Nazzari v Gray[2023] QCAT 156

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

TABLE OF CONTENTS

Overview4

A Preliminary Issue5

Background6

The Issues9

The Relevant Law10

This Tribunal’s Jurisdiction10

The Order of Precedence Argument11

The Issue11

The Competing Submissions13

A Short Discussion15

The Degree of Non-conformity Issue15

The Issue15

The Current Law16

The Competing Submissions17

A Short Discussion18

Diminished Value Argument19

The Issue19

The Current Law19

A Short Discussion20

The Evidence21

The Witnesses23

Mr Martin Brooke23

Mr Anthony Florence24

Mr Evan Morgan24

Mr Stephen McKenzie27

Consideration of the Substantive Issues28

Defects which the applicants say must be rectified28

Truss tie downs28

Gable end bracing32

External cladding33

Window frames and glazing35

Reinstalling the solarspan skillion roof36

Receiver channel for insulated panels36

Other Defects38

Eastern soffit38

Harditex blueboard installation39

Covered entry to western elevation40

Front patio hardwood posts40

Internal wall frames, wall linings and ceilings40

Vinyl flooring42

Painting doors44

Architraves and trims45

Incomplete Works – Form 16 and Form 2147

Quantum of Rectification Costs.48

Costs50

Conclusion51

REASONS FOR DECISION

Overview

1. [1]
   The respondent, as builder, performed building work for the applicants, as homeowners.
2. [2]
   The applicants alleged the work was substantially defective. This was in terms of both structural integrity of the building work as well as aesthetic issues. They did not seek an order for rectification but rather they claimed payment of damages against the respondent premised on breach of contract, more particular a breach of warranties given under contract as imposed via statute.
3. [3]
   The respondent denied the work was defective. He defended the claim in its entirety denying liability for payment of any damages. Although he conceded in his defence that some of the allegedly defective work required some attention in terms of remedial work, he did not seek within his defence on those issues, or in the alternative to any of the remaining issues, relief by way of an order that he be permitted to rectify the work in question. Rather, he maintained a blanket denial of liability for any breach of contract. He did so at his peril.
4. [4]
   Neither the applicants nor the respondent led evidence from themselves personally. As is common with building defect cases, such as this was, the determination of the dispute turned on expert opinion evidence.
5. [5]
   The evidence of the applicants’ two experts was reasonably well presented and of assistance to me in understanding the substantive factual disputed issues for which the claim was being pressed. It was not seriously challenged either by competing expert opinion evidence or under cross-examination.
6. [6]
   In contrast, the evidence of the respondent’s singular expert was of no effective assistance save only for where, under cross-examination, he made concessions which favoured the applicants.
7. [7]
   In general terms it may be said I have favoured the applicants. The ultimate decision is almost the entirety of that which they claimed. That is a direct result of the facts as I have found them to be and the weight I gave to their evidence over the respondent’s evidence. It was highly persuasive. Having read the extensive expert evidence reports and heard the oral evidence of the experts during the hearing, I was entirely satisfied that the building work performed by the respondent was substantially defective. It was somewhat surprising to me that the respondent held a position to the contrary and endeavoured to challenge the applicants’ claim on arguments that in all reasonable respects had no substance.
8. [8]
   The outcome of this proceeding is thus against the respondent. My decision is that he must pay to the applicants $197,681.24 in damages for breach of contract.
9. [9]
   The applicants have also claimed costs. My decision on costs is reserved pending submissions on this aspect of the claim should the parties not otherwise be able to reach an agreement on it.

A Preliminary Issue

10. [10]
    At commencement on the first day of the hearing, the applicants sought leave to:^[1]

    1. (a)
       file a Further Amended Application for Domestic Building Dispute by which they abandoned some elements of the allegedly defective work, expanded on others, increased the quantum of the claim for damages, and added relief for an order for rectification or completion in terms of the provision of certain certificates (the Certificates),^[2] all being expressed by way of an ‘Amended Annexure A’ (the Further Amended Statement of Claim);^[3]  and
    2. (b)
       file and rely upon further statements of their expert, namely one from Anthony Florence being his affidavit affirmed 18 October 2022, and two from Martin Brooke namely his affidavits affirmed 19 and 28 October 2022.
11. [11]
    The respondent opposed the application on the basis that the amendments to the statement of claim, and thus the claim itself, arose out of new affidavits only recently provided giving the respondent only ten (10) days’ notice of same before the hearing in a matter that had been ongoing for three years, and given the fact that the Joint Expert’s Report had been completed around one (1) year ago.
12. [12]
    In response to that objection, the applicants argued:

    1. (a)
       the degree of importance for the provision of the Certificates could not be overlooked, and that there should be no prejudice to the respondent on the basis that if he has the Certificates all he needed to do was hand them over;
    2. (b)
       to the extent the further material raised the issue of screw fixings^[4] beyond that previously raised, the respondent could readily deal with this in cross-examination of the applicants’ experts; and
    3. (c)
       to the extent the further material increased the quantum of the claim it was merely as a consequence of the passage of time.
13. [13]
    Having heard the competing views and considering the content of the Further Amended Statement of Claim and the additional affidavits of the experts, I allowed the application giving leave to the applicants to rely on the additional material save only for the reservation that Exhibit MB 3 to the first affidavit of Martin Brooke, it also being, with amendment, Exhibit MB 4 to the second affidavit of Mr Brooke would be subject to any further submissions the respondent wished to make in terms of admissibility of its content and/or prejudice he may say he would suffer it was allowed.
14. [14]
    The respondent did not seek to file a further amended response, and merely relied on his last amended response being that filed 9 July 2021 in response to the applicants’ amended application filed 2 March 2021 (the Amended Defence).^[5] Nor did he ultimately make a submission on the Brooke’s Ex MB 3 of Ex MB 4 and accordingly it was treated as being part of the affidavit when tendered.^[6]

Background

15. [15]
    The applicants reside in a house in Kelso, a suburb of Townsville in Queensland.
16. [16]
    In December 2018, they entered into a contract, as owners, with the respondent, as builder,^[7] for the respondent to undertake substantial renovations to the house. The work included its demolition save for three external walls and the concrete slab on which it stood, its reconstruction to a new design including the construction of a full length patio to its north side, and affixing the existing carport roof to the structure of the renovated house.
17. [17]
    The contract document was a standard form Master Builders Queensland Residential Renovation Contract – Level 2. It contained plans prepared by ‘The Draughtsman’ marked JGC 017 – Rev 3 (the Plans) and the respondent’s quote dated 6 December 2019 Rev 4 (the Quote). It also contained a specification described therein being as per the Plans and the Quote (the Specifications). The respondent was the party named in the contract document as being the one responsible for the supply of the Plans and the Specifications.^[8] The contract price was $202,262.50 inclusive of GST.
18. [18]
    As is relevant to the issues in this proceeding, the contract contained all the standard warranties incorporated into every regulated contract under the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act),^[9] namely the suitability of materials,^[10] the compliance with legal requirements,^[11] the standard of work and exercise of care and skill,^[12] adherence to plans and specifications,^[13] suitability of premises for occupation,^[14] and carrying out work with reasonable diligence.^[15] (the Contractual Warranties)
19. [19]
    It is common ground that :

    1. (a)
       under the contract the respondent was to bring the works to practical completion by 25 April 2019; and
    2. (b)
       the respondent performed the works between 22 January 2019 and 20 August 2019, purporting to have reached practical completion on the latter date.
20. [20]
    The term ‘practical completion’ is defined in the contract document in the following manner:

[T]hat 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 given the Owner a defects document for the minor defects or minor omissions.

21. [21]
    The applicants say that the respondent:

    1. (a)
       carried out the works defectively;^[16]
    2. (b)
       has not completed the work in the absence of the Certificates being given;^[17]
    3. (c)
       has failed, refused or neglected to rectify the defective works or complete the works by providing the Certificates;^[18] and
    4. (d)
       in the premise has failed to bring the works to practical completion by 25 April 2019 or at all.^[19]
22. [22]
    As such the applicants assert the respondent is in breach of the contract, more specifically a breach of Contractual Warranties;^[20] and as a consequence they have suffered loss and damage, namely the cost to rectify the defective work, and the absence of the requisite Certificates.^[21]
23. [23]
    On that basis they claim damages of $219,681.24 from the respondent, being what they say is the cost to rectify the defective work.^[22] In addition, they seek an order that the respondent provides a valid Form 21 Final Inspection Certificate, and possibly a Form 16 Inspection Certificate.^[23] They also seek an order for costs.
24. [24]
    Whilst the applicants raised the issue of practical completion and asserted that the respondent had failed to bring the works to practical completion by the contract date for same, no claim was advanced in regard to it. Accordingly, save only on a very limited occasions dealing with the issue of the extent to which deviation from the Specification is said to be permissible, I have not had further regard to that aspect of the allegations made and do not make any further reference to it in these reasons.
25. [25]
    The respondent denies that the works were defectively constructed. However in terms of some of the allegedly defective work he says:

    1. (a)
       he should undertake some works as noted by his expert in terms of the insulated panel structural supports;^[24]
    2. (b)
       that “some maintenance work may be required” in terms of the attachment of the carport roof to the house but only after further investigation although the applicants have refused him access to do so;^[25] and
    3. (c)
       that “painting of the tops of the doors” is required.^[26]
26. [26]
    He also denies that the cost to rectify the defective work is that which the applicants assert it to be.^[27]
27. [27]
    The reasons for the entirety of his denials is described as being for the reasons set out in a report of his expert Mr Evan Morgan, a civil engineer with FMPAC Building Solutions, a copy of which was an attachment to his Amended Defence.^[28]
28. [28]
    He thus denies he has breached the contract and in turn denies liability for the damages claimed in whole or in part.^[29] He did not however deny that he is required to provide a Form 21 Final Inspection Certificate, nor did he say he has provided one.^[30]
29. [29]
    As to the requirement for the provision of a Form 16 Inspection Certificate he asserts it was provided during the hearing and as such it is no longer an issue for determination by me.

The Issues

30. [30]
    This proceeding can be readily categorised as one of those types of building contract disputes described as a ‘defective works case’. As such, given the manner in which the applicants framed their case, the issues are narrow, namely:

    1. (a)
       Issue 1 - Is the work defective or otherwise incomplete?
    2. (b)
       Issue 2 - If yes – is the respondent in breach of the contract?
    3. (c)
       Issue 3 - If yes:

       1. to the extent the work is defective what is the cost of rectification, and should the respondent be ordered to pay damages for same?
       2. to the extent the work is incomplete, namely the absence of a Form 21 and possibly the requisite Form 16, should the respondent be ordered to complete it by providing those Forms?
31. [31]
    By the time of the hearing starting there were twelve (12) alleged defective items, some of those alleged when the proceeding was commenced being abandoned.^[31] I will discuss each of them in turn later in these reasons under separate headings.
32. [32]
    As to the alleged incomplete work, by the completion of the hearing it was only two items, namely the absence of the provision of a Form 21 Final Inspection Certificate, and possibly a Form 16 Inspection Certificate.^[32]
33. [33]
    In dealing with the Issue 1 and Issue 2 there are two threshold aspects to consider.
34. [34]
    Firstly, consideration must be given to the extent (if any) the respondent, as builder, was permitted to depart from the Specifications such that whilst a part of the work may not have been constructed precisely in accordance with the Specifications it should not be classed as defective or incomplete. As that aspect unfolded during the hearing, it gave rise to three separate but related arguments, none of which were expressly raised in the parties’ respective pleadings.
35. [35]
    The first argument was raised by the respondent’s solicitor advocate during cross-examination of one of the applicants’ expert witnesses, Mr Brookes. It was suggested to Mr Brookes that the general conditions of the contract take precedence over the Specifications and thus allowed the respondent to permissibly deviate from the Specifications. I will call it the ‘Order of Precedence Argument’. As I understand it, the genesis of that argument is to be found in the Evan Morgan report which was annexed to the respondent’s amended defence and on which his defence is premised.^[33]
36. [36]
    The second argument was raised by me with the parties’ respective legal representatives at the end of the first day of hearing.  I alerted them to it as being what I considered to be a live issue arising from the extent of the evidence that I had read and heard by that point in the hearing. In doing so I referred them to earlier decisions of this Tribunal in which it arose and was considered. I will call it the ‘Degree of Non-conformity Argument’.
37. [37]
    Secondly, related to both the first and second arguments, was the issue whether rectification is a reasonable course of conduct to take or whether the applicants should be limited to damages for diminished value. I will call it the ‘Diminished Value Argument’.
38. [38]
    Issue 3 is in comparison somewhat more straightforward. It is for the most part an issue which requires consideration of fact, both from the perspective of the construction of the work and the asserted monetary value of the asserted need for rectification. It also encompasses the Diminished Value Argument.

The Relevant Law

39. [39]
    Before discussing each of the alleged items of defective work in terms of those threshold aspects, and then the associated issue of the incomplete work to the extent of the requisite Certifications, I offer the following comments on the relevant law.

This Tribunal’s Jurisdiction

40. [40]
    There is no challenge raised in this proceeding to this Tribunal’s jurisdiction to determine the matters as they arise from the applicants’ claim. Notwithstanding that, for completeness, I make these few brief observations to note the jurisdictional basis upon which I proceed.
41. [41]
    The work the subject of this proceeding falls within the definition of ‘domestic building work’ under Schedule 1B s 4 of the QBCC Act, and in turn is ‘reviewable domestic work’ as that term is defined in Schedule 2 of that Act. The proceeding concerns a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work, and accordingly it is a ‘domestic building dispute’ as that term is defined in Schedule 2 of that Act. This Tribunal is given jurisdiction to hear and decide a domestic building dispute under the QBCC Act s 77.

The Order of Precedence Argument

The Issue

42. [42]
    This is not a threshold aspect that arises out of the application of caselaw, but one which arose in the hearing as a construction of relevant terms of the contract, such being a matter of law. As such, it is appropriate to consider it under the heading of ‘Relevant Law’.
43. [43]
    Whilst not a position expressed in his defence document, but one raised in Mr Morgan’s report on which his defence was seemingly premised, as I have earlier noted it the respondent’s solicitor advocate raised this issue in the cross-examination of Mr Brookes. The hypothesis put to Mr Brookes was one premised on a construction of Cl 3.3 and relevant parts of Cl 10 of the contract general terms and conditions, asserting that on the proper reading of those provisions the contract provided for an election by the respondent to follow either ‘the plans and/or manufacturer’s specification’, or that described as ‘accepted practices’.
44. [44]
    To properly understand that argument it is necessary to set out the relevant provisions of the contract general conditions.^[34]

3 DISCREPANCIES AND AMBIGUITIES

3.3 Order of precedence of documents

Subject to Clause 3.1, any discrepancy or ambiguity in or between any documents comprising this Contract is to be resolved by adopting the following order of precedence:

1. (a)
   any special conditions set out in Part J of the Appendix;

2. (b)
   these general conditions;

3. (c)
   the Specifications;

4. (d)
   the Plans; and

5. (e)
   any other contract documents.

10 CONTRACTOR’S WARRANTIES

10.1 Warranties relating to the carrying out of the Works

The Contractor warrants that the Contractor will carry out the Works:

1. (a)
   in an appropriate and skilful way;

2. (b)
   with reasonable care and skill;

3. (c)
   in accordance with the Plans and the Specifications;

4. (d)
   with reasonable care and diligence;

5. (e)
   in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975.

10.4 Warranties relating to suitability of materials

Subject to clause 10.5, the Contractor warrants that all materials to be supplied by the Contractor for use in the Works:^[35]

1. (a)
   will be good and, having regard to generally accepted practices or standards applied in the building and construction industry for the materials, or the specifications, instructions or recommendations of manufacturers or suppliers of the materials, suitable for the purposes for which they are to be used; and

2. (b)
   …

45. [45]
    Given the argument presented by the respondent’s solicitor advocate as to the proper construction of these clauses, in my opinion it is also appropriate to extract here, to the extent relevant, the relevant statutory warranties from Schedule 1B of the QBCC Act. Notwithstanding the manner in which they have been expressed in the contract document general conditions Cl 10.4, recalling that the warranties as they are expressed in Schedule 1B are implied as warranties under the contract.^[36]

20  Suitability of materials

3. (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

2. (b)
   …

3. (6)
   In this section—

relevant criteria, for materials, means—

1. (a)
   generally accepted practices or standards applied in the building industry for the materials; or

2. (b)
   specifications, instructions or recommendations of manufacturers or suppliers of the materials.

23  Adherence to plans and specifications

3. (1)
   This section applies to a regulated contract if plans and specifications form part of the contract.

3. (2)
   The building contractor warrants the subject work will be carried out in accordance with the plans and specifications.

The Competing Submissions

46. [46]
    As I understand the respondent’s argument, on the proper construction of Cl 3.3 read together with Cl 10.1(c) and 10.4(a), it is that:

    1. (a)
       the general conditions take precedent over the Specifications;
    2. (b)
       The use of the word ‘or’ in Cl 10.4(a) provides for an election by the respondent as Contractor as to what he may follow, namely ‘generally accepted practices in the … industry’ or ‘specifications, instructions or recommendations of manufacturers or suppliers …’;
    3. (c)
       Cl 10.1 goes to the choice of methodology, such being expressed in a descending order giving priority to the carrying out of the Works ‘in an appropriate and skilful way, with reasonable care and skill’ over ‘the Plans and Specifications’;
    4. (d)
       Cl 10.4 goes to whether the work is fit for purpose;
    5. (e)
       He has applied that superior methodology by exercising the election to follow ‘generally accepted practices in the industry’ in lieu of the ‘specifications, instructions or recommendations of manufacturers’, the latter being incorporated into the Specifications and thus taking precedence over it;
    6. (f)
       He has shown that he has properly followed the generally accepted practices such that the work is fit for purpose, and as such he has not breached the warranty, and in turn has not breached the contract.
47. [47]
    The respondent’s solicitor advocate also submitted in closing that s 10 of the Building Act 1975 (Qld) and s 52 of the Building Regulation 2021 (Qld) also gave added protection to the applicants in terms of ensuing the respondent has properly performed the work. For ease of reference I have extracted that provision here:

Building Act 1975 (Qld)

10  What is a building certifying function

A building certifying function is doing any of the following—

1. (a)
   carrying out building assessment work, other than a part of building assessment work that, under section 46, a referral agency may carry out;

2. (b)
   the giving of a certificate (a compliance certificate) in the approved form that, other than for aspects of building assessment work that under section 46 must be assessed by a referral agency, states building work complies with the building assessment provisions;

3. (c)
   for a building development approval—inspecting the building work to decide whether to certify the work;

4. (d)
   for building work for a single detached class 1a building or a class 10 building or structure, the giving of—

1. (i)
   a certificate in the approved form for the stage of the building work that is after excavation of foundation material and before the footings for the building are laid; and

2. (ii)
   a certificate (a final inspection certificate) in the approved form for the final stage of the building work;

5. (e)
   the giving of a certificate of occupancy for a building or structure of another class.

Building Regulation 2021 (Qld)

52  Inspection procedure

3. (1)
   This section applies if an inspecting person inspects a stage of assessable building work.

3. (2)
   The inspecting person must inspect the stage of the assessable building work stated in a notice for inspection to ensure the aspects of the stage under the building development approval have been completed and comply with the approval.

3. (3)
   The inspection must be carried out in accordance with best industry practice.

3. (4)
   However, subject to subsection (5), the inspecting person may accept and rely on an aspect inspection certificate, or a QBCC licensee certificate, for each aspect of the stage of the assessable building work without inspecting the work under subsection (2).

3. (5)
   For a single detached class 1a building or a class 10 building or structure, the inspecting person must not accept an aspect inspection certificate for all aspects of the final stage.

48. [48]
    Once again as I understand his argument, in referring to these legislative sections it is that:

    1. (a)
       the effect of the Form 15 and Form 16 having been issued for the work in question, namely the trusses, shows he has he has complied with the regulations, such being as close as needs be for certainty as to what work was done, it being inspected and approved by the structural engineer Mr McKenzie; and
    2. (b)
       thus he has not breached the contract.
49. [49]
    In response to those submissions, the applicants’ Counsel argued that it is without substance. He says:^[37]

    1. (a)
       as to the Cl 3.3 argument, the operation of this clause is only applicable if there is an ambiguity or discrepancy in the documentation. It does not provide for an election by the respondent as contractor to choose between ‘industry practices’ or ‘specification’;
    2. (b)
       If it did provide for that election, it would mean the parties had contracted out of the relevant statutory warranties under Schedule 1 B of the QBCC Act, such being implied as part of the contract terms, and as such meaning a builder could never be compelled to construct in accordance with the plans and specifications providing the chosen alternative method of construction was fundamentally sound;
    3. (c)
       as to the provision of the Form 15 and the Form 16 signed by Mr McKenzie, they of themselves are not conclusive proof that all the work is acceptable.

A Short Discussion

50. [50]
    In my opinion this aspect before me can be disposed of with minimal discussion.
51. [51]
    The argument, seemingly premised on an opinion having been expressed by Mr Morgan in an area which is not within his area of stated expertise, and subsequently posed by the respondent’s solicitor advocate, is without substance. On the proper construction of the general conditions of contract when read as a whole, there is no election open for the respondent under Cl 3.3, Cl 10.1, and Cl 10.4 to effectively ignore the Specifications and apply only generally accepted practices. The alternatives as they are expressed in Cl 10.4 go only to the relative criteria for determining the suitability of materials used. Such is more clearly seen in the manner in which the warranty is expressed in the s 20 of the QBCC Act Schedule 1B.
52. [52]
    If it were otherwise, and the respondent’s construction of the general conditions was correct, it would:

    1. (a)
       entitle him to ignore the warranty he has given under Cl 10.1 in terms of the Plans and Specifications, such being the statutory warranty given under s 23 of Schedule 1B; and as such
    2. (b)
       effectively restrict or take away the rights of the applicant for a breach of the statutory warranty.
53. [53]
    The latter of those two is prohibited under the QBCC Act Schedule 1 B s 28, because if the argument were correct it would be to make void the relevant provisions the respondent now seemingly relies on as being in his favour. That is the effect of the ‘contracting out of’ argument raised by the applicants’ Counsel even though he did not expressly refer to Schedule 1B s 28.
54. [54]
    For this reason I do not accept the respondent’s Order of Precedent Argument as being valid.

The Degree of Non-conformity Issue

The Issue

55. [55]
    As I understand the applicants’ case, rectification of all defective work items is necessary and reasonable, and in all instances they should be compensated for the cost of cure. That is their claim. They do not make an alternative claim for diminished value for any item of allegedly defective work.
56. [56]
    As I understand the respondent’s case, whilst in some instances he concedes that some of his work is not strictly in accordance with the Specifications, he says the rectification of it is neither necessary nor reasonable because in all instances the works have been completed in a proper and workmanlike manner and in satisfaction and compliance with all applicable codes and standards.^[38]
57. [57]
    This contest between the parties thus turns to consideration of the question - to what extent was the respondent permitted to depart from the Specifications but remain within the confines of, and thus satisfy, his Contractual Warranties, more specifically  that “the Contractor will carry out the Works : (c) in accordance with the Plans and Specifications” and/or that “the Contractor warrants that all materials to be supplied by the Contractor for use in the Works will be ….”^[39]
58. [58]
    As the respondent’s case was advanced, he says he has complied with the contract, including the Plans and Specifications, as that description is given within the definition of ‘practical completion’ under the contract. Thus, given his concession that some work was not strictly in accordance with the Plans and Specifications, but yet he asserts that practical completion was achieved, I infer his position is that some deviation was permissible.
59. [59]
    In contrast, as the applicants’ case was advanced, because of non-compliance strictly with the Plans and Specifications and thus work is said to be defective and so practical completion had not been achieved, I infer their position is that no deviation was permissible.

The Current Law

60. [60]
    This issue has been the subject of consideration in this Tribunal.
61. [61]
    In William George Carlsen t/as W & E Carlsen Builders v Tressider [2015] QCAT 260 (Carlsen), Member Gordon expressed his view in the following manner.^[40]

In Queensland, there is a statutory requirement that work under such contracts will be carried out in accordance with the plans and specifications. This requirement is also one of the contractor’s obligations in the building contract itself. …

In deciding whether there was a breach of this obligation, a line needs to be drawn. A deviation from the plans and specifications which falls one side of the line will not be a breach. But a deviation falling on the other side of the line will be a breach. Where should the line be drawn?

The legislature could easily have added a modifying expression immediately before the words ‘in accordance with the plans and specifications’. Examples would be, ‘generally’, ‘substantially’, ‘only’, ‘precisely’, or ‘strictly’. Such modifying words are found in other statutes and for example development permissions and sometimes in court orders. The absence of the word suggests that the legislature have left it to the Courts and to the Tribunal to decide how strictly the obligation should be construed.

It is only reasonable that some departure from the dimensions or position of a structure given in the plans is permissible, because for a number of reasons including errors by the designer or architect, differing size of materials, or unforeseen practical difficulties on site, it will often be very difficult for the builder to be exact. It could not be the intention of the legislature for example to say that if a bathroom was built very slightly narrower or wider than in the plans, this would be a breach of the obligation.

On the other hand, it would be wrong to read the obligation as requiring only ‘general’, or ‘substantial’ compliance. To do so, would be to add a word to the statutory obligation which is not there. This would not be permissible.

The position of the line must lie somewhere between the two extremes.

62. [62]
    That passage was cited with approval by Member King-Scott in Mulder v Queensland Building and Construction Commission [2019] QCAT 395.^[41] 
63. [63]
    Part of it was also cited with approval by Member Olding in Spence v Queensland Building and Construction Commission [2020] QCAT 274^[42] with the following preface to it, followed by a short comment:^[43]

I accept as a general proposition that non-compliance with plans does not automatically mean work is defective if it is performing its function satisfactorily. However, it does not follow that any variation from approved plans is acceptable provided the work is performing.

…

Thus it is necessary to examine the nature, degree and significance of the departure from the agreed plans.

64. [64]
    In the following year I also noted it with approval in Cairns Building and Construction Pty Ltd ATF P&T Kelly Trust t/as Phil Kelly Builders v Kaminaras & Anor [2021] QCAT 374 (Kelly).^[44]

The Competing Submissions

65. [65]
    In his written closing submissions the applicants’ Counsel succinctly dealt with this issue.^[45] He notes the obligation to build in accordance with the plans and specifications is both contractual and statutory, following which he identifies the test as set out in Carlsen. The following submission is then made:

Insofar as the defects here fall into the categories considered in Carlsen, two categories apply – that of using different methods of construction from that specified; and that of using different materials from that specified.

66. [66]
    In his submissions he then identifies which of the allegedly defective items of work should not be identified as permissible deviations, and as such should be rectified. These are listed as ‘truss tie downs’, ‘gable end bracing’, ‘external cladding’, ‘window frames and glazing’, and ‘reinstalling the solarspan skillion roof’.^[46]
67. [67]
    The applicants’ Counsel then submits that the remaining defects in dispute fall to be determined outside of the principles discussed in Carlsen, but without elaborating on that submission or specifically referencing the other defects and why that is so.^[47]
68. [68]
    The respondent’s solicitor restricted himself to oral submissions only. They were short and, as I received and understood them, seemingly mixed up with his submissions on the Order of Precedent Argument. That being so, doing the best I could, I discerned that what he was saying was similar to the manner in which Member Olding had expressed it in Spence v QBCC, and as the applicants’ Counsel had put it in his written submissions in reference thereto, such being it is an “issue of fact and degree – very narrow in degree and close to fact”.
69. [69]
    He used one of the allegedly defective work items as an example, namely the external cladding, asserting that the deviation from the Specifications that has occurred is that a higher specification material has been used, such being the relevant fact as distinct to the degree of deviation.

A Short Discussion

70. [70]
    I agree that the analysis is one of fact and degree, such being put by each party before me. I also agree with the respondent that it should be considered narrow in degree and close to fact. On my reading of the applicants’ counsel’s written submissions, whilst he has not expressed it in that manner, it seems to me that is precisely the way in which he has dealt with the specific defects he says require rectification.
71. [71]
    In terms of the allegedly defective items the applicants’ Counsel says should be rectified, he identifies them in some instances as safety risks, or having an effect on structural integrity, or voiding a manufacturer’s warranty of a substantial time period. Thus, if I ultimately accept that to be so for the relevant item of work it would be a matter of fact that the work requires rectification.
72. [72]
    As to the other allegedly defective items of work that on the applicants’ Counsel’s submission fall to be determined outside of the principles discussed in Carlsen, I understand that these are the defects listed as ‘eastern soffit’, ‘harditex blueboard installation’, ‘receiver channel for insulated panels’, ‘covered entry to western elevation’, ‘front patio hardwood posts’, ‘internal walls frames, wall linings and ceilings’, ‘vinyl flooring’, ‘painting doors’, and ‘architraves and trims’. Whilst I will discuss each of these in turn later in these reasons, for present purposes it suffices to note that some of these are not disputed as being defective work and accordingly it would be correct to say that they fall to be decided outside of the Carlsen test. However where the allegation of work being defective is disputed, in my opinion the test must be applied and whilst it might be found that as a fact the work is not in accordance with the Specifications it might also be found that the degree of deviation is acceptable.
73. [73]
    In my opinion I need only repeat that which I said on this issue in Kelly. As Member Gordon observed it in Carlsen, the alleged departure from the plans and specifications fell into a number of categories, namely, using different methods of construction from that specified, using different materials from that specified, omitting work specified, and positioning fittings differently from that shown on the plans. His conclusion was that in each case it was necessary to reach a finding of fact whether the work was carried out in accordance with the plans and specifications in all the circumstances.^[48]
74. [74]
    All that being said, in considering the various allegedly defective items of work, I have done the same in this proceeding and expressed my findings on each later in these reasons.
75. [75]
    Before leaving the reasoning of Member Gordon, it is also apposite to note the manner in which he considered the question ‘How should the owner’s compensation be assessed?’ in terms of an impermissible deviation from the plans and specifications. I respectfully adopt the following from his reasoning on that question.^[49]

The starting point for assessing compensation for breach of contract is that the innocent party should as far as financially possible be put in the position in which that party would have been if the contract had been properly performed.

The manner in which this is to be done will vary from case to case, and sometimes within a case, it will vary from breach to breach. On the one extreme, sometimes, particularly where the aim of the contract is to produce something unique but which has simply not been delivered, the correct compensation is the amount of money required to achieve that aim. At the other end of the extreme, there are cases where the builder despite being in breach of contract, has in fact delivered a building or part of a building which is just as good if not better than that required under the contract and the owner has no intention to change the work. In such a case, damages may be assessed as the diminution of value of the property by reason of the breach. If that valuation is zero or cannot be assessed it may be possible to award damages for loss of amenity.

Between the extremes are varying levels of awards, which all come down to a reasonable and fair level of compensation between the parties. The correct level of compensation may turn on whether it is reasonable and necessary to carry out remedial work. I apply these principles to the defective and incomplete work in this case.

76. [76]
    It is this passage that thus gave rise to the last of these threshold aspects, namely the Diminished Value Argument to which I now turn.

Diminished Value Argument

The Issue

77. [77]
    The issue here is, in the event I find the work is not as per the contract and in turn I find it to be defective, whether I should allow the applicants the costs of that rectification or simply compensation for diminution in value. It might also arise in the circumstance that I find the work not to be as per the contract but a permissible deviation from it.
78. [78]
    Whilst submissions, as I have already discussed them, were raised for both parties on the issue of permissible deviation, in terms of the alternative compensation for diminution in value neither party made a submission to me on it as a discrete issue. Notwithstanding that, for completeness I discuss it here because in my opinion it arises on the material and submissions before me given that it arises within the permissible deviation issue.

The Current Law

79. [79]
    The issue has previously been put simply as cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons – Building and Engineering Contracts:^[50]  

Where a builder has carried out work to a building which requires remediation, the issue that arises is whether the building Owner is entitled to the cost of repairing that defective work – the cost of cure – or is limited to the diminution in the value of their building as a consequence of the defective quality of the work undertaken.

80. [80]
    This is often referred to as the test in Bellgrove v Eldridge (1954) 90 CLR 369 wherein the Court adopted the following statement made in an earlier version of Hudsons, and thus expressing it as a correct statement of the law:^[51]

… the measure of damages recoverable by the building owner for the breach of a building contract is … the difference between the contract price of the work or building contracted for and the cost of making the work or the building conform to the contract, with the addition, in most cases, of amount of profits or earnings lost by the breach.

81. [81]
    Dixon CJ, Webb and Taylor JJ, expressed a qualification to that rule, it being

The qualification, however, as to which this rule is subject is that, not only must the work undertaken by necessary to produce conformity, but it must be a reasonable course to adopt. ... Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of deal with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or material.

As to what remedial work is both “necessary” and “reasonable” in any particular case is a question of fact. …^[52]

A Short Discussion

82. [82]
    Whilst neither party made any submissions to me on this particular aspect and the law relevant to it, the question that still arises on the material before me is - what is necessary and reasonable in terms of rectification ? – such requiring consideration of the issue of permissible deviation from the Specifications and in turn the value (if any) to be attributed to a permissible deviation.
83. [83]
    As I have noted it, neither party raised this as a separate issue in their pleaded case nor in their respective submissions. Nor was any evidence presented in terms of what was a reasonable diminished value for any of the allegedly defective items of work, such which could have been presented as an alternative to the claim for damages for rectification. For that reason it is not an aspect that ultimately I needed to make any decision on in terms of the relief sought. However, in my opinion I must address it because it arises in, or is directly associated with, the other two threshold aspects as they were argued by the parties.
84. [84]
    That being so, where ultimately I have found that the complaint is a permissible deviation I have not allowed any diminished value. In my opinion such reflects the relative success of the respondent whilst also recognising that the applicants’ case was one for cost of cure only.
85. [85]
    Similarly where I have found the work is defective but rectification is not a reasonable course of conduct to take, I have not allowed any diminished value. In my opinion, whilst it may be said that the applicants have succeeded in arguing the work was defective and thus should be entitled to some relief, it reflects the fact that their claim was advanced as one solely for the cost of cure absent an alternative claim for diminished value and absent any evidence of same.

The Evidence

86. [86]
    Like most building cases, this matter was expert evidence heavy. As I will discuss it later in these reasons when I comment on the evidence of the respective experts there was confusion in the manner in which the expert reports were initially obtained. The first report for the applicants was apparently received from a Mr Pease, ultimately that report being adopted by Mr Florence. This confusion seems also to have been added to because by the fact that, whilst a Practice Direction exists in this Tribunal for the purposes of expert evidence,^[53] as I read the Directions given in this proceeding the parties were excused from it.^[54]
87. [87]
    By Directions given 5 March 2020 the parties were also required to prepare and file a Scott Schedule, such which was complied with by 22 April 2020. But there is a later version dated as filed 16 April 2021 also held on the file. Notwithstanding the existence of these two versions, I was informed at the start of the hearing that the parties had agreed it would not be referred to and I should disregard it.
88. [88]
    It was not explained why this was so, but on my reading of the Scott Schedule document provided ultimately that did not matter. Neither of the two documents filed would have been helpful because the respondent’s comments on the allegedly defective items were nothing more than essentially bare denials on the basis that the works had been inspected and approved.
89. [89]
    There was also a Joint Report prepared and filed which, as I understand it, arose out of a conference of the parties’ respective experts, Mr Brooke, Mr Florence, and Mr Morgan, such occurring in compliance with Directions given 24 June 2021 and 16 September 2021 (Joint Expert Report).^[55]
90. [90]
    Notwithstanding that that the parties were directed that their experts participate in a conference and to subsequently produce a report identifying where they have reached agreement and failing agreement, identifying and clarifying where the basis of disagreement on the issues which are in dispute, such was not conducted as an Expert Conclave in the manner contemplated by Practice Direction 4 of 2009. Presumably, this was because compliance with that Practice Direction had been waived.
91. [91]
    Why that occurred is not clear on my reading of the file. In my opinion, it would have been helpful to the efficient conduct of this proceeding had a proper and effective Expert Conclave occurred with the benefit of a convenor having been appointed to properly conduct the conclave and subsequently having an oversight role in the report preparation. That report would then have become the relevant expert’s statement of evidence save only for an issue of disagreement recorded in the joint report for which a further statement of evidence from the experts would have been permitted.
92. [92]
    However, what ultimately was put before this Tribunal was the Joint Export Report that in my opinion was of little assistance.^[56] On my reading of it I am unable to discern with any clarity the reasons for disagreement on a number of alleged defective work items. As I read it, I infer that it was originally drafted by Mr Brooke for the applicants with insertions subsequently made to it by Mr Morgan for the respondent,^[57] but much of what I read as being Mr Morgan’s inserted comments are not helpful. They are more argumentative than constructive, such being somewhat consistent with the presentation of his oral evidence which I comment on later in these reasons.
93. [93]
    Accordingly, in the absence of a Scott Schedule and given the limited use the Joint Expert Report was to me, I was left to consider the substantive issues on the basis of the experts’ respective statements of evidence and their oral evidence given during the hearing. In that regard, much of what was tendered was in my opinion entirely unnecessary as it was prolix, confused and confusing. This was particularly so with Mr Morgan’s statement. I will discuss this in some detail later in these reasons when I comment on the witnesses from whom evidence was received.
94. [94]
    Surprisingly, Mr Nazzari was not called to give evidence, nor was the written statement from him that was previously filed sought to be tendered or in any way relied on. Nor did Ms Cossens give any evidence. Accordingly the applicants’ evidence was solely that from their experts.
95. [95]
    There was an attempt by the respondent’s solicitor advocate to adduce evidence orally from his client Mr Gray. This was despite the fact that the respondent had not filed nor served a written statement of evidence from himself, notwithstanding the express and very clear requirement for him to have done so and the numerous extensions of time he was given for that purpose.^[58] As was also made clear in this Tribunal’s procedural directions, no party would be allowed to present any evidence at the hearing that is not contained in a statement without justifying the need for such additional evidence.^[59]
96. [96]
    Quite properly, the applicant’s Counsel objected to Mr Gray giving evidence in the absence of a statement having been provided. He was not prepared to cross-examine Mr Gray. I allowed that objection. However I did give leave to the respondent for Mr Gray to give oral evidence on any new issues arising out of the additional report evidence of the applicants’ experts Mr Brooke and Mr Florence tendered at the hearing.^[60] I then afforded the respondent’s advocate solicitor time by way of a short stand-down of the hearing to organise whatever evidence in chief he wished to lead from Mr Gray, but ultimately that was not taken up and no evidence from Mr Gray was led or received.

The Witnesses

97. [97]
    The applicants’ evidence was given by two expert witnesses, Mr Martin Brooke and Mr Anthony Florence. The respondent’s evidence was given by one expert witness, Mr Evan Morgan. The respondent also called as a witness Mr Stephen McKenzie, the engineer who designed the structural elements for the house.
98. [98]
    Before discussing their specific evidence, which I will do when I discuss each of the substantive issues on which I am required to decide, I will comment briefly here on each of them as witnesses and the probative value of their respective statements and oral evidence.

Mr Martin Brooke

99. [99]
    Mr Brooke described himself as a self-employed building consultant with expertise in building, project management, and estimation. He is the holder of an Open Builder’s licence under the QBCC Act. His evidence was in addition to, but in part referred to, a report of Mr Pease of STP Consultants.^[61] His evidence in chief was contained in three documents. The first was in effect his primary report of 26 February 2021.^[62] The second was further comment on specific paragraphs of the Joint Expert Report.^[63] The third was an updating of the costing for rectification of the defective items as it was contained in his first report.^[64]
100. [100]
     Whilst on occasion he offered comments further to the comments of Mr Pease and later Mr Florence, as I read his statements the substance of them was to provide an opinion on the buildability aspects of the structural items in terms of rectification said to be required, an opinion on the non-structural items of work not addressed by Mr Pease and later Mr Florence, and the estimated costs of rectification works in each instance.
101. [101]
     He also gave some evidence in chief orally, very briefly, without objection clarifying the matter in which he had derived certain costings concerning the truss-tie-down item of work.
102. [102]
     Whilst his first statement was voluminous in its content, overall I found his statements relatively straightforward to follow. They were organised and expressed in a manner that I could readily identify the relevant parts necessary for me to ultimately reach my decision. I also found Mr Brooke to present well as a witness. He was efficient in responding to the questions posed of him and was prompt in identifying where he could not express an opinion on an issue which was beyond his area of expertise. 
103. [103]
     His evidence was largely unchallenged. The respondent’s advocate solicitor’s cross-examination of Mr Brooke was short, it being only 12 minutes in duration with only two additional questions arising out of question I asked of Mr Brooke. Moreover, the respondent did not present any corresponding expert opinion evidence on the issue of costing of the asserted rectification work to challenge Mr Brooke’s opinions on costs.

Mr Anthony Florence

104. [104]
     Mr Florence is a structural engineer with STP Consultants. He gave two statements.^[65]
105. [105]
     In the first of those he stated that he had been briefed by Mr Pease, also of STP Consultants who had prepared an earlier report, being the report to which Mr Brooke referred in his report contained in his first statement. As I read the report of Mr Pease he had been engaged by, or on the recommendation of, Stephen Malcolm of ABSCAN, who in turn had been engaged by the applicants initially.^[66] Mr Florence stated in his first statement that he had carried out his own inspection of the house to inspect the items raised in Mr Pease’s report and in doing so was able to verify the content of that earlier report to be true and correct. No objection was raised to this aspect of Mr Florence’s report. Thus, it seems to me that it could readily be said Mr Florence adopted Mr Pease’s Report and in doing so the opinions given by Mr Pease became Mr Florence’s opinions.
106. [106]
     His second statement once again referred to Mr Pease’s report and on this occasion exhibited a complete copy of the Pease Report, part of it inadvertently not being included with his earlier statement. He also provided some comment on issues arising from the Joint Expert Report, and Mr Brooke’s primary report of 26 February 2021.
107. [107]
     There were two other documents tendered, by consent, through Mr Florence. These were copies of a Form 15 Compliance Certificate for Design dated 2 October 2019, and a Form 16 Inspection Certificate dated 9 October 2019, both showing as having been signed by a Stephen McKenzie, and both being described thereon as being for ‘Footings & Floor Slab, Wall Framing, Roof Framing & Roof Tie-down’.^[67]
108. [108]
     Like Mr Brooke, I found Mr Florence to be a good witness. He gave his evidence in a straightforward and compelling manner, quick to answer directly to the question being posed of him.

Mr Evan Morgan

109. [109]
     Mr Morgan is a structural engineer. Save only for the short evidence of Mr McKenzie, effectively he was the respondent’s only witness dealing with the substantive issues.
110. [110]
     His report dated 18 June 2021, given as his statement, was voluminous. In total it was contained in five full large lever arch files.^[68] Leave was requested, and granted, for Mr Morgan to elaborate on certain parts of that report which he did during his evidence in chief.
111. [111]
     He had also authored a subsequent report dated 29 November 2021 entitled ‘Expert Opinion on a Complaint pursuant to Section 45 of the Professional Engineers Act 2002 – RPEQ Stephen McKenzie’, tendered by the respondent.^[69] As I understood that document, it was provided in response to a complaint made by the applicants to the Board of Professional Engineers about Mr McKenzie’s conduct in certifying completion of work, namely the Form 16 to which I referred earlier as tendered through Mr Florence, in circumstances where it was said the work was defective. In my opinion its content and meaning can be readily summed up in the following singular paragraph which I extract from the ‘Executive Summary’ section of that document:^[70]

The claims of deficient practice with respect to the defects referred to in the reports by STP and Abscan have been examined in detail with respect to the design, design advice, inspections and certifications provided by RPEQ McKenzie. In all cases, I consider the claims to be unfounded as the defects are either of such a trivial nature as to have no material effect on the structural integrity of the building, relate to matters that are not the responsibility of RPEQ McKenzie and/or are incorrect with respect to structural engineering principles.

112. [112]
     In essence, as I read that document, it addresses some of the allegedly defective structural items of work as they were commented on in his earlier report to which I have just referred. For that reason, it was not of any assistance to me and so I did not have any further regard to it.
113. [113]
     As to Mr Morgan’s initial report, I must confess to having had great difficulty in making use of it and affording it any reasonable level of probative value. Not only was the report voluminous it was unnecessarily prolix, confused, and confusing. It contained a substantial amount of material that was entirely unnecessary and irrelevant. Also it was not page numbered nor in any way properly indexed to assist in the efficient reading and comprehension of the document. This left me with great difficulty in finding the parts of the documentation contained therein they were referred to in the text of his report, as well as following and understanding with clarity his observations / comments in the text of his report. Generally, it was well below the standards of an expert’s report that should be expected in this Tribunal.
114. [114]
     Nor was I assisted in any great detail by the oral evidence Mr Morgan gave. In contrast to the efficient and concise manner in which Mr Brooke and Mr Florence gave their oral evidence, notwithstanding that Mr Morgan concurred on many occasions with hypothesis or propositions put to him under cross-examination, as I heard and understood his oral evidence he maintained that the work was generally not defective on the basis that the respondent had an entitlement to deviate from the Specifications, and that what has been constructed is not defective as he has identified it in his report.
115. [115]
     Moreover, it seemed to me that Mr Morgan had been asked to, and was, giving evidence that went beyond merely structural engineering matters for the purposes of responding to Mr Brooke’s evidence, and so outside the area of expertise of a structural engineer and more properly the purview of a builder. He also at times expressed an opinion on the respondent’s compliance with the contract, such being an issue of law for which he was not qualified as an expert. Additionally, and somewhat concerningly, Mr Morgan expressed his opinions based on what he had been stated by others and/or by making observations on that he says the reports of Mr Brooke or Mr Pease / Mr Florence are based on, and/or what he considered the designer may have done.^[71]
116. [116]
     As I read his report, it seemed to me that this was all without Mr Morgan having first-hand knowledge of the relevant facts, and in many cases no more than an assumption, and in some cases purely hearsay. Whilst an expert is permitted to express an opinion based on an assumption, the expert should first identify what that assumption is and the premise upon which it has been made, something Mr Morgan has not done. Rather he has expressed that which ordinarily an expert might deal with as an assumption and treat it as a fact. He has also adopted hearsay evidence as fact upon which he then offers an opinion.
117. [117]
     Mr Morgan’s report, and certain parts of what is stated in the Joint Expert Report attributed to him, were the subject of extensive objections raised by the applicants’ Counsel on the tendering of Mr Morgan’s report as his evidence-in-chief, with the submission being made that certain parts of the reports should be struck out. Rather than let the hearing get bogged down in going through the list of objections and the various paragraphs which the applicants’ Counsel sought to have struck out, the list of objections was tendered and received,^[72] and the tender of Mr Morgan’s report was allowed subject to those objections being addressed later in closing submissions should the relevant part of Mr Morgan’s statement be an aspect the respondent submitted was directly relevant and germane to determination of the matter in issue. Ultimately no such submissions were made and accordingly the objections effectively lost their meaning. However, for the sake of completeness I say here that I would uphold all of the objections for the reasons I have just given about Mr Morgan expressing what at best would have been an assumption, or at worst hearsay, and treating it as fact upon which he then proceeds to base an opinion.
118. [118]
     The cross-examination of Mr Morgan by the applicant’s Counsel was extensive. As I observed Mr Morgan during that cross-examination, at times he appeared to either have not listened to a question being asked of him giving an answer that did not meet the question, or he misunderstood the question leading to a non-responsive answer, or he was simply being evasive in his answering of it. 
119. [119]
     In these reasons I have been very critical of Mr Morgan in the presentation of his evidence. His report, and the presentation of his evidence orally during the hearing, was well below even the minimum standard expected of an expert giving evidence in this Tribunal. I was very unimpressed with him as an expert witness. Observing the question and answer process engaged in, I noted he would often, when seemingly evading the question being asked of him, do his best to advocate a position for the respondent. Whilst it was readily apparent that Mr Morgan saw himself as an expert witness for the respondent, as I observed him during the hearing and as I read the content of his entirely unnecessarily voluminous report it became abundantly clear to me that he entirely misunderstood that role.
120. [120]
     In my opinion it may properly be said that his evidence was not what this Tribunal should have been presented with as independent expert opinion evidence. As the applicants’ Counsel put it in his written closing submissions:^[73]

Mr Morgan … has shown a distinct tendency to favour the position of the Builder who engaged him. Probably the most notable example of this is Mr Morgan’s evidence with regard to the wooden window trim used in conjunction with the James Hardie cladding. Such evidence was misleading and aimed at improving the Builder’s position, albeit unfairly.

121. [121]
     I consider that observation to have been correctly and appropriately put.
122. [122]
     Overall I found Mr Morgan not to be a good witness and his evidence as it was original presented in his report to have little to no probative value. Where his evidence was inconsistent with that of either Mr Brooke or Mr Florence, I preferred the evidence of Mr Brooke or Mr Florence as relevant.

Mr Stephen McKenzie

123. [123]
     Mr McKenzie did not provide a written statement. He was the design engineer. Leave was sought by the respondent’s advocate solicitor for Mr McKenzie to give evidence necessitated by the late provision of the FASOC going directly to the issue of the provision of the Form 15 and Form 16. I gave the respondent the requisite leave, affording the applicants’ Counsel the opportunity to recall Mr Florence if he thought necessary after hearing from Mr McKenzie. Ultimately that did not occur.
124. [124]
     In giving his evidence-in-chief, on the questioning posed of him by the respondent’s solicitor advocate, it ventured into him expressing his opinion on the extent / nature of the truss-tie down defect item, such more properly the purview of an expert witness. Such was not objected to. However even if it were objected to, I would have allowed it because in my opinion such was an appropriate line of questioning to properly test the issue of validity of the Form 16 presented.
125. [125]
     New Certificates were also tendered through Mr McKenzie, namely a new Form 15 and Form 16, these being dated 1 November 2022.^[74] The new Form 15 and Form 16 was the same as the earlier Form 15 and Form 16 tendered,^[75] save only for the insertion of the reference to a number of drawings by NQ Steel Frames,^[76] as well as drawings by Northern Consulting, all of which as I understand it go to the issue of truss fabrication. When it was raised with him that he did so only at this late stage, his response was that the insertion of these additional drawings on the Forms was not required and he merely did it because he was asked to do so.^[77]
126. [126]
     In general terms I observed Mr McKenzie to be overly defensive. Whilst this might be expected given the complaint made against him as a professional engineer, which is said to have been that he fraudulently produced the original Forms 15 and 16 that were tendered in this proceeding, in my opinion it is not an excuse for him to have been so defensive. He was giving evidence in the hearing before me and accordingly should be expected to give his evidence in a forthright and direct manner.
127. [127]
     Save only for the provision of the new Form 15, which as I understood the applicants’ case was then that they accepted it to have validly addressed their complaint on the issue of a non-compliant Form 15 having been provided, his evidence was otherwise of no assistance to me.

Consideration of the Substantive Issues

128. [128]
     As I noted it earlier in paragraphs [66], [67] and [72] herein, the applicants’ Counsel’s closing submissions couched the allegedly defective work items in two categories. Whilst not in the order expressed in the FASOC or in the closing submissions, I will also group them in that manner. As I see it, the first group is of those items that the applicants say must be rectified and thus I infer their case is that it is not open for the respondent to have deviated from the Specifications in any way, whereas the second group is of those items that fall to be determined based on other criteria.
129. [129]
     There are also four threshold aspects of the evidence of rectification that in my opinion is prudent to mention before starting on the detailed discussion of each item of work.
130. [130]
     The first is that, in all respects save only for the vinyl flooring issue, I did not see any reason on the evidence that was before me to consider the course of conduct being proposed in terms of rectification was unreasonable. Thus the Diminished Value Argument did not arise except for the vinyl flooring.
131. [131]
     The second is that, ultimately, it did not seem to me that I needed to enter into a discussion in any great detail on the Degree of Non-conformity Issue. In my opinion the nature of the defective work complained of was such that there was simply an absence of compliance with design requirement, manufacturer’s specification, or acceptable building practice. It could readily be said to simply be bad building and so was defective requiring rectification.
132. [132]
     The third is that the estimate of costs of rectification given by Mr Brooke was explained by way of separate costs for each item of work, with the addition of costs for a final clean of the house on completion, and the addition of costs of preliminaries covering the entirety of the work said to be required, such having been given as separate line items. I have considered and discussed the costs issued in that way.
133. [133]
     The fourth is that Mr Brooke’s individual costings are GST exclusive for each line item, with GST being added as a single line item on to the sub-total of all the costs. I have done the same in my assessment and discussion on each.

Defects which the applicants say must be rectified

Truss tie downs

134. [134]
     The applicants’ complaint is that the brackets fixing the trusses to the structure have not been installed in a manner compliant with the structural design. In some instances the Tex Screws fixing the brackets to the trusses have not been driven to their full depth on the vertical face of the bracket. In other instances only two fixings have been used on the horizontal face of the bracket to fix the brackets to the structural top plate of the walls instead of the requisite four hold down fixings.
135. [135]
     The complaint is complicated because as constructed not all fixings are readily able to be viewed due to a lack of reasonable access, thus an assumption is made that because those which are viewable are not consistent with the design requirement, the remainder are most likely the same.
136. [136]
     The claim is thus for the cost of rectification which Mr Brooke opines would require opening up part of the roof to access the remainder, and the carrying out the requisite rectification work to the identified fixings.
137. [137]
     As to the fact of the screws not driven to their full depth, as expressed in Mr Florence’s report:^[78]

Some loss in capacity is expected as the eccentricity of the load may result in bending moment loads applied to the screw instead of a pure sheer load as intended.

All loose screws must be fully driven, or additional fully driven screws added to the … bracket.

Due to the nature of the low pitched roof, STP only inspected connections that were easily accessible from the ceiling cavity. Further defects may be found with a more easily acccessed (sic) roof such as one with roof sheeting removed. As such, STP would recommend that roof sheeting be removed in order to assess and rectify all truss connections.

138. [138]
     As to the fact that only two hold down fixings have been used and not the requisite four as specified in the design engineer’s details, Mr Florence simply opines it is a defect because it does not accord with the design requirement.
139. [139]
     In cross-examination of Mr Florence, the respondent’s solicitor advocate put to Mr Florence that in fact six fixings have been used in the bracket thus the installation is acceptable construction.^[79] Mr Florence agreed that from what he observed six fixings had been installed, but that two of them were not driven to their full depth, and that there were only two fixings in the horizontal hold down position, thus the work is defective as the fixings are insufficient.
140. [140]
     Mr Brooke’s evidence on this issue goes primarily to the cost of rectification but also to the method of rectification,^[80] he expressly concurring with the opinion of Mr Florence.^[81] As I understand his evidence and costing, it is consistent with the opinion of Mr Florence.
141. [141]
     When an alternative method of access was raised with Mr Brooke under cross-examination, namely when internal walls are removed that will then open up the roof space,^[82] his response was that he did not agree it would be an acceptable alternative because it would be to a limited area only.
142. [142]
     Mr Morgan’s evidence in response is somewhat convoluted. Firstly he references a drawing prepared by NQ Steel Frames for the respondent, which I understand to be a truss fabrication drawing, which specified only two hold down fixings rather than the four fixing shown on the design drawing which he described as being a “generic sheet … which was certified by Steve (sic) Mckenzie (sic) Consulting Engineer”.^[83]
143. [143]
     In response to the opinion expressed by Mr Florence (noting it was the earlier opinion of Mr Pease) he asserts that the loss in strength in the connection is a known variable, asserting that the designers of the connection were required to have considered all known variable when they assessed the load acting on the trusses and the fixings, and that they have done so and found them to be acceptable.^[84]
144. [144]
     He then goes on to assert the Order of Precedence Argument applies and then, remarkably for an expert engineer, expresses an opinion as to the operation of Queensland law that gives priority to the Form 15 and Form 16 over any other construction documentation/specification.^[85] This is an example of one of those issues I referred to earlier as being where Mr Morgan’s evidence went well outside his area of expertise and was far from satisfactory.
145. [145]
     Mr Morgan also gave some oral evidence in chief. In responding to the questions posed of him by the respondent’s solicitor advocate, as I understood that which Mr Morgan was saying, it was an apparent attempt to explain what he considered the design of the building components to be and the manner in which the components worked structurally, rather than to address with specificity the complaint of non-compliance with the Specifications. In particular, I noted he asserted that the general fixing detail upon which the complaint is premised did not account for the fixings within the truss itself. In saying so it seems to me that Mr Morgan was then attempting to give evidence of what the truss design was without actually having been the truss designer or commenting on evidence given by the truss designer. This is another good example of the unsatisfactory nature of Mr Morgan’s evidence and his apparent misunderstanding of his role as an expert in this proceeding.
146. [146]
     As to the issue of the Tex Screws not having been driven full depth to the vertical face in some instances, under cross-examination he accepted that the holding capacity would be reduced, but said that a calculation of the resulting torque would be required to determine the extent. Yet, Mr Morgan had not done that calculation, or at least no such calculation was in evidence.
147. [147]
     Finally, on the issue of the relevant Form 16, he concurred with the proposition put to him by the applicants’ Counsel that if the construction is not as per the design drawings then the Form 16, to the extent it purports to certify the construction of the truss installation, is of no effect.
148. [148]
     As I heard and comprehended Mr Morgan’s evidence, I was left with the conclusion that he was attempting to justify the respondent’s conduct of deviating from the design to be acceptable. What however was noticeable is that Mr Morgan’s opinion was that the design only required four fixings in total to the bracket, whereas in fact the design drawings showed six, an issue he subsequently accepted as correct when I raised it with him. Overall this suggested to me he had not properly and comprehensively considered the issue in terms of the complaint made.
149. [149]
     Finally, whilst the cross-examination of Mr Morgan on this issue was extensive, one particular answer was to me telling as to the probative value of his opinion. He admitted that:

     1. (a)
        whilst he had inspected the entirety of the works for the purposes of preparing his report such inspection took a mere 35 minutes; and
     2. (b)
        whilst he was not in any way prevented from inspecting the roof, he did not personally inspect the tie downs but rather based all of his report on this issue on photographs he had been shown, and what he had read in Mr Brooke’s report which contained the original report of Mr Pease.
150. [150]
     In all respects, save only for the admission he made as to the effect of the Form 16 in the absence of the work having been constructed to meet the design requirement in terms of the fixing, I give Mr Morgan’s evidence on this issue zero weight. As I have noted it earlier I preferred the evidence of Mr Florence and Mr Brooke as to the item of work being defective. The design requirement, and thus the Specifications, was very specific in terms of the manner of fixing the truss tie downs. This is a structural issue and it is not for the respondent as builder to deviate without the approval of the design engineer, none of which was apparently requested or forthcoming given the absence of same within the evidence.
151. [151]
     Mr McKenzie also gave some brief evidence on this issue, which as I have noted was apparently in support of why it is said his Form 16 was satisfactory. His evidence was that whilst he had attended the site and inspected the tie-downs, and was satisfied that all were OK, under cross-examination he confirmed that he did not specifically inspect the truss bracket connections and did not observe the locations where some screws were not driven to their full depth. For this reason I do not accept Mr McKenzie’s evidence on this issue as having any probative value.
152. [152]
     As the applicants’ Counsel succinctly put it in his written closing submissions:^[86]

Whilst the effect of these defects on the overall integrity of the roof is unknown, what is not unknown is that the Builder has not complied with the Contract …

The Builder has produced no re-design of the engineering drawings that would render the works, as constructed, compliant with the Contract.

This is not a minor defect, especially in an environment prone to tropical cyclones.

153. [153]
     Mr Brooke calculates the cost of rectification of this item at $28,400.^[87] This is not challenged in any way.
154. [154]
     I accept the applicant’s case on this issue as being the correct one. I find that the work as constructed and complained of is defective, it not being compliant with the Specifications and deviation therefrom in the manner constructed is not permissible. I also find that the rectification required in the manner described by Mr Brooke is reasonably required to remedy the defect, and that the cost of doing so is as estimated by Mr Brooke. I thus allow the applicants damages in the amount of $28,400.

Gable end bracing

155. [155]
     The complaint here is as Mr Florence records it in his report. It is that the gable end bracing is not installed to the gable truss, with the result that deflection to the bottom cord of the gable truss under high lateral winds could allow water ingress and structural damage to occur. Whilst the drawings forming part of the Specification show only a typical detail for the required works, and not the requisite degree of spacing, it is recommended that gable end bracing be installed to a design to be given by a truss manufacturer or a structural engineer.^[88]
156. [156]
     Mr Brooke adopts that opinion.^[89] He estimates the cost of rectification at $6,500.^[90]
157. [157]
     Mr Morgan’s report is again extensive on this issue.^[91] As I read his report, he seeks to diminish any meaning that could be placed on the design engineer’s typical detail instead referencing the truss manufacturer’s design documentation. Similar to the last issue, he then seemingly seeks to explain the basis for the design, and in turn references the fact of a Form 15 having been given by the design engineer such that the design is thus satisfactory.
158. [158]
     In my opinion a lengthy discussion on the competing evidence on this issue is not required. The arguments and issues are in essence the same as they were for the truss tie-down issue. It also seems to me that the competing position can best be summed up by the comments attributed to Mr Brooke and in response to Mr Morgan in the Joint Expert Report.^[92]

     1. (a)
        Mr Brooke

Gable end bracing may not be required if the gable wind truss has been provided to distribute loads. The Conclave could not agree without the Design Engineer providing further design calculations.

2. (b)
   Mr Morgan

It was agreed that better and fairer information is needed to reach agreement, Further information is needed to assess if any knee bracing is required for the gable trusses. To this end it is desired that a formal request be made to the Design Engineer Mr S McKenzie and manufacturer, North Queensland Steel Frames to provide the design advice relating to the gable truss knee bracing.

159. [159]
     Curiously, notwithstanding that comment by Mr Morgan in the Joint Expert Report, and the content of his original report, as I understood the cross-examination of him on this issue is that he maintained the work was not defective because of the presence of a signed Form 15 for the trusses. Moreover, the respondent did not lead any other evidence in terms of what had been obtained by the making of the ‘formal request’ suggested by Mr Morgan.
160. [160]
     Once again, the applicants’ Counsel has succinctly put it in this way in his written closing submissions, which I adopt:^[93]

Whilst the requirement for such gable end bracing on a re-engineering is something that may be speculated about, the fact is that the Builder has not complied with the Contract because the works do not comply with the engineering detail shown on drawing STD-80.

The Builder has produced no re-design of the engineering drawings that would render the works, as constructed, compliant with the Contract. …

Mr Morgan’s evidence that inquiries should be made of the engineer and truss manufacturer to effectively re-assess the need for gable end bracing is speculative and unhelpful. It takes the matter nowhere and does not displace the parties’ contractual requirements. Mr Morgan’s evidence that the Builder could effectively ignore the engineering drawings and decide his own bracing detail is wrong. The engineering places form part of the Contract and must be followed. Any material deviation requires a re-engineering.

This too is not a minor defect. …

161. [161]
     I do not accept Mr Morgan’s evidence. I prefer that of Mr Florence, and in turn that of Mr Brooke in terms of the cost of rectification.
162. [162]
     Once again I accept the applicant’s case on this issue as being the correct one. I find that the work as constructed and complained of is defective, it not being compliant with the Specifications and deviation therefrom in the manner constructed not being permissible. I thus allow the applicants damages in the amount of $6,500.

External cladding

163. [163]
     The design called for the use of a specific product, namely ‘James Hardie Scyon Linea Weatherboard Cladding’. Such is a system of components. The applicants assert that the respondent failed to install the requisite accessory components referred to in the manufacturer’s installation guide, and in particular asserted the respondent trimmed all the windows and external corners with class H 2 timber, rather that the specified components.^[94] Accordingly they say the work is defective and that the 25 year manufacturer’s warranty on the system has been voided.
164. [164]
     The respondent argues that the work is not defective. Whilst he admits to the use of timber to trim the windows and external corners, he says it is H 3 timber and thus a superior product to the component in the specified cladding system, thus providing superior performance.^[95]
165. [165]
     The evidence of Mr Brooke was not substantially challenged during cross-examination. The claim as pressed is premised on his original report.^[96] In his subsequent statements he also raised this issue but did not advance anything further of substance that was germane to the decision I have ultimately reached on this issue.^[97]
166. [166]
     He costs the rectification of this item of work at $32,800.^[98]
167. [167]
     When Mr Morgan gave some elaboration on his report during his evidence in chief, specifically being asked by the respondent’s solicitor advocate as to whether the manufacturer’s specification should have been complied with by the respondent his answer was somewhat evasive, simply asserting “Dependant on what is being asked to be done”.
168. [168]
     Mr Morgan was extensively challenged on this issue by the applicants’ Counsel under cross-examination. When he was referred to the specific notation on the ‘General Notes’ included in the Plans, and thus the Specifications, that required external cladding to be fixed as per manufacturer’s specification his response was to agree that it referred to the external cladding being fixed to the timber walls but curiously asserted that this does not mean it was required to be installed as per the manufacturer’s specification the latter merely being what Mr Morgan described as a ‘guideline’. When also referred to relevant other parts of the drawings specifying compliance with manufacturer’s specification, he once agreed that this was a reference to the cladding but not the flashings or other accessories. As I observed him, he was being evasive.
169. [169]
     Mr Morgan was then referred to various parts of his report wherein he referred to certain documentary material which he stated supported his opinion. In particular he was referred to the fact he had referred to an extracted detail for installation of eaves and soffit connections something being entirely unrelated to the matter in issue, as well as a technical specification for external cladding using a product different from the specified Scyon Linea system. As his opinion was expressed, it was that these documents support his assertion as to the permissible use of the timber. As the applicants’ Counsel aptly put it, this asserted supporting documentation was entirely irrelevant to the matter in issue and so his report was erroneous in this regard. Whilst Mr Morgan ultimately accepted the error in his report he did not change his opinion.
170. [170]
     As to the asserted use of H2 timber, and his competing opinion that H3 was used, he initially accepted under cross examination that it was H2 timber but then changed that and later said he really did not know what type of timber was used. Under re-examination he said that his opinion that H3 was used was based on the information he had, being nothing more than a delivery docket for H3 timber to the project, and thus it was more likely than not H3 was used, but he could not really say for certain. But he did agree that H3 timber is the minimum required under relevant Timber Queensland data for above ground use, and also agreed that regardless of whether it was permissible to deviate from the manufacturer’s specification and use timber, what was installed was not compliant with relevant standards.
171. [171]
     In all respects, once again the evidence of Mr Morgan cannot be accepted. Not only was it confused it was in error and otherwise without substance. In part it was premised on incorrect data and otherwise premised on a very broad and bare assumption.
172. [172]
     I accept the evidence of Mr Brooke. Accordingly I find that the work as constructed and complained of is defective. It was not compliant with the Specifications with the degree of deviation therefrom being impermissible given the nature of the work in question. I also find that the rectification required in the manner described by Mr Brooke is reasonably required to remedy the defect, and that the cost of doing so is as estimated by Mr Brooke. I thus allow the applicants damages in the amount of $32,800.

Window frames and glazing

173. [173]
     This issue is related in part to the last item to the extent of the timber trims being installed in error to the windows. However, as the matter was pressed in the hearing it was that the windows to the main bathroom and the bedroom have stickers placed on them such that they are referenced as being of a standard non-compliant with the code requirements for windows and frames to meet C2 wind loading. This is as reported on by Mr Brooke.^[99] He estimates the cost of rectification of these two windows at $4,000.^[100]
174. [174]
     In defence, the respondent relies on the report of Mr Morgan.^[101] Once again as I read Mr Morgan’s report his opinion is premised on the existence of a Form 15 given by the window manufacturer, and an assertion that corner windows, being as I understand Mr Morgan’s evidence that this is the nature of the windows in question, are made stronger than other windows used in the house and therefore the windows supplied and installed are code compliant.
175. [175]
     In the comment attributed to Mr Morgan in the Joint Expert Report, it seems to be that his evidence is also that in a conversation had with the window manufacturer, although Mr Morgan does not say who the persons were in that conversation, the manufacturer was prepared to “replace any defective information stickers to the windows”, thus suggesting that the defect was the sticker and not the window itself.
176. [176]
     The statements/reports as filed were not helpful to me in considering this issue due to an absence of clarity within them. What was however abundantly clear was that it was entirely uncertain whether the windows were incorrect for the location in terms of wind classification, or simply they were incorrectly labelled with the stickers. Thus I was reliant on the additional evidence obtained by cross-examination.
177. [177]
     There was no cross-examination of Mr Brooke, and only limited cross-examination of Mr Morgan. During the latter I put the proposition to Mr Morgan that ultimately he did not really know if it was a matter of simply an incorrect labelling of the windows or whether the windows as installed did not comply with the code requirements, to which he agreed.
178. [178]
     Ultimately, on the relatively bare evidence on this issue as it was presented to me, and turning mostly on that one question/answer between myself and Mr Morgan, on the balance of probabilities I accept the evidence of Mr Brooke given that what is clear is that the two windows in question are labelled in a manner that describes them as being windows which are non-compliant.
179. [179]
     Accordingly I find that the work as constructed and complained of is defective. It was not compliant with the Specifications with the degree of deviation therefrom being impermissible given the nature of the work in question. I also find that the rectification required in the manner described by Mr Brooke is reasonably required to remedy the defect, and that the cost of doing so is as estimated by Mr Brooke. I thus allow the applicants damages in the amount of $4,000.

Reinstalling the solarspan skillion roof

Receiver channel for insulated panels

180. [180]
     As I understand the evidence, these two issues are related. Notwithstanding that the applicants’ Counsel grouped the second of these two in the ‘other defects’ category as I have noted it earlier in these reasons, it seems to me proper that they be considered together such being the manner in which the cost of rectification has been dealt with by Mr Brooke.
181. [181]
     The applicants assert that the respondent has failed to attach the free standing skillion carport roof to the new southern wall of the house in accordance with relevant manufacturer’s specifications, particularly that the roof pans have not been turned up to the full rib height, the receiver panel is not a snug fit, the rivets to the underside are not at 300mm centres, and there is no vermin strip installed.^[102]
182. [182]
     As to the second of these two allegedly defective items of work, the applicants allege that the respondent failed to fix the receiver channel as directed on site by the engineer Mr McKenzie because he failed to appropriately weld the channel, nor properly fix the insulated panel to the receiver channel.^[103]
183. [183]
     That is the substance of Mr Brooke’s report on this issue. He also goes on to opine that there is a danger the carport roof thus could become airborne in high winds, and to remedy the defects he says the carport roof needs to be removed and the receiver channel properly attached, but that before it can be done other defective items to the house roof needs to be rectified.^[104]
184. [184]
     Mr Brooke gave some further evidence on this issue in one of his supplementary statements wherein he also comments on the absence of vermin proofing and the provisions of the manufacturer’s specification and installation guide for the product being used.^[105]  He estimates the cost of rectification at $9,200.^[106]
185. [185]
     This is also discussed in Mr Florence’s reports. In the first of those, the following statement appears: ^[107]

The receiver channel must be rectified as a matter of structural integrity. It is likely that the insulated panel will be removed from the roof in any high wind events as there is currently limited tie down provided.

The receiver channel must be installed to the original engineers (sic) detail and the insulated panel must be positively fixed to the receiver channel using a 14/20/25 Tek Screw to each rib and 3/16 rivets installed to the underside of the channel at 200 max centres.

186. [186]
     In the second of those this statement appears:^[108]

… Welding the receiver channel is now not a safe option because of the risk of fire. If it is not possible to fix through the outer side of the receiver channel (which would necessitate removing the insulated roof panels) I consider that a viable alternative for rectification is to attach a 90 degree bracket with a tek screw at each point where the receiver channel attaches to the truss verticals and steel posts.

… the depth of the receiver channel is greater than the depth of the roof panel such that the over tolerance gap needs to be packed by the installation of a continuous span metal spacer.

187. [187]
     Once again the respondent defends the claim based entirely on the report of Mr Morgan.^[109] Mr Morgan’s report is somewhat lengthy and in my opinion it can be distilled down to these opinions:^[110]

     1. (a)
        It is agreed that the receiver channel requires additional work in terms of topside fixing, and that pop rivets are missing; and
     2. (b)
        There is no requirement for the respondent to have turned up the rib ends nor install vermin proofing, because it is reused second hand material that was not previously installed in that manner.
188. [188]
     In the Joint Expert Report, in the comments attributed therein to Mr Morgan, as I read it he agreed that the connection detail is defective and requires rectification but with an alternative fixing method, such as a bracket and screw fixing, which as I understand it is the alternative Mr Florence proposed in his second report. He also agreed that a continuous span metal spacer should be installed.
189. [189]
     In his oral evidence given under cross-examination, Mr Morgan also made these statements and concessions:

     1. (a)
        He had not inspected the work in question;
     2. (b)
        He accepted that it is now not safe to carry out welding in rectification;
     3. (c)
        He maintained his opinion that the absence of the rib ends having been turned up is acceptable given it is a pre-existing roof that was being modified and thus it was acceptable to ignore the manufacturer’s installation guide for the works;
     4. (d)
        Notwithstanding the statement in his report that for the same reason vermin proofing need not be installed, he accepted that the contract drawings, thus the Specifications, expressly required that all gaps be sealed for vermin proofing but such was not done in this circumstance; and
     5. (e)
        He accepted that the manner in which the work was done was not good building practice.
190. [190]
     Yet again, save only for his concession that some work is required and his agreement as to the rectification of the connection detail and the installation of a metal spacer, I do not accept Mr Morgan’s evidence. Nor do I accept the respondent’s advocate solicitor’s closing submission that because it was the original carport roof it did not form part of the Specifications. In my opinion once the respondent as builder took on the task of removing and reconstructing this part of the existing work and connecting it to the reconstructed house it did not matter that he was reusing existing materials. He should still have constructed the new work using those existing materials in a way that complied with the relevant manufacturer’s specifications, or at the very least in a manner that was consistent with good building practice. But he did neither. Nor does it appear that he followed the requisite design information in terms of fixings. Thus he has left part of the construction in a defective state prone to damage in high winds.
191. [191]
     In that regard I prefer the evidence of Mr Florence and Mr Brooke. Accordingly I find that the work as constructed and complained of is defective, it not being compliant with the Specifications and deviation therefrom in the manner constructed being impermissible. I also find that the rectification required in the manner described by Mr Brooke and Mr Florence is reasonably required to remedy the defect, and that the cost of doing so is as estimated by Mr Brooke. I thus allow the applicants damages in the amount of $9,200.

Other Defects

192. [192]
     I thus now turn to the remainder of the defects, which as I noted it in paragraphs [67] and [72] herein the applicants’ Counsel submits are to be decided outside of the tests in Carlsen. For the reasons I give in the following paragraphs I agree. It is not a test of permissible deviation although for completeness I have noted where I considered that the work in question would not be a permissible deviation. However there was one issue, namely vinyl flooring, which did fall to be considered in terms of one aspect of the consideration which arose in Carlsen, but not in terms of permissible deviation rather in terms of cost-of-cure vs diminished value such being an application of the principles established in Belgrove v Eldridge.

Eastern soffit

193. [193]
     The applicants’ complaint is that the respondent has installed a broken soffit sheet in the eastern soffits that requires replacement with possibly additional support.^[111] This is as Mr Brooke reported it.^[112] In one of his subsequent statements he also addressed it, on that occasion noting that based on a subsequent inspection the supports are installed compliant with the manufacturer’s specification thus disposing of the allegation that possibly additional support is required.^[113]
194. [194]
     Mr Brooke opines the cost of rectification at $900.^[114]
195. [195]
     In his defence, the respondent disputes liability asserting it is a maintenance issue.^[115] He does so reliant on the report of Mr Morgan.^[116]
196. [196]
     Whilst the applicants’ Counsel submitted that this is an agreed defect,^[117] I did not understand the respondent to have so agreed. Rather, as I understand the respondent’s case at the conclusion of the hearing and his solicitor advocate’s submission in closing, he maintained it to be a maintenance issue but was willing to rectify it and sought an order that he be required to do so.
197. [197]
     This can be disposed of with little discussion. The case against the applicant is one of defective work for which the applicants seek a payment of damages. The respondent defended that case solely on the basis that the work is not defective. He did not run an alternative case against the claim for damages, being that if the work was found to be defective he should be permitted to rectify it and such it be ordered accordingly. As the applicants’ Counsel put it in his short oral responsive closing, correctly in my opinion, if a claim for such relief was advanced by the respondent the applicants would have produced other evidence to meet it.
198. [198]
     Put simply, in my opinion it is too late for the respondent to concede that work is defective, or at the very least concede that some maintenance is required to be done to parts of the work, and in turn seek an order entitling him to rectify it. The case against him is a claim in damages and the outcome is he either defends successfully such a claim or he be ordered to pay damages. Despite that, as the respondent’s advocate solicitor submitted in his closing submissions, I am afforded broad powers under the legislation to order rectification, in my opinion it is not open now for the respondent to seek such relief. He had the opportunity to do so previously and he did not take it up. There is now not an in-between available on the cases as they have been advanced.
199. [199]
     In all respects I find the work requires rectification and that the respondent should meet the cost of doing so. Notwithstanding Mr Brooke’s subsequent statement that the fixings are compliant, thus a reduction of the scope of the original complaint, the estimated cost of rectification given by Mr Brooke was not challenged and accordingly I accept it as being valid. There is no basis upon which I could reduce it, other than arbitrarily, to allow for the reduction in scope of the complaint. It may be that it is a minimal cost in any event. I thus allow the applicants damages in the amount of $900.

Harditex blueboard installation

200. [200]
     The applicants’ complaint is that the Blueboard Installation externally is defective because control joints have been omitted from the gables and southern wall, contrary to the requirements of the HardiTex System installation guide.^[118]
201. [201]
     Such is the opinion of Mr Brooke.^[119] He estimates the cost of rectification at $3,200.^[120]
202. [202]
     The respondent denies the allegation reliant on the content of Mr Morgan’s report.^[121] However, Mr Morgan’s report is expressed in a curious manner, with him asserting that he does not “disagree entirely with [Mr Brooke]” agreeing that expansion joints have not been installed as per the manufacturer’s manual, but says that the work is still in accordance with “accepted practices or standards applied in the building and construction industry for the materials”.^[122] Notwithstanding that opinion in his report, under cross examination he effectively conceded that control joints should have been installed.
203. [203]
     Seemingly on the basis of that concession, in his oral closing submissions the respondent’s solicitor advocate said that the respondent concedes that the control joints have not been provided and that they should have been. It was unclear to me whether the respondent in that instance was also seeking an order under which he would rectify the work, but even if he were doing so I would not have allowed it for the reasons I have just given under the last heading. The appropriate relief should be an award of damages.
204. [204]
     Once again the costing evidence of Mr Brooke was not challenged. In the absence of same I have no reason to not accept it.
205. [205]
     In all respects I find the work requires rectification and that the respondent should meet the cost of doing so. I thus allow the applicants damages in the amount of $3,200.

Covered entry to western elevation

Front patio hardwood posts

206. [206]
     These two items were addressed separately by the applicants’ Counsel in his written closing, but it seems to me that it is convenient to deal with them together.
207. [207]
     The applicants complain that the construction of the covered entry to the western elevation of the house is defective because the gap between the roof of the entry and the wall of the house has not been flashed, and that the timber posts have been set less than 75 mm above the porch slab, such being the minimum distance to allow for inspection in terms of termite activity.^[123] Mr Brook costs the rectification of all this work at $1,514.^[124]
208. [208]
     Despite defending the allegations denying it was a defect,^[125] and Mr Morgan’s report supporting same in terms of the absence of flashing, an opinion he maintained under cross-examination, Mr Morgan conceded that the posts need to be cut back.^[126] On questioning from me during his cross-examination by the applicants’ Counsel, Mr Morgan also conceded that it would be good building practice to have flashed the roof to the blueboard cladding.
209. [209]
     Once again seemingly in recognition of those concessions, in his oral closing the respondent’s solicitor advocate said that the respondent accepts the work is incomplete and a flashing is required. Whilst he did not say anything about the posts, I infer that this was also accepted.
210. [210]
     Again it is not an issue of an order for rectification, but one of a claim for damages. Mr Brooke’s evidence on the costs of rectification was not challenged and for the same reasons I have given in terms of other issues I thus accept it.
211. [211]
     Accordingly I find the work requires rectification and that the respondent should meet the cost of doing so. I thus allow the applicants damages in the amount of $1,514.

Internal wall frames, wall linings and ceilings

212. [212]
     The applicants assert extensive defects in the internal walls manifesting in cracking of wall and ceiling linings, as well as bowing of walls throughout the house.^[127]
213. [213]
     Mr Brooke reported on this extensively.^[128] He opines the cost of rectification at $27,956.22 said to be based on the scope of works provided by FMPAC.^[129]
214. [214]
     The respondent defended the claim denying the allegations entirely, such being based on the report of Mr Morgan.^[130] Mr Morgan addresses this in his report in some detail, but in somewhat of a confusing and unclear manner he refers to some items of work seemingly agreeing it is defective but other work is not. One reason for the lack of clarity is that Mr Morgan has purported to give evidence of finding made by the QBCC in response to defective work complaints and also outcomes of mediation, all of which have no place in an expert’s report.^[131] Moreover any QBCC findings are not in evidence. For that reason, his report is unhelpful.
215. [215]
     There was however no cross-examination of Mr Morgan on this issue by the applicants’ Counsel. Counsel seemingly explains why that was so by the content of his written closing. Therein he states that the issue is only pursued to the extent that it was agreed in the Joint Expert Report.^[132]
216. [216]
     Turning then to the content of the Joint Expert Report wherein the following appears as being a statement of common ground:^[133]

The Conclave did agree that there are walls that require to be straightened and repair[ed]. … The works discussed included the Kitchen, Dining Room, Hall, Bedrooms 1,2,3,4, Laundry, Bathroom, Ensuite and Walk0in Robes as detailed in the FMPAC Trade Breakup 22/02/21 Pages 2-5.

217. [217]
     There were other words included in this statement of agreement when it was drafted by Mr Brooke, but which Mr Morgan responded to asserting a disagreement saying they should be deleted. They concerned the issue of the repair work being done after forming access to carry out the roof repairs.
218. [218]
     What is interesting about that response from Mr Morgan to the content of the draft report prepared by Mr Brooke is that, under cross-examination on the issue of the defective truss-tie down it was Mr Morgan who suggested that the rectification could be done from inside the house by opening up the ceiling at the time the rectification of the bowed and defective internal walls was carried out. Mr Morgan even went to the extreme of marking up a plan showing where that would need to be done, such being to the external wall of the Walk In Robe, the Dining area, and the Entry area.^[134] This is yet another example of the inconsistency and confusion in Mr Brooke's evidence that diminished its probative value.
219. [219]
     This issue was not the subject of any meaningful submission by the respondent’s solicitor advocate in his oral closing. At its highest he made a comment about the issue being one of ‘square set cornices’ which respectfully I did not understand, but as was responded to by the applicants’ Counsel in his short reply to say such was not an issue in this proceeding.
220. [220]
     On my review and understanding of the evidence as presented, it seems to me common ground that rectification of the internal walls is required, and that the extent of it is as proposed in the FMPAC Trade Breakup document, which I find was prepared by Mr Morgan. The costings of that information by Mr Brooke was not challenged and as such I accept it.
221. [221]
     Accordingly, I find the work is defect and that it requires rectification, that the complaints are not permissible deviations, and that the respondent should meet the cost of doing so. I thus allow the applicants damages in the amount of $27,956.22.

Vinyl flooring

222. [222]
     The applicants assert that the respondent has installed the vinyl floor coverings unsatisfactorily, and in some sections it appears he has applied a coloured sealant in an unsuccessful attempt to camouflage the joints.^[135] This is as stated by Mr Brooke in his report. He continues therein to opine that the only remedy is to remove and relay the vinyl floor.^[136]
223. [223]
     The quantum of the damages claimed is estimated by Mr Brooke to be $20,000, said to be for “Remove, prepare and replace”.^[137]
224. [224]
     The respondent defends this part of the claim against him, like the remainder of his defence, on the basis of Mr Morgan’s report.^[138] Mr Morgan’s opinion on this issue is relatively short and in my opinion it is convenient to extract it in full to note the substance of the defence:^[139]

The floor coverings were purchased on the 13/06/2019 and allowed to acclimatise on site prior to being loose laid by a qualified tradesperson.

All care has been taken by the Builder to ensure a quality finish [to] the floor coverings however, the Builder is not in control of the weather and ambient conditions that prevail at the site location. Ambient conditions for example are humidity and temperature. These two variables can cause a floating floor to expand and change dimension and move around to open up end joints.

The provision of floor coverings is not building work. Floor coverings are covered by a manufacturer’s warranty. These warranties are ported to the owner. If the owner feels that they have a warranty issue with the product that they selected it is recommended that they contact the manufacturers.

225. [225]
     Some further oral evidence-in-chief was allowed to be taken from Mr Morgan on this issue, wherein he added the following comments:

Vinyl is a polymer that can shrink and expand. Vinyl flooring should be acclimatised before laying. Once A/C is turned back on it shrinks back.

226. [226]
     He was then asked by the respondent advocate’s solicitor if the floor was functioning as required or whether there was a faulty installation that can cause a defect, to which his response was:

Not present in the flooring.

227. [227]
     Under cross-examination Mr Brook was not challenged by the respondent’s advocate solicitor, whereas under cross-examination Mr Morgan was challenged by the applicants’ Counsel.
228. [228]
     Mr Morgan was referred to photos in Mr Brooke’s report wherein, as it was put to Mr Morgan, one of the photos showed the use of a dark coloured sealant to fill gaps in the flooring.^[140] Mr Morgan’s response was:

This is a shrinkage of the product, therefore a claim under the warranty of the product.

229. [229]
     In my opinion, once again Mr Morgan was being evasive in giving this answer.
230. [230]
     Under re-examination he was asked as to whether the choice of vinyl flooring was an ‘owner’s specification’ to which he simply answered ‘yes’ but without in any way saying how he knew this to be so.
231. [231]
     As I understand the evidence, the vinyl flooring in issue is a loose laid vinyl panel system manufactured to resemble timber and thus, once laid, have the appearance of a timber plank or mosaic floor. As I observed the photos contained in Mr Brooke’s report, it being what I infer is indicative of what he observed in his inspection on site, it seems to me that it could readily be said that a dark coloured sealant has been used to fill a gap between some floor panels, and that the laying of the floor is not of the best level of workmanship. Such seems to be the basis for the opinion expressed by Mr Brooke based on his inspection in his capacity as a building consultant.
232. [232]
     As to the evidence of Mr Morgan, in my opinion its probative value is Nil. Firstly, his expertise in the manufacturer and placement of the flooring system, and the manner in which vinyl panel flooring reacts to the ambient environmental conditions, was not established. Secondly his opinion, as expressed, is premised on unsubstantiated facts such as the flooring material was allowed to acclimatise, it was laid by a qualified tradesperson, and that all care had been taken by the respondent to ensure a quality finish. Thirdly, the source of his assertion that the selection of the product is an owner specification has not been established such that it could be accepted in any way as a correct fact.
233. [233]
     In all respects Mr Morgan’s evidence is replete with bare assertions and the source of those asserted facts has not been identified in his report, nor otherwise established by other evidence led in the hearing. Thus, they carry no weight. Moreover, his bald assertion that it is an issue under the warranty which he says the applicants have the benefit of, and thus the applicants should take up the complaint with the manufacturer, is also something that carries no weight. Notwithstanding him making this statement and expressing an opinion beyond the field of expertise in which his report should be contained, he has not identified what defect is in the flooring material that would give rise to a claim under the manufacturer’s warranty, nor has he explained nor has it been otherwise established by independent evidence led by the respondent, as to how it is said the applicants are the beneficiaries of the asserted warranty. It also overlooks the contractual responsibility and accountability cast upon the respondent for materials that were supplied by him under the contract, such including the vinyl flooring, all as properly and appropriately highlighted by the applicants’ Counsel in his written closing submissions.^[141]
234. [234]
     In my opinion Mr Morgan’s evidence is of zero value. Once again Mr Morgan has gone well beyond his role as an expert in this proceeding, and the manner in which he has approached this issue is a very good example of what an expert should not do, it being entirely inconsistent of what is expected of an expert giving evidence and appearing in this jurisdiction.
235. [235]
     Thus I am left to deal with this matter on only the opinion evidence of Mr Brooke. That being said, I am unable to discern on his evidence the extent to which it can be properly said that the floor is so defective as to require complete removal, preparation, and replacement. Moreover, there is no evidence before me to show why the remedial work must be such so as to address the question of whether it is a reasonable course of conduct to undertake.
236. [236]
     It may very well be that what the applicants have ended up with is a finished product that is nothing more than one of an inferior finish as a result of poor quality tradesmanship. The evidence before me does not go so far as to show me that the cost-of-cure asserted as necessary trumps the issue of diminished value. As such I am unable to accept Mr Brooke’s estimate of $20,000 in cost to rectify the asserted defect.
237. [237]
     For that reason I do not allow the applicants the claim they make. I do however accept on the basis of Mr Brooke’s evidence, as I have noted unchallenged under cross-examination of him, that the finish is substandard. Thus in my opinion the applicants would be entitled to damages for diminished value. But, as I have also noted it earlier in these reasons, there is an entire absence of any claim for or evidence of the diminished value.
238. [238]
     Accordingly, notwithstanding that the respondent’s defence effectively fails given the absence of any weight being attributed to Mr Morgan’s evidence and nothing else proffered by the respondent to defend the claim, in the absence of that alternative claim or evidence of diminished value the applicants do not succeed in obtaining an order for damages for this item of work. I have allowed the value of it at $0.00 in my calculation of the overall quantum of damages.

Painting doors

239. [239]
     The issue is that the doors have not been painted top and bottom, that this is a defect, and that to remedy it the doors need to be removed, their top and bottom surfaces painted, and the doors rehung. The cost of this is said to be $1,350.^[142]
240. [240]
     The respondent expressly admitted the fact that the top and bottom of the doors were not painted,^[143] but defended the claim against him once again on the basis of Mr Morgan’s opinion. That opinion was that the absence of this does not affect the guarantee of the respondent as builder or the door manufacturer given that the doors are primed all round and maintained in a climate-controlled environment.^[144]
241. [241]
     Mr Brooke was not challenged in cross-examination on his opinion evidence or his estimate of remedial costs. Under cross-examination of Mr Morgan, he agreed that the top and the bottom of the doors needed to be painted,^[145] but still went on to say that the doors are all OK.
242. [242]
     In his oral closing, the respondent’s solicitor advocate did not make any specific reference to this issue, but rather seemed to me to include it within his response to the ‘Painting’ issues which as pleaded in the FASOC included both this item and the next item discussed in these reasons. He simply said that if it is defective it is a minor issue to be addressed by the respondent, which I understood to be part of the issue he had raised about the prospect of an order being made for rectification requiring the builder to do certain work. I have already discussed this earlier in these reasons and explained why such an order will not be made. I need not repeat it here.
243. [243]
     I accept the evidence of Mr Brooke in terms of the work being defective, the nature of the remedial work being required, and its cost. It is effectively unchallenged, and in my opinion it is an entirely reasonable course of conduct to take.
244. [244]
     For these reasons I allow the applicants damages of $1,350.

Architraves and trims

245. [245]
     The applicants’ complaint is that the respondent failed to adequately prepare the architraves and skirting boards for painting by neglecting to recess the fixing nails, putty the recessed nail holes, and then sand the putty prior to painting.^[146]
246. [246]
     Such is as expressed in Mr Brooke’s report, albeit in a slightly different manner and therein seemingly limiting the work to the bedroom, laundry and ensuite architraves.^[147]
247. [247]
     The respondent challenges the claim in its entirely again reliant on the opinion of Mr Morgan.^[148] That opinion is expressed simply as this:^[149]

There is no information to support the conclusion that there is defective painting work in relation to the joinery mouldings throughout the dwelling.

248. [248]
     It was also an issue referred to in the Joint Expert Report which on this occasion in my opinion is properly referred to. It is because it raises one aspect not canvassed by either Mr Brooke or Mr Morgan in their substantive reports, namely the relevance and the application of the QBCC Standards and Tolerances Guide.
249. [249]
     As I read that report, notwithstanding the inadequacies of it to which I have referred earlier, both Mr Brooke and Mr Morgan agree the Tolerance Guide is applicable, but beyond that there is no agreement. The following statements are contained therein attributed to the two persons as follows:

     1. (a)
        To Mr Brooke:

The items that were defected (sic) were the architraves to the Bed 1, Bathroom and linen cupboard which are all in close proximity to each other in corridor locations where you are certainly at 600 max distance from the joinery fixture. These 3 are clearly in need of rectification.

2. (b)
   To Mr Morgan:

The matter is not agreed. The items of discussion conform to the acceptable limits as detailed in the QBCC Tolerance Guide and are not defects.

250. [250]
     Subsequent to the experts’ meeting from which the Joint Expert Report arose, Mr Brooke advanced some further comments on this work in his two later statements filed in this proceeding. In the first of those he refers to the QBCC Tolerance Guide expressly noting part of that document in which the following appears at section 13.3 under the heading ‘Nail and screw fixings’:^[150]

Within the first 12 months from completion of the work, fixings or unfilled depressions caused by fixings are defects in painted or stained surfaces if they can be seen from a normal viewing position.

251. [251]
     He then goes on to state:^[151]

The architraves and skirting boards to do not conform to the requirements of section 13.3 as the fixings are visible from a normal viewing position of 1.5m.

252. [252]
     In the second of those he elaborates on the details of the work in question, therein stating that the work in issue are all skirting boards in the house and the architraves around the doors to Bedrooms 1, 2, 3 and 4, the two linen press doors in the hallway, and the bathroom door. He also noted the overlap with the work as it was contained in the FMPAC Scope of Work which he costed arising under, and to which I referred earlier, the issue of the ‘Internal wall frames, wall linings and ceilings’ noting the cost for the replacement and painting of skirting boards which form part of that scope of work is not included within the scope of the remedial work for this item.^[152]
253. [253]
     Mr Brooke estimates the cost of rectification for this item of work to be $3,250.^[153]
254. [254]
     Once again Mr Brooke was not challenged under cross-examination by the respondent’s solicitor advocate, the only challenge in cross-examination being that of Mr Morgan by the applicant’s Counsel. It was short and concise. Therein he confirmed that on his inspection he had seen a few locations where some puttying was required, and when it was put to him that there were also fixings not filled that had been painted over his response was simply that he had not seen it.
255. [255]
     In my opinion the probative value of the expert evidence on this issue from both parties is limited. There are no photos provided by Mr Brooke that show the defect of what is alleged to be defective, and Mr Brooke’s evidence is somewhat confused as to what is actually required to be done, although it appears that was recognised and thus the additional detail given in the latter two statements from him. Mr Morgan’s evidence is, as is the case with most of his evidence other than the concessions he made during cross-examination of him, of no assistance given that I was left with the impression he appears to have dismissed the complaint as being de-minimis and not properly concerned himself with it. Whilst his report contained some photographs of architraves and skirtings, he merely states this: ^[154]

An inspection of the internal joinery of the house was conducted on 14/05/2021 where a number of photographs were collected. There was no visible signs of defective paint work on the joinery. …

256. [256]
     This is inconsistent with Mr Morgan’s oral evidence under cross-examination. Moreover, the manner in which the report is presented leaves open the interpretation that the photographs included are those only of where no defective work was identified as existing. It may very well be that there was defective work, as Mr Morgan ultimately conceded he saw, that was not photographed, or of which a photograph was taken but not included in the report.
257. [257]
     However that being said, I am left with the very clear impression that there is a substandard finish to the work in question, and that I can readily conclude it should be treated as being defective given the description of it, the content of the QBCC Tolerances Guide which I know to be a document current at May 2019, and the absence of any evidence before me to even suggest that Mr Brooke’s view of the work may be excessive in terms of its categorization as defective and thus the extent of remedial work required. To the extent Mr Morgan stated he had not seen the unfilled painted over fixings, as I heard and understood Mr Morgan it was not that he had looked and identified that none existed, it was that he had not seen any because he did not look or if he did look he did not see any.
258. [258]
     For these reasons, notwithstanding the nature of Mr Brooke’s evidence as I have discussed it, I find that such work does exist as it is described by Mr Brooke, that it is reasonable for the applicants to expect it should be rectified, and that what Mr Brooke proposed and has based his costing on is a reasonable course to take. In the absence of any challenge to it, I accept his evidence of the value of that work as being reasonable. Accordingly I will allow the applicants’ damages in the sum of $ 3,250 for this item of work.

Incomplete Works – Form 16 and Form 21

259. [259]
     As I have noted it earlier in these reasons, the applicants seek an order that the respondent be required to provide a compliant Form 16 Inspection Certificate for the truss installation should I decide that the truss installation is defective, and also to provide a compliant Form 21 Final Inspection Certificate for the completion of the entire works. The premise for that relief is the applicant’s assertion that this is incomplete work and that the respondent should be ordered to rectify incomplete work, such being within the ambit of this Tribunal’s jurisdiction under the QBCC Act s 77(3)(g).^[155]
260. [260]
     This issue was not the subject of any oral closing submissions from the respondent’s solicitor advocate, he seemingly taking the position that the amended Form 16 that had been provided by Mr McKenzie during the hearing was satisfactory.^[156] He did not address me on the Form 21 issue.
261. [261]
     In my opinion this issue is one that also can be disposed of with minimal discussion.
262. [262]
     I have found the truss installation to be defective and requiring rectification work to be performed for which the applicants will receive an order for the payment of damages to cover what they say is the cost of that rectification. As such, the amended Form 16 is of no use to support a Form 21 given that it will not be for the work as will ultimately be constructed once that rectification work is performed. Unless it is the respondent that is going to be the builder to perform that rectification work, there is no obligation falling upon him to provide another Form 16. Accordingly, in the absence of any order being made for him to rectify the work, such not being an order the applicants seek in this proceeding, there is no basis upon which I could now order the respondent to provide yet another Form 16. The relevant person to provide the requisite Form 16 will be the contractor who performs the rectification work to the trusses. The costs of procuring that Form 16 will be a cost of rectification, the quantum of which has been established in the applicants’ evidence without expressly excluding the provision of a Form 16 Inspection Certificate.
263. [263]
     As to the provision of a Form 21, in the absence of a compliant Form 16 Certificate for the truss installation there is no basis upon which a Form 21 can be provided. This is because the entirety of the work required to be certified before a Final Certificate can be issued has not been completed to the requisite standard. On the applicants’ own case this is so. Thus, there is no basis upon which the respondent could lawfully, until that work is completed to the requisite standard, provide a compliant Form 21 Final Certificate. The costs of procuring the requisite Form 21 will be a cost of rectification, the quantum of which has been established in the applicants’ evidence without expressly excluding the provision of a Form 21 Inspection Certificate.
264. [264]
     For these reasons, the applicants fail in their efforts to have me order the respondent to provide the required Form 16 and Form 21.

Quantum of Rectification Costs.

265. [265]
     In the paragraphs that precede this heading I have discussed each of the allegedly defective items of work constructed by the respondent and found in favour of the applicants on all but the vinyl flooring. The respective quantum of damages for each item has been identified and then brought together in the ‘Table of Rectification Costs’ that follows the paragraphs herein under this heading.
266. [266]
     There are however two additional items contained in the costings of rectification work as prepared by Mr Brooke. These are the costs of ‘Final Clean’ and ‘Preliminaries’. He has costed these as separate items.
267. [267]
     No challenge to these extra two items or the costing of same was raised by the respondent either in the evidence he presented, or in cross-examination of Mr Brooke or in the oral closing by the respondent’s solicitor advocate.
268. [268]
     I accept that upon completion of the readily apparent extensive remedial work that the applicants say is required, and I have found to be required, a full final clean of the house will be required. Mr Brooke costs this at $2,000. I also accept that such will require the cost of what may readily be described as ‘Preliminaries’ in the manner detailed by Mr Brooke, such including temporary accommodation of the applicants away from the house,^[157] storage of their furniture, supervision, engineer’s inspections, and insurance, all over a period of six (6) weeks. In total he costs the preliminaries at $58,640.^[158]
269. [269]
     Whilst there is an absence of any supporting information given by Mr Brooke as to the basis upon which he has expressed his opinion on the duration for the work and thus the costs of these preliminaries, nor the costs of the temporary accommodation, kennel costs, and storage of furniture, in the absence of any challenge to this evidence and the opinion of Mr Brooke as contained therein I accept it as being both a reasonable opinion of what is required and a reasonable estimate of the costs of same, such being based on his professional opinion as a builder and building estimator.
270. [270]
     I thus allow the applicants damages for Final Clean and for Preliminaries in the amounts estimated by Mr Brooke. These are included in the overall calculation below.
271. [271]
     Finally there is the issue of GST which needs to be added to the overall calculation, it not having been included in the separate estimates given by Mr Brooke for each of the items of work. This has been included in the overall calculation below.
272. [272]
     The total quantum of rectification costs is thus $197,681.24, being the aggregate of all the costs of rectification as shown in the Table that follows here.

TABLE OF RECTIFICATION COSTS

Costs

273. [273]
     Both the applicants and the respondent sought their costs of the proceeding.
274. [274]
     The applicants’ claim for costs was not expressed as part of their claim in the QCAT Form 26 ‘Further Amended Application for a Domestic Building Dispute’ filed 13 October 2022, nor the earlier versions of that document. However it was included in the prayer for relief as expressed in the accompanying Annexure A documents to those application documents as filed.
275. [275]
     In contrast the respondent’s claim for costs was not identified within his annexure to his QCAT Form 36 ‘Response and/or Counter-application’ document, but it was expressed in the amended QCAT Form 36 document as a ‘counterclaim’, wherein the respondent stated that he wanted the Tribunal to make an order that “The Applicant’s application is dismissed with costs awarded to the Respondent.”
276. [276]
     Notwithstanding that expression of a claim for costs by each party in a somewhat untidy manner, it is readily apparent to me that each party sought their costs of the proceeding.
277. [277]
     However the issue of costs was not the subject of any closing submissions, orally or in writing, at the conclusion of the hearing. At that time I indicated to the parties that I might give some indication in these reasons as to what my views are on costs once I had reached a final decision on the issues as they arose in the proceeding, and should the parties thereafter not otherwise be able to reach agreement on the issue of costs then  the prudent course of action is that I hear further from the parties on that issue.
278. [278]
     That being said, my preliminary view is that the respondent should pay the applicant’s costs of the proceeding. The applicants have been almost entirely successful in their action, whereas the respondent has been entirely unsuccessful. Although of course what is entirely unknown by me is whether any relevant offers to settle had been made during the course of the proceeding such that may trigger the operation of Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld) (QCAT Rules).
279. [279]
     As to what those costs should be, it would be entirely premature and improper for me to express any opinion at this stage, even on a preliminary basis. Whilst ultimately I may be asked to fix the costs in the manner contemplated by s 107 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), if I am unable to fix the costs having regard to the nature of the proceeding then I may make an order requiring the costs be assessed under the QCAT Rules. Those rules provide that costs must be assessed by reference to a scale under the rules applying to a court. Under r 87(2)(b) of the QCAT Rules, if I was to direct costs to be assessed by reference to the scale of costs applying to a court, then I am to direct which scale is applicable. On all of these aspects the parties are yet to make submissions to me.
280. [280]
     All that being said, it seems to me that the proper present order is that costs be reserved with directions for the filing of any relevant material and submissions on the issue of costs.

Conclusion

281. [281]
     Overall, the quality of the building work produced by the respondent was substantially and significantly defective. The applicants are entitled to expect that the respondent would have complied with and met his obligations under the contract. He did not. The extent of the defective work is in my opinion a very clear and undoubted breach of the Contractual Warranties.
282. [282]
     As I have discussed earlier in these reasons, there is no claim before me for rectification, either by the applicants, or as defence by the respondent in the alternative to damages. The proceeding is a claim for payment of damages and the defence thereof. Notwithstanding the apparent valiant attempt of the respondent’s solicitor advocate to seek an order for rectification of certain works such that the respondent could attend to such work rather than be liable for damages for same, it was simply all too late. If the respondent was serious about wanting to be entitled to rectify the work he should have either simply sought an order to that extent, or at the very least advanced that as an alternative in his defence. But once again he did not. Instead he challenged the claim in its entirety denying liability for defective work.
283. [283]
     The applicants will incur substantial costs in rectifying the work. In my opinion it is appropriate and proper that they receive an order for compensation for such costs by way of a payment of damages. There will be an order made to that effect in the amount of $197,681.24.
284. [284]
     As to the issue of the asserted ‘incomplete work’, namely the provision of a Form 16 and Form 21, for the reasons given herein the applicants’ claim for an order that the respondent be ordered to complete the work by provision of those Forms is unsuccessful. I should also once again note here that the applicants’ claim as pressed at the start of the hearing also included a requirement for the provision of a Form 15 Design Certificate for the truss design, however as the hearing unfolded this was abandoned with an amended version of the relevant Form 15 being provided to the applicants. Accordingly, there will be an order dismissing that part of the claim in its entirety.
285. [285]
     Orders will be made reflecting the outcome as I have described it in these concluding paragraphs.