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  4. Usher v Innovation Pools Pty Ltd - [2024] QCAT 305

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Usher v Innovation Pools Pty Ltd[2024] QCAT 305

Usher v Innovation Pools Pty Ltd[2024] QCAT 305

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Usher v Innovation Pools Pty Ltd [2024] QCAT 305

PARTIES:

Robbie Jon UsHer

(applicant)

Elizabeth Kay Usher

(applicant)

v

Innovation pools pty ltd

(respondent)

APPLICATION NO/S:

BDL308-22

MATTER TYPE:

Building matters

DELIVERED ON:

1 August 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Member D Brown

ORDERS:

  1. Innovation Pools Pty Ltd is to pay Robbie Usher and Elizabeth Usher $30,819.17 within 30 days, which consists of:
    1. Damages of $30,452.17 consisting of:
      1. (i)
        $23,760.00 to replace the retaining wall and boundary fence;
      1. (ii)
        $4,510.44 for new approvals and certification;
      1. (iii)
        $1,430.00 for the engineering report;
      1. (iv)
        $600.00 for temporary fencing; and
      1. (v)
        $151.73 for replacement pumps.
    2. Costs in the amount of $367.00 for the filing fee.
  2. The counter application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – where contract for swimming pool – where heavy rain event – whether work is defective – whether the owner was entitled to recover for damage caused by the building contractor for defective work – where claim for solatium sought – where restitution in the return of deposit sought – where interest claimed on damages.

Queensland Building and Construction Commission Act 1991 (Qld)

Queensland Building and Construction Commission Regulations 2018 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Baltic Shipping Company v Dillon (1993) 176 CLR 344

Bellgrove v Eldridge [1954] HCA 36

Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146

Mann v Paterson Construction Pty Ltd [2019] HCA 32

Miller v Lida Build Pty Ltd [2015] QCATA 137

Stewart v Scott trading as Fantasy Pools Brisbane [2020] QCAT 110

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 253 ALR 1

Worthington v Ryan; Ryan v Worthington [2021] QCATA 138

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

Background

  1. [1]
    The applicants, Mr Robbie Usher and Mrs Elizabeth Usher, lodged an application for a domestic building dispute on 18 October 2022 seeking the respondent, Innovation Pools Pty Ltd, pay them $66,045.25 being damages in the amount of $63,191.25, restitution in the amount of $2,487.00 and costs of the filing fee in the amount of $367.00.
  2. [2]
    The applicants entered into a contract with the respondent company for the construction of a concrete pool in their Rochedale South property on 4 September 2021.  The work commenced on 1 October 2021. The contract amount was $50,470.00 The applicants have made payments of $16,071.71, which included an initial deposit of $2,487.00.
  3. [3]
    Between 1 October 2021 and 5 October 2021 the excavation of the pool was undertaken. Between 5 October and 11 October work was undertaken on the excavation site, including plumbing and commencing installation of the steel reinforcement. On 11 October 2021 in anticipation of rainfall the respondent covered the area with a black tarp.
  4. [4]
    On or around 12 October and again on around 14 October 2021 there was damage to the works due to collapse following a rain event. On 15 October 2021 it was identified a rear retaining wall was starting to move and collapse into the pool excavation. By 26 November 2021 the front and rear retaining wall had failed, and the Colourbond fence separating the applicants’ property and the neighbouring property fencing was collapsing in the excavation site, impacting on the neighbouring property.
  5. [5]
    No further building work was completed on the construction of the pool after 11 October 2021. The respondent returned to the property only once between 12 October 2021 and 26 November 2021, being on 26 October 2021 to place two steel beams between the house and the retaining wall.
  6. [6]
    On 16 December 2021 the applicants referred the matter to Queensland Building and Construction Commission’s (‘QBCC’) early dispute resolution (‘EDR’). QBCC’s investigation was completed on 19 January 2022 when QBCC confirmed the EDR was finalised. On the same date a report from NJA consulting was received by the applicants.
  7. [7]
    On 20 January 2022 the applicants gave notice of intention to terminate and on 28 January 2022 the applicants gave the respondent notice terminating the contract.
  8. [8]
    The applicants made a claim under the Queensland Home Warranty Scheme (‘QHWS’), which was approved to complete the pool and rectify the defects but did not cover the collateral damages to the retaining wall and Colourbond fence. The applicants’ claim in the Tribunal is for these damages (including solatium damages for inconvenience and pain and suffering), restitution for the return of the deposit and costs of the proceeding.
  9. [9]
    The respondent disputes liability for any of the damage caused to the retaining wall and Colourbond fence and has filed a counter application initially seeking $5,524.80 being quantum meruit for the works undertaken prior to the landside occurring. On 4 October 2023 the respondent filed an application for miscellaneous matters increasing the damages sought to $31,126.53 which included legal costs and the cost of material and equipment purported to be lost in the retaining wall collapse.

Statutory framework – building disputes.

  1. [10]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
  2. [11]
    The Tribunal has jurisdiction to hear and decide building disputes;[1] however, section 77(2) of the QBCC Act qualifies QCAT’s jurisdiction by first requiring an applicant to comply ‘with a process established by the commission to attempt to resolve the dispute’. I am satisfied that these obligations have been complied with in this matter.
  3. [12]
    For the purpose of the Tribunal, a building dispute includes a domestic building dispute, which is defined to include a dispute between a building owner and a building contractor, or a claim or dispute arising between two or more building contractors relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.[2]
  4. [13]
    Reviewable domestic work means domestic building work under schedule 1B, s 4 of the QBCC Act. Domestic building work includes the renovation, alteration, extension, improvement, or repair of a home.[3] A home is a building or portion of a building that is designed, constructed or adapted for use as a residence.[4] The construction of a pool is ‘associated’ with the improvement of a home in the sense that the installation of a pool itself constitutes an improvement of the home by the addition of a fixture. Accordingly this work falls within the definition of reviewable domestic building work.
  5. [14]
    The terms “building owner” and “building contractor” are also defined in the QBCC Act.[5] A building contractor means a person who carries on a business that consists of or includes carrying out building work and includes a subcontractor who carries out building work for a building contractor. I am satisfied that at all material times, the applicants Mr and Mrs Usher were the owners of the residential property where building work was to be completed and that Innovation Pools Pty Ltd was a building contractor who carried on a business that consisted of or included carrying out building work. As such I am satisfied with the jurisdictional issues that this is a building dispute, and the Tribunal has the jurisdiction to hear this matter. 
  6. [15]
    Schedule 1B of the QBCC Act implies warranties into contracts for domestic building work, such as a warranty by the builder that the work will be carried out with reasonable care and skill. The contract in the present case also included warranties that reflect the statutory warranties.
  7. [16]
    Pursuant to s 77(3) of the QBCC Act, in deciding a building dispute the Tribunal may award damages, interest, restitution, rectification or completion of defective or incomplete work, and costs.

Applicants’ case

  1. [17]
    The applicants’ position is that during construction of the swimming pool, after excavation but before the concrete shell was poured there was damage to the works and consequential damage to their property, namely two retaining walls and the fence, and to the neighbouring property which collapsed into the excavation site. This damage occurred over a period of approximately 45 days.[6]
  2. [18]
    The works were at the risk of the respondent at the time the damage occurred pursuant to the contract[7] and therefore this is respondent’s responsibility.
  1. [19]
    The applicants further assert that the respondent breached the contractual warranties to carry out the work in an appropriate and skilful way, with reasonable care and skill and reasonable diligence by:
    1. Commencing work without required insurance policies.
    2. Failing to inform the applicants of the conditions attaching to the design and approval and whether compliance required a variation to the work in accordance with clause 5.3.
    3. Failing to take steps after being alerted to the soil conditions, landslip overlay, existing adjacent structures, the pool design and approval conditions to minimise the risk of excavation (and existing adjacent structure) collapse.
    4. Failing to ensure any footings of adjoining structures were not undermined by the pool excavation.
    5. Failing to advise the applicants whether additional work was required in relation to issues at (c) & (d) prior to commencing excavation.
    6. Undertaking the excavation on 5 October 2021 and failing to progress the work to the next stage.[8]
  1. [20]
    The applicants assert the respondent further breached the contract in the following way:
    1. Breached clause 1.21 by failing to perform and carry out the work in accordance with the contract and suspending work when it was not permitted by clause 15 of the contract.
    2. Breached clause 8.3 by failing to effect and maintain contract works insurance from the date of commencement being 1 October 2021.
    3. Breached clause 8.4 of the contract by failing to provide evidence in writing, when requested, that all insurance required under the contract had been obtained and was current.[9]
  1. [21]
    The applicants purport they lawfully terminated the contract on 28 January 2022 and made a claim under the QHWS. QBCC approved the claim but did not cover the damage and repair to the retaining wall and Colourbond fence despite acknowledging the collapse and damage was caused by the respondent’s failure to provide adequate support.[10]
  2. [22]
    The applicants’ claim in the Tribunal is for damages and costs not covered under the QHWS, entirely separate from the amount approved by QBCC.
  1. [23]
    The applicants seek $66,045.25 plus interest which is comprised of:
    1. Damages plus interest in breach of contract as follows:
      1. (i)
        Replacement of the retaining wall, backfill, drainage and boundary fence - $23,760.00.
      1. (ii)
        New building approvals and certification - $4,510.44.
      1. (iii)
        Expert engineer report - $1,430.00.
      1. (iv)
        The increase in costs of contract “options”
      1. Fencing - $1,056.00.
      2. Water feature wall - $1,408.00.
      3. Heat pump system - $2,970.24.
      4. Robot cleaner - $830.00.
      5. Stone Skimmer box - $176.00.
      1. (v)
        Award of solatium for physical inconvenience, anxiety, distress and disappointment - $23,571.93.[11]
      1. (vi)
        Damage to pavers - $2,534.40.
      1. (vii)
        Purchase of 10 x steel temporary pool fencing panels plus feet and brackets - $600.00.
      1. (viii)
        Submersible pump and accessories - $306.18.
      1. (ix)
        Copying and postage - $38.06.
    1. (b)
      Restitution for the return of the deposit - $2,487.00.
    1. (c)
      Cost of the proceedings for the filing fee - $367.00.

Respondent’s case

  1. [24]
    The respondent seeks dismissal of the applicants’ claim and asserts that they are not responsible for the collapse of the walls or the damage to the pool and that the applicants are solely at fault. The respondent states the applicants had deliberately deceived them into building the pool when they were aware the land had a history of movement and water problems and expected the respondent to take the blame should anything go wrong.[12]
  2. [25]
    The respondent asserts the contract terms and conditions exonerate the respondent from any liability.[13] The respondent further asserts that there were three latent conditions identified which contributed to the collapse of the walls and damage to the pool, being:
    1. The deliberate failure to disclose the “Landslide Hazard” and costs in alteration from the standard steel design to remedy the problem.
    2. The admission by the applicants of the historic water spring.
    3. The poorly constructed illegal retaining wall that was not built to code or inspected and signed off by the engineer, resulting in the collapse.[14]
  3. [26]
    The respondent asserts that the applicants did not lawfully terminate the contract as they have breached the contract by refusing to sign the variation for the latent condition to reconstruct the pool.
  4. [27]
    The respondent asserts that the applicants have no substantial evidence to support their claims and the basis for their claim is only self-inflicted hurt feelings brought about by the applicants’ own actions.[15]
  5. [28]
    In the counterapplication the respondent seeks damages from the applicants. The respondent’s request for damages has increased during the proceedings.
  6. [29]
    In the response and counterapplication filed on 7 November 2022 the respondent sought to claim for quantum meruit in the amount of $5,524.80 consisting of:
    1. Gravel supply 3m3 delivery and labour to install - $550.
    2. Extra-large bar chair plates and chairs for steel support lost in the mud - $150.
    3. Steel Fix 19.6 x $80 + GST - $1,724.80.
    4. External bench labour to steel fix - $110.
    5. Extra intermediates house side wall, supply and labour - $330.
    6. Extra steel on the retainer side wall as requested by an engineer. Intermediate @ 100mm centre x 4m long N12 steel and supply F72 sheet steel $1,890.
    7. Exhibit C - $220.[16]
    8. Engineer’s report - $550.
  7. [30]
    In the respondent’s submissions filed on 4 October 2023 the respondent’s claim had increased to seeking $31,126.53[17] which consisted of:
    1. Legal costs in the amount of $20,500.25.[18]
    2. DNC consulting engineer fees $1,705.[19]
    3. Logan City Council right to information fee - $55.76.
    4. ARC steel invoice for engineer’s increased design for landslide hazard with mesh and intermediates - $1,966.38.[20]
    5. Steel chair and med plates (lost in wall failure) - $160.86.
    6. Redbank Landscape supplies - extra gravel (lost in wall failure) - $127.35.
    7. Steel fixing (lost in wall failure) - $1,724.80.
    8. Extra labour to place steel for the Landslide Hazard latent condition - $2,200.
    9. Formwork and Star pickets (lost in wall failure) - $220.
    10. Box and form wages paid. Labour lost in the collapse - $1,848.
    11. QCAT filing costs - $759.

Expert reports

  1. [31]
    Each party relies on their own professional reports in the proceedings. The applicants relied on a report from NJA investigations dated 31 January 2022 completed by Mr Adam Buckley, Senior Structural Engineer (‘the NJA report’) and a Home Warranty Service Defective Items Assessment report completed by Joseph Burke from Sedgwick Building Consultancy Division on 11 July 2022 (‘the Sedgwick report’). The respondent relies on a report from Newport Consulting Engineers dated 23 February 2023 completed by Mathew Yourell, Director (‘the NCE report’).

The NJA Report

  1. [32]
    The property was inspected by the report writer on 22 December 2021.
  2. [33]
    The report writer considered the following material:
    1. Pool building contract between the applicants and the respondent.
    2. Pool landscape and steep slopes hazard overlay assessment by Newport Consulting Engineers.
    3. Pool design drawings by Newport Consulting Engineers.
    4. Form 15 pool design by Newport Consulting Engineers.
    5. Site Soil report by STA Consulting Engineers.
    6. Letter from Professional Certification Group dated 14 October 2021.
    7. Development application decision notice from Professional Certification Group.
    8. Photographs provided by the applicants.
  3. [34]
    The report noted that:
    1. Good construction practise requires that temporary earthworks with deep cuts only be exposed for short periods or that temporary works be installed to prevent against potential collapse of the cut face.
    2. The designs by Newport Consulting Engineers specify that the pool builder is to ensure any footings or adjoining structures are not undermined by pool excavation and that it is the builder’s responsibility that when pool excavation exceeds 1.500 metres deep, risk to persons arising from the collapse of the excavation/trench or engulfment must be minimised by the following, but not limited to shoring by shielding or other comparable means e.g. boxing, battering or benching.
    3. From the plans by the engineers it can be calculated that the depth of the excavation along the rear of the property varied from 2.075 metres to 1.575 metres. The plan shows the rear face of the concrete pool shell is a maximum of 1 metre from the property boundary.
    4. No evidence of temporary support works in or around the excavation was observe on site at the time of the inspection in December 2021 or in the supplementary photographic records provided by the applicants.
    5. It is not possible to consider the size or depth of the pier foundations for the terraced retaining wall and the report writer was not provided with any engineering design details relating to it and was unable to comment in relation to the design adequacy or the quality of the construction of these elements.
    6. It is reasonable to assume from the available site geometry information that the clearance between the cut face and the outside edge of the retaining wall piers for the lower terrace was very low, consequently resulting in negligible lateral resistance imposed by the soil in this area. While the depth of the piers is unknown, it is reasonable to assume the excavation was a significant proportion of their depth.
    7. It is necessary to temporarily stabilise the excavation (by backfilling it) or construct the pool shell as quickly as practical to prevent further collapse of the excavation. While the excavation is not encroaching on the dwelling foundation, there is potential for the foundation to be affected if the collapse face advances closer to the dwelling.
  4. [35]
    The report found that the likely sequence of events resulting in the collapse of the excavation was as follows:
    1. The excavation occurred, exposing the soil to a depth in excess of 2 meters in close proximity to the outside face of the footing piers. This significantly reduced the lateral resistance capacity of the footing piers for the concrete sleeper retaining wall.
    2. The excavation was allowed to remain open until heavy rainfall occurred.
    3. The heavy rainfall saturated the soil, reducing its internal friction and the stability of the cut face.
    4. The force on the retaining wall increased as the soil became more saturated, until the overturning forces exceeded the reduced lateral resistance capacity of the pier footings, and the collapse occurred.
  5. [36]
    The report found that:
    1. The excavation to a depth of 1.5 to 2 metres against the load resting face of a pier foundation will inevitably result in a substantial reduction in the capacity of the pier to resist horizontal or overturning loads. It is the report writer’s opinion that given the reduction in the capacity of the footings to resist the applied loads, the likely collapse of the retaining structure could have reasonably been foreseen by a suitably competent builder.
    2. A small degree of collapse around an excavation in adverse weather conditions is not necessarily a cause for concern. However, in a case where the excavation is in close proximity to foundations it is incumbent on the contractor to closely monitor the forecast weather and to take steps to limit the impact on adjacent structures. In order to prevent a collapse of the excavation during construction it would be necessary to provide some level of temporary or permanent stabilization works at the site. The site inspection by the report writer did not identify any works on the site to temporarily stabilise the retaining wall.
  6. [37]
    The report concluded that based on the site inspection and the available documentation provided by the homeowner, the collapse of the pool excavation had been progressing over time after the excavation was left exposed without stabilization works during heavy rainfall, and the collapse of the retaining wall is likely a consequence of the loss of stability of the foundation piers due to their proximity to the cut face in combination with the lack of appropriate temporary support works.

The Sedgwick Report

  1. [38]
    The property was inspected by the report writer on 1 April 2022.
  2. [39]
    The report writer considered the following material:
    1. Pool building contract dated 4 September 2021.
    2. Building quote dated 4 September 2021.
    3. Approved plans dated 28 September 2021.
    4. Building approval dated 29 September 2021.
    5. Engineer certification dated 17 September 2021.
    6. Engineer advice regarding landslip dated 17 September 2021.
  3. [40]
    The report found that:
    1. The builder (the respondent) had failed to install the concrete pool shell within an acceptable industry timeline and the exposed excavation had undermined the existing retaining wall footing.
    2. The builder had failed to install appropriate support to the adjacent structure as identified from the Newport Consulting Engineer drawings Job No. 21-2705 Drawing PO1 for an extended period of time, causing instability of the existing footing systems.
    3. The builder had failed to install the concrete pool shell or provide appropriate support to maintain the retaining wall structure to prevent possible collapse. As the excavation for the pool removed the adjacent ground area that provided stability to the retaining wall footings, this caused the bank to collapse into the pool excavation.
    4. The builder had failed to install appropriate supports to adjacent structures to prevent possible collapse or return to the site to undertake the rectification of damage to the existing retaining wall and boundary fence as described by QBCC Standard and Tolerance 2019, Section 1 introduction.
    5. This is considered defective building work.

The NCE Report

  1. [41]
    The report writer did not undertake a site visit and relied upon photographs and instructions provided by the respondent.
  2. [42]
    The report does not list the material considered, but references:
    1. Photographs provided by the respondent, four of which are attached to the report.
    2. Plans for the retaining wall obtained by the respondent through a right to information request.
  3. [43]
    The report found that:
    1. There is strong evidence that the concrete sleeper retaining wall was not properly constructed and there is no evidence in council records that the retaining wall piers were inspected and were deep enough for the local conditions or the Australian standard for retaining walls or that the location of the sewer was taken into account in the design.
    2. The retaining wall did not cater for the additional wind loading from a 1.8 metre-high solid panel fence on top of the boundary retaining wall beside the existing old timber fence, which added additional leverage to the wind load on the retaining fence. These forces had undermined the support base of the ground which was supposed to support the 1.2 metre-high retaining wall and prevent it from rotating.
    3. The site drainage in the applicants’ or the rear neighbour’s block also contributed to the runoff being influential to the failure of the retaining wall.
    4. The retaining walls were under their most extreme rainfall loading at the time of the fixing of the reinforcement steel in the swimming pool.
    5. In the absence of the extreme wet weather event during the period of the pool construction, it would have been completed with no cave in, even with the under-designed and poorly constructed retaining wall in place.
    6. It is industry practice to postpone construction and the supply of concrete until after rainfall has completed and the site is dry enough for safe work to continue.
  4. [44]
    The report concludes that:
    1. The three main reasons that contributed to the falling of the retaining wall and reattained earth into the swimming pool excavation are:
      1. (i)
        Inadequate design of the retaining wall including founding depth of bored piers for rear boundary concrete sleeper retaining wall, due to the location of sewer mains and stormwater runoff from the adjourning rear block.
      1. (ii)
        The localised slip zone; and
      1. (iii)
        The extreme rainfall at the time of construction
    2. The matters contributing to the failure of the retaining wall were all beyond the control or influence of the respondent.
  5. [45]
    It is noted that two different versions of the NCE reports were provided to the Tribunal, both dated 23 February 2023 and both having the same reference number at the top. The first was provided to the Tribunal on 23 February 2023 (being the date of the report). The second was attached as exhibit HM-16 to the statement of Henry McIvor (the Director of Innovation Pools) received on 23 July 2023. While the reports’ contents are similar, the second report in the affidavit has additional information added into it, largely in relation to critiquing the plan and construction of the retaining wall. For instance the summary in the original report provided is only three paragraphs whereas the summary in the later filed report is six paragraphs. There is no explanation provided why there are two slightly different reports both reported to be completed on 23 February 2023.
  6. [46]
    Where the expert reports differ, the Tribunal prefers the evidence in the NJA report and Sedgwick reports, as they were completed in a timely way when the issues arose, as opposed to the NCE report completed over twelve months after the wall failures, and the NJA and Sedgwick reports involve actual observations from site visits, whereas the NCE report is based on photos provided by the respondents only. 
  7. [47]
    The NJA report and Sedgwick report are also more independent than the NCE report. While NJA investigations were engaged and paid for by the applicants, they have no personal interest in any outcome, whereas Newport Consulting Engineers were the engineers on the pool construction and there are documents on the file provided by the respondent which demonstrate that Newport Consulting Engineers sought for council to accept a letter from their Director, Mr Yourell, stating there was no risk of any subsidence from the pool, in place of a landslide hazard assessment to deal with the landslide overlay issue. Therefore, Newport Consulting Engineers have a vested interest in the wall failure not being the responsibility of the respondent, as they could also be liable if the respondent was deemed responsible for the wall failure.
  8. [48]
    The respondent’s material also gives rise to concerns that the report provided to the Tribunal may not be the only report or complete information from NCE. In addition to the comments above about the differing reports with the same date, the respondent seeks to claim by way of compensation the costs of two reports and provided an invoice from January 2022 for inspection and report. However, no such report from January 2022 has been provided to the Tribunal.

Findings

  1. [49]
    The Tribunal finds on the balance of probabilities that the respondent breached the contract, and the applicants lawfully terminated the contract on 28 January 2022 pursuant to clause 17.2 of the contract.
  2. [50]
    In making this finding the Tribunal relied on the following:
    1. The applicants provided notice to the respondent of their intention to terminate the contract on 20 January 2022 as required under clause 17.1 of the contract, due to breach of the statutory duties under clause 1.3.a of the contract and breach of clauses 8.3 and 8.4 in relation to the requirement to hold and provide evidence of requited insurances.[21]
    2. The applicants provided notice to the respondent on 28 January 2022 that the contract was terminated, as required by clause 17.2.[22]
    3. The respondent is purported to have advised the applicants that he did not have the necessary insurance as required by the contract[23] and provided no answer to this allegation in his response in the Tribunal. The respondent also failed to provide evidence in writing of the necessary insurances when requested to by the applicants on 16 December 2021 and only provided evidence of liability insurance valid from 14 January 2022. No evidence of contract works insurance or public liability insurance for the period from 1 October 2021 (when the work started) to 13 January 2022 has ever been provided to the applicants. Therefore based on the balance of probability the Tribunal finds that the respondent breached clause 8.3 and 8.4 of the contract.
    4. Commencing work without public liability and contract works insurance is in and of itself likely to be a breach of the warranties under clause 1.3, but the respondent’s failure to return to the site to after 11 October 2021 to undertake any further construction work or to take steps to limit the impact on adjacent structures, and to attempt to prevent any further collapse of the excavation during construction, is a breach of the warranties at clause 1.3 to carry out the work in an appropriate and skilful way, with reasonable care and skill and reasonable diligence. It is also not in compliance with the plans and specifications which required the respondent as the builder to ensure any footings or adjoining structures are not undermined by pool excavation and that it is the builder’s responsibility that when pool excavation exceeds 1.500 metres deep, risk to persons arising from the collapse of the excavation/trench or engulfment must be minimised by (but not limited to) the following: shoring by shielding or other comparable means.
    5. The failure to recommence any work on the pool construction site after 11 October 2022 is a failure to proceed with the works with reasonable diligence and would have been a basis for the applicants to seek to cancel the contract.
  3. [51]
    The Tribunal rejects the respondent’s position that the applicants are solely at fault for the collapse of the excavation site and the damage to the retaining walls due to latent conditions and deliberate deception of the applicants.
  4. [52]
    In relation to the assertion that the applicants failed to disclose the landslide hazard overlay on the property, this is disputed by the applicants and there is a lack of information to determine whether the applicants had knowledge of this overlay on their property. In any case, the respondent was aware of this overlay prior to commencing construction of the applicants’ pool, and prior to the council approval process being completed.
  5. [53]
    The respondent had the opportunity to discuss this with Newport Consulting Engineers and Newport Consulting Engineers sought council accept a letter from them to satisfy the requirements for approval, instead of a full landslide hazard assessment.[24] Newport Consulting Engineers provided a letter dated 17 September 2021 stating that “the structure had a factor of safety greater than 1.5 against Geotechnical failure. The pool is inground and next to a gentle battered slope with no risk of landslide”.[25]
  6. [54]
    In the circumstances the respondent had knowledge of and the opportunity to plan for the additional issues arising from the landslide hazard overlay on the property. In addition, having this knowledge should have caused the respondent to have a higher level of concern when advised that there was some subsiding of the excavation site and movement of the retaining wall. One would have thought that this would have caused the respondent to try and take some preventative steps to avoid further subsiding and/or that the respondent would have sought advice from the engineer given they certified there was “no risk of landslide”. This did not occur.
  7. [55]
    In relation to the assertions about the historical water spring, this is disputed between the applicants and the respondent, and it was not clear from the evidence as to the applicants’ level of knowledge. There is insufficient evidence before the Tribunal to make a finding that there is a historical spring and/or that any spring caused or contributed to the collapse of the excavation site or the damage to the retaining fence.  There is no evidence in any of the expert reports about the alleged spring contributing to the damage.
  8. [56]
    In relation to concerns about the retaining wall, the Tribunal does not accept the respondent’s assertion that this retaining wall was illegal, not built to code or not inspected and signed off by the inspector. These statements are not supported by the expert reports, or the evidence provided in the proceedings. The retaining wall was constructed by a builder and received council approval, and there is a signed Form 15 Compliance Certificate for the building design. The respondent’s right to information request was only in relation to the building application and building approvals and did not specifically ask for any inspection sign-offs of the completed structure.
  9. [57]
    The only report which raised concerns about defects in the construction of the retaining wall contributing to the collapse of the pool excavation was the NCE report. As previously addressed, this criticism of the wall construction was made without viewing the wall, without any certainty as to the level of the pier footing and in circumstances where the report writer had a vested interest in finding fault with the retaining wall as opposed to the pool construction. In addition, if the defect was with the wall construction, it would be expected the entire wall would have failed, but it was only the wall in front of the pool construction which failed. This supports the finding in the other report that the excavation of the pool impacted the wall footing causing the collapse.
  10. [58]
    The Tribunal finds that the evidence does not support the respondent’s position in relation to the allegations that the applicants breached the contract because of failure to sign the variation, given:
    1. The respondent had already breached the contract at that time due to the failure to hold insurance and the breach of the warranties for the failure to take action to prevent further subsiding of the excavation site or continue the construction of the pool after 11 October 2022.
    2. The respondent had not given the applicants written notice of any latent conditions as required by clause 11.4.
    3. The respondent knew the retaining wall was in very close proximity to the excavation site and that the engineers’ plans advised they were to ensure any footings or adjourning structures were not undermined by the pool excavation. There information about the construction of the retaining would fall within the definition of “foundational data” which the respondent as the builder should have obtained prior to the contract and prior to any construction.
    4. The respondent knew about the landslide overlay prior to construction commencing and while it was after the contract was signed, it was prior to the council building approval being obtained, which was obtained with this knowledge based on the engineer certifying there was no risk of landslide. The respondent knew of this issue for three months prior to raising any concerns or variations in relation to this issue.
    5. The variation did not comply with the requirements in the contract and was vague and unclear in that the applicants could not be certain of any of the costs, as for many items given there was no clear quote of the time required or actual costs. There was also no information as to timeframe of delays caused and the new completion date. In addition the actions of the respondent, refusing to continue any work on the pool construction or reduce the level of subsiding until the variation was signed, were unreasonable.
  11. [59]
    The respondent’s action in ceasing work on pool construction from 11 October 2021, after the pool area had been excavated but before any pool shell had been inserted, without a legal basis,[26] resulted in the work period exceeding the 60 days as noted in Item 5 for the contract and meant practical completion for 31 January 2022 was never going to be achieved, as required by Item 7 in the contract, and was a clear breach of contract.
  12. [60]
    While inclement weather may have played a factor on some of the days, the Tribunal does not accept it impacted the respondent’s ability to return to the site every day between 12 October and 16 December, particularly noting the respondent’s statement to the applicants that they were working on other pools which they had subsequently excavated and needed to complete prior to returning to the applicants’ property. In addition the respondent did not seek to invoke the provisions about inclement weather under the contract.
  13. [61]
    The respondent’s failure to continue with the pool construction, combined with the respondent’s complete failure to go back to the site after being advised about some initial collapse occurring on 12 and 14 October to take any action to prevent the further  collapse of the pool excavation, except to return on one occasion on 26 October to place two steel channel beams between the lower retaining wall and the house slab, was a clear breach of their obligations under law and the contract to carry out the work in an appropriate and skilful way, with reasonable care and skill and reasonable diligence.
  14. [62]
    The failure to return to continue the pool construction from 12 October 2021 or take action in relation to the excavation site to reduce or prevent any further collapse is also not in compliance with the plans and specifications which required the respondent as the builder to ensure that when pool excavation exceeds 1.500 metres deep, risk to persons arising from the collapse of the excavation/trench or engulfment is minimised.
  15. [63]
    The respondent’s actions in this regard caused the collapse of the pool excavation and the damage to the retaining walls and Colourbond walls.

Respondent’s Counterapplication

  1. [64]
    The respondent’s claim for compensation is refused on the basis of the above findings, that it was the respondent’s actions which caused the collapse of the excavation site by failing to continue work or ensuring there were appropriate supports to adjacent structures to prevent possible collapse. Accordingly any loss as a result of the collapse of the pool excavation site was due to the respondent’s actions and the respondent is not entitled to be compensated for that.
  2. [65]
    The respondent’s claim for legal costs is refused on the basis that the starting point is that each party should bear their own costs.[27] It is not in the interests of justice to vary from this position and require the applicants to pay the respondent’s legal costs, not only because the respondent was not successful in their claim, but also because the respondent was never legally represented in the proceedings. In the Tribunal the starting point is that parties represent themselves unless the interests of justice require otherwise and leave of the Tribunal needs to be sought to be represented.[28] The respondent never sought such leave and was never legally represented in the Tribunal.
  3. [66]
    In the initial response and counter application, the respondent stated they were seeking $5,524.80 being quantum meruit for the works undertaken prior to the landside occurring. Not only was there insufficient evidence provided by the respondent to support any claim for quantum meruit, but the respondent is not entitled in law to seek any claim in quantum meruit.
  4. [67]
    As stated in the High Court decision of Mann v Paterson Construction Pty Ltd[29] there is no entitlement to recover a quantum meruit (being a claim for the reasonable value of work done) for work carried out before termination and for which a contractual right to payment had accrued at the time of termination. The contractor's rights in relation to that work is limited to damages for breach of contract or debt for recovery of the amounts accrued.
  5. [68]
    In line with above findings, the respondent’s counter application is dismissed and the request for costs and restitution is refused.

Applicants’ claim for damages, restitution and costs.

  1. [69]
    As detailed in paragraph 23, the applicants seek $66,045.25 plus interest in damages, restitution and costs of the proceedings. Given the above finding in terms of breach of the contract and the respondent’s liability for the damage caused to the applicants’ property, I will consider each of these claims in turn.

Damages

  1. [70]
    Given the above finding of breach of contract, the applicants are entitled to damage to compensate for any loss which can be evidenced as occurring as a direct result of the breach of the contract.
  2. [71]
    In relation to the replacement of the retaining wall and boundary fence in the amount of $23,760.00 and the new approval and certification in the amount of $4,510.44, the applicants have provided invoices and payment information to confirm these costs and they are costs directly related to the damage caused by the respondent’s breaching the contract. Accordingly the applicants are entitled to damages for these costs.
  3. [72]
    In relation to the expert engineer report, this was required as a direct result of the collapse of the excavation site caused by the respondent’s action and inaction. The applicants have provided evidence of the invoice and payment. Accordingly the applicants are entitled to damages of $1,430 for the cost of the expert report.
  4. [73]
    The applicants sought $600 for the purchase of ten steel temporary pool fencing panels plus feet and brackets and provided a handwritten cash receipt for the cost. This was required as a direct result of the damage caused by the collapse of the excavation site and the respondent’s failure to maintain appropriate fencing to minimise the risk to persons arising from the collapse of the excavation, as was required in the engineering plans. The applicants have provided sufficient evidence to demonstrate this cost, which is directly related to the breach of the respondent, and accordingly the applicants are entitled to $600 for the purchase of temporary pool fencing.
  5. [74]
    In relation to the increase in costs of contract “options” for fencing, a water feature wall, heat pump system, robot cleaner and stone skimmer box, as a starting point, owners are entitled to recover the excess cost over the contract price as damages as a result of the termination of the contract. The issue in this case is that these costs are not included in the contract price.
  6. [75]
    The options were not included in the contract and were only quotes. While the applicants state they advised the respondent they wanted these options, there is no evidence in writing to demonstrate this.
  7. [76]
    Accordingly the request for costs totalling $3,470 for these contract options is refused.
  8. [77]
    The applicants seek $2,534.40 for damage to pavers. In support of this are the statements of Robbie Usher and Elizabeth Usher about the pavers being stained where the respondent had stored steel rebar, which was purportedly for a different job,[30] photographs of the pavers with red marks which look like rust stains[31] and a notation in the variation of work from Cowie Group of “replacement of pavers with rust stains” at a cost of $2,304.00[32] and evidence of payment of the cost.[33]
  9. [78]
    The difficulty with proving these damages is that there is no comparative evidence of the pavers prior to the steel being placed on them and no other independent evidence to demonstrate that it was the respondent’s steel which caused the marks on the pavers or that it was necessary to replace the pavers and any damage could not be mitigated in a less intrusive way.
  10. [79]
    In the circumstances the evidence is not sufficient to prove the damage and causation and the request for compensation for the cost of the replacement pavers is refused.
  11. [80]
    The applicants seek the cost of $306.18 for a submersible pump and accessories. This is the cost of three pumps required to try and remove the water from the large excavation site left in their backyard from the work conducted by the respondent. The first pump was purchased on 28 January 2022, and the second on 2 February 2022 as the first pump was not working properly to de-water the collapsed hole. The third was purchased on 2 March 2022 after the pump originally purchased in January stopped working and became buried in mud and debris after the Brisbane floods in late February 2022. The applicants have provided invoices for each of the three pumps.
  12. [81]
    I accept the first two pumps were necessary as a result of the respondent’s action, in order to ensure there was not further risk or damage arising from the collapsed excavation and to ensure excess water did not build up and overflow. Accordingly the applicants are entitled to the cost of the first two pumps being $151.73.[34] 
  13. [82]
    In relation to the third pump purchased in March 2022 this was as a result of the earlier pump stopping working due to an intervening act, namely the Brisbane floods. The respondent is not responsible for this intervening act and accordingly the respondent is not responsible for the cost of the third pump and this cost is refused.

Solatium

  1. [83]
    The applicants seek an award of solatium for physical inconvenience, anxiety, distress and disappointment in the amount of $23,571.93.[35] 
  2. [84]
    As a matter of law, damages for inconvenience, distress and discomfort are not usually available to homeowners under a building contract. Damages are the award of a sum of money which will put the injured party in the financial position the party would have been in had the breach of contract not taken place.
  3. [85]
    The High Court in Bellgrove v Eldridge,[36] (‘Bellgrove’) in a decision reaffirmed by the High Court in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd,[37] held that the measure of damages recoverable by a 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 building conform to the contract. 
  4. [86]
    On that approach, anxiety and injured feelings do not, generally speaking, form part of the plaintiff/applicants' compensable loss which flows from a breach of contract.[38]
  5. [87]
    Mere disappointment or disruption is insufficient unless the object of the contract involved an emotional outcome which is defeated by the breach. The principal exception to that rule is where the contract is one whose object is to provide enjoyment, relaxation or freedom from molestation, and where the damages proceed from physical inconvenience caused by the breach.[39]
  6. [88]
    In Baltic Shipping Company v Dillon[40] (‘Baltic Shipping’) the High Court noted:

[A]s a matter of ordinary experience, it is evident that, while the innocent party to a contract will generally be disappointed if the defendant does not perform the contract, the innocent party's disappointment and distress are seldom so significant as to attract an award of damages on that score. For that reason, if for no other, it is preferable to adopt the rule that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. In cases falling within the last-mentioned category, the damages flow directly from the breach of contract, the promise being to provide enjoyment, relaxation or freedom from molestation.[41]

  1. [89]
    In support of their claim the applicants rely upon the Tribunal cases of Dyer v Spence,[42] Silastone Trading Pty Ltd. v Body Corporate for Q1 and Anor[43] and Stewart v Scott trading as Fantasy Pools Brisbane.[44] These cases are not overly helpful to support the applicants’ case for a claim of solatium.
  2. [90]
    These cases are of a different nature to the current case. These were cases where rectification work was not necessary or reasonable and damages were sought for the owner’s loss of amenity in the finished product (e.g., a pool completed but not as wide or deep as contracted and a deck/walkway not as aesthetically pleasing as contracted with future shrinkage crack defects). In addition in only one of the three cases the applicants rely upon did the court find that an award of solatium was appropriate to be awarded, demonstrating that this is only in rare and exceptional cases.
  3. [91]
    The availability of an award for Solatium in building case was considered in depth in the Appeal Tribunal decision of Edwards v Sovereign Homes (QLD) Pty Ltd,[45] (‘Edwards’) which found that the relevant principles to be applied are those espoused in Bellgrove and Baltic Shipping.
  4. [92]
    The Appeal Tribunal in Edwards also noted that:

Damages for non-pecuniary loss as a consequence of breach of a building contract are, in our view, confined to those categories identified by the High Court in Baltic Shipping. Claims for loss of amenity associated with breach of a building contract will not, generally speaking, fall within the category of claims arising from breach of a contract for enjoyment or pleasure. It follows that a claim for distress, inconvenience or disappointment as a result of a breach of contract are confined to those cases where the adverse non-physical outcome is consequent upon actual physical inconvenience. Consistent with the authorities to which we have referred, the physical inconvenience must be real and substantial.[46]

  1. [93]
    In terms of whether this matter fits into the exemption to the general rule, the applicants assert that as this was a building contract for the construction of a pool, which was to provide enjoyment and relaxation, it fits within the exception.
  2. [94]
    This is not accepted by the Tribunal. As noted in Edwards, building contracts will not, generally speaking, fall within the category of claims arising from breach of a contract for enjoyment or pleasure.
  3. [95]
    The mere fact a building contract is for the construction of a pool does not change the purpose of the contract to one of enjoyment and relaxation. This matter is of a different nature to that in Baltic Shipping which related to a contract for a cruise, in which the entire purpose is for a holiday. While it may have been one of the outcomes of the pool construction that the applicants obtained periods of enjoyment and relaxation from the use of the pool, the object of the contract is to build something, in this case a pool.
  4. [96]
    The applicants’ intention or motivation for the addition of a pool to their home does not form part of the contract and would not have necessarily been known to the respondent. While enjoyment and relaxation may be one of the motivations for seeking a building contract for a pool, there can be other reasons including improving the appearance or usability of the backyard, adding value to the property or for exercise purposes.
  5. [97]
    In terms of the actual physical inconvenience, the applicants asserts that the family, including their children and their dogs, have not been able to use and enjoy the backyard since September 2021. The neighbours at the rear property have also threatened to sue the applicant, should the neighbours lose money when they sell their house. As a result the applicants assert it has impacted both of their mental health, they have been drinking more, had marital arguments, felt stressed, and Mrs Usher has cried both in front of her children and work colleagues. They estimate they spent about 10% of their day dealing with the building issues relating to the backyard.[47]
  6. [98]
    While no doubt this would have caused inconvenience and distress to the applicants, this is not inconvenience of such a substantial nature that would warrant an award of solatium.
  7. [99]
    It is commonplace in construction projects for problems to be encountered and for homeowners to experience stress, disappointment and inconvenience as a result.[48] The process of construction or renovation of a home can be a traumatic and very personal matter for the parties involved. The mere fact that the parties may have become upset or disappointed with each other, or with the work, will not in itself give rise to a claim for solatium, which is a relatively unusual claim in matters of these types, and would only apply in clear cases where the consequences are marked, and have a clear degree of significance.
  8. [100]
    In this case, while there was certainly stress due to the delays, the breach has been rectified and the applicants have (or are in the process of obtaining) the pool as contracted. There is a contract to rectify the fences and the applicants have sought and obtained damaged to compensate for that cost. As such there is not any ongoing defect in the building work which cannot be rectified as in the cases the applicants relied upon.
  9. [101]
    The applicants, while inconvenienced by the lack of use of some of their back yard, did not have to relocate and have not evidenced any other significant impacts as a result of the breach which would put this into the category of significant inconvenience.
  10. [102]
    In addition, the evidence provided to support any claim was lacking and limited to the statements in the affidavit of one of the applicants. There was no independent evidence provided to the Tribunal to support or corroborate the applicants’ claims of the impacts on them of the breach of contract and no expert medical evidence has been adduced from a doctor or psychiatrist attesting to how the applicants’ health has been affected or the cause of their stress as being related to any breach of contract by the respondent.
  11. [103]
    In the circumstance, the Tribunal is not satisfied that the legal basis for a claim in solatium is made out based on the evidence provided in this matter and accordingly the applicants’ claim for solatium is refused.

Restitution - return of the deposit

  1. [104]
    The applicants seek restitution in the amount of $2,487.00, being return of the deposit paid. In support of this the applicants rely upon the case of Baltic Shipping and assert that the money was paid to the respondent, the respondent failed to perform the contract, the applicants received no benefit, and it would be unjust for the respondent to retain the benefit.
  2. [105]
    The case of Baltic Shipping does not provide authority for restitution by way of a refund of the deposit and the High Court decision actually set aside the order of restitution made in the Supreme Court.[49]

In the Baltic Shipping case the High Court found that damages and restitution cannot both be claimed in a matter stating:

In my view, Mrs Dillon's claim for damages, if successful, precludes a refund of the fare. The claim for damages is a claim to the full benefit of the contract, part of that benefit taking the form of money as compensation for its breach. If Mrs Dillon were to receive damages and a refund of her fare as well, she would, in effect, take the benefit of the contract without an obligation to give consideration for it.[50]

  1. [106]
    The applicants have sought and been awarded compensatory damages, both in these proceedings and as a result of the decision of the QHWS. Accordingly they have indirectly enforced, and indirectly obtained the benefit of, the contract.
  2. [107]
    The applicants are not entitled to restitution for the return of the deposit as to do so would result in unjust enrichment of the applicants. Accordingly the applicants’ claim for restitution is refused.

Interest

  1. [108]
    The applicants seek interest on any award of damages They have not however provided any submissions or evidence as to their entitlement to interest, the period they seek interest for or the interest amount and there are no clear provisions in the contract which entitle the applicants to interest.
  2. [109]
    Section 77(3) of the QBCC Act gives the Tribunal a discretion to award interest and section 54(2) of the Queensland Building and Construction Commission Regulations 2018 (Qld) (‘the Regulations’) confirms that interest is payable “on and from the day after the day that the amount became payable until and including the day the amount is paid”.
  3. [110]
    The damages sought by the applicants are unliquidated damages, the value of which has not been determined contractually as they are seeking an award for compensation for loss alleged to be suffered by breach of the contract.
  4. [111]
    Until a decision to award damages is made, no amount is payable. There is no existing obligation to pay any amount and no liability in regard to a claim for damages arises until a Court or Tribunal adjudicates upon the claim for damages and determines that the respondent/defendant has committed a breach and has incurred a liability to compensate the applicant/plaintiff for the loss and then assesses the quantum of such liability. An alleged default or breach of the contract gives rise only to a right to sue for damages and not to claim any 'debt'.
  5. [112]
    A claim for damages becomes a 'debt due', not when the loss is quantified by the party complaining of breach, but when a competent Court or Tribunal determines that the person against whom the claim for damages is made has committed breach and incurred a pecuniary liability towards the party complaining of breach and assesses the quantum of loss and awards damages. Accordingly until a decision is made to award damages, no amount is payable.[51]
  6. [113]
    The power to award interest is restricted by s 54(2) of the regulations and as no amount is payable until the order for damages is made, there is no power to award interest on any damages, until there is evidence that they are not paid when due.
  7. [114]
    Accordingly the applicants’ claim for interest is refused.

Costs of the proceedings

  1. [115]
    The starting point for costs is that each party must bear their own costs.[52] However, the Tribunal may make an order requiring a party to pay all or a stated part of the costs of another party to the proceeding if the Tribunal considers the interests of justice require it to make the order.[53]
  2. [116]
    It is clear from the application that the applicants paid a filing fee of $367.00 to the Tribunal.
  3. [117]
    The amount of the filing fee was necessarily incurred by the applicants in pursuing their claim. Factors that may be considered in determining whether it is in the interests of justice to order costs include the relative strengths of the claims made by each party.[54] While not all costs and damages sought by the applicants were awarded,  in the circumstances of the claim being largely successful the Tribunal considers it is in the interests of justice to award the cost of the filing fee in the amount of $367.00 be paid by the respondent to the applicants.
  4. [118]
    The applicants have also sought costs of copying and postage in the amount of $38.06. These costs however are not associated with these proceedings but were incurred 9 months prior to the proceedings being initiated and appear to relate to the claim with the QHWS.
  5. [119]
    In the circumstances where these costs were associated with another process/proceedings, the Tribunal finds that it is not in the interest of justice to award the cost of postage and copying and the applicants need to bear these costs.

Orders

  1. [120]
    The Tribunal makes the following orders:
  1. Innovation Pools Pty Ltd is to pay Robbie Usher and Elizabeth Usher $30,819.17 within 30 days, which consists of:
    1. Damages of $30,452.17 consisting of:
      1. (i)
        $23,760.00 to replace the retaining wall and boundary fence;
      1. (ii)
        $4,510.44 for new approvals and certification;
      1. (iii)
        $1,430.00 for the engineering report;
      1. (iv)
        $600.00 for temporary fencing; and
      1. (v)
        $151.73 for replacement pumps.
    2. Costs in the amount of $367.00 for the filing fee.
  2. The counter application is dismissed.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 77.

[2]  QBCC Act, sch 2.

[3]  Ibid, sch 1B, s 4(b).

[4]  Ibid, sch 1B, s 9(1).

[5]  Ibid, sch 1B, s 1.

[6]  Statement of Robbie Usher dated 30 April 2023, [3].

[7]  Clause 8.1.

[8]  Statement of Robbie Usher dated 30 April 2023, [4 b]; Submissions of the applicants dated 13 October 2023, [1.21]-[1.2.3].

[9]  Statement of Robbie Usher dated 30 April 2023, [4 a, c, d).

[10]  Ibid, [5].

[11]  Calculated by the applicants as 10% of each of their daily net work rates x 325 days, being the number of days between complete destruction of work (26 November 2021) and commencement of rectification (17 October 2022).

[12]  Respondent’s submissions (filed as an application for miscellaneous matters on 4 October 2023), [4] & [11].

[13]  Ibid, [6].

[14]  Ibid, [9].

[15]  Ibid, [3].

[16]  It is unclear what this cost is as there was no exhibit C in the Response documents.

[17]  This is the amount stated in the respondent’s submission as the total costs claimed but does not match the total of the individual costs claimed.

[18]  Consisting of Becker Watt Lawyers $9,953 and Rose Litigation Lawyers $10,547.25.

[19]  Consisting of landslide hazard extra steel design $220, miscellaneous pool section - case water feature $110, initial site inspection and repot on collapse $550 and final report on collapse $825.00.

[20]  Consisting of Dbar $1,281.10, Mesh $336.52, Delivery $170, plus GST.

[21]  Statement of Robbie Usher dated 30 April 2024, Exhibit 54.

[22]  Ibid, Exhibit 56.

[23]  Ibid, [37].

[24]  Statement of Harry McIvor filed 19 July 2023, Exhibit HM-5.

[25]  Statement of Robbie Usher dated 30 April 2023, Exhibit 26.

[26]  The respondent does not have the basis to cease work under clause 15 or 25.5 as there was no client default no dispute until at least December 2021 and did not comply with the obligations under clause 9.2 for an extension of time for inclement weather condition.

[27]  QCAT Act, s 100.

[28]  Ibid, s 4.

[29]  [2019] HCA 32.

[30]  Statement of Robbie Usher dated 30 April 2023, [88]; statement of Elizabeth Usher dated 1 May 2023, [42].

[31]  Statement of Robbie Usher, Exhibit 63.

[32]  Ibid, Exhibit 74.

[33]  Statement of Elizabeth Usher, Exhibit EU35.

[34]  Calculated as $84.50 for the first pump on 28/1/2022 and $67.23 for the second pump on 2/2/2022.

[35]  Calculated by the applicants as 10% of each of their daily network rates x 325 being the number of days between complete destruction of work (26 November 2021) and commencement of rectification (17 October 2022).

[36]  [1954] HCA 36.

[37]  (2009) 253 ALR 1.

[38] Baltic Shipping Company v Dillon (1993) 176 CLR 344, judgement of Mason, CJ [36] (‘Baltic Shipping’).

[39]  Ibid.

[40]  Ibid.

[41]  Ibid, [44].

[42]  [2017] QCAT 211.

[43]  [2017] QCAT 349.

[44]  [2020] QCAT 110.

[45]  [2020] QCATA 146, [266].

[46]  Ibid, [266].

[47]  Statement of Elizabeth Kay Usher dated 1 May 2023, [52]-[55], [58].

[48] Stewart v Scott trading as Fantasy Pools Brisbane [2020] QCAT 110.

[49]  Decision of Mason CJ, [48].

[50]  Decision of Gaudron J, [11].

[51] Miller v Lida Build Pty Ltd [2015] QCATA 137; Worthington v Ryan; Ryan v Worthington [2021] QCATA 138.

[52]  QCAT Act, s 100.

[53]  Ibid, s 102.

[54]  Ibid, s 102(3)(c).

Close

Editorial Notes

  • Published Case Name:

    Usher v Innovation Pools Pty Ltd

  • Shortened Case Name:

    Usher v Innovation Pools Pty Ltd

  • MNC:

    [2024] QCAT 305

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    01 Aug 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Baltic Shipping Company v Dillon (1993) 176 CLR 344
2 citations
Jump To
Cite 1 - (1993) 176 CLR 344
Cite 2 - (1993) 176 CLR 344
Bellgrove v Eldridge [1954] HCA 36
2 citations
Jump To
Cite 1 - [1954] HCA 36
Cite 2 - [1954] HCA 36
Dyer v Spence [2017] QCAT 211
1 citation
Jump To
Cite 1 - [2017] QCAT 211
Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146
2 citations
Jump To
Cite 1 - [2020] QCATA 146
Cite 2 - [2020] QCATA 146
Mann v Paterson Constructions Pty Ltd [2019] HCA 32
2 citations
Jump To
Cite 1 - [2019] HCA 32
Cite 2 - [2019] HCA 32
Miller v Lida Build Pty Ltd [2015] QCATA 137
2 citations
Jump To
Cite 1 - [2015] QCATA 137
Cite 2 - [2015] QCATA 137
Silastone Trading Pty Ltd v Body Corporate for Q1 [2017] QCAT 349
1 citation
Jump To
Cite 1 - [2017] QCAT 349
Stewart v Scott [2020] QCAT 110
3 citations
Jump To
Cite 1 - [2020] QCAT 110
Cite 2 - [2020] QCAT 110
Cite 3 - [2020] QCAT 110
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 253 ALR 1
2 citations
Jump To
Cite 1 - (2009) 253 ALR 1
Cite 2 - (2009) 253 ALR 1
Worthington v Ryan [2021] QCATA 138
2 citations
Jump To
Cite 1 - [2021] QCATA 138
Cite 2 - [2021] QCATA 138

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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