15 or Form 16 supplied that covers the batten design and installation. We also note that whilst the battens as installed are structurally adequate, the span of the roof sheeting supported by the battens in the 1200mm edge zone exceeds the roof sheeting capacity, hence the batten spacing is not adequate to support the roof sheeting in those areas…[241]

  1. [262]
    All Mr Hutton’s calculations were carried out on the basis of a design wind speed of 68m/s.[242]
  2. [263]
    Mr Hutton described rectification requirements as:

Roof sheeting to be removed.

Additional roof battens to be installed as required to comply with roof sheeting requirements.

Sheeting to be re-installed with cyclone washers in the 1200mm edge zones.[243]

  1. [264]
    In his first report, done on a desktop basis, Mr Hutton did not consider the solar panels that had been installed over the roof when addressing the wind uplift force on the roof sheeting. After inspecting the solar panel installation, Mr Hutton was satisfied that the panels had been installed to meet a design wind speed of 68m/s.[244] He noted that significant roof edge areas were not covered by solar panels and therefore were subject to full design wind loads.[245]
  2. [265]
    During his cross-examination Mr Hutton conceded that he had made some errors in his workings. As a result, he conceded that in the 1200mm edge zones the calculated ultimate wind pressure is within the capacity of the sheeting specified by the manufacturer.[246]
  3. [266]
    As to the corner zones, it was Mr Hutton’s opinion that although the addition of cyclone washers would bring the roof close to compliance with the manufacturer’s requirements, at a design wind speed of 68m/s it would not be close enough to be satisfactory.[247]
  4. [267]
    If the design wind speed was 67m/s Mr Hutton accepted that, if cyclone washers were installed, the manufacturer’s requirements in both the edge and corner areas would be met.[248]
  5. [268]
    The wind speed of 67.5m/s was not put to Mr Hutton (which is hardly surprising as that speed was not suggested as the maximum design wind speed until after his evidence was given). However, given the assumption that cyclone washers were required at 67 m/s it seems obvious they are necessary at 67.5m/s.
  6. [269]
    Mr Helisma costed the work to rectify the roof at $36,410.36, including a margin of 20% and a locality cost factor of 13.1%. The scope of work Mr Helisma said was required is set out in the Scott Schedule attached to the joint expert report.[249] It includes:
    1. (a)
      removal of solar panels;
    2. (b)
      removal of roof sheeting, apron barge and ridge flashing;
    3. (c)
      temporary tarping;
    4. (d)
      installation of additional battens;
    5. (e)
      installation of cyclone washers in the edge zones.
  7. [270]
    While maintaining his opinion that the work is not defective, Mr Thompson costed the scope described by Mr Helisma at $30,621.
  8. [271]
    In the builder’s submissions, using a wind speed of 67.5m/s, and based on Mr Hutton’s working sheets, it was said that if cyclone washers are installed, the maximum uplift pressure on the corner zones would be -8.365 kPa, equating to 1.8% over the calculated design pressure for that zone.
  9. [272]
    Based on Mr Hutton’s evidence, the only rectification necessary is in the corner zones. There is no doubt that cyclone washers must be installed in corner areas to meet the manufacturer’s requirements. I accept Mr Hutton’s opinion that although the addition of cyclone washers would bring the roof close to compliance with the manufacturer’s requirements, at a design wind speed of 68m/s it would not be close enough to be satisfactory. While it may be the case that, for a wind speed of 67.5m/s, the maximum uplift pressure on the corner zones would only be 1.8% over the calculated design pressure for that zone, I cannot find that no rectification other than the installation of cyclone washers is required. However, I find that rectification by removing the solar panels, the roof sheeting and installation of additional battens is out of all proportion to the defects which were limited to the corner zones of the roof.
  10. [273]
    I reject the builder’s submission that the only work required is the installation of cyclone washers in the southern and western corners of the roof. I have no evidence of any calculations of pressure coefficients for each face of the building to determine forces on building elements on each face. Above I have found that when using AS 1170 to determine wind actions, the designers could have taken the conservative approach of using the wind speed and multipliers for the worst direction and applied that to the whole house. In the absence of any evidence of any calculations of pressure coefficients for each face of the building to determine forces on building elements on each face, I find that the necessary rectification is the installation of cyclone washers in all the corner zones of the roof and may also involve some work on the battens.
  11. [274]
    Unfortunately, the only quantum evidence I have is Mr Helisma’s extra over costing of 1080 washers in the edge zones at $172.80. The cost of the labour was included with the cost of removing and replacing the roof.
  12. [275]
    Obviously, there will be a cost involving labour and materials. Doing the best I can, I will allow $5,500 to installation of cyclone washers in all the corner zones of the roof and to do any work required to address any inadequacies in the battens. I arrive at this figure having regard to an alternate solution to installing additional roof battens proposed by Mr Thompson costing $11,134. Mr Thompson explained that this alternate solution assumed removal of 30% of the solar panels, unscrewing roof sheets to allow two workers to crawl in to install two rows of battens and subsequent re-fixing of the roof sheets and solar panels. Mr Helisma accepted Mr Thompson’s costing. While I appreciate that the work is not the same, I have drawn an analogy because it involved two workers on the roof unscrewing and re-screwing roof sheets and reduced the total to take account that the work required would be less complex than required by Mr Thompson’s alternate solution.
  13. [276]
    I allow $5,500 plus a margin of 20% and a locality cost factor of 13.1%.

Trusses (Scott Schedule 1.7)

  1. [277]
    The Specification for the roof stated ‘Pine LOSP treated trusses as per manufacturers specifications to be designed in accordance with wind/terrain classification’.
  2. [278]
    The truss design for the project was undertaken by Supatruss Pty Ltd, the truss manufacturer. Mr Hutton did not undertake a detailed design review. He noted that the truss design was ‘based on a C2 wind classification, which is equivalent to 61m/s’. In his opinion the difference between a design wind speed of 61m/s and 68m/s is substantial and may mean that the truss design is inadequate. Following discussions with Multinail, Mr Hutton stated that it was likely that the trusses could be modified to increase their structural capacity.[250]
  3. [279]
    In August 2019, Mr Helisma emailed Mr Hutton enquiring about the proposed rectification works to the trusses. Mr Helisma provided a marked-up plan identifying ‘19 trusses upgraded with F14 15mm structural ply’. Mr Hutton responded:

My opinion is that it is likely that only the below trusses [8 of the 19 marked by Mr Helisma] will need upgrading, however a detailed design review would need to be undertaken to confirm the structural capacity of all the trusses.[251]

  1. [280]
    During cross-examination Mr Hutton conceded that when reviewing the truss design he did not use the correct wind direction multiplier required for structural elements (0.95%, section 3.5.2 AS 1107).[252] He agreed that calculation of the structural capacity of a truss is a complicated process.[253] He explained that truss design is typically carried out using specialist software and said that he did not carry out the laborious process of design review after the general engineering manager of Multinail declined to offer further assistance.[254] He accepted that there would be some element of reserve capacity in the structural design of the trusses,[255] but did not know what it was.[256]
  2. [281]
    During cross-examination Mr Hutton conceded that it was possible that it would not be necessary to fix any structural ply to the trusses.[257]
  3. [282]
    The scope of work Mr Helisma said was required, is set out in a Scott Schedule attached to the joint expert report.[258] In the Scott Schedule he costed the modification to all the trusses at $28,701.03, including a margin of 20% and a locality cost factor of 13.1%.
  4. [283]
    When giving joint evidence Mr Helisma said he had made an error in preparing the spreadsheet which was the basis of the Scott Schedule attached to the joint expert report because he did not amend it to include the amount or remarks from his April 2020 report. In his opinion, absent a detailed engineering review, the prudent course for him to adopt was to assume all 40 trusses required rectification. Accordingly he increased the quantum claimed to $38,886.14 including a margin of 20% and a locality cost factor of 13.1%.
  5. [284]
    In the joint expert report, while maintaining his opinion that the work was not defective, Mr Thompson valued the upgrading of the trusses at $29,055.88.[259] This valuation assumed installation of 276m² of ply to 40 trusses, i.e., the scope described by Mr Helisma. During the joint expert evidence, Mr Thompson said that his references to 40 trusses was a typographical error, it should have referred to 20 trusses. He said that he costed ply to 20 trusses as that was the number of trusses marked on the drawing in Mr Helisma’s report.[260]
  6. [285]
    I am not satisfied that the owner has discharged the onus regarding this claim. At its highest, based on using an incorrect wind direction multiplier, Mr Hutton’s opinion supported a claim for rectification of 8 trusses by the addition of structural ply. However, his opinion was not based on a detailed design review of the trusses. Despite knowing from the time of Mr Hutton’s initial report that such a review was the only means by which it could be known that the trusses were inadequate, the owner did not obtain or provide any evidence of a detailed design review of the trusses. Accordingly, I reject the claim for rectification of the trusses.

Truss connections to top plate (Scott Schedule 1.8)

  1. [286]
    Mr Hutton stated that the truss connections to the centre trusses on trusses T45, T46, T50 and T51 were not adequate to withstand a wind speed of 68m/s.[261] He stated that the centre connections must be rectified to comply with the 25kN connection detail provided on drawing GED0890/DS9 rev P 1.[262]
  2. [287]
    During cross-examination Mr Hutton conceded that in forming his opinion that the five nominated truss connections were inadequate he had applied the wrong wind direction multiplier and had not undertaken any analysis of the adequacy of the truss connections.[263]
  3. [288]
    Mr Helisma costed the rectification at $354.85 including a margin of 20% and a locality cost factor of 13.1.%. In the joint expert report, while maintaining his opinion that the work was not defective, Mr Thompson adopted Mr Helisma’s costing.[264]
  4. [289]
    I am not satisfied that the owner has discharged the onus regarding this claim. Mr Hutton’s opinion was not based on a detailed design review and failed to consider the correct wind direction multiplier. Accordingly, I reject the claim for truss connections to the centre trusses.

Eave overhang blocks (Scott Schedule 1.9)

  1. [290]
    The specification called for a Colorbond fascia.[265]
  2. [291]
    In his desk top review, Mr Hutton questioned the method of installation of the eave overhang blocks. By reference to a photograph, he said:

The installation of the eave overhang blocks … has not been documented or certified by either the design engineer…or the truss manufacturer… The eave blocks typically installed with either 1 or 2 skew nails.[266]

  1. [292]
    In Mr Helisma’s opinion the construction of the eaves overhang was defective because it did not comply with AS 1684. Clause 7.2.25.1 of that Standard requires that:

Gables and verges shall be formed either –

  1. with rafters supported on cantilevered extensions of ridgeboards or beams, underpurlins, intermediate beams and wall plates; or
  2. with outriggers or outriggers at right angles to and trimmed into common rafters or trusses, which shall be adequately fixed and nogged to prevent overturning and to provide fixing for roof battens.[267]
  1. [293]
    Based on photographs taken by the owner during the course of construction, reproduced in his report, Mr Helisma observed the defects were:[268]
    1. (a)
      the blocking has been fixed with nails and not tied with batten screws or multi-grips;
    2. (b)
      roof battens or counter level battens have not been installed directly over the eave blocking; and
    3. (c)
      no verge rafter had been installed.[269]
  2. [294]
    Mr Carpenter did not think there was a significant defect.[270] He dismissed the photographs as snapshots of incomplete work[271] taken at a point in time. He speculated that it is a non-structural block of timber approximately 350mm long on the narrow overhang on the gable end of the roof. He observed that a verge or fly rafter is not required when using non-structural metal fascia / barge board.[272]
  3. [295]
    Mr Carpenter suggested that both Mr Hutton and Mr Helisma had overlooked the construction method which involved, in addition to nail fixing the blocks to the trusses, building up external gable wall frames fixed under the blocks to augment the lateral positioning of the wall and providing support to the 300mm overhang to east and west elevations.[273]
  4. [296]
    Mr Hutton inspected the eave outriggers and produced sketches of the as constructed eave configurations.[274] He observed that the roof battens are not connected to the eave outriggers.[275] In his opinion, based on his structural analysis of the eaves, the connection provided to the truss was not adequate for applied loads of 68m/s.[276] In his view all eave outriggers on the eastern and western faces of the house needed to be rectified.[277]
  5. [297]
    During cross-examination Mr Hutton said that Clause 7.2.25.1(a) of AS 1684.3 was not applicable. He confirmed that as a result of an inspection following receipt of Mr Carpenter’s report, the fixing was more secure than he had thought, with both batten screws and skew nails.[278] He agreed that in the case of a typical photograph,[279] the batten would be an outrigger and that it had been adequately fixed.[280] He explained that his complaint was that the battens that run perpendicular across the trusses are not fixed to each eave block.[281]
  6. [298]
    During cross-examination Mr Hutton conceded that he had not carried out any design calculations to ascertain the required structural capacity of the overhangs or the capacity of the as constructed work.[282]
  7. [299]
    Having been taken through a series of construction photographs[283] and drawings marked up by Mr Carpenter to depict work as constructed by stages,[284] Mr Hutton accepted that the construction of the verge overhang involved the fascia being fixed to the barge cap then supported by the vertical fixing and to the roof sheeting and into the batten from the top. He accepted that this construction method would prevent overturning.[285]
  8. [300]
    The scope of work Mr Helisma said is required is set out in a Scott Schedule attached to the joint expert report.[286] It involves reconstruction of the overhang by adding verge rafters, outriggers and blocking.[287] He costed the work at $10,128.52, including a margin of 20% and a locality cost factor of 13.1%. While maintaining his opinion that the work was not defective, Mr Thompson costed what he said is the incomplete scope described by Mr Helisma at $8,140.
  9. [301]
    During the joint expert evidence Mr Helisma confirmed that if he was to assume that the drawings marked up by Mr Carpenter to depict work as constructed by stages depicted an acceptable engineering solution, and that what was depicted in the drawings was what had been constructed, then there would be no rectification required.[288]
  10. [302]
    It appears that some of the opinions of Mr Hutton and Mr Helisma were at odds. Contrary to Mr Helisma’s comments that the blocking has been fixed with nails and not tied with batten screws or multi-grips, Mr Hutton confirmed that the fixing was with both batten screws and skew nails. Contrary to Mr Helisma’s view that a verge rafter was necessary (a requirement of clause 7.2.25.1(a) of AS 1684.3), it was Mr Hutton’s evidence that clause 7.2.25.1(a) of AS 1684.3 is not applicable. I prefer Mr Hutton’s evidence, given Mr Helisma consistently deferred to engineering opinions.
  11. [303]
    Noting Mr Hutton’s opinion that the construction method depicted in Exhibit 21 would prevent overturning, thus addressing the requirements of clause 7.2.25.1(b) of AS 1684, I am not satisfied that it is necessary to reconstruct the overhang by adding verge rafters, outriggers and blocking.
  12. [304]
    In the absence of any evidence of any design calculations to ascertain the required structural capacity of the overhangs or the capacity of the as constructed work I am not satisfied that the owner has discharged the onus regarding this claim. I cannot make any finding about whether any rectification is required. Accordingly, I reject the claim for rectification of the eave overhangs.

External cladding (Scott Schedule 2)

  1. [305]
    The specification called for ‘Axon cladding as per plan’.[289] Drawing WD 06 for the east elevation called for ‘Axon cladding installed as per manufactuerers (sic) specifiacations (sic)’. Drawing WD 07 for the north elevation, Drawing WD 08 for the west elevation and Drawing WD 09 for the south elevation called for ‘painted FC sheeting with PVC strips installed as per manufactuerers (sic) specifiacations (sic)’.[290]
  2. [306]
    When reviewing the external cladding, Mr Hutton considered the requirements of the James Hardie installation guides for Scyon Axon[291] and Scyon Stria.[292] Those installation guides for cladding refer to AS 4055 wind classifications, not to AS 1170.
  3. [307]
    The Scyon Axon installation guide contains tables that set out:
    1. (a)
      maximum stud spacing – AS 4055:
      1. in C2 zones at 600mm generally and within 1200mm of building edges at 400mm;
      2. in C3 zones at 400mm generally and within 1200mm of building edges at 300mm.
    2. (b)
      maximum sheet fastener spacing – AS 4055:
      1. in C2 zones at 200mm, both generally and within 1200mm of building edges;
      2. in C3 zones at 200mm generally and within 1200mm of building edges at 150mm.
  4. [308]
    Mr Hutton concluded, for the Axon cladding:
    1. (a)
      the C3 design capacity of the stud spacing had been exceeded;
    2. (b)
      the vertical spacing of fasteners in the building edge zones exceed the manufacturer’s requirements; and
    3. (c)
      the sheet edge fastening spacing exceeded the minimum stipulated in the manufacturer’s guidelines.[293]
  5. [309]
    The Scyon Stria installation guide:
    1. (a)
      contains a table that sets out stud spacing – AS 4055:
      1. in C2 zones at 600mm generally and within 1200mm of building edges at 450mm;
      2. in C3 zones at 450mm generally and within 1200mm of building edges at 300mm;
    2. (b)
      requires fasteners to be driven a minimum edge distance of 20mm to the end of the board.
  6. [310]
    Mr Hutton concluded, for the Stria cladding:
    1. (a)
      the C2 and C3 design capacity of the stud spacing had been exceeded in the corner zones and in some locations in the general zone; and
    2. (b)
      the top and bottom edge fastener spacing exceeded the minimum stipulated in the manufacturer’s guidelines.[294]
  7. [311]
    Mr Hutton also observed a number of instances in which the installation of fasteners to the cladding failed to meet the minimum requirements in the manufacturer’s specifications.[295] In cross-examination he confirmed that rectification would involve someone hammering those nails in to ensure they were flush to the surface of the board.[296]
  8. [312]
    Mr Carpenter noted that it was not possible to determine stud spacing with certainty without invasive investigation.[297] His suggestion that Mr Helisma should have provided a marked-up plan showing the location of required additional studs appears somewhat disingenuous given that remark.
  9. [313]
    In Mr Carpenter’s opinion the nail fixing pattern on the face of the boards is not an accurate indicator of wall stud spacing. He stated that it would be possible to nail the cladding board showing 530mm between the nail heads if 45mm studs were used at 450mm spacings.[298] When giving oral evidence he confirmed that such a configuration could only be achieved if the nails were put within 5mm of the outer edge of the stud, which would not be good practice.
  10. [314]
    Mr Helisma concurred with all of issues raised by Mr Hutton in respect of the cladding.[299] In his opinion it is necessary to rectify stud and fastener spacings to comply with the manufacturer’s specifications and to replace curled boards by removing the cladding from the outside of the building.[300]
  11. [315]
    Mr Carpenter agreed that additional studs are required to comply with the wall cladding manufacturer’s requirements for C3 wind categorisation.[301]
  12. [316]
    It is clear from the specifications and the approved plans that the builder was obliged to comply with the manufacturer’s requirements. The James Hardie installation guides refer to AS 4055. Mr Wright agreed that if it was assumed that the design wind speeds calculated by Dr Boughton applied (as I have found to be the case), and if the designers ordered the cladding using the classification system under AS 4055 (which they did), then all the cladding for the house would have had to have been C3.[302] Accordingly, I find that the stud spacing should be rectified for all faces of the house to C3 requirements.
  13. [317]
    I reject the builder’s submissions that the stud spacing would only require rectification for those faces of the house where the directional wind speed was determined to be more than 64m/s because the experts agreed that if a designer used AS 4055 there would be one wind classification for the site, and all aspects of the building would have to be designed for that wind classification.[303]
  14. [318]
    In Mr Helisma’s opinion, in order to rectify the stud spacing it would be necessary to remove the external cladding or internal linings.[304] Mr Carpenter recommended access from inside the house via plasterboard removal to maintain weathertightness and reduce costs of scaffolding.[305] In Mr Helisma’s opinion access from inside the house via plasterboard removal failed to address the aesthetically unacceptable finished result of the cladding. He thought it should all come off. In cross-examination Mr Carpenter accepted that any necessary rectification of curled cladding could not be done internally. In cross-examination Mr Carpenter explained that the curling could be addressed without removing the cladding by cutting the boards at the peaking joints to relieve pressure and then by re-fixing the board.
  15. [319]
    I reject Mr Carpenter’s suggestion that studs be inserted internally rather than externally. That methodology poses an inevitable risk of damage to the interior finishes. That methodology would not put the owner in the position he would have been in had the builder properly performed its obligations under the contract as he will have floors, skirting boards, tiles and internal walls patched to repair consequential damage to the interior finishes. Further, given the experts agreed that the cladding around the perimeter of each window would need to be removed if the windows are to be replaced and taking account of the extent of the remedial work that would be necessary if internal walls were removed to enable additional studs to be installed, I find that the solution of installing additional studs internally is not reasonable.
  16. [320]
    The scope of work Mr Helisma said is required is set out in a Scott Schedule attached to the joint expert report.[306] He has costed the work at $45,259.37, including a margin of 20% and a locality cost factor of 13.1%.
  17. [321]
    The work Mr Helisma described involves:
    1. (a)
      removing the external cladding, including dumping;
    2. (b)
      labour to remove carefully so as not to damage frame or internal linings;
    3. (c)
      allowance for internal repairs;
    4. (d)
      new cladding;
    5. (e)
      scaffolding hire for 2 weeks;
    6. (f)
      allowance for internal plasterboard wall repairs and repainting.
  18. [322]
    Mr Carpenter stated that the claim for the replacement studs appeared to be doubled up with the claim for the cladding.[307] This was not quite the case. Strangely the scope of work claimed in Scott Schedule item 2 did not include the cost of installing the studs. Those costs are addressed in Scott Schedule item 6. They include:
    1. (a)
      48 hours of labour;
    2. (b)
      43 metres of nogging;
    3. (c)
      274.5m of studs;
    4. (d)
      wall wrap; and
    5. (e)
      reinstatement of insulation.

As those costs were only claimed once I will deal with quantum at Scott Schedule item 6.

  1. [323]
    While maintaining his opinion that the work is not defective and that the installation of the studs could be done from inside the house, Mr Thompson costed what he said was the incomplete scope described by Mr Helisma at $33,896.[308]
  2. [324]
    During the joint quantum evidence, the experts agreed that the difference of approximately $12,000 was due to:
    1. (a)
      Mr Helisma measuring over the entire surface area of cladding to be removed (184m²) whereas Mr Thompson adopted the Australian Standard Method of Measurement deducting openings over 1m² from the surface area of cladding to be removed, giving an area to be removed of 155m²;
    2. (b)
      Mr Helisma allowing 32 hours of labour to remove the cladding due to the need to take care not to damage the frame and flashings during removal whereas Mr Thompson included this labour in his composite hourly rate without any subjective assessment of the difficulty of the job;
    3. (c)
      Mr Helisma allowing more for scaffolding hire and erection because he used Cordell’s rate for a 2-storey domestic dwelling whereas Mr Thompson measured the area needed to scaffold 160m², being 3 sides of the house to eaves height;
    4. (d)
      Mr Helisma allowing $1,800 for repairs and repainting of the internal plasterboard whereas Mr Thompson allowed $1,000.[309]
  3. [325]
    I prefer Mr Helisma’s approach. A rectifying builder is unlikely to price the rectification using the Australian Standard Method of Measurement. It is likely to include a component to take account of the fact that workers will need to take care not to damage other work and to allow for repair of any unavoidable consequential damage. It is likely to price scaffolding using a 2-storey domestic hire rate.
  4. [326]
    I find that the owner is entitled to $34,599.39 plus a margin of 20% and a locality cost factor of 13.1%. There is a small difference between the amount claimed in Exhibit 7 and the total in the spreadsheet provided by the builder with its quantum submissions. As I intend to use the spreadsheet to calculate the owner’s entitlement, I adopt the total in the spreadsheet.
  5. [327]
    It goes without saying that my findings regarding removing the cladding in order to provide the extra studs obviates any need to address the claims regarding allegedly curled cladding.

Eaves and soffit linings (Scott Schedule 3)

  1. [328]
    Initially, there was disagreement between the experts as to the method of construction of the eaves and soffits.
  2. [329]
    Mr Hutton stated that:
    1. (a)
      the eaves and soffits had been lined with James Hardie Hardiflex sheeting installed in a raked eave configuration and that the eave lining was directly fixed to the trusses which meant it is supported at 900mm centres;
    2. (b)
      fasteners are provided at 200mm centres to the trusses/battens;
    3. (c)
      the installation does not comply with the requirements for either C2 or C3 in the James Hardie technical specification;[310]
    4. (d)
      the patio has been constructed as an extension of the eave and hence should meet the requirements of the eave;
    5. (e)
      as the battens had been installed over the deck at 450mm centres with fasteners at 200mm centres they did not comply with the requirements in the James Hardie technical specification.[311]
  3. [330]
    Mr Carpenter stated that:
    1. (a)
      he was instructed that the raked soffits are battened longitudinally at the top sheet with another batten mid-span approximately 300mm between the wall and the groove in the rear of the facia;[312]
    2. (b)
      soffits are fitted with timber storm mould at the perimeter wall/soffit junction which augmented the fixing of the sheet; [313]
    3. (c)
      the patio ceiling is not raked as shown by a photograph.[314]
  1. [331]
    In order to resolve questions about construction methodology Mr Hutton undertook a site inspection on 5 April 2020. This revealed:
    1. (a)
      all northern and southern eaves are raked eaves;
    2. (b)
      all eastern and western eaves are boxed eaves;
    3. (c)
      the veranda southern eave is a raked eave;
    4. (d)
      the veranda eastern and western eaves are boxed eaves;
    5. (e)
      the veranda ceiling is a soffit; and
    6. (f)
      the eave and soffit lining is 4.5mm FC sheet from Hardies.[315]
  2. [332]
    In cross-examination Mr Carpenter acknowledged that his instructions did not accord with the in-depth investigation subsequently undertaken by Mr Hutton.
  1. [333]
    Mr Carpenter noted that the relevant batten spacing and fixing data is to be found in Table 7 of the Hardies manual.[316] He stated that the patio ceiling requires re-work to meet those requirements.[317]
  2. [334]
    The James Hardie Eaves and Soffit Technical Specification for raked eaves using 4.5mm sheets requires:
    1. (a)
      for C2 wind classification:
      1. within 1200mm of the external building corners, batten spacing of 250mm and fastener spacing of 250mm;
      2. elsewhere in the building, batten spacing of 350mm and fastener spacing of 300mm;
    2. (b)
      for C3 wind classification:
      1. within 1200mm of the external building corners batten spacing of 200mm and fastener spacing of 200mm; and
      2. elsewhere in the building, batten spacing of 300mm and fastener spacing of 275mm.[318]
  3. [335]
    The James Hardie Eaves and Soffit Technical Specification for boxed eaves using 4.5mm sheets requires:
    1. (a)
      for C2 wind classification:
      1. within 1200mm of the external building corners, batten spacing of 375mm and fastener spacing of 200mm;
      2. elsewhere in the building, batten spacing of 500mm and fastener spacing of 300mm;
    2. (b)
      for C3 wind classification:
      1. within 1200mm of the external building corners batten spacing of 300mm and fastener spacing of 175mm; and
      2. elsewhere in the building, batten spacing of 450mm and fastener spacing of 225mm.[319]
  4. [336]
    The James Hardie Eaves and Soffit Technical Specification for soffit lining provides:
    1. (a)
      4.5mm sheets can be used for C2 wind classification;
    2. (b)
      6.0mm sheets can be used for C2 and C3 wind classification;
    3. (c)
      for C3 wind classification, use 6.0mm sheets, within 1200mm of the external building corners batten spacing of 300mm and fastener spacing of 200mm; and
    4. (d)
      for C3 wind classification, use 6.0mm sheets, elsewhere in the building, batten spacing of 450mm and fastener spacing of 200mm.[320]
  5. [337]
    Having regard to the results of his inspection and the requirements of the Technical Specifications, in Mr Hutton’s opinion:
    1. (a)
      the span of the FC sheet on the northern and southern raked eaves is greater than 300mm and therefore does not meet the C3 wind classification requirements;[321]
    2. (b)
      the span of the FC sheet on the corner zones of the eastern and western boxed eaves does not meet the C3 wind classification requirements;[322]
    3. (c)
      in order to achieve a C3 wind classification, the patio soffit should be replaced with 6mm sheeting installed on battens spaced as required by the Technical Specification.[323]
  6. [338]
    Based on his site inspection, Mr Helisma concurred with Mr Hutton that:
    1. (a)
      the installation of battens and lining to the eaves and patio soffit does not conform with the manufacturer’s installation requirements for either C2 or C3 wind classification; and
    2. (b)
      the batten spacing in the edge zones 1200mm from building corners has not been provided.[324]
  7. [339]
    Mr Carpenter agreed that the spacing of the support battens should be in accordance with the Hardies manual. Due to the poor weather conditions on the day of his inspection he was not able to observe the nail pattern on the raked eaves on the north and southern elevations.[325]
  8. [340]
    Mr Carpenter agreed that additional framework is required to comply with north and south elevation roof soffit and patio ceiling sheet manufacturer’s requirements for C3 wind categorisation.[326]
  9. [341]
    In Mr Helisma’s opinion the eaves and patio soffit linings must be removed to install additional battens.[327]
  10. [342]
    In its submissions the builder accepted that the batten spacing in the patio ceiling sheeting was not installed in accordance with the Hardies’ installation requirements for C2 site wind classification. Obviously, if the batten spacing in the patio ceiling sheeting does not meet C2 site wind classification requirements, it does not meet C3 site wind classification requirements.
  11. [343]
    This is another instance of a manufacturer’s requirements referring to AS 4055. The James Hardie Eaves and Soffit Technical Specification for raked eaves, the James Hardie Eaves and Soffit Technical Specification for boxed eaves and the James Hardie Eaves and Soffit Technical Specification for soffit lining each adopt AS 4055 wind classifications. As the experts agreed that if AS 4055 was used there could be only one wind classification for the site and that all cladding would have to address that wind classification, all the eaves linings and patio lining, which are cladding elements, must meet the same wind classification.
  12. [344]
    I reject the builder’s submissions that if Dr Boughton’s wind speed calculations are accepted then only the southern eaves require rectification. Both of the highest design site wind speed for rectification calculated by Dr Boughton (67.5 m/s) and Mr Wright (61.5 m/s) exceed 61 m/s which is the ultimate limit state for wind class C2 in AS 4055. Accordingly, I find that the eaves linings and patio lining must be rectified to meet the C3 requirements from the relevant James Hardie Eaves and Soffit Technical Specification.
  13. [345]
    The scope of work Mr Helisma said is required is set out in the Scott Schedule attached to the joint expert report.[328] He costed the work at $6,438.10, including a margin of 20% and a locality cost factor of 13.1%.
  14. [346]
    While maintaining his opinion that the work was not defective, which is strange in light of the builder’s concession it is, Mr Thompson costed what he said is the incomplete scope described by Mr Helisma at $3,732.
  15. [347]
    During the joint quantum evidence, the experts agreed that the difference of approximately $2,700 was due to:
    1. (a)
      Mr Helisma using the rates from the electronic version of Cordell’s whereas Mr Thompson used the rates from the paper version;
    2. (b)
      Mr Helisma allowing 8 hours of a carpenter’s time as in his experience a builder would quote for such time whereas Mr Thompson thought the published rate would be sufficient;
    3. (c)
      Mr Helisma allowing for 6mm sheets whereas Mr Thompson allowed for 4.5mm sheets (Mr Thompson conceded he should have allowed for 6mm sheets);
    4. (d)
      Mr Helisma allowing a greater area of soffit; and
    5. (e)
      Mr Helisma allowing a lump sum minimum call out fee for the attendance of an electrician whereas Mr Thompson made no such allowance.[329]
  16. [348]
    I prefer Mr Helisma’s costings as he has approached the costing from the point of view of a rectifying builder. I find that the owner is entitled to $6,438.10 including margin and locality cost factor to rectify eaves linings and patio lining.

Roller door (Scott Schedule 4)

  1. [349]
    It is common ground that the roller door is rated for C2 wind classification[330] under AS 4055. As I have found above that when specify cladding materials, the designers should have specified cladding materials to withstand C3 wind conditions, not C2. I find that the roller door must be replaced.
  2. [350]
    I reject the builder’s submissions that based on both wind experts’ calculations, the door does not require replacement. First, because of the agreement between the experts that if materials were specified using AS 4055 there could be only one wind classification for the site, and all aspects of the building would have to be designed for that wind classification. Second, because both the highest design site wind speed for rectification work calculated by Dr Boughton (67.5 m/s) and Mr Wright (61.5 m/s) exceed 61 m/s, the ultimate limit state for wind class C2. Third, because AS 1684 only applies to the timber framing (i.e. structural) elements, not the garage roller door, which the experts agreed was a cladding element.
  3. [351]
    In the Scott Schedule attached to the joint expert report, Mr Helisma costed a replacement door designed to meet the C3 classification at $11,443.78. His costing was based on a quote.[331]
  4. [352]
    While maintaining his opinion that the roller door need not be replaced, Mr Thompson costed the replacement at $7,408 using Cordells.
  5. [353]
    Mr Helisma did not have a copy of the quote with him when he gave his evidence at the joint expert hearing, but he recalled having the quote when he prepared his statements and attached schedules.[332] When I asked him to assure me that he had a quote for $11,443.78 he said that the amount was for the quote plus an allowance to remove what was there.[333] Mr Helisma candidly accepted that in the absence of the quote the Cordells rates used by Mr Thompson were a reasonable basis for making a quantum finding.[334]
  6. [354]
    Absent the quote, which Mr Helisma had ample time since the quantum conclave to provide, I find that the owner is entitled to $7,408 plus margin to replace the roller door.

Windows (Scott Schedule 5)

  1. [355]
    It is common ground that the windows and sliding glass door are rated for C2 wind classification[335] under AS 4055. As I have found above, that when specify cladding materials, the designers should have specified cladding materials to withstand C3 wind conditions, not C2, I find that the windows and sliding glass door must be replaced.
  2. [356]
    In the Scott Schedule attached to the joint expert report Mr Helisma costed replacement glazing at $31,229.18 including a margin of 20% and a locality cost factor of 13.1%. This cost was based on commercial grade windows.[336]
  3. [357]
    While maintaining his opinion that the windows and door need not be replaced, Mr Thompson costed the replacement at $17,392, based on rates derived from Rawlinsons.[337]
  4. [358]
    During the joint quantum evidence, the experts agreed that it is usual to investigate market rates for the supply of windows. By quotation dated 13 April 2021, Well Hung Glass and Aluminium Products quoted $16,931.30 (excluding GST) to supply and install the glazing depicted in plan GC17-18014 rev C.[338] The quotation from Well Hung Glass and Aluminium Products assumed that the work would be done from the outside of the building.[339]
  5. [359]
    With the benefit of that quote, the experts recalculated the items in the Scott Schedule and agreed that if replacement of all the glazing was necessary, the cost would be $24,656.76 including a margin of 20%.[340]
  6. [360]
    Neither expert had given any consideration to the possibility that it might not be necessary to replace the glazing on all four sides of the house:
    1. (a)
      Mr Helisma didn’t because in his experience he has never encountered such a situation[341] (although he agreed that if an engineer had certified such a design, he would not question an engineer);[342] and
    2. (b)
      Mr Thompson didn’t because he simply prices the scope of work he has been asked to price.[343]
  7. [361]
    During the joint quantum evidence, the experts agreed that whether the work was done from inside or outside of the building the re-glazed house would have to be weather tight. In order to achieve this, it will be necessary to remove cladding from the perimeter of each window to install new flashing.[344] I have already found that all the cladding will need to be replaced hence there will be no need to go through the complicated process of replacing windows internally.
  8. [362]
    I reject the builder’s submissions that if Dr Boughton’s evidence is accepted then only the windows on the south and west faces require replacement. First, because of the agreement between the experts that if materials were specified using AS 4055 there could be only one wind classification for the site, and all aspects of the building would have to be designed for that wind classification. Second, because both the highest design site wind speed for rectification work calculated by Dr Boughton (67.5 m/s) and Mr Wright (61.5 m/s) exceed 61 m/s, the ultimate limit state for wind class C2.
  9. [363]
    I find that the owner is entitled to $24,656.76, including a margin of 20%, to replace the windows.

Timber wall frames (Scott Schedule 6)

  1. [364]
    Mr Hutton stated that the external wall common studs require rectification in order to meet the manufacturer’s requirements.[345] I found that the stud spacing should be rectified for all faces of the house to C3 requirements in item 2 of the Scott Schedule above.
  1. [365]
    Mr Hutton undertook a detailed assessment of various lintels over 1800 span.[346] His review was based on AS 1684.3.[347] He identified the following items requiring rectification in order to handle a wind speed of 68m/s:[348]
    1. (a)
      bathroom lintel;[349] and
    2. (b)
      lintel trimmers to the bathroom window, kitchen window and family room sliding glass door.[350]
  1. [366]
    His analysis of load bearing external timber walls that support roof load widths of greater than 2700mm, having regard to table 14 in AS 1684.3 Supp 5, showed that the:
    1. (a)
      north facing external wall;
    2. (b)
      south facing external wall;
    3. (c)
      external south facing external wall forming sliding glass wall of family room; and
    4. (d)
      internal load bearing wall between the activities/ bedroom 2 and kitchen

exceeded the load bearing capacity of trusses spaced at 900mm and joists spaced at 450mm. In his opinion rectification would be by installing a double bottom plate.[351]

  1. [367]
    Mr Carpenter agreed that the bathroom window lintel should be replaced,[352] and additional trimmers would be required to meet C3 classification.[353]
  2. [368]
    The builder installed T-blocks in an attempt to support the bottom edge of the cladding which resulted in a bottom edge nail spacing averaging 225mm. Mr Hutton stated that this did not comply with the manufacturer’s recommendations.[354]
  3. [369]
    The builder submitted that if Mr Wright’s wind speed calculations were accepted then no defects exist because the bathroom lintel and lintel trimmers are compliant with C2 classification as per Table 6.3 of AS 1684.3.
  4. [370]
    I reject these submissions because Table 6.3 of AS 1684.3 uses the wind classifications from AS 4055. Using AS 4055 there can be only one wind classification for the site, and all aspects of the building should have been designed for that wind classification. I have already found that having determined the design gust wind speed for the worst direction using AS 1170, the designers could have taken the approach of having regard to Table 2.1B in AS 4055 to identify an equivalent wind class. In this case that classification was C3. Given that Mr Carpenter agreed that the bathroom window lintel should be replaced and that additional trimmers would be required to meet C3 classification, I find that the owner is entitled to recover reasonable costs of rectification of these items.
  5. [371]
    I reject the builder’s submission that if Dr Boughton’s evidence is accepted, then:
    1. (a)
      only the studs in walls and lintels on the south and west faces require replacement;
    2. (b)
      no rectification is required on the northern side;
    3. (c)
      no rectification of the bathroom window lintel is required; and
    4. (d)
      lintel trimmers to the bathroom window, kitchen window and family room sliding glass door are not required

because Table 6.3 of AS 1684.3 does not refer to wind speed in metres per second; it uses the AS 4055 wind classifications.

  1. [372]
    Mr Helisma costed the scope of work that Mr Hutton identified as necessary to address non-conforming areas of the timber framing.[355] This included:
    1. (a)
      installation of additional studs to meet requirements for wall cladding;
    2. (b)
      installation of new bathroom lintel;
    3. (c)
      installation of new lintel trimmers to the bathroom window, southern kitchen window and sliding glass door; and
    4. (d)
      installation of double bottom plates.[356]
  2. [373]
    In Mr Helisma’s opinion the most practical solution to the bottom plate rectification was installation of angle brackets to support additional blocking between joists coach screwed into the existing bottom plate.[357] Mr Carpenter stated that (assuming C3 requirements were to be met) Mr Helisma’s solution was not feasible.[358] During the joint quantum evidence Mr Helisma conceded this work was not necessary, due to Mr Hutton’s revised description of the way this work could be done.[359]
  3. [374]
    In the Scott Schedule attached to the joint expert report Mr Helisma costed the rectification of the timber wall frames following removal of the cladding, at $41,008.08, including a margin of 20% and a locality cost factor of 13.1%.[360]
  4. [375]
    While maintaining his opinion that the work is not required, Mr Thompson costed the scope provided by Mr Helisma at $17,732.
  5. [376]
    Mr Carpenter equated Mr Helisma’s estimate of 290.3 lineal metres to 107 new studs or approximately 48 lineal metres of new wall at 450mm centres, which he said was a gross over estimate.[361] However, in cross-examination he could not provide any alternate length. During the joint quantum evidence Mr Thompson did not identify the quantity of timber as a reason for the difference between his total and Mr Helisma’s total.
  6. [377]
    During the joint quantum evidence, the experts agreed that the difference of approximately $23,400 was due to:
    1. (a)
      Mr Helisma allowing 80 hours of labour to cut each stud, slip in the new plate and re-fix the metal framing bracket, whereas Mr Thompson estimated the work would take 46 hours;
    2. (b)
      Mr Helisma using a rate of $19.51 per lineal metre for the stud cost and $13.16 for the noggings[362] (both rates from Cordell’s) because the work would have to be done in small sections, whereas Mr Thompson used $8.91 per lineal metre for both studs and noggings which includes a 20% loading for difficulty of the work;[363]
    3. (c)
      Mr Helisma including $3,385.20 for fixing studs with metal brackets, which he conceded was not necessary, given Mr Hutton’s revised description of the way this work could be done;
    4. (d)
      Mr Helisma including a contingency allowance of 10% ($2,865.69) to cover unknowns when the sheeting or lining was removed, given the poor quality of workmanship evident throughout the job, whereas Mr Thompson thought a contingency was unnecessary as the scope of work was clear;
    5. (e)
      Mr Helisma including $3,681.80 for removal and reinstatement of cyclone rods, which Mr Thompson agreed to during the joint evidence.[364]
  7. [378]
    Both Mr Helisma and Mr Thompson acknowledged the difficulty posed by undertaking rectification work to timber frames and lintels which is not contemplated in standard rates. Mr Helisma took this into account in three ways: his estimate of the hours it would take to do the work, his rates for doing the work in small sections and by including a separate contingency allowance of 10%. Mr Thompson acknowledged the difficulties by adding a 20% loading to his rates.
  8. [379]
    Generally, I prefer Mr Helisma’s approach to costing as a rectifying builder rather than Mr Thompson’s purist quantity surveying approach. However, as Mr Helisma’s rates and times already make significant allowance for the challenges in undertaking rectification which are not contemplated in standard rates, I find that it would not be reasonable to allow the hours and rates used by Mr Helisma and the contingency. Accordingly, I adopt the hourly rates and durations advanced by Mr Helisma, but not the contingency or the amount conceded as not required for fixing studs with metal brackets.
  9. [380]
    I find that the owner is entitled to recover the amounts claimed for items 6.1, 6.2, 6.3, 6.6.1 - .4 of the Scott Schedule, totalling $22,829.18 plus a margin of 20% and a locality cost factor of 13.1%.

Subfloor bracing and footing design

Footings at grid intersections E3, D6 and G6 (Scott Schedule 11.2)

  1. [381]
    Originally the footings were designed to be piered footings.[365] However, during excavation, the auger hit rock at depths shallower than expected in some locations.[366] Consequently Northern Consulting Engineers redesigned the footing types for use in different locations.[367]
  2. [382]
    On 27 February 2018, as documented in a form 16 inspection certificate, a representative of NCE inspected the excavation for the footings that had been reinforced ready for pouring.[368]
  3. [383]
    In his desktop review report Mr Hutton wrote:

The footings at the intersection of Grids E3, D6 and G6 are not structural (sic) adequate for the wind loads applied to the building.[369]

  1. [384]
    Mr Hutton based this opinion on an assumption that the footings at D6 and G6 were 1.6m x 1.6m x 0.45m.[370]
  2. [385]
    On 18 June 2020, two employees of Brazier Motti, surveyors, attended the site and measured, without excavation, the dimensions of the footings at grid intersections E3, D6 and G6.[371]
  3. [386]
    It is common ground, derived from Plan 42462/001 C sheet 2 of 2[372] in the Brazier Motti report, that:
    1. (a)
      the footing at D6 is 2.1m x 2.2m;
    2. (b)
      the footing at G6 is 2.1m x 1.8m; and
    3. (c)
      the footing at E3 is 2.3m x 2.4m.
  4. [387]
    Mr Hutton revised his calculations for the footings at grids D6, G6 and E3 in his report of 13 August 2020.[373] He used the footing geometry provided by Brazier Motti and assumed a footing depth of 0.5m for D6 and G6.[374] He assumed a footing depth of 0.45m for E3[375] based on his site measurement.[376]
  5. [388]
    He concluded, based on his revised calculations, that based on a wind speed of 68m/s footings D6, G6 and E3 each required rectification.[377] Based on a wind speed of 61m/s he concluded that G6 was acceptable.[378]
  6. [389]
    Mr Wright calculated the forces applied to footing grid D6, G6 and E3. The forces he used for D6 and G6 were:
    1. (a)
      wind forces for a velocity of 68m/s;
    2. (b)
      deadload of the roof and the floor;
    3. (c)
      dead load of the footings;
    4. (d)
      soil restraint against uplift on the sides of the footing; and
    5. (e)
      downwards wind pressure on the top of the footing.[379]
  7. [390]
    Based on those calculations he concluded that the stability of the footing, applying a wind load of 68m/s, factored as required by section 4.2 of AS 1170, showed there would be no net wind uplift force on footings D6 and G6.[380]
  8. [391]
    The forces Mr Wright used for E3 were:
    1. (a)
      wind forces for a velocity of 68m/s;
    2. (b)
      deadload of the roof and the floor;
    3. (c)
      dead load of the footing 2m x 2m x 0.5m;
    4. (d)
      soil restraint against uplift on the sides of the footing;
    5. (e)
      downwards wind pressure on the top of the footing; and
    6. (f)
      uplift forces from the bracing set VXB1.[381]
  9. [392]
    Based on those calculations he concluded that the stability of the footing at E3, applying a wind load of 68m/s, factored as required by section 4.2 of AS 1170, showed there would be no net wind uplift force on the footing.[382]
  10. [393]
    Based on his opinion that the footings at D6, G6 and E3 are stable under a wind design speed of 68m/s, Mr Wright’s opinion was that no rectification is required.[383]
  11. [394]
    Mr Hutton disagreed with Mr Wright’s conclusions because he:
    1. (a)
      does not think it is appropriate to apply skin friction due to the shallowness of the footings;[384]
    2. (b)
      thinks it is inappropriate to apply a down thrust wind load;[385]
    3. (c)
      thinks that allowance should be made for uplift forces from the bracing set for the footing at G6.[386]
  12. [395]
    Specifically, regarding skin friction, Mr Hutton wrote:
  1. a.
    Soil crack depth in the Townsville region is 0.9m with a suction depth change of 2.3m
  1. b.
    The Construction Sciences Geotechnical Report indicates medium to high plasticity clays across the site, with an AS 2870 Site Classification of H1…These clays are well known to develop soil cracks as a result of seasonal drying and have significantly reduced shear strength in soil cracks during the swelling phase.
  1. c.
    Given the footings are largely protected by the building from the weather it is highly unlikely that the clays could have become sufficiently wet prior to a cyclone to cause sufficient swelling.
  1. d.
    AS 2870-2011 advises in Clause 4.4(b) that ‘for rafts with beams embedded deeper than 1m in depth … the analysis shall consider the influence of skin friction on the sides of the … piers according to engineering principles.’ Given the footings are less than 1m depth, application of skin friction is clearly not acceptable.
  1. e.
    AS 2870-2001 (sic) advises in Clause G5.3 for pile design: ‘no side adhesion or friction should be assumed to exist to a depth of 0.75Hs for down-loads.’ For this site 0.75Hs = 1.725m, and skin friction should be ignored in this region.
  1. f.
    AS 2159-2009 also recommends neglecting the contribution of ‘the pile shaft’ from the surface to 1.5m pile diameter in skin friction capacity calculations. This is a result of the shaft load development effects. Whilst the footings for this site are pads, not piers, the advice is still highly applicable.[387]
  1. [396]
    Mr Wright accepted:
    1. (a)
      that it is not appropriate to apply skin friction[388] due to the shallowness of the footings; and
    2. (b)
      that in calculating the net actions acting on the footing system it is not correct to use a combination load case of Wµ-G.[389]
  2. [397]
    In his supplementary report dated 13 October 2020,[390] Mr Wright re-calculated the uplift load on the footings. In his opinion sub-floor bracing contributes to the uplift forces on the footings at D6 and E3, but not G6. Mr Wright’s analysis shows:
    1. (a)
      for wind from the south and from the west there is no net uplift on D6; and
    2. (b)
      for wind from the south and from the west there is no net uplift on G6;[391] and
    3. (c)
      footing E3 has a net uplift force of 12kN.[392]
  3. [398]
    In undertaking that analysis Mr Wright used the wind velocities from the south and from the west taken from Dr Boughton’s report, i.e., 68.4m/s.[393]
  4. [399]
    Mr Wright concluded that the footings at D6 and G6 do not require rectification.[394] He concluded that E3 has no net uplift force applied to it at design wind velocity of 61.4 m/s or less.[395]
  5. [400]
    Mr Wright again reconsidered his calculation of the uplift load on the footing E3 using Dr Boughton’s revised wind velocity of 67.5 m/s. In re-examination he said that although the result would be less than a net uplift force of 12kN it is still the case that the footing was not safe for a wind velocity of 67.5 m/s and would require rectification if Dr Boughton’s analysis was accepted.[396]
  6. [401]
    As I have accepted Dr Boughton’s analysis, I find that footing E3 requires rectification. The issues that remain to be resolved regarding whether footings D6 and G6 require rectification are whether or not:
    1. (a)
      downward pressure is to be taken into account; and
    2. (b)
      allowance needs to be made for uplift at the footing at D6 because that footing is at the end of the bracing set.
  7. [402]
    In Mr Hutton’s opinion it is inappropriate to apply a down thrust wind load because any perceivable down thrust would:
    1. (a)
      be immediately counteracted by an uplift applied to the entire sub-floor area; and
    2. (b)
      is unlikely to be anywhere near the forces advanced by Mr Wright given the relatively small footprint and lack of possible pressurisation under the building.[397]
  8. [403]
    Mr Hutton observed that other than in the area of the garage, the underside of the building is open on all four sides.[398] Any wind load pushing down on the footings would also apply the same pressure upwards to the floor. As the floor has a significantly larger surface area than the footings any pressurisation would increase the uplift acting on the footings, rather than decrease it.[399]
  9. [404]
    Mr Hutton rejected Mr Wright’s argument[400] that no allowance needs to be made for uplift at the footing at D6 because that footing is at the end of the bracing set, on the basis that the bracing set will only increase the uplift forces.[401]
  10. [405]
    During cross-examination Mr Hutton said that without taking account of downward pressure:
    1. (a)
      footing D6 was four kilonewtons short of the required uplift resistance;[402]and
    2. (b)
      footing G6 was 0.6 kilonewtons short of the required uplift resistance.[403]
  1. [406]
    If downward pressure was taken into account, Mr Hutton said that:
    1. (a)
      footing D6 would have resistance over the required benchmark;[404] and
    2. (b)
      footing G6 would not require rectification.[405]
  1. [407]
    In cross-examination Mr Hutton agreed that there was no possible pressurisation under the building because it is open on all four sides.[406] He explained that he would not take account of the downward force of internal pressurisation on each of the three footings in question because in his view the pressure on the underside of the floor area would cancel out the internal pressurisation. However, he could not point to anything in AS 1170 to support that opinion.[407]
  2. [408]
    In the absence of any support in AS 1170 for Mr Hutton’s opinion that the downward force of internal pressurisation on the underside of the floor area would cancel out the internal pressurisation, I cannot find that footings D6 and G6 require rectification
  3. [409]
    If, contrary to his opinion, some rectification is required, Mr Wright proposed a far less costly remedy of:
    1. (a)
      excavating on opposite sides of the footing (or all-round if necessary);
    2. (b)
      drilling dowels into the sides of the existing footing;
    3. (c)
      pouring the required mass of concrete into the excavations adjacent to the existing footing to increase the footing weight to resist the calculated uplift force.[408]
  4. [410]
    In cross-examination Mr Hutton agreed that the practical method of rectification would be the addition of mass concrete using chemical anchors.[409]
  5. [411]
    Mr Helisma costed rectification of the footings at $21,446.39, including a margin of 20% and a locality cost factor of 13.1%.[410] This costing assumed it would be necessary to demolish existing footings and reconstruct the pad footings to a size engineered to resist the design uplift forces.[411] As Mr Hutton did not recommend demolition of the footings,[412] I find that it is not necessary to demolish existing footings.
  6. [412]
    During the joint quantum evidence, the experts agreed that if the rectification required additional mass concrete to be added to all three footings, the reasonable cost to rectify would be $1,778.61 including a margin of 20% and a locality cost factor of 13.1.%.[413] They also agreed that if only one footing required to be fixed it would be fair enough to divide their agreed total by three to arrive at $592 per footing.[414]
  7. [413]
    Having found that only footing E3 requires rectification, I find that the owner is entitled to recover $592 including a margin of 20% and a locality cost factor of 13.1.%.

Bracing and wall capacity (Scott Schedule 7) and joists (Scott Schedule 8)

  1. [414]
    Despite the heading of item 7 in the Scott Schedule, ‘bracing and wall capacity’, the owner does not make a claim for rectification of bracing. Mr Hutton reported that he carried out a detailed assessment of the bracing design and determined that the overall bracing capacity for the building is adequate.[415]
  2. [415]
    The Tilling SmartJoist Design Guide addresses tie down and bracing wall support details. At page 23 it states:

Under NO circumstances is it permitted to bolt through either the top or bottom flange, except where the joist is fully supported upon a wall plate…Care must also be taken to ensure that any bolts…drilled through solid timber joists do not compromise the structural integrity of that member.[416]

  1. [416]
    The builder drilled a cyclone rod connection through the top and bottom flange of a joist as evidenced by a photograph included in Mr Hutton’s first report.[417]
  2. [417]
    Mr Hutton also identified other defects with the floor joists system in his first report. He described typical defects as:
    1. (a)
      holes punched through the web of smart joists using a hammer;
    2. (b)
      no blocking pieces installed between the flanges where cyclone rods are connected to double Smartjoists;
    3. (c)
      cyclone rods not drilled centrally through LVL members resulting in cyclone washers rotating;
    4. (d)
      multiple locations where the cyclone rods and bracing wall connections not completed correctly.[418]
  1. [418]
    Mr Helisma observed that the tie downs to floor joist connections were defective in a number of locations and stated that the floor joists had been damaged during the course of the works.[419] Based on his observations, Mr Helisma concurred with all the issues raised by Mr Hutton in respect of the floor joist and tie down system.[420] He identified:
    1. (a)
      filler blocks and fixings that had not been installed as specified by the supplier;[421]
    2. (b)
      a pipe penetration damaging the top flange of a Smartjoist;[422]
    3. (c)
      no flange block installed in the opposing floor joist;[423]
    4. (d)
      no filler block installed at the tie down rod location;[424]
    5. (e)
      tie down rods not installed in the centre of the joists;[425]
    6. (f)
      location of the tie down rod damaging the bottom flange of the Smartjoist;[426]
    7. (g)
      tie down rods not installed in the centre of the LVL joist;[427]
    8. (h)
      failure to install the tie down rod centrally thus reducing the effective size of the decking joist;[428]
    9. (i)
      a tie down rod not installed in the centre of the LVL joist without filler blocks or required nail fixings;[429]
    10. (j)
      inadequate packing filler blocks at joist lapping;[430]
    11. (k)
      Smartjoist cut short and only partially supported in the bottom of the joist hanger.[431]
  1. [419]
    While Mr Helisma provided a series of photographs evidencing poor workmanship,[432] unfortunately, he did not provide a document or mark up a plan to identify the location of the defects.[433] Nor did he attempt to reconcile the defects identified by Mr Hutton with the defects identified in the photographs in his report.
  1. [420]
    In his second report, Mr Hutton identified, inter alia:
    1. (a)
      a departure from the original engineer’s floor design which required 2 continuous joists, by the Tillings design which allowed J1 to terminate at B25 with a short joist (FJ13A) to be installed between B25 and PP. The consequence was that the column installed at the intersection of J1/B25/FJ13A was not restrained against uplift forces:[434]
    2. (b)
      member B25 had inadequate connections at each end to support uplift forces from the attached tiedown rods;[435]
    3. (c)
      that rim board or blocking should be installed to the end of the cantilevers which occur under the sliding glass door to the patio;[436]
    4. (d)
      the following bracing wall locations which had inadequate capacity to withstand applied bracing force loads:
      1. bracing wall on eastern wall of bedroom 2;
      2. bracing wall on eastern wall of bedroom 3;
      3. north south bracing walls on either side of the sliding glass door to the patio.[437]
  2. [421]
    Mr Carpenter stated that the adequacy of the timber floor joists was not compromised as there were no signs of failure or damage as a result of the installation method and tie-downs.[438] While observing instances where the cyclone rod had passed through flanges of the SmartJoist, Mr Carpenter’s opinion was that it was not necessary to install blocking in the web of the joists unless the cyclone rod terminated on the underside of the joist.[439] I do not regard this evidence as truly independent expert evidence, rather as another attempt to gloss over poor practice by the builder.
  3. [422]
    It was in contrast to the independent expert evidence of Mr Wright who in cross-examination said, although he had not inspected the area, he did not think that it would be unreasonable to accept Mr Hutton’s observation that there was no metal cleat fixed to the Smartjoist under the kitchen.
  4. [423]
    Mr Wright also agreed that blocking should be installed between the ends of the cantilever joists and the patio joists to support the sliding glass door to the patio.[440] Mr Wright agreed with Mr Hutton that blocking is required on both sides of the web of the joist adjacent to the study.[441]
  5. [424]
    Mr Hutton did not express an opinion on the method of rectification of the defects in either report. In cross-examination he acknowledged that the Tilling SmartJoist Design Guide provided a field repair guide but said he hadn’t had regard to it to provide a methodology or scope of works for rectification as ideally one would revert to the manufacturer to get advice about repair.[442] He confirmed that the SmartJoist Design Guide provides a solution that would avoid any joist having to be removed by installation of a shallower joist to span the area where the damage had occurred.[443]
  6. [425]
    In cross-examination Mr Hutton:
    1. (a)
      confirmed that the top and bottom flange of the joist through which the builder had drilled a cyclone rod connection could either be repaired in situ or replaced;[444]
    2. (b)
      confirmed that the builder had carried out some rectification to the joist through which the builder had drilled a cyclone rod connection;[445]
    3. (c)
      said that the hole punched through the web of smart joist was not typical, as he had stated in his first report, but was the only instance of a hole punched through the web of a smart joist;[446]
    4. (d)
      acknowledged that the size of the hole was nowhere near 150mm, that being the diameter of hole that the Tilling SmartJoist Design Guide indicated may warrant a new joist;[447]
    5. (e)
      agreed that cyclone rods not drilled centrally through LVL members could be rectified by appropriately designed bracing or blocking being fixed to the LVL beam.[448]
    6. (f)
      described the solution to the problem of the unrestrained column installed at the intersection of J1/B25/FJ13A as installation of a tie down through to the lower steel bearer system into a steel barrel;[449]
    7. (g)
      agreed that the solution to the inadequate connections at member B25 would be to install correct configurational brackets with appropriate blocking.[450]
  7. [426]
    In cross-examination Mr Helisma said that in his opinion about half a dozen joists need to be replaced, but could not identify which joists.[451]
  8. [427]
    It is not easy to reconcile the description of rectification which emerged during the hearing with the scope of work described in the Scott Schedule. The fact that the work is described under the heading ‘bracing and wall capacity’ only adds to the confusion. The scope described under item 7 of the Scott Schedule, which should have been described under item 8 of the Scott Schedule, is:
    1. (a)
      temporary propping of the lower-level floor frame;
    2. (b)
      removal of lower and upper wall at J1 location;
    3. (c)
      larger studs or packing to accommodate the size of the steel column;
    4. (d)
      installation of additional joists where the top flange to I joists have been cut;[452]
    5. (e)
      installation of additional shear blocking and rim board beneath southern wall/patio deck;
    6. (f)
      removal of FJ12B to allow access to install web stiffeners and replacement of new FJ12B, blocking and timber joists to be H3 DAR primed;[453]
    7. (g)
      allowance for engineering detailing and supervision of connections and bracing tie brackets at LVL15 and B25.[454]
  9. [428]
    It is unfortunate that the owner did not provide a clear description of the rectification required at particular locations. I note the concessions Mr Hutton made in cross-examination about the vagueness in wording of his first report. I note that he accepted that the issues were not as extensive as may have appeared on reading his first report and that repairs might be made in situ rather than by replacing joists.
  10. [429]
    Save for Mr Helisma’s opinion that 6 unidentified joists need to be replaced, there was no other evidence that any joist need to be replaced. While I have no doubt that some rectification is required, I am not satisfied on the evidence that any joist needs to be replaced. Appropriate rectification could be designed based on the Tilling SmartJoist Design Guide. I find it is likely to involve installation of appropriate bracing, blocking and tie downs and installation of a short length of additional joist.
  11. [430]
    Mr Helisma costed the scope of work for item 7 of the Scott Schedule, which should have been described under item 8 of the Scott Schedule, at $17,918.01, including a margin of 20% and a locality cost factor of 13.1%.[455]
  12. [431]
    In the Scott Schedule attached to the joint expert report, Mr Thompson did not provide an opinion as he did not have sufficient design information or time to consider,[456] However at Appendix H to the Scott Schedule Mr Thompson costed the work to the joists at $6,683.[457] While his description of the work was not identical, it was similar to the work described in the Scott Schedule. It did not include blocking, H3 DAR priming of timber joists, or reinstatement of the cladding.
  13. [432]
    During the joint quantum evidence, the experts agreed that the difference of approximately $10,400 was due to:[458]
    1. (a)
      Mr Helisma allowing to provide 40 litres of an ecological timber finish fungicide treatment because the timber was H2, not H3 at a cost of $2,587.20, whereas Mr Thompson made no allowance for treatment of the timber;
    2. (b)
      Mr Helisma allowing $5,900.91 for the application of that treatment; and
    1. (c)
      Mr Helisma allowing a 10% contingency. During the joint quantum evidence, Mr Helisma conceded that it was not reasonable to add a contingency to this item as no work was hidden.[459]
  14. [433]
    If a short length of additional joist is required it will not need to have 40 litres of an ecological timber finish fungicide applied to it.
  15. [434]
    I reject the owner’s claims in item 7 of the Scott Schedule, which should have been described under item 8 of the Scott Schedule, for:
    1. (a)
      reinstatement of the cladding, as all the cladding will be removed to install the additional studs;
    2. (b)
      40 litres of an ecological timber finish fungicide treatment;
    3. (c)
      application of that treatment; and
    4. (d)
      the 10% contingency conceded by Mr Helisma as not warranted.
  16. [435]
    While there does not appear to be a direct correlation between the work costed and the work which Mr Hutton and Mr Wright thought might be necessary to effect the rectification, it seems unlikely that the work required by an engineered solution to rectify the issues with the joists which will involve in situ repairs in hard-to-get-at areas would cost less than $5,000.
  17. [436]
    Doing the best I can on the scant evidence I have, I allow $5,000 plus a margin of 20% and a locality cost factor of 13.1%.
  1. [437]
    In addressing this claim, I have had no regard to the claim for $84,461.22 for item 7 made in the spreadsheet that accompanied the owner’s submissions. Accordingly, I need not address the builder’s submission that:

The surreptitious inclusion of this duplicated claim … which did not appear in the joint report, is a dishonest attempt by the respondent to again bolster the quantum claimed. At no point in his submissions did the respondent draw … the Tribunal’s attention to the fact that he had included this duplicate claim in addition to that as quantified by Mr Helisma in the joint report for the same works.

Garage retaining wall – sub-soil drainage (Scott Schedule 12.1)

  1. [438]
    In his original complaint to the QBCC the owner complained that the subsoil drain for the garage retaining walls discharged directly under the building against the ‘foundation system’.[460]
  2. [439]
    It is common ground that there is no requirement to install waterproofing to the retaining wall below the garage.[461] Unhelpfully, item 12.1 in the Building Experts Joint Quantum Report describes this claim as ‘installation of waterproofing to retaining wall’ but the scope of work in the next column of the Scott Schedule itemises costs relating to installation of a PVC grated drain.
  3. [440]
    Mr Helisma observed that the subsoil drainage discharged at the base of the footing system. In his opinion the solution to rectify this defect was installation of a PVC grated drain to the length of the retaining wall with the drainage point connected to the closest stormwater pipe.[462]
  4. [441]
    Mr Carpenter stated that the site drainage and subsoil drain comply with the NCC.[463] He agreed that installation of a drain might address the perceived problem with drainage but cautioned that connecting the drain to the closest stormwater pipe might create other issues at time of heavy rain.[464]
  5. [442]
    In re-examination, Mr Carpenter observed that although there was heavy rain on the day of his site visit, he saw no evidence of ponding or any impediment to the free flow of surface water.
  6. [443]
    Mr Helisma costed rectification by installation of a PVC grated drain to the length of the retaining wall with the drainage point connected to the closest stormwater pipe at $1,327.90, including a margin of 20% and a locality cost factor of 13.1%.[465]
  7. [444]
    In the Scott Schedule attached to the joint expert report, Mr Thompson did not provide an opinion on the cost of the proposed rectification as he did not have sufficient design information or time to consider.[466]
  8. [445]
    I am not satisfied that the owner has discharged the onus of establishing that the subsoil drainage for the garage retaining walls is defective and even if it is, that the proposed rectification, by installation of a PVC grated drain to the length of the retaining wall with the drainage point connected to the closest stormwater pipe, is a reasonable solution. Accordingly, I reject the claim for rectification of subsoil drainage for the garage retaining walls.

Laundry retaining wall (Scott Schedule 12.3)

  1. [446]
    The owner claimed $19,777.78, including a contingency of 20%, a margin of 20% and a locality cost factor of 13.1% for the cost of constructing retaining walls that he alleged were included in the contract price, but constructed by him.
  2. [447]
    Before the owner bought the site there was a retaining wall with a timber sleeper base in place on the northern boundary on the right-hand side of the block. The approximate location of the existing wall was marked on drawing DD 02, the site plan. That wall retained the neighbour’s property.
  3. [448]
    In order to construct the house, it was necessary for the site to be cut to create the building platforms. The approximate location of the cut was marked on the site plan. The clothesline was to be located in this area.
  4. [449]
    Cutting a block is typically part of a builder’s scope of work. Construction of boundary retaining walls is sometimes part of a builder’s scope of work and sometimes part of the hard landscaping to be undertaken by an owner. During the negotiations regarding the scope of work and the contract price for this contract there was a discussion about the need for a retaining wall along the northern boundary.
  5. [450]
    The Building Specification dated 25 September 2019, under the heading Footings and slab, provided:

Cut and fill to site as required – to be discussed at final plans meeting

Blockwork retaining wall and 45° batter as per plans and required

…

Retaining wall to RHS of block to be supplied by client.

  1. [451]
    Drawing DD 02 rev 9 has arrows pointing to the approximate location of the cut, the approximate location of the proposed retaining wall and the approximate location of the 45° batter.[467] The approximate location of the proposed retaining wall on the northern boundary was from a point between contour lines 33.0 and 33.5 to the northern side of the 45° batter. Drawing DD 06 rev 9 showed three steps coming down from the laundry door.[468]
  2. [452]
    Mr Gedoun stated that the retaining wall was likely to be required behind the garage wall in order to build the small concrete pad from the laundry exit to the clothesline.[469] He stated that a further retaining wall would be needed because of excavation which needed to occur, however, until the cut was made it was not possible for the builder to provide details of the height, length or exact position of the wall.[470]
  3. [453]
    Mr Gedoun’s evidence was that the owner told him that he, the owner, did not think a retaining wall would be necessary as there was already a retaining wall on the northern boundary so did not want it included in the specifications.[471] The owner confirmed this in cross-examination.[472]
  4. [454]
    Mr Gedoun’s evidence was that in September 2017 he explained 2 options to the owner:
    1. (a)
      build a retaining wall west of the garage in order to build a small pad at the laundry exit, so there would be only a few steps from the laundry to the drying area; or
    2. (b)
      relocate the retaining wall to the boundary line to allow for the drying area at a lower section with a flight of stairs down to the lower section.[473]
  5. [455]
    It is common ground that the owner said that if a retaining wall was required, he had a friend who would build it.
  6. [456]
    When the owner received revision 9 of drawing DD 02, he observed that it did not reflect the agreement that he would build a retaining wall on the northern boundary, if a wall was required. The owner annotated drawing DD 02 rev 9 by writing ‘delete’ beside the words ‘approx location of proposed retanig (sic) wall’ and by putting an X on the proposed retaining wall to the northern boundary to the west of the existing retaining wall.[474] On 29 September 2017 the owner emailed his mark up of, inter alia, drawing DD 02 rev 9 to the builder.[475]
  7. [457]
    Revision 10 of drawing DD 02 was not in evidence.
  8. [458]
    On 4 October 2017 the owner attended the builder’s office to sign the building contract. Revision 11 of the drawings were presented as the drawings to be incorporated into the contract.[476] There are a number of differences between revision 9 and revision 11 of drawing DD 02:
    1. (a)
      the approximate location of the cut is shaded grey and moved south;
    2. (b)
      the text above the arrow indicating the approximate location of the proposed retaining wall is marked as ‘(supplied by owner)’;
    3. (c)
      the location of the proposed retaining wall was altered to extend to the southern end of the 45° batter; and
    4. (d)
      the area of the 45° batter was smaller.[477]
  9. [459]
    Mr Cowan, an employee of the builder, marked up changes that the owner was not ok with.[478] On drawing DD 02 rev 11 he wrote beside ‘approximate location of the proposed retaining wall (supplied by owner)’ ‘TBC following cut and levels on site’. He did not mark the arrows to the locations of the cut or the 45° batter. He struck through the line reading ‘Retaining wall to RHS of block to be supplied by client’ in the Building Specification. He annotated drawing DD 06 rev 11 by circling the 3 stairs from the laundry and by writing ‘confirmation of stairs to be confirmed following cut on site’.[479] These changes were initialled by the owner.
  10. [460]
    I find that the effect of the agreed changes was to make it a term of the contract that if a retaining wall was required, it was to be built by the owner in the approximate location shown on drawing DD 02 rev 11. I further find that whether or not the wall was required was to be determined after the site was cut and levels established.
  11. [461]
    The owner carried out site excavation to the required depth.[480]
  12. [462]
    The cut that the owner had been responsible for, made 1500mm out from the boundary line, started to collapse and the neighbour’s retaining wall on the boundary started to lean in.[481]
  13. [463]
    Around 27 March 2018 the owner and Mr Gedoun met on site. The owner’s version of that discussion is that he was told that he was responsible to construct a retaining wall some 2.5m away from the area that was noted on the architectural plans as being the wall which was his responsibility. Mr Gedoun stated that he showed the owner the levels, where the retaining wall was to be located and the approximate size. He asked the owner to build the retaining wall in accordance with the agreement.[482]
  14. [464]
    From that day on each party has maintained an opposing position regarding contractual responsibility for constructing the retaining wall. The builder’s position is that the wall needed to be built so that the concrete slab and steps to the laundry area could be completed and to retain the neighbour’s fence.[483] Mr Gedoun maintained that he had always envisaged two options:

One where you retained directly under the house so the footpath would be at the high level and the alternative was the retaining closer to the fence where the footpath was at a lower level (incurring more steps).[484]

  1. [465]
    The owner’s view is that he was only responsible to build a retaining wall on the northern boundary, not 2.5 metres from the boundary. He stated that the scope of the work had changed due to the builder’s failure to install the garage floor and associated retaining wall at the height nominated on the plans.[485]
  2. [466]
    There can be no doubt that a retaining wall was required to maintain the integrity of the neighbour’s block. On 12 April 2018 the owner wrote:

… the link wall is a consideration/concern as the cut 1500 out from the boundary line is now collapsing and I see the existing retaining wall on the boundary starting to lean in.

 and Mr Gedoun responded:

Yes, we have identified this too…it needs some immediate attention due to recent rain.[486]

  1. [467]
    On 12 April 2018, in response to an email from the owner, Mr Gedoun offered to obtain quotes, enquired whether the owner would prefer to arrange his own contractors and invited the owner to attend a site meeting to discuss options.[487]
  2. [468]
    On 29 June 2018 the builder provided a quote for the retaining wall along the right-hand boundary.[488] There was an exchange of emails and texts regarding the price.
  3. [469]
    On 11 July 2018 the owner declined the quote which he considered excessively high.[489]
  4. [470]
    The owner remained of the view that it was not his responsibility to pay for construction of a retaining wall. In his view, a retaining wall 3m from the boundary line was not the same as a retaining wall located approximately on the boundary line, which was shown on the drawings. In his view, the laundry retaining wall was required to stabilise the additional cut required to install pad footings.[490]
  5. [471]
    While no doubt the owner’s view is genuinely held, it does not accord with the terms of the contract as I have found them. Until the site was cut and levels established the necessity for, and precise location of, the retaining wall was not known. However, the contractual responsibility for constructing the wall, if required, lay with the owner. Accordingly, I find that the owner’s claim for the cost of constructing retaining walls fails.

Site drainage and retaining wall fall protection (Scott Schedule 13)

  1. [472]
    In Mr Helisma’s opinion the site drainage and subsoil drainage does not comply with the NCC.[491]
  2. [473]
    Mr Carpenter observed that the ground below the building slopes significantly from the garage retaining walls and provided photographs that supported his observation.[492] He suggested that efforts should be made to divert or cut off surface water before it enters under the building, alternatively to catch and control the surface water towards a safe outfall.[493]
  3. [474]
    In Appendix 1 to his first report and in the Building Experts Joint Quantum Report Mr Helisma made a provisional allowance of $2,200 for rectification of site drainage. He did not provide any breakdown of that allowance.
  4. [475]
    In Mr Carpenter’s opinion given on 20 March 2020, the onus is on the owner to improve surface drainage unless specifically detailed in the contract.[494] I reject that opinion. The builder is obliged to comply with the NCC.[495] Mr Helisma was specific in identifying the relevant part of the NCC and relevant Australian Standards which were not met.
  5. [476]
    While liability has been established, I’m not satisfied that the owner has discharged the onus regarding quantum. Absent any description of the scope of work to rectify I have no way of assessing the reasonableness or otherwise of the quantum claimed.

Front door (Scott Schedule item 14)

  1. [477]
    In Appendix 1 to his first report Mr Helisma made an allowance of $1,200 for replacement of the front door.[496] He did not provide any explanation of the reason the door might need to be replaced.
  2. [478]
    The owner made no submission regarding the basis of the builder’s alleged liability to provide a replacement front door. I find that the builder is not liable to replace the front door.
  3. [479]
    It may be that there was some confusion between this item and the first item claimed in the minor defects list regarding the front door aluminium screen door requiring adjustment. Mr Carpenter’s evidence was that when he visited the site the front door aluminium screen door closed perfectly.[497]
  4. [480]
    Alternatively, it may be that there was some confusion between this item and the second item claimed in the minor defects list regarding the front door seals. However, there is a photograph of the front door in which the seal is visible.[498] In cross-examination Mr Helisma clarified that the seals he said had not been installed were to the door jambs, not the door itself.[499] In the Building Experts Joint Quantum Report the experts agreed a cost of $543 to adjust the tile sill threshold and door joinery to ensure even margins and that the screen door latches correctly. In its submissions the builder conceded the owner is entitled to $543.
  5. [481]
    Despite the inaccuracy of the description of item 14 in the Scott Schedule, I will allow $543 being the amount conceded to rectify the tile sill threshold and door joinery.

Protection of patio floor joists (Scott Schedule item 15)

  1. [482]
    While undertaking his assessment of the builder’s work, Mr Helisma formed the opinion that the floor joists had not been adequately protected to ensure the durability required in the Townsville region.[500] In his opinion all exposed timber above ground should have been treated to H3.[501]
  2. [483]
    Table B1 of AS 1684.3 describes the exposure for:
    1. (a)
      hazard class H3 as outside above ground; and
    2. (b)
      hazard class H2 as inside, above ground.
  3. [484]
    Table B1 of AS 1684.3 describes the specific service conditions for:
    1. (a)
      hazard class H3 as subject to periodic moderate wetting and leaching; and
    2. (b)
      hazard class H2 as protected from wetting and nil leaching.
  4. [485]
    Table B1 of AS 1684.3 describes the typical uses for:
    1. (a)
      hazard class H3 as weatherboard, fascia, pergolas, window joinery, framing and decking; and
    2. (b)
      hazard class H2 as framing, flooring, and similar used in dry conditions.
  5. [486]
    In cross-examination Mr Helisma was unable to say one way or the other whether the joists were subject to periodic moderate wetting or leaching. He agreed that with the exception of the joists under the roofed patio area to the left-hand side of the building, the joists are covered.[502]
  6. [487]
    Mr Carpenter disagreed that the work was defective on the basis it was a contractual matter.[503]
  7. [488]
    In the Building Experts Joint Quantum Report no quantum was claimed for item 15. However, as part of item 7.3 in the Scott Schedule there was a claim for $2,587.20 for 40 litres of ecological paint finish and $5,900.91 for applying the finish[504] which was said to be necessary to address Mr Helisma’s concerns that the joists needed to be treated to bring them up to an H3 standard.[505]
  8. [489]
    I am not satisfied that the joists need to be treated to bring them up to an H3 standard to ensure durability having regard to Table B1 of AS 1684.3. The joists are under cover. There was no evidence that the joists under the covered patio are subject to wetting. I will not allow this claim.

Minor defects (Scott Schedule item 16)

  1. [490]
    The owner’s claim for minor defects was poorly presented. No attempt was made to reconcile the list of twelve minor defects in Mr Helisma’s report with his costings for the rectification of the minor defects in Appendix 1 to his report. The confusion was exacerbated by the unexplained discrepancies between the report and the Building Experts Joint Quantum report. The owner’s closing submissions made no reference to his claims for rectification of minor defects so provided no assistance in addressing anomalies.
  2. [491]
    Twelve minor defects were listed in Mr Helisma’s report.[506] They were:
    1. (a)
      front door aluminium screen door requires adjustment;
    2. (b)
      front door seals not installed;
    3. (c)
      non-protection to top of patio deck floor joists;
    4. (d)
      patio handrails not secured;
    5. (e)
      stainless steel balustrade wire not terminated in sound condition;
    6. (f)
      poor coverage of applied clear finishes to timber posts and handrails;
    7. (g)
      gapping between skirting and floors adjacent to the entry stairs and linen cupboard;
    8. (h)
      sagging kitchen bench top;
    9. (i)
      uneven margins around laundry door;
    10. (j)
      aesthetically unacceptable fall in northern elevation roof gutters;
    11. (k)
      inconsistent fixings of metal capping flashing to the parapet;
    12. (l)
      poor paint coverage in numerous spots.
  3. [492]
    The first two have been addressed at item 14 of the Scott Schedule above.
  4. [493]
    The QBCC observed that the bow in the kitchen benchtop to the east side of the stove had been resolved.[507]
  5. [494]
    In Appendix 1 to his report,[508] Mr Helisma set out his costings for the rectification of the minor defects as follows:
    1. (a)
      grind /acid clean concrete floors;
    2. (b)
      painting floors, external timber door and internal ceilings;
    3. (c)
      labour – painter, plasterer, tiler and unskilled;
    4. (d)
      fibre cement sheeting;
    5. (e)
      solid core door;
    6. (f)
      tiles;
    7. (g)
      setting plasterboard;
    8. (h)
      roof plumbing - gutters;
    9. (i)
      laying turf;
    10. (j)
      carpentry to rectify defects to post, top rail fixing and horizontal wires;
    11. (k)
      contingency;
    12. (l)
      location factor;
    13. (m)
      margin.
  6. [495]
    The Scott Schedule attached to Mr Helisma’s report claimed $11,790.25 including a 20% contingency, a margin of 20% and a locality cost factor of 13.1%.for rectification of minor defects.[509]
  7. [496]
    Mr Thompson did not provide any opinion on the cost of rectification of the minor defects in the Building Experts Joint Quantum report.
  8. [497]
    The builder denied liability on the bases that either:
    1. (a)
      the claims were insufficiently particularised; or
    2. (b)
      arose from a lack of maintenance since completion.
  9. [498]
    In particular, it was submitted that:
    1. (a)
      patio handrails, balustrade wire, timber posts and gapping between the skirting boards and the floor are not defective works but are maintenance issues and the owner’s responsibility;
    2. (b)
      no defect is demonstrated of uneven margins around the door to the laundry;
    3. (c)
      insufficient particulars of the allegedly inconsistent fixings of metal capping flashing to the parapet had been provided;
    4. (d)
      as the painting was certified no defect was demonstrated.
  1. [499]
    The builder made no submissions to the claim that relates to the installation of an epoxy surface to the garage floor. I find it is reasonable for the owner to be awarded the costs of providing a single finish across the entire surface area. Doing the best I can from the itemised costs, I will allow:
    1. (a)
      $435.05 for grinding/ acid cleaning the floors;
    2. (b)
      $1,225.00 for epoxy painting the floor;
    3. (c)
      $145.40 for the painter; and
    4. (d)
      $511.12 for unskilled labour.
  1. [500]
    None of the twelve alleged minor defects listed by Mr Helisma suggest that it would be necessary to use 6 metres of 6.0mm FC sheeting to rectify. Accordingly, I see no basis on which I could allow the claim for $361.86 for 6 metres of 6.0mm FC sheeting. Nor was there any identification of the basis of the claim for setting plasterboard. I will not allow the $110.06 claimed.
  2. [501]
    None of the twelve alleged minor defects listed by Mr Helisma refer to a provision of, or replacement of, a solid core door. Accordingly, I see no basis on which I could allow the claim for $984.62 for a solid core door.
  3. [502]
    There is no clear nexus between the claim for 4.4m² of wall tiles and any of the twelve alleged minor defects listed by Mr Helisma. Accordingly, I see no basis on which I could allow the claim for $625.37 for tiles.
  4. [503]
    Mr Helisma said that the fall in northern elevation roof gutters was aesthetically unacceptable. He costed repairs at $795.50. In the absence of any evidence of failure to meet building standards or regulations I will not allow this claim.
  5. [504]
    I will not allow the claim for $507.60 for 20m² of turf as it appears to duplicate item 17 in the Scott Schedule.
  6. [505]
    I reject the builder’s submission that the claim regarding rectification of patio handrails, balustrade wire, timber posts and gapping between the skirting boards and the floor are maintenance issues. The owner has been complaining about the balustrade to the deck since he first complained to the QBCC.[510] I will allow the claim for $1,574.75 for carpentry.
  1. [506]
    During the joint quantum evidence, Mr Helisma said that he elected to apply a contingency rather than to increase the rates to allow for a small job factor.
  2. [507]
    As all of these small jobs will be attended to while the rectifying builder addresses all other necessary rectification, I find there is no need for a 20% contingency to be allowed as these will form part of a larger list of rectification tasks in plain sight.
  1. [508]
    In summary I have allowed a total of $3,891.32 plus a margin of 20% and a locality cost factor of 13.1% for rectification of minor defects.

Reinstate landscaping (Scott Schedule item 12.3)

  1. [509]
    The owner claims $1,666.73 including a margin of 20% and a locality cost factor of 13.1%.for the reinstatement of the landscaping necessary as a result of damage caused by rectification. Mr Thompson agreed with the claimed cost.[511]
  2. [510]
    Having found the builder liable for some of the rectification, it follows that it is also liable for the cost of reinstating consequential damage to the landscaping. I find the owner is entitled to recover $1,666.73 including a margin of 20% and a locality cost factor of 13.1% for the reinstatement of the landscaping.

Preliminaries (Scott Schedule item 17)

  1. [511]
    The owner claims for:
    1. (a)
      surveying costs;
    2. (b)
      certification;
    3. (c)
      3 months temporary fencing hire;
    4. (d)
      6 weeks toilet hire;
    5. (e)
      building site sign;
    6. (f)
      termite management;
    7. (g)
      6 weeks skip bin hire;
    8. (h)
      demolition waste disposal fee;
    9. (i)
      final site clean;
    10. (j)
      margin; and
    11. (k)
      location cost factor.[512]
  2. [512]
    I reject the builder’s submission that the amount awarded for any preliminaries should be limited to an amount proportional to damages awarded as there is no nexus between the quantum of damages awarded and one off or time related preliminary claims. The site will need to be safety fenced for the duration of the rectification. Waste material will need to be put into a skip and dumped. Workers will need toilet facilities. The termite barrier must be reinstated. The rectification work must be certified. The site will need to be cleaned after the work is done. A period of three months for fencing hire and six weeks for hire of site facilities does not seem unreasonable for the amount of rectification required.
  3. [513]
    I find that the owner is entitled to recover preliminaries of $10,558.48, being the total claimed including a margin of 20% and a locality cost factor of 13.1%.

Additional engineering design and supervision (Scott Schedule item 18)

  1. [514]
    The owner claims $18,500 for drafting design and instructions and for conducting inspections of the subframe, wall frames, roof and final inspection.
  2. [515]
    Mr Thompson agreed that the lump sum quantum of $15,000 for design work for all the issues for the house was reasonable.[513]
  3. [516]
    I reject the builder’s primary submission that this claim should not be allowed because the design work should have been done as part of this claim. The work claimed could not have been performed as part of this proceeding. The engineer engaged to design the rectification will need to certify the design (Form 15) and that the rectification has been carried out in accordance with that design (Forms 16). The design will be complex and the engineer is entitled to be appropriately remunerated.
  4. [517]
    I also reject the builder’s submission that if structural work is required, then only an appropriate proportion of the $15,000 claimed for engineering design might be allowed. There is no reason that the lump sum engineering fee should be reduced proportionate to the amount of damages awarded for any structural work and wind related claims. The lump sum engineering fee is by reference to reasonable remuneration for an engineer’s time, not having regard to the cost of rectification.
  5. [518]
    I find that the owner is entitled to recover $18,500 plus margin being the total claimed for additional engineering design and supervision on the bases that:
    1. (a)
      $15,000 is a reasonable lump sum for design; and
    2. (b)
      it is reasonable for the engineer to carry out inspections as the rectification work progresses; and
    3. (c)
      there is no need for a locality cost factor to be applied as the engineer will be Townsville based.

Builder’s proposal to place fill to raise finished ground level

  1. [519]
    For completeness, I find that the rectification costs should not include placing fill in the south west corner to raise the finished ground level so that the maximum eave height does not exceed 6.0m above the ground.
  2. [520]
    I make this finding as it is not necessary to do the work to ensure conformity with the contract. Placing fill would not put the owner in the position he would have been in had the builder properly performed its obligations under the contract as it would not address the fact that the building exceeds the geometric width limitations prescribed by AS 4055. Nor is it reasonable or necessary, given that the experts agreed that placing fill would not affect the wind loads on the house.

Claims made for the first time in the owner’s closing submissions

Contingency (renovate/retrofit) 20%

  1. [521]
    In his closing submissions, for the first time, the owner submitted that he should be awarded a 20% contingency amount in recognition of the complexity of the works, the duration of the proceedings and due to the order of damages sought.
  2. [522]
    I reject this claim:
    1. (a)
      first, because it was not made before or at the hearing thereby denying the builder any opportunity to address it;
    2. (b)
      second, because by allowing a 20% builder’s margin, a higher margin than usually allowed on new work, the experts had already recognised the complexity of the works;
    3. (c)
      third, because in specific instances for which Mr Helisma included a 20% contingency to take account of potential complexity of the work and did not subsequently concede there was no basis for the claim, I have already made rulings regarding entitlement;
    4. (d)
      fourth, because the duration of the proceedings is of no relevance to the amount to be awarded; and
    5. (e)
      finally, because the quantum of damages sought is of no relevance at all.

Market escalation 15%

  1. [523]
    In his closing submissions, for the first time, the owner submitted that he should be awarded 15% on the award of damages due to cost escalation, in particular in recognition of increases in costs of materials and due to shortages of skilled labour.
  2. [524]
    I reject this claim:
    1. (a)
      first, because it was not made before or at the hearing thereby denying the builder any opportunity to address it; and
    2. (b)
      second, because I heard no evidence regarding cost escalation.

Collection of amounts awarded

  1. [525]
    I have allowed the following items for the costs of rectification:
    1. (a)
      $5,500 plus a margin of 20% and a locality cost factor of 13.1% for Scott Schedule items 1.1 to 1.6;
    2. (b)
      $34,599.39 plus a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 2;
    3. (c)
      $6,438.10 including a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 3;
    4. (d)
      $7,408 plus a margin of 20% for Scott Schedule item 4;
    5. (e)
      $24,656.76 including a margin of 20%, as agreed by the experts, for Scott Schedule item 5;
    6. (f)
      $22,829.18 plus a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 6;
    7. (g)
      $5,000 plus a margin of 20% and a locality cost factor of 13.1% for Scott Schedule items 7 and 8;
    8. (h)
      $592 including a margin of 20% and a locality cost factor of 13.1%, as agreed by the experts, for Scott Schedule item 11.2;
    9. (i)
      $543 conceded for Scott Schedule item 14;
    10. (j)
      $3,891.32 plus a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 16; and
    11. (k)
      $1,666.73 including a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 12.3;
    12. (l)
      $10,558.48 including a margin of 20% and a locality cost factor of 13.1% for Scott Schedule item 17;
    13. (m)
      $18,500 plus a margin of 20% for Scott Schedule item 18.
  2. [526]
    I have not allowed a locality cost factor on items for which the quantum was based on locally sourced quotes or estimates, i.e., Scott Schedule item 4 roller door, Scott Schedule item 5 windows and Scott Schedule item 18 engineer’s fees.
  3. [527]
    I have allowed a lump sum for Scott Schedule item 11.2 footing D6 and Scott Schedule item 12.3 reinstate landscaping because the experts agreed a lump sum.
  4. [528]
    I have allowed a lump sum for Scott Schedule item 14 front door because the builder conceded that amount.
  5. [529]
    The amounts allowed total $171,136.94 including a margin of 20% and a locality cost factor of 13.1%.

GST (Scott Schedule item 20)

  1. [530]
    As is typically the case in the construction industry the quantum experts approached their costing on a GST exclusive basis. They added GST of 10% of the subtotal as item 20 of the Scott Schedule.
  2. [531]
    As the owner will have to pay GST to the rectifying builder, I find that he is entitled to recover 10% of the subtotal of his entitlement as part of his damages entitlement.
  3. [532]
    The owner is entitled to $188,250.64 including GST.

QBCC fees (Scott Schedule item 19)

  1. [533]
    During the joint expert evidence Mr Helisma and Mr Thompson agreed that the QBCC fee would only be able to be fixed once the contract price for the rectification is known.[514]
  2. [534]
    The QBCC insurance premium fee is based on the insurable value of the work, i.e., the reasonable cost of having the work carried out. The Queensland Home Warranty Scheme Premium Table for repairs[515] sets out the applicable premium in ten-thousand-dollar increments.
  3. [535]
    I find that the owner is entitled to recover $1,889.40, being the relevant fee for contract works valued over $213,000.
  4. [536]
    The owner is entitled to $190,140.04 including the QBCC fee.

Liquidated damages

The issues

  1. [537]
    The owner originally claimed an entitlement to liquidated damages (LDs) at a rate of $50 per day, pursuant to Clause 18 of the general conditions, due to alleged failure by the builder to bring the works to practical completion by 23 July 2018.[516]
  2. [538]
    In his written submissions, the owner claimed LDs of $39,200 for 784 days (the period between 6 July 2018 to 28 August 2020). The owner alleged that he terminated the contract on 28 August 2020.
  3. [539]
    During oral submissions counsel for the builder indicated that the builder would not rely on the following defences raised in its reply:
    1. (a)
      it had made claims for extensions to the DfPC;
    2. (b)
      the DfPC had been extended by a course of conduct;
    3. (c)
      alternatively, the owner had refused to accept an extension to the DfPC in breach of his obligation to act in good faith;
    4. (d)
      as a matter of law, on the basis that the conduct of the owner caused the delays;
    5. (e)
      relying on the prevention principle; that time has been put at large due to the owner’s failure or refusal to approve an extension of time in circumstances where the delay had been caused by the owner.
  4. [540]
    To succeed in his claim for liquidated damages of $39,200 the owner must prove:
    1. (a)
      the DfPC was 6 July 2018;
    2. (b)
      the Work was not practically complete; and
    3. (c)
      that he properly terminated the contract on 28 August 2020.

What was the Date for Practical Completion?

  1. [541]
    If the progress of the work was delayed by a list of nominated causes, the builder had a contractual right to claim an extension of the DfPC.[517]
  2. [542]
    During oral submissions counsel for the builder conceded that the builder did not make any requests for extension of the DfPC.
  3. [543]
    During oral submissions counsel agreed that the DfPC was 7 July 2018.
  4. [544]
    Accordingly, I find that the DfPC was 7 July 2018.

Was the work practically complete?

  1. [545]
    In order to meet the contract definition of Practical Completion, the house had to be completed in compliance with, inter alia, the Plans and all statutory requirements applying to the Works. The only permissible defects or omissions were minor defects or minor omissions that would not unreasonably affect occupation.
  2. [546]
    In its written submissions the builder submitted that the house was practically complete on 5 August 2021, as evidenced by the Form 21 issued on that date. However, in oral submissions, counsel for the builder conceded that the defect rectification work undertaken by the builder as a result of the direction to rectify by the QBCC was not minor. Accordingly, it cannot be the case that the work was practically complete on 5 August 2021.

When was the contract terminated?

  1. [547]
    During oral submissions counsel agreed that the contract was terminated on 28 August 2020.

Entitlement

  1. [548]
    The owner’s entitlement to LDs runs for each day after the DfPC until the earlier of the Date of Practical Completion or the day the contract was terminated pursuant to general condition 18 of the contract. The owner is entitled to LDs of $50 per day from 7 July 2018 to 28 August 2020, 783 days, i.e., $39,150. However, this amount must be reduced by $7,100 which the owner withheld from his payment of the final invoice. Accordingly, I find the builder owes the owner liquidated damages of $32,050.

Rent

  1. [549]
    In his submissions, for the first time in the proceedings, the owner made a claim for rent in the vicinity of $550 - $620 per week from 28 August 2020 (when his entitlement to liquidated damages ceased) to ‘the date of settlement’.
  2. [550]
    The owner did not provide any legal basis for this claim. It was not made at trial, so the builder has not had an opportunity to address it.
  3. [551]
    I reject this claim.

Interest

Relevant legislation

  1. [1]
    Section 77(3)(c) of the QBCC Act gives the tribunal power to:

award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation.

  1. [2]
    Section 54 of the Queensland Building and Construction Regulation 2018 (Qld) (QBCC Regulation) provides:

Interest—Act, s 77

  1. (1)
    For section 77(3)(c) of the Act, interest is payable on the amount of damages awarded—
  1. (a)
    if the parties have entered into a contract—at the rate provided under the contract; or
  1. (b)
    at the rate agreed between the parties; or
  1. (c)
    otherwise—at the rate of 10%.
  1. (2)
    The interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid.

Finding

  1. [552]
    The contract does not provide for the builder to pay the owner interest on outstanding amounts. There was no evidence that the parties had agreed a rate. Accordingly, the owner is entitled to interest at the rate of 10% from the date of this decision until the date of payment.

Costs

  1. [553]
    Section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that, subject to an enabling Act, each party must bear its own costs of the proceedings. The QBCC Act is the relevant enabling Act for these proceedings. Section 77(h) of the QBCC Act confers specific jurisdiction on this tribunal to award costs in building disputes.
  2. [554]
    Subject to any further submissions that might be made regarding offers of settlement, if any, my intention is to follow the usual rule and order the unsuccessful builder to pay the costs of the successful owner.
  3. [555]
    I reserve my decision on costs to enable the parties to provide written submissions regarding the circumstances that I should take into account when making an order as to costs.

Orders

  1. The builder must pay the owner:
    1. (a)
      damages of $190,140; and
    2. (b)
      liquidated damages of $32,050; and
    3. (c)
      interest at the rate of 10% from the date of this decision until the date of payment.
  1. Any application for costs must be made by filing in the tribunal two (2) copies and providing one (1) copy to the other party of any submissions and evidence to be relied upon within 14 days of the date of this decision.
  2. If any application for costs is made, then the other party must file in the tribunal two (2) copies and provide one (1) copy to the applying party of any submissions and evidence in response to be relied upon within 28 days of the date of this decision.
  3. The application for costs will be determined on the papers and without an oral hearing.

Footnotes

[1]  Exhibit 1.

[2]  Exhibit 2.

[3]  Exhibit 1, [51].

[4]  Exhibit 42.

[5]  Exhibit 43.

[6]  Exhibit 44.

[7]  Exhibit 42, JG-1.

[8]  Exhibit 42, JG-2.

[9] Queensland Civil and Administrative Tribunal Act 2009, section 28(3).

[10]  Exhibit 31, Appendix C.

[11]  Exhibit 38.

[12]  Exhibit 35.

[13]  Exhibit 36.

[14]  Exhibit 37.

[15]  Exhibit 33.

[16]  Exhibit 11, [129].

[17]  Exhibit 10, [1].

[18]  Exhibit 10.

[19]  Exhibit 11.

[20]  Exhibit 12.

[21]  Exhibit 13.

[22]  Exhibit 5, Appendix A.

[23]  Exhibit 5.

[24]  Exhibit 6.

[25]  Exhibit 7.

[26]  Exhibit 5.

[27]  Exhibit 45.

[28]  Exhibit 45, [13]

[29]  Exhibit 49.

[30]  Exhibit 50.

[31]  Exhibit 51.

[32]  Exhibit 28.

[33]  Exhibit 29.

[34]  Exhibit 30.

[35]  Trial bundle p 5137.

[36]  Clause 1.2.

[37]  Clause 1.1.

[38]  Clause 2.1 Table 2.1B.

[39]  Clause 2.2.

[40]  Section A1.1.

[41]  Trial bundle p 5037.

[42]  Clause 1.1 Note 5 AS 4055 – 2012.

[43]  Clause 2.1.

[44]  Clause 2.2.

[45]  Clause 2.3.

[46]  Clause 2.4.1.

[47]  Clause 2.5.

[48]  Clause 3.5.2.

[49]  Section A6.

[50]  Clause 4.2.1.

[51]  Table 4.1.

[52]  Clause 4.2.3.

[53]  Clause 4.3.

[54]  Clause 4.4.2.

[55]  Clause 4.2.1.

[56]  [A33].

[57]  Clause 4.2.2.

[58]  Clause 4.4.2

[59]  Exhibit 46.

[60]  Exhibit 46, [1.1.1].

[61]  Exhibit 46, [1.4.5].

[62]  Exhibit 42, [JG – 12].

[63]  Clause 3.3 of the general conditions.

[64]  Clause 10.1 of the general conditions.

[65]  Clause 25 general conditions of contract.

[66]  Clause 5.1 and Schedule Item 14.

[67]  Clause 8.1(b) of the general conditions.

[68]  Clause 17 of the general conditions.

[69]  Clause 1 of the general conditions.

[70]  Clause 17.6 of the general conditions.

[71]  Clause 18 of the general conditions and Schedule item 18.

[72]  Schedule item 10 of the contract.

[73]  Clause 15 of the general conditions.

[74]  Schedule Item 7(a).

[75]  Exhibit 42, [JG-12].

[76]  Exhibit 42, [JG – 7].

[77]  Exhibit 42, [9].

[78]  Exhibit 42, [12].

[79]  Exhibit 42, [13].

[80]  Exhibit 42, [17].

[81]  Exhibit 16, [MA202007-09].

[82]  Exhibit 16, [MA202007-07].

[83]  Exhibit 16, [MA202007-06].

[84]  Exhibit 2, [73].

[85]  Exhibit 1, [56].

[86]  Exhibit 2, [68].

[87]  Exhibit 42, [19].

[88]  Transcript 1-89.

[89]  Exhibit 42, [46].

[90]  Exhibit 42, [JG – 18].

[91]  Exhibit 42, [JG – 18].

[92]  Exhibit 42, [24].

[93]  Exhibit 42, [JG – 18].

[94]  Exhibit 42, [JG – 17].

[95]  Exhibit 42, [JG – 17].

[96]  Exhibit 42, [JG – 18].

[97]  Exhibit 15, [MA-005].

[98]  Exhibit 1, [26].

[99]  Exhibit 42, [JG – 17].

[100]  Exhibit 42, [135].

[101]  Exhibit 1, [40].

[102]  Exhibit 15, [MA-009].

[103]  Exhibit 10.

[104]  Exhibit 31.

[105]  Exhibit 31, Appendix D.

[106]  Exhibit 31, Figure 1.

[107]  Exhibit 31, p. 5.

[108]  Exhibit 31, Figure 1.

[109]  Exhibit 31, Figure 3.

[110]  Exhibit 31, Appendix D.

[111]  Exhibit 37, [2.4.6].

[112]  Exhibit 31, Appendix D.

[113]  Exhibit 31, Appendix D, Section 7.

[114]  Exhibit 31, p. 11.

[115]  Exhibit 31, p. 9.

[116]  Exhibit 31, p. 13.

[117]  Exhibit 31, p. 20.

[118]  Exhibit 31, p. 20.

[119]  Exhibit 31, p. 21.

[120]  Exhibit 31, Appendix D.

[121]  Ibid, [4.4].

[122]  Exhibit 37.

[123]  Exhibit 37, [2.2.10].

[124]  Exhibit 37, [1.1.4].

[125]  Exhibit 37, [2.3.14].

[126]  Exhibit 37, [2.4.14].

[127]  Exhibit 37, [2.4.18].

[128]  Exhibit 37, [1.3].

[129]  Exhibit 37, [2.5].

[130]  Exhibit 37, [2.7.6].

[131]  Exhibit 37, [2.8.8].

[132]  Exhibit 37, [2.13].

[133]  Exhibit 37, [2.14].

[134]  Exhibit 37, [2.11].

[135]  Exhibit 37, [1.6].

[136]  Exhibit 37, [3.5.5].

[137]  Exhibit 37, [3.511].

[138]  Exhibit 37, [4.7] – [4.9].

[139]  Exhibit 37, [3.5.7].

[140]  Exhibit 32.

[141]  Exhibit 37, [2.1].

[142]  Exhibit 32, [1.2.1].

[143]  Ibid, 1.3.1.

[144]  Ibid, 1.3.2.2.

[145]  Ibid, 1.3.3.

[146]  Ibid, 1.3.2.2.

[147]  Ibid, 1.3.3.

[148]  Exhibit 32, 1.3.3.

[149]  Exhibit 31, Appendix D.

[150]  Exhibit 32, [1.1.1].

[151]  ibid, [1.2.2.1].

[152]  ibid, [2.1.1].

[153]  Exhibit 32, [2.2].

[154]  Exhibit 32, [1.1.3.1].

[155]  Ibid, [1.1.3.3].

[156]  Ibid, [1.2.3.1].

[157]  Ex 32, [15.1].

[158]  Exhibit 32, [16.1].

[159]  Ibid, [17.1].

[160]  Ibid, [18.2].

[161]  Ibid, [4.2], [18.3].

[162]  Ibid, [18.4].

[163]  Exhibit 32, [4.2].

[164]  Ibid, [18.3.2].

[165]  Ibid, [18.3.3].

[166]  Ibid, 4.2.

[167]  Ibid, [18.4].

[168]  Exhibit 37, [Appendix A].

[169]  Ibid, [18.3.4].

[170]  Ibid, [18.4.8].

[171]  Ibid, [19.1].

[172]  Ibid, 20.1

[173]  Ex 32, [20.2].

[174]  Ex 32, [20.3.1].

[175]  Ex 32, [19.2.2].

[176]  Ibid, [19.2].

[177]  Ibid, 20.3.

[178]  Exhibit 32, [21.1].

[179]  Ibid, [21.1.1].

[180]  Ibid, [21.1].

[181]  Ibid, [21.1].

[182]  Ibid, [21.5].

[183]  Ibid, [21.4].

[184]  Ibid, 22.1.

[185]  Ibid, 22.3.1.

[186]  Ibid, 22.4.

[187]  Exhibit 32, [22.3.2].

[188]  Exhibit 32, [22.4.2].

[189]  Exhibit 32, [23.1].

[190]  Exhibit 32, [23.2.2].

[191]  Exhibit 32, [23.2.4].

[192]  Exhibit 32, [23.3].

[193]  Ibid, [23.2.3].

[194]  Exhibit 32, [23.3.6].

[195]  Exhibit 34.

[196]  Transcript 7-35 to 36.

[197]  Transcript 7-57.

[198]  Transcript 7-73.

[199]  Transcript 7-68.

[200]  Transcript 7-70.

[201]  Transcript 7-63.

[202]  Transcript 7-67.

[203]  Transcript 7-61.

[204]  Transcript 7-55.

[205]  Transcript 7-75.

[206]  Transcript 7-60.

[207]  Transcript 7-68.

[208]  Transcript 7(sic)-95.

[209]  Transcript 7(sic)-75.

[210]  Exhibit 40.

[211]  Exhibit 41.

[212]  Transcript 7(sic)-46.

[213]  Transcript 7(sic)-17.

[214]  Transcript 7(sic)-46.

[215]  Transcript 7(sic)-53.

[216]  Transcript 7(sic)-56.

[217]  Transcript 7(sic)-107.

[218]  Transcript 7(sic)-111.

[219]  Transcript 7(sic)-114.

[220]  Exhibit 33.

[221]  Transcript 7(sic)-118.

[222]  Clause 5.1 and Schedule Item 14.

[223]  Ex 32, [1.2.1].

[224]  Ex 32, [1.2.2.1].

[225]  Section A1.1.

[226]  Transcript 7(sic)-46.

[227]  Transcript 7(sic)-49.

[228]  Transcript 7(sic)-52.

[229]  Transcript 7(sic)-112.

[230]  Exhibit 1, [26].

[231]  Exhibit 32, [22.3].

[232]  Ibid, [22.4].

[233]  At [230] above.

[234]  Exhibit 40.

[235]  Exhibit 41.

[236]  (1954) 90 CLR 613.

[237]  Ibid at 618-9.

[238]  [2011] QSC 178.

[239]  Ibid at [116].

[240]  Exhibit 7.

[241]  Exhibit 10, Appendix B sheet 6A.

[242]  Exhibit 10, [1].

[243]  Exhibit 10, [2.1.2].

[244]  Exhibit 11, [23].

[245]  Exhibit 11, [28].

[246]  Transcript 3-63.

[247]  Transcript 3-66.

[248]  Transcript 4-15.

[249]  Exhibit 7, Attachment A, [1.1].

[250]  Exhibit 10, [2.3.1].

[251]  Exhibit 14.

[252]  Transcript 4-21

[253]  Transcript 4-24.

[254]  Transcript 4-25.

[255]  Transcript 4-25.

[256]  Transcript 4-26.

[257]  Transcript 4-36.

[258]  Exhibit 7, Attachment A [1.7].

[259]  Exhibit 7, Attachment H.

[260]  Exhibit 5, [68].

[261]  Exhibit 10, [2.5.1].

[262]  Exhibit 10, [2.5.2].

[263]  Transcript 4-37.

[264]  Exhibit 7, Attachment A [1.8].

[265]  Exhibit 42, JG 12.

[266]  Exhibit 10, [2.6].

[267]  Exhibit 5, [83].

[268]  Exhibit 5, [85] – [87].

[269]  Exhibit 5, [91].

[270]  Exhibit 45, [59].

[271]  Exhibit 45, [63].

[272]  Exhibit 45, [60].

[273]  Exhibit 45, [63].

[274]  Exhibit 11, [44].

[275]  Exhibit 11, [41].

[276]  Exhibit 11, [43].

[277]  Exhibit 11, [44].

[278]  Transcript 5-58.

[279]  Exhibit 18.

[280]  Transcript 5-57.

[281]  Transcript 5-63.

[282]  Transcript 5-68.

[283]  Exhibit 20.

[284]  Exhibit 21.

[285]  Transcript 5-68.

[286]  Exhibit 7, Attachment A [1.9].

[287]  Transcript 12-2.

[288]  Transcript 12-2.

[289]  Exhibit 42, JG 12.

[290]  Exhibit 42, JG 18.

[291]  Exhibit 25.

[292]  Exhibit 26.

[293]  Exhibit 10, [3.2.1].

[294]  Exhibit 10, [3.3].

[295]  Exhibit 10, [3.4].

[296]  Transcript 5-98.

[297]  Exhibit 45, [74].

[298]  Exhibit 45, [68].

[299]  Exhibit 5, [97].

[300]  Exhibit 5, Appendix 3.

[301]  Exhibit 45, [155].

[302]  Transcript 7-60.

[303]  Transcript 7-57.

[304]  Exhibit 5, [114].

[305]  Exhibit 45, [155].

[306]  Exhibit 7, Attachment A [2.4].

[307]  Exhibit 45, [95].

[308]  Exhibit 7, Annexure H.

[309]  Transcript 12-4 - 22.

[310]  Exhibit 10, [4.1].

[311]  Exhibit 10, [4.1].

[312]  Exhibit 45, [79].

[313]  Exhibit 45, [81].

[314]  Exhibit 45, [87].

[315]  Exhibit 11, [54].

[316]  Exhibit 45, [86].

[317]  Exhibit 45, [87].

[318]  Exhibit 12, [48].

[319]  Exhibit 12, [49].

[320]  Exhibit 11, [64].

[321]  Exhibit 12, [48(c)].

[322]  Exhibit 12, [49].

[323]  Exhibit 11, [64].

[324]  Exhibit 5, [101].

[325]  Exhibit 45, [85].

[326]  Exhibit 45, [161].

[327]  Exhibit 5, [103].

[328]  Exhibit 7, Attachment A [3.1].

[329]  Transcript 12-29 – 34.

[330]  Exhibit 10, [5.1.1] and Exhibit 45, [91].

[331]  Exhibit 7, Attachment A [4.1].

[332]  Transcript 12-134.

[333]  Transcript 12-137.

[334]  Transcript 12-138.

[335]  Exhibit 10, [6.1] and Carpenter, [93].

[336]  Exhibit 7, Attachment A [5.1].

[337]  Exhibit 7, Attachment H.

[338]  Exhibit 52.

[339]  Transcript 12-78.

[340]  Transcript 12-71.

[341]  Transcript 12-80.

[342]  Transcript 12-84.

[343]  Transcript 12-89.

[344]  Transcript 12-79.

[345]  Exhibit 10, [7.2.2].

[346]  Exhibit 10, [7.4.1].

[347]  Exhibit 10, [7.5.1].

[348]  Exhibit 10, [7.4.2].

[349]  Exhibit 10, [7.4.1].

[350]  Exhibit 10, [7.5.1].

[351]  Exhibit 10, [7.6].

[352]  Exhibit 45, [168].

[353]  Exhibit 45, [170].

[354]  Exhibit 11, [76].

[355]  Exhibit 5, [112].

[356]  Exhibit 7, Attachment A [6].

[357]  Exhibit 5, [116].

[358]  Exhibit 45, [171].

[359]  Transcript 12-146.

[360]  Exhibit 7, Attachment A [6].

[361]  Exhibit 45, [76].

[362]  Exhibit 7, Attachment A [7.3].

[363]  Exhibit 7, Attachment H.

[364]  Transcript 12-138 – 160.

[365]  Exhibit 42, [47].

[366]  Exhibit 42, [48].

[367]  Exhibit 42, JG 22.

[368]  Exhibit 42, JG 45.

[369]  Exhibit 10, [11.2].

[370]  Exhibit 10, Appendix B, sheet 37A.

[371]  Exhibit 30.

[372]  Exhibit 30, Appendix H.

[373]  Exhibit 12.

[374]  Exhibit 12, Appendix D.

[375]  Exhibit 12, Appendix D.

[376]  Exhibit 12, [35].

[377]  Exhibit 12, [36].

[378]  Exhibit 12, [37].

[379]  Exhibit 35, [5.2.1].

[380]  Exhibit 35, [5.2.3] and [5.3.2].

[381]  Exhibit 35, [5.4.1].

[382]  Exhibit 35, [5.4.4].

[383]  Exhibit 35, [8.1].

[384]  Exhibit 12, [24].

[385]  Exhibit 12, [27] – [28].

[386]  Exhibit 12, [33].

[387]  Exhibit 12, [24].

[388]  Transcript 10-78.

[389]  Transcript 10-79.

[390]  Exhibit 37.

[391]  Exhibit 37, Appendix C.

[392]  Exhibit 37, [6.11].

[393]  Exhibit 37, [6.9].

[394]  Exhibit 37, [6.10].

[395]  Exhibit 37, [6.12].

[396]  Transcript 10-84.

[397]  Exhibit 12, [27].

[398]  Exhibit 12, [28].

[399]  Exhibit 12, [29].

[400]  Exhibit 35, [5.2.2].

[401]  Exhibit 12, [33].

[402]  Transcript 5-44.

[403]  Transcript 5-45.

[404]  Transcript 5-45.

[405]  Transcript 5-46.

[406]  Transcript 5-46.

[407]  Transcript 5-47.

[408]  Exhibit 35, [8.4].

[409]  Transcript 5-49.

[410]  Exhibit 7, Attachment A [11.2].

[411]  Exhibit 5, [170].

[412]  Transcript 5-49.

[413]  Transcript 12-180.

[414]  Transcript 12-181.

[415]  Exhibit 10, [8.1].

[416]  Exhibit 10, Appendix H.

[417]  Exhibit 10, [8.2].

[418]  Exhibit 10, [10].

[419]  Exhibit 5, [122].

[420]  Exhibit 5, [127].

[421]  Exhibit 5, [128].

[422]  Exhibit 5, [133].

[423]  Exhibit 5, [135].

[424]  Exhibit 5, [136].

[425]  Exhibit 5, [137].

[426]  Exhibit 5, [138].

[427]  Exhibit 5, [139].

[428]  Exhibit 5, [140].

[429]  Exhibit 5, [141].

[430]  Exhibit 5, [142].

[431]  Exhibit 5, [143].

[432]  Exhibit 5, [133] – [144].

[433]  Transcript 2-50.

[434]  Exhibit 11, [94] – [96].

[435]  Exhibit 11, [102].

[436]  Exhibit 11, [110].

[437]  Exhibit 11, [78].

[438]  Exhibit 45, [106].

[439]  Exhibit 45, [108]

[440]  Exhibit 48, [9.3].

[441]  Exhibit 48, [9.4].

[442]  Transcript 5-74.

[443]  Transcript 5-81 – 82.

[444]  Transcript 5-73.

[445]  Transcript 5-81.

[446]  Transcript 5-78.

[447]  Transcript 5-77.

[448]  Transcript 5-84.

[449]  Transcript 5-88.

[450]  Transcript 5-89.

[451]  Transcript 2-51.

[452]  Exhibit 7, Attachment A [7.1].

[453]  Exhibit 7, Attachment A [7.2].

[454]  Exhibit 7, Attachment A [7.3].

[455]  Exhibit 7, Attachment A [7].

[456]  Exhibit 7, Attachment A [7].

[457]  Exhibit 7, Attachment H.

[458]  Transcript 12-165 – 170.

[459]  Transcript 12-171.

[460]  Exhibit 15, [MA-003].

[461]  Exhibit 45, [124].

[462]  Exhibit 5, [180].

[463]  Exhibit 45, [134].

[464]  Exhibit 45, [1343.

[465]  Exhibit 7, Attachment A [11.2].

[466]  Exhibit 7, Attachment A [11.2].

[467]  Exhibit 16, [MA202007-08].

[468]  Exhibit 16, [MA202007-08].

[469]  Exhibit 42, [29].

[470]  Exhibit 42, [28].

[471]  Exhibit 42, [28].

[472]  Transcript 1-47.

[473]  Exhibit 42, [29].

[474]  Exhibit 16, [MA202007-07].

[475]  Exhibit 2, [67].

[476]  Exhibit 42, JG-12.

[477]  Exhibit 42, JG-12.

[478]  Exhibit 2, [63].

[479]  Exhibit 42, JG-18.

[480]  Exhibit 42, [84].

[481]  Exhibit 42, JG – 26.

[482]  Exhibit 42, [74].

[483]  Exhibit 42, [78].

[484]  Exhibit 42, JG – 26.

[485]  Exhibit 1, [80].

[486]  Exhibit 42, JG – 26.

[487]  Exhibit 15, [MA-017].

[488]  Exhibit 1, [84].

[489]  Exhibit 1, [88].

[490]  Exhibit 15, [MA-018].

[491]  Exhibit 5, [190].

[492]  Exhibit 45, [134].

[493]  Exhibit 45, [135].

[494]  Exhibit 45, [141].

[495]  Clause 21 of the contract.

[496]  Exhibit 5, Appendix 1, Item 17 calculated costs.

[497]  Transcript 10-44.

[498]  Exhibit 8.

[499]  Transcript 2-70.

[500]  Exhibit 5, [149].

[501]  Exhibit 5, [151].

[502]  Transcript 2-68.

[503]  Exhibit 45, [142].

[504]  Exhibit 7, Attachment A.

[505]  Transcript 12-165.

[506]  Exhibit 5, [192].

[507]  Exhibit 15, [MA-005].

[508]  Exhibit 5.

[509]  Exhibit 5, [appendix 1].

[510]  Exhibit 15, [MA-005] item 73.

[511]  Transcript 12-193.

[512]  Exhibit 7, Attachment A.

[513]  Transcript 12-196.

[514]  Transcript 12-129.

[515]  https://www.qbcc.qld.gov.au/sites/default/files/Insurance_premium_table_from_1_July_2020_-_alterations.pdf

[516]  Counterclaim, [9].

[517]  Clause 15.1 of the general conditions.

Close

Editorial Notes

  • Published Case Name:

    Gedoun Constructions Pty Ltd v Agius

  • Shortened Case Name:

    Gedoun Constructions Pty Ltd v Agius

  • MNC:

    [2022] QCAT 446

  • Court:

    QCAT

  • Judge(s):

    Member McVeigh

  • Date:

    14 Feb 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bellgrove v Eldridge (1954) 90 CLR 613
3 citations
Jump To
Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Cite 3 - (1954) 90 CLR 613
McGrath Corporation Pty Ltd v Global Construction Management (Qld) Pty Ltd [2011] QSC 178
3 citations
Jump To
Cite 1 - [2011] QSC 178
Cite 2 - [2011] QSC 178
Cite 3 - [2011] QSC 178

Cases Citing

Case NameFull CitationFrequency
Agius v Queensland Building and Construction Commission & Anor [2023] QCATA 1482 citations
Gedoun Constructions Pty Ltd v Agius [2024] QCATA 22 citations
1

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