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Haimes v Queensland Building and Construction Commission[2024] QCAT 326

Haimes v Queensland Building and Construction Commission[2024] QCAT 326

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Haimes v Queensland Building and Construction Commission & Ors [2024] QCAT 326

PARTIES:

LUKE HAIMES

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(first respondent)

RUSSELL STOCKTON

LISA STOCKTON

(second respondents)

APPLICATION NO/S:

GAR188-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

2 July 2024

HEARING DATE:

25 November 2020

26 November 2020

HEARD AT:

Brisbane

DECISION OF:

Member Deane

ORDERS:

  1. The Queensland Building and Construction Commission decision of 10 May 2018 that the domestic building contract had been validly terminated by Russell Stockton and Lisa Stockton having the consequence of allowing a claim for non-completion under the Statutory Insurance Scheme is confirmed.
  2. Any Application for costs of the proceedings by a party is to be made by filing in the Tribunal two (2) copies and providing to the other parties one (1) copy of any submissions and evidence in support of the Application for costs, by 4:00pm on 5 August 2024.
  3. If any such Application for costs is made:
    1. the other parties must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in response to the party making the Application for costs and the other party, by 4:00pm on 2 September 2024;
    2. the party making the Application for costs must file in the Tribunal two (2) copies and provide one (1) copy of any submissions and evidence in reply to the other parties, by 4:00pm on 23 September 2024;
    3. the Application for costs will be determined on the papers based on any documents filed unless a party requests an oral hearing not before 4:00pm on 23 September 2024.
  4. If no Application for costs is made in accordance with Order 2 then there shall be no order as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – BUILDERS – STATUTORY INSURANCE SCHEME – review of decision that the homeowners validly terminated the Contract having the consequence of allowing a claim under the statutory insurance scheme – whether contract properly terminated – whether breach notice invalid as signed by solicitor rather than by homeowners – whether breach notice invalid because of homeowners’ failure to pay invoices – whether invoices were progress claims – whether breach of warranty can be a substantial breach – whether breach notice premature – whether contractor in substantial breach – whether contractor commenced to substantially rectify the claimed breaches – whether the contractor repudiated the Contract at law

Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 25, s 31, s 48, s 58, s 108

Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 19, s 66, s 69, s 69A, s 86, s 86E, s 87, Schedule 1B s 41

Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld)

Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015 (Qld), s 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 6, s 17, s 18, s 20, s 24

Allen & Taylor v Queensland Building and Constriction Commission [2020] QCAT 63

Botros v Freedom Homes Pty Ltd [2000] 2 Qd R 377

Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17

Cowen & Anor v Queensland Building and Construction Commission & Anor [2017] QCAT 416

Hampton Home Builders Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 21

Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Maynard v Goode (1926) 37 CLR 529

Mazelous Pty Ltd v Herberton Shire Council [2003] 1 Qd R 174

Stojanovski v Australian Dream Homes [2015] VSC 404

Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56

Waymore Constructions Pty Ltd v Wyatt & Anor [2020] QCAT 251

APPEARANCES & REPRESENTATION:

Applicant:

CH Matthews, instructed by All Building Law

First Respondent:

R Ensby, Gadens Lawyers

Second Respondents:

M Williams, instructed by Aitchison Reid Building and Construction Lawyers

Contents

REASONS FOR DECISION 6

Background6

Did the Stocktons properly terminate the Contract?8

What are the terms of the policy?8

Was Mr Haimes in default of the Contract? Were the Stocktons entitled to terminate under clause 28.4 of the Contract?10

Were the Breach Notice and Termination Notice (the Notices) invalid because they were given by the Stocktons though their lawyers as agents?11

Were the Notices ineffective because the Stocktons were in substantial breach?14

Was the Breach Notice invalid because it required specified work to be carried out within 10 business days? Was the Breach Notice invalid by reason of being prescriptive of works required to remedy? Were the stipulated works required in an impossible timeframe?15

Was Mr Haimes in substantial breach? Even if he was in substantial breach when the Breach Notice was given had he rectified or commenced to substantially rectify?16

Are breaches of warranties precluded from being substantial breaches?17

Was Mr Haimes in breach of clause 36.1(b)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?18

Was Mr Haimes in breach of clause 36.1(c)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?19

Footing steel exposed to the sea air rusted21

Brick cavities breached with mortar 22

External wall – articular joints or control joints has mortar/render in them and areas already cracking22

External – weep holes blocked22

External gas hot water system24

External – no shrinkage gaps to window base24

Internal (media room, garage, ceilings level 1, 2 and ground – plaster and skirting damaged with mould25

Plaster – cut and damages25

External cladding above BBQ is substandard26

Internal dining area – tiles have lippage and are uneven26

Stairs are not consistent with height variation of 10mm27

Outdoor area – finished floor level up to DPC bottoms of the weep holes 27

Glass Doors – no provisions for weather proofing, no rebate or channelling to prevent water/moisture ingress27

Stacker doors – substandard work in attempt to weatherproof27

Roof sheeting rusted28

Sliding Doors chipped.28

Pool area tiles29

Was Mr Haimes in substantial breach when viewing all the breaches together?29

Was Mr Haimes in breach of clause 36.1(d)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?.30

Was Mr Haimes in breach of clause 36.1(e)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?30

Failure to complete the works by the date for practical completion and the works being significantly delayed34

What was the date for practical completion under the Contract? Did the Stocktons’ obtaining of finance cause delay?35

Delay to progress of works due to conduct of Lane Stockton and Matthew Scholz38

Did variations or other conduct of the Stocktons cause delay?38

Termination at law40

Does the Human Rights Act 2019 (Qld) apply?41

Costs42

REASONS FOR DECISION

Background

  1. [1]
    Mr Haimes, a licensed contractor, entered into a written contract with Mr and Mrs Stockton to build a new home for them (the Contract).  Following the delivery of a Notice to Remedy Breach[1] (Breach Notice), the Stocktons purported to terminate the Contract on 5 May 2017 (Termination Notice).[2]  Mr Haimes disputes they validly terminated, claims the Stocktons repudiated the Contract, that he was entitled to terminate the Contract based on the repudiation and that he accepted the repudiation and terminated the Contract on 12 May 2017.  In these proceedings, the Stocktons also purport to rely upon a claimed repudiation of the Contract by Mr Haimes.[3]
  2. [2]
    On 9 May 2017, the Stocktons made a non-completion claim to the Queensland Building and Construction Commission (QBCC).[4]
  3. [3]
    Initially the QBCC decided that Mr Haimes was not in substantial breach and therefore the Stocktons’ termination was invalid.[5]  The Stocktons commenced review proceedings.[6]  On 5 December 2017, the QBCC reconsidered its decision and decided that the Stocktons had validly terminated the Contract having the consequence of allowing a claim under the statutory insurance scheme (the SIS).[7] 
  4. [4]
    Mr Haimes applied to the QBCC to internally review the decision.  On 10 May 2018, the QBCC made an internal review decision, which was to confirm the decision that the Contract had been validly terminated (the Decision).  Mr Haimes applied to the Tribunal to review the Decision.[8]
  5. [5]
    Following the oral hearing, after some delay, written submissions were filed.[9]  The delay in finalising this application since the submissions were filed is extremely regrettable and relates at least in part to resourcing issues. 
  6. [6]
    The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but rather has an evidential or practical onus to adduce evidence which supports its case as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority[10]

In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.

  1. [7]
    Although each party was legally represented the evidence relied upon could have been clearer, which may have assisted in finalising this application sooner.
  2. [8]
    Section 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides:

The Tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

  1. [9]
    Section 18 of the QCAT Act provides:

The Tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

  1. [10]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (QBCC Act).[11] For the purposes of internal review, a decision that a domestic building contract has been validly terminated having the consequence of allowing a claim for non-completion under the SIS is a reviewable decision.[12] For the purposes of an external review, ‘reviewable decision’ means a reviewable decision as listed in section 86 of the QBCC Act other than a decision that was the subject of an internal review or an internal review decision.[13]
  2. [11]
    I am satisfied the Decision is a reviewable decision.
  3. [12]
    A person affected by a reviewable decision of the QBCC may apply to the Tribunal for a review of the decision.[14]
  4. [13]
    On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration.[15] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[16] The Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the decision was made. There is no presumption that the decision under review is correct.[17]
  5. [14]
    The issue for determination is whether the Stocktons properly terminated the Contract in accordance with the relevant policy of the SIS.[18]
  6. [15]
    The objects of the QBCC Act include, amongst other things, to achieve a reasonable balance between the interests of building contractors and consumers and to provide remedies for defective building work.[19]

Did the Stocktons properly terminate the Contract?

  1. [16]
    I find that the Stocktons properly terminated the Contract.

What are the terms of the policy?

  1. [17]
    I find that the relevant terms of the policy are set out in the Policy Conditions effective 1 July 2009, known as Edition 8 (the Policy).[20]  No party contended to the contrary.
  2. [18]
    The undisputed evidence is that the Contract was signed on 27 October 2015.[21] As at that date the relevant reprint of the QBCC Act was that current as of 1 July 2015.
  3. [19]
    Part 5[22] set out provisions in respect of the SIS. It provided that the statutory policy of insurance comes into force in the terms stated in the board’s policies if a consumer enters into a contract for the performance of residential construction work with a licensed contractor.[23] Insurance cover commences on the earliest of the following: (i) when the contractor pays the premium; (ii) on the date the contract between the contractor and consumer is entered into; or (iii) when the contractor commences the work.[24]
  4. [20]
    The documents filed in these proceedings were quite extensive.  I have been unable to locate any direct evidence before me as to when Mr Haimes paid the premium. There is a dispute as to when he commenced the work, to which I will refer in more detail later in these reasons. 
  5. [21]
    The Stocktons contend work commenced on 14 October 2015, prior to the Contract being signed.  There is evidence that the Council had granted a development permit on 13 October 2015.[25]  That approval made clear that Building Works approval was also required to allow the development to be carried out.[26] 
  6. [22]
    Mr Haimes’ evidence is that work on the screw piers for both the pool and the house were performed in October 2015, prior to the Contract being signed, and which continued in November 2015 was outside of the scope of the Contract and that work under the Contract commenced on 30 March 2016 after the deposit was paid in February 2016. 
  7. [23]
    There is no evidence before me that the screw piers work was performed under a separate written contract.  There is no detailed evidence about a separate oral agreement. The only contemporaneous document about this work before me is an invoice dated 30 October 2015 for $40,000 (incl GST).[27]  It clearly indicates that the ‘balance of $27,895.55 to be paid as deposit’.  The Contract provided that the deposit was $67,895.55.[28] The Contract lists 15 items of work that are not included in the Contract price.  Screw piers are not referred to in the list although swimming pool is an excluded item of work.  The inclusions schedule in the Contract expressly included screw piers as part of the ‘site work – footings and slab’ works.[29]
  8. [24]
    As at the date of the hearing the relevant reprint of the QBCC Act was that current as of 2 October 2020.  Schedule 1 of the QBCC Act sets out transitional provisions.  It provides:
    1. a policy of insurance that came into force under former part 5 continues in force on the terms stated in the board’s policies for that purpose.[30]
    2. ‘board’s policies’ is defined to mean the policies of the board made for the purposes of section 19 of the QBCC Act and relating to the SIS.[31]
    3. despite the replacement of part 5, the former part 5 continues to apply to a contract for residential construction work if the contract was entered into before the replacement day.[32]
    4. ‘replacement day’ is defined to mean the day the former part 5 was replaced under the Queensland Building and Construction Commission and Other Legislation Amendment Act 2014 (Qld).[33]
  9. [25]
    Whether work commenced in October 2015 prior to the Contract being signed or on 30 March 2016, Part 5 of the relevant reprints remains in the same terms. 
  10. [26]
    Based on the limited evidence before me I find that it is more likely than not that the policy of insurance came into force in October 2015 and the relevant board policy in force at that time was the Policy Conditions effective 1 July 2009, known as Edition 8 (the Policy).[34]
  11. [27]
    Clause 1.1 of the Policy provides:

Subject to the terms of this policy, the QBCC agrees to pay for loss suffered by the Insured in the event of the contractor failing to complete the contract for the residential construction work.

  1. [28]
    Clause 1.2 of the Policy provides in relation to payment for non-completion that:

The QBCC is only liable to pay for loss under this Part when the contract is for a fixed price and the Insured has properly terminated the contract with the contractor.

  1. [29]
    Clause 11.1 of the Policy sets out definitions of certain terms used in the Policy, most relevantly:

“contract” means a contract for the performance of the residential construction work referred to in the certificate of insurance or, where there is no certificate of insurance issued, a contract for the performance of residential construction work which is afforded the benefits of the policy by virtue of the QBCC Act

“contractor” relevantly means (i) the licensed contractor referred to in the certificate; or (ii) where there is no certificate, a contractor who holds a licence which appears to signify that the contractor may enter into contracts with consumers to carry out residential construction work covered by the statutory insurance scheme, who enters into a contract with a consumer to carry out residential construction work or otherwise carries out residential construction work other than as a subcontractor

“fixed price” means a price which is certain, except for the effect of provisional costs or sums, prime costs or sums, variations and any costs escalation clause.

“insured” relevantly means the owner of the land or a consumer who has entered into a contract with the contractor to have residential construction work carried out in Queensland.

“properly terminated” means lawfully under the contract or otherwise at law, upon the contractor’s default which extends to, but is not limited to:

  1. (a)
    the cancellation or suspension of the contractor’s licence; or
  1. (b)
    the death or legal incapacity of the contractor; or
  1. (c)
    the insolvency of the contractor; or
  1. (d)
    any breach of the contract by the contractor.

“residential construction work” relevantly means residential construction work as defined in section 10 of the Regulation.

  1. [30]
    In these proceedings there was no dispute that the Contract was for a fixed price,[35] that the Stocktons were the Insured under the Policy, that Mr Haimes was a contractor and that the Contract was for residential construction work.
  2. [31]
    The Stocktons rely upon sub-clause (d) of the definition of “properly terminated”.

Was Mr Haimes in default of the Contract? Were the Stocktons entitled to terminate under clause 28.4 of the Contract?

  1. [32]
    I find that Mr Haimes was in default of the Contract and the Stocktons were entitled to terminate under clause 28.4 of the Contract.
  2. [33]
    The evidence is that neither party strictly complied with the terms of the Contract.  I refer to examples of this later in these reasons. There is no evidence before me which demonstrates that either party sought to require the other party to strictly comply with the terms of the Contract prior to the Breach Notice being issued on 18 April 2017.
  3. [34]
    The Breach Notice:
    1. alleged that Mr Haimes had failed to comply with requirements of the Work Health & Safety Act 2011 (Qld) and Work Health and Safety Regulations 2011 (Qld) in breach of clause 36.1(b).
    2. identified 17 items of work in respect of which it was alleged Mr Haimes had failed to carry out in an appropriate and skilful way and with reasonable skill and care in breach of clause 36.1(c). 
    3. identified one item of work in respect of which it was alleged Mr Haimes had failed to carry out in accordance with the plans and specification in breach of clause 36.1(d).
    4. alleged that Mr Haimes had failed to carry out the works with due diligence in breach of clause 36.1(e).
    5. called for the breaches to be rectified within 10 Business Days after the notice was given and set out remedial works the Stocktons required. 
  4. [35]
    Mr Haimes’ evidence is that following receipt, he undertook works to commence to address matters raised.  He instructed his then solicitor to respond by letter dated 21 April 2017.[36] At that time he maintained that he was prepared to attend to rectification of all defects as required by law once notice of practical completion was given and called upon the Stocktons to establish a security account for the final payment.
  5. [36]
    I address in turn each of the reasons Mr Haimes relies upon to say the termination was invalid.

Were the Breach Notice and Termination Notice (the Notices) invalid because they were given by the Stocktons though their lawyers as agents?

  1. [37]
    I find that the Notices were not invalid by reason of being given by the Stocktons through their lawyers.
  2. [38]
    The Stocktons engaged a building inspector to prepare a report.  The inspector, Mr Tacon, attended site on 10 April 2017.  The inspector’s report is in evidence before me.[37]  Mr Tacon did not give evidence in these proceedings.
  3. [39]
    The Stocktons’ lawyers signed and sent the Breach Notice, which identified claimed substantial breaches of the Contract, based on the inspector’s findings.  After the period specified in the Breach Notice, the Stocktons’ lawyers signed and sent the Termination Notice. 
  4. [40]
    Mr Haimes contends that clause 28 of the Contract required each of the Notices to be signed by the Stocktons and that they are therefore invalid.  
  5. [41]
    Clause 28 of the Contract provides:

28.1 The owner is entitled to give a notice to remedy breach under Clause 28.3 if the builder is in substantial breach of this contract. The builder is in substantial breach of this contract if the builder:

  1. (a)
    suspends the carrying out of the works, other than under Clause 19;
  1. (b)
    has the builder’s licence cancelled or suspended; or
  1. (c)
    is otherwise in substantial breach of this contract.

28.2 The builder is entitled to give a notice to remedy breach under Clause 28.3 if the owner is in substantial breach of this contract. The owner is in substantial breach of this contract if the owner:

  1. (a)
    does not pay progress payment as required by Clause 4;
  1. (b)
    does not pay the deposit as required by Clause 4.2;
  1. (c)
    does not give evidence of the owner’s title as required by Clause 6;
  1. (d)
    does not give evidence of the owner’s capacity to pay the contract price from time to time as required by Clause 7;
  1. (e)
    where a lending body is stated in Item 6 does not comply with:
  1. (i)
    the requirements of Clauses 7.2 or 7.3;
  1. (ii)
    any of the requirements of the lending body; or
  1. (iii)
    the requirements of Clause 5.2;
  1. (f)
    does not establish or maintain the security account as required by Clause 8;
  1. (g)
    does not give possession of the site as required by Clause 10.1;
  1. (h)
    interferes with or obstructs the builder or the builder’s workers, suppliers or subcontractors in carrying out the works in breach of Clause 10.3;
  1. (i)
    does not give an instruction within 5 working days of becoming aware of a problem under Clause 13;
  1. (j)
    does not, or does not ensure that the owner’s contractors, comply with the requirements of Clause 24;
  1. (k)
    takes control of, possession of, or uses the works or any part of the works without the prior written agreement of the builder prior to the payment in full of the contract price, adjusted by any additions or deductions made under this contract, in breach of Clause 26; or
  1. (l)
    is otherwise in substantial breach of this contract.

28.3 If a party is in substantial breach of this contract, then the other party may give to that party a notice to remedy breach in writing:

  1. (a)
    specifying the substantial breach;
  1. (b)
    requiring that the substantial breach be rectified within 10 working days after the notice is given under this contract; and
  1. (c)
    stating that, if the substantial breach is not rectified, the other party intends to end this contract.

28.4 If the party in substantial breach does not rectify or commence to substantially rectify the substantial breach stated in the notice to remedy breach within 10 working days of receiving that notice, the other party may end this contract by giving a separate notice to that effect.

28.5 A party is not entitled to end this contract under this Clause if, within 5 working days of receiving the notice to remedy breach, the party in substantial breach refers the matter to the Queensland Building and Construction Commission, and/or the Queensland Civil and Administrative Tribunal under Clause 37.

28.6 Neither party is entitled to give a notice to remedy breach while that party is in substantial breach of this contract. A notice given by a party in substantial breach is ineffective.

28.7 [Omitted as irrelevant].

28.8 If a party breaches (including repudiates) this contract, nothing in this Clause prejudices the right of the other party to recover damages or exercise any other right or remedy.

  1. [42]
    Mr Haimes points to the difference in the Contract definitions of builder and owner. Clause 38.1 provides that:

In this contract, except where the context otherwise requires:

‘builder’ means the party named in item 3 and includes the builder’s successors, permitted assigns and where appropriate, includes anyone acting with the builder’s express authority.

…….

‘owner’ means the party named in item 2 and includes an owner’s successors and permitted assigns.

  1. [43]
    There is no suggestion that Mr Haimes chose to respond to the Breach Notice in a different way than he would have if it had been signed by the Stocktons rather than by their lawyers on their behalf.  Mr Haimes does not dispute that the Notices were given with the Stocktons’ express authority.
  2. [44]
    The Contract prescribes certain requirements for the notice none of which relate specifically as to who is to sign the notice.[38]  The relevant term in clause 28 is ‘give’, which term is not defined in the Contract.  The term is not ‘sign’, which is used in other clauses.[39]
  3. [45]
    Clause 31 of the Contract sets out when a notice is deemed to be given and received.  These all relate to the mode of delivery of the notice rather than to signing.  Clause 38.5(c) of the Contract makes it clear that where there is more than one owner, if one signs a notice this binds all owners.  This does not expressly preclude the owners instructing an agent to give a notice on their behalf.  The difference in definitions can be explained as the builder is much more likely to act through an agent such as a nominee if the builder is a company or to act through a site supervisor.  All definitions are subject to the exception of where the context otherwise requires.
  4. [46]
    I am satisfied, on an objective construction of the Contract as a whole, that the Breach Notice and the Termination Notice were given by the owners and were not invalid by reason of them being given by the owners through their authorised agent signing the Notices.  The same or at least similar point was considered and rejected by the Tribunal in Hampton Home Builders Pty Ltd v Queensland Building and Construction Commission.[40]
  5. [47]
    For completeness, Mr Haimes contends that the Stocktons repudiated the Contract entitling him to validly terminate the Contract, including by reason of the invalid Notices.[41]  I find that the giving of the Notices by the Stocktons through their lawyers did not constitute repudiation by the Stocktons.

Were the Notices ineffective because the Stocktons were in substantial breach?

  1. [48]
    I find that the Notices were not ineffective by reason of the Stocktons being in substantial breach.  I find that the Stocktons were not in substantial breach for failing to pay invoices V105/14 (revised) dated 27 February 2017 and V105/20 (revised) dated 21 March 2017 for administration fees.[42] 
  2. [49]
    As stated earlier, the Contract provides that neither party is entitled to give a notice to remedy breach while that party is in substantial breach of the contract and any such notice is ineffective.[43] 
  3. [50]
    Mr Haimes contends that the Stocktons were in substantial breach of the Contract as they had failed to pay progress payments in accordance with the Contract.[44]
  4. [51]
    Mr Haimes relies upon the Stocktons failure to pay V105/14 (revised) dated 27 February 2017 and V105/20 (revised) dated 21 March 2017 for administration fees[45] in respect of two variations requested but not proceeded with.
  5. [52]
    The Contract provided:[46]

Any change or variation to the inclusion schedule after contract sign off will incur a minimum administrative fee of $230 Inc GST per variation plus the cost of the variation.  This will be charged regardless of whether the change is a debit or credit to the contract.  All variations and changes to be paid at the next appropriate progress draw.  Variations may occur before House construction has begun for example, if hard rocks found at site works or extra excavation occurs due to unforeseen circumstances.

  1. [53]
    The Stocktons’ evidence is that they requested quotes from Mr Haimes so that they could determine whether to proceed with these changes or variations.  Once they obtained cost information from Mr Haimes, they say after considerable delay, they decided not to proceed.
  2. [54]
    I am not satisfied the Contract, on an objective construction, entitles Mr Haimes to charge the fee where the change or variation is requested but not proceeded with.  If that were intended the clause could have readily made that clear by inserting a few additional words.
  3. [55]
    Even if I accepted that the fees were payable in the circumstances, which I do not, I am not satisfied that the amounts formed part of a progress claim, which had not been paid within the required time in breach of clause 4.
  4. [56]
    As noted earlier in these reasons the Contract provides that the owner is in substantial breach if they do not pay a progress payment as required by clause 4.
  5. [57]
    Clause 4.1 requires the owner to pay the contract price adjusted by any additions or deductions at each stage.  Clause 4.4 relevantly provides that the claim should state the amount claimed for the stage,[47] amounts for variations,[48] the amount of any other addition to or deduction from the contract[49]and the total.[50] Consistent with clause 4.4, Clause 2 of the Inclusion Schedule provides that the variation and changes are to be paid at the next appropriate progress draw.  The administration fee is such an additional amount.[51] Clause 2 of the Inclusion Schedule does not provide a different regime for when such a fee may be claimed or invoiced.  Clause 4.5 provides that the progress claim is to be paid by the owner within 5 working days of receiving the progress claim. 
  6. [58]
    The evidence is that the fixing stage claim, the stage prior to the practical completion stage claim[52] had been claimed by invoice on 19 January 2017,[53] well before these fees were purportedly invoiced.  The practical completion stage claim had not been made at all.
  7. [59]
    I am not satisfied that the time for payment under clause 4 had commenced and therefore it had not expired because I am not satisfied that these fees formed part of a progress claim payable under clause 4. 
  8. [60]
    There is insufficient evidence before me for me to be satisfied that the regime set out in clause 4 for payment had been varied by the parties such that invoices issued separately from progress claims are payable under clause 4.  
  9. [61]
    For completeness, Mr Haimes contends that the Stocktons repudiated the Contract entitling him to validly terminate the Contract, including by reason of the Stocktons being in continued substantial breach as a result of late progress payments.[54]  I find that the failure to pay V105/14 (revised) dated 27 February 2017 and V105/20 (revised) dated 21 March 2017 for administration fees did not constitute repudiation by the Stocktons.

Was the Breach Notice invalid because it required specified work to be carried out within 10 business days? Was the Breach Notice invalid by reason of being prescriptive of works required to remedy? Were the stipulated works required in an impossible timeframe?

  1. [62]
    I find that the Breach Notice is not invalid on this ground.
  2. [63]
    The Breach Notice stated that the Stocktons required Mr Haimes to carry out specified rectification work.[55]  It lists 20 claimed substantial breaches, sets out page references to Mr Tacon’s report and the rectification required for each. 
  3. [64]
    His Honour MacPherson JA in Botros v Freedom Homes Pty Ltd stated:[56]

A contracting party is not entitled unilaterally to impose on the other party conditions of a kind for which there is no contractual warrant or authority. It follows that the owner's attitude on that question, first communicated on 10 October 1995 and insisted on thereafter, justified the builder in treating the contract as at an end. It is true that it was not the ground which the builder gave for terminating the contract; but, as the Tribunal Member correctly observed, termination of a contract can as a matter of law later be justified on any sufficient ground available to a party claiming to terminate a contract even if that specific ground was not relied on at the time of termination. See Shepherd v. Felt & Textiles of Australia Ltd (1931) 45 CLR 359, 377-378; and Minion v Graystone Pty Ltd [1990] 1 Qd R 157, 162.

  1. [65]
    The Breach Notice set out in considerable detail the claimed breaches and set out the Stocktons’ expectations of how Mr Haimes was to address them.  The Breach Notice is required to be sufficiently specific to ensure that Mr Haimes understands the claimed breaches.[57] I am not satisfied that the setting out of the Stocktons’ expectations amounted to the unilateral imposition of a condition invalidating the Breach Notice.  The Stocktons’ expectations largely refer to requiring the work to comply with various building standards.  This is not a case where Mr Haimes contends that he rectified each claimed breach within the time and the Stocktons purported to terminate because he did not precisely meet their stated expectations.

Was Mr Haimes in substantial breach? Even if he was in substantial breach when the Breach Notice was given had he rectified or commenced to substantially rectify?

  1. [66]
    I find that Mr Haimes was in substantial breach in respect of certain (but not all) claimed breaches in the Breach Notice when it was given.  I am not satisfied that he had rectified or commenced to substantially rectify at least some of those substantial breaches within the notice period, as set out below.
  2. [67]
    Mr Haimes denies he was in substantial breach at the time the Breach Notice was given. 
  3. [68]
    Alternatively, he contends that the Stocktons’ entitlement to terminate was limited to circumstances where he did not rectify or commence to substantially rectify a substantial breach in the Breach Notice within 10 working days.  He says that to the extent required he had commenced to substantially rectify.  He says that the Stocktons’ Termination Notice stated he had failed to remedy breaches and therefore applied an incorrect test.
  4. [69]
    Mr Haimes says that the time provided in the Breach Notice was insufficient to attend to all the alleged defects or incomplete work such that all that was required was for Mr Haimes to make a genuine effort to commence to rectify by performing the work or making relevant inquiries with contractors about the appropriate method of rectification.
  5. [70]
    Mr Helisma gave oral evidence that the work required could have been performed within the timeframe set out in the Breach Notice.  Given the extent of the work contended for by Mr Helisma, including by a variety of subcontractors, it seems unlikely it could have all been attended to within the 10 business days.  I take this apparent inconsistency in evidence into account when considering Mr Helisma’s evidence in these proceedings.
  6. [71]
    I accept that Mr Haimes was required to commence to substantially rectify the defects which were substantial breaches of the Contract within 10 business days, failing which the Stocktons were entitled to terminate.
  7. [72]
    Mr Haimes did not appear to understand the seriousness of receiving the Breach Notice or was poorly advised or both.  There is no persuasive evidence before me that he had a plan to address the matters raised, which were substantial breaches. If he did have such a plan, the evidence is that Mr Haimes did not inform the Stocktons or their solicitors of any such plan.  He did not inform the Stocktons of the steps he had taken to rectify or progress the works upon receiving the Breach Notice within the time specified in the Breach Notice.  He only did so after the Stocktons purported to terminate.
  8. [73]
    The Stocktons’ gave evidence that prior to giving instructions to issue the Termination Notice they had observed from outside the site that Mr Haimes had commenced to rectify some of the items, they did not seek access to the site, either directly or indirectly, to observe whether other rectification work had been undertaken or Mr Haimes had commenced to substantially remedy the alleged breaches. They say that they were entitled to form a view that Mr Haimes had not rectified or substantially commenced to rectify the breaches given that Mr Haimes’ response stated that he would attend to the defects once practical completion was achieved.  The Stocktons had little or no regard for whether Mr Haimes had, in fact despite his response, commenced to substantially rectify the alleged breaches and had, it seems, been intent on terminating the Contract.  While they could have done more to satisfy themselves, the issue in these proceedings is whether the claimed breaches were substantial breaches and whether Mr Haimes had in fact rectified or commenced to substantially rectify those breaches.

Are breaches of warranties precluded from being substantial breaches?

  1. [74]
    I find that breaches of warranties are not precluded from being substantial breaches.  It is necessary to consider the breach in each case to determine whether it is a substantial breach.
  2. [75]
    Mr Haimes contends that the alleged breaches were at most breaches of warranties, breach of which result in a right to claim damages but not a right to terminate.
  3. [76]
    I accept that the usual remedy for a breach of warranty is damages rather than a right to terminate.  However, the Contract, by agreement of the parties, sets out a regime by which an entitlement to terminate for ‘substantial’, as distinct from trivial breaches, of the terms of the Contract may arise if the recipient of the notice does not within the time allowed rectify or substantially commence to rectify the claimed breaches, which right is in addition to the parties’ rights at common law.[58] 
  4. [77]
    As set out earlier at [41], clause 28.1 provides for when the builder is in substantial breach.  The Stocktons rely upon clause 28.1(c) i.e., the builder is otherwise in substantial breach of this contract.
  5. [78]
    Clause 28.1 of the Contract does not specifically refer to a breach of clause 36, however, I am not persuaded that a breach of warranty could not, in appropriate circumstances, fall within clause 28.1(c).
  6. [79]
    Clause 28.2 sets out various circumstances where the owner is in substantial breach, which includes not giving instructions within 5 working days under clause 13.[59]
  7. [80]
    The Tribunal has previously accepted, and I agree, that a ‘substantial breach’ in the context of a clause such as clause 28 is distinguishable from one that would justify a common law determination.[60]
  8. [81]
    Given the types of matters listed in clause 28.2, I am satisfied that a substantial breach is one that is not trivial or of inconsequential significance but is not required to equate to a breach of a condition, which would enliven a right to terminate at common law.  It is necessary to consider the significance or consequences of the conduct alleged to determine whether a breach is substantial in each case.

Was Mr Haimes in breach of clause 36.1(b)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?

  1. [82]
    I find that Mr Haimes was in breach of clause 36.1(b) when the Breach Notice was given.  I am not satisfied that the breach was a substantial breach because there is no evidence or submissions before me of the consequences of the breach.  Even if it was a substantial breach, I accept that Mr Haimes had commenced to substantially rectify the breach.
  2. [83]
    Clause 36.1(b) provides that the works will be carried out in accordance with all relevant laws and legal requirements.  
  3. [84]
    Mr Tacon’s report contends that Mr Haimes failed to comply with Work Place Health and Safety law in relation to lack of edge protection.[61]
  4. [85]
    Mr Haimes contends that the temporary edge protection to the balconies had been removed for the glass handrails to be installed and that after Mr Tacon’s first inspection he installed warning signs on 11 April 2017.  Mr Haimes evidence in relation to internal void protection is that he contacted the scaffold subcontractor on 10 and 18 April 2017 to request the issue be rectified and that it was rectified on 3 May 2017 prior to the Termination Notice being given.
  5. [86]
    The Stocktons engaged Mr Tacon to prepare a second report.  A copy is in evidence before me.[62] The second report was prepared after an inspection on 27 May 2017.  Mr Tacon’s second report contends that while the breach in relation to the internal stairs had been rectified the warning signs were insufficient, in his opinion, to remedy the breach in relation to external edge protection.
  6. [87]
    There was little focus on this alleged breach during the hearing or the written submissions.[63]
  7. [88]
    The QBCC’s Technical Claims Manager considered that D1.1 was a breach.[64] I have not been directed to or located in the evidence before me whether the relevant QBCC officer considered the breach had been rectified by the steps taken by Mr Haimes prior to the Termination Notice being given.
  8. [89]
    There was no evidence or submissions before me as to the actual consequences of this breach.  I am unable to conclude, on the balance of probabilities, that the breach was so serious as to constitute a substantial breach.  In any event, the evidence is, and I accept, that Mr Haimes took steps to commence to substantially rectify the breach.

Was Mr Haimes in breach of clause 36.1(c)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?

  1. [90]
    I find Mr Haimes was in substantial breach of clause 36.1(c) in certain respects.  On the evidence before me, I am not satisfied that he had rectified or commenced to substantially rectify at least some of those substantial breaches, as detailed below.
  2. [91]
    Clause 36.1(c) provides that the works will be carried out in an appropriate and skilful way and with reasonable skill and care.
  3. [92]
    Mr Haimes says that the Breach Notice was premature as he had not refused to progress the works, nor had he claimed the works had reached Practical Completion such that the time for him to perform the works except for minor defects or omissions had not yet been reached.  He says his obligation was to bring the works to completion save minor defects or omissions by the time practical completion was achieved and to attend to minor defects and omissions during the defects’ liability period.  He points to the owners’ rights to provide notice of works required to reach practical completion if the contractor claimed it had been reached and the owner disputed it.[65]
  4. [93]
    Mr Haimes says that even if the quality of the work was poor entitling the Stocktons to claim damages, this did not amount to a serious breach or constitute repudiation enlivening a right to terminate.
  5. [94]
    Mr Haimes’ initial response to the Breach Notice was framed in similar but different terms.  At that time, he contended that to the extent there were defects they were minor and could be dealt with in the defects’ liability period.   Upon the evidence before me there were items that required attention to enable Mr Haimes to reach practical completion.  All the items could not be addressed during the defects liability period.  His response did not indicate that he was taking steps to remedy the alleged defects.  In this context the Stocktons say they were entitled to assume that Mr Haimes was not taking meaningful steps to remedy the breaches and was evincing an intention not to be bound by the terms of the Contract, which required at least some of the items to be rectified prior to achieving practical completion.
  6. [95]
    In many respects Mr Tacon’s first report was more consistent with a report about a contractor’s work where the contractor was claiming Practical Completion, rather than an assessment of a contractor’s work prior to practical completion.  As referred to earlier in these reasons, Mr Tacon did not give evidence in this proceeding.  
  7. [96]
    A similar clause was considered in Stojanovski v Australian Dream Homes[66] in which the contractual obligation that the works be carried out in a proper and workmanlike manner, reflecting a statutory warranty, was distinguished from the obligation to complete the works to that standard.  It was noted:

It is irrelevant that the builder may later complete the works to the requisite standard….That the works are carried out in a proper and workmanlike manner will ordinarily be fundamental to the owner and failure to do so is what is contemplated as enlivening the power to serve a default notice….

The contractual purpose of the default notice is to inform the builder that something is amiss with the works that require its immediate attention.

  1. [97]
    However, this is to be balanced against a contractor’s right to choose how the works are progressed subject to the obligation to carry out the works in a timely fashion.  The Tribunal has recognised that ‘many of the particular parts of the works will be started and not completed but as the works progress to practical completion, step by step the works will be completed.’[67]
  2. [98]
    The Stocktons rely upon independent expert evidence given by Mr Helisma.[68]  Mr Helisma was available to confirm his evidence and be questioned by the parties and by me.  Mr Helisma prepared a report following an inspection of the site on 3 and 9 August 2017.  Mr Helisma’s report raised items not included in the Breach Notice. 
  3. [99]
    Given the Stocktons purported to terminate the Contract prior to Mr Haimes reaching Practical Completion, it is not surprising that there were quite a few items of ‘defective’ or incomplete work.
  4. [100]
    Mr Helisma’s evidence is that the cost to rectify and complete what he regards as ‘major defects’ is $525,691.93.[69] His evidence is that a major defect, in his opinion, is work that has not been completed in accordance with the Contract, does not comply with all laws and requirements as required by the Contract,[70] will require significant rectification work both in terms of replacing building elements and cost to rectify and should have been rectified prior to proceeding or commencing the next stage of work.
  5. [101]
    Mr Helisma’s oral evidence was that, other than items he identified as minor matters,[71] the defects required immediate action because many required de-construction to complete the remaining works.
  6. [102]
    Mr Helisma’s evidence was that the works had reached Enclosed Stage, which is the stage prior to the Fixing stage, which had been claimed by Mr Haimes.[72]
  7. [103]
    Mr Haimes did not produce any specific evidence in these proceedings as to the costs to complete or rectify.  Mr Haimes did submit a costings list of outstanding work as at 10 May 2017 to the QBCC.[73]  In his response to the QBCC he estimated that the works were between fixing and practical completion stages.[74]  His estimated costs to complete were $126,450.17, which was more than the practical completion progress claim stage payment provided in the Contract of $67,895.55 but represents about 9.3% of the original contract price of $1,357,911.[75]  It represents an amount very close to the combined fixing and practical completion stage claim amounts.  This does not consider the impact of positive or negative variations on the adjusted contract price.
  8. [104]
    I accept that Mr Haimes’ primary obligation was to bring the works to completion in accordance with the Contract save minor defects or omissions by the date for practical completion or where strict compliance with the terms of the Contract regarding the date for practical completion have been waived within a reasonable time.  I consider the issue of delay later in these reasons.
  9. [105]
    Mr Haimes did not rely upon any independent expert evidence.  I accept Mr Haimes has relevant experience and expertise as a builder, but he is clearly not independent.  I take this into account in assessing the evidence.  Reports authored by QBCC inspectors and QBCC’s Technical Claims Manager are in evidence before me.  The only QBCC officer called by any party to give evidence and be questioned on their various reports was QBCC Inspector, Mr Robert Murphy.  He inspected the works on 19 February 2018 and provided a report dated 19 April 2018.[76]   I take this into account in assessing the evidence. 

Footing steel exposed to the sea air rusted[77]

  1. [106]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) when the Breach Notice was given.  If I am wrong on that, I am not satisfied, having regard to the only evidence of rectification cost before me, that this was a substantial breach. 
  2. [107]
    Mr Helisma’s evidence is that the exposed reinforcing steel and screw piles to the rear of the building is a major defect requiring engineering advice and ought to have been rectified at stage 2 – slab and should not have been left to the latter stages.  Mr Haimes contends this would not be unduly difficult to rectify and would have been attended to prior to practical completion.  His evidence is consistent with the evidence of QBCC’s Technical Claims Manager, who considered that this was an item of incomplete work which could be remedied prior to practical completion with engineering advice.[78]
  3. [108]
    There is some evidence that Mr Haimes sought engineering advice which was received on 17 May 2017 after the Stockton’s purported to terminate.[79]   I have been unable to locate any specific evidence as to whether this advice was sought prior to the Termination Notice being given.  It is more likely than not that Mr Haimes sought this advice prior to the Stocktons’ termination because there would less utility to seek it afterwards.
  4. [109]
    Mr Helisma’s evidence was, and I accept, that the costs to rectify this item was $3,263.26,[80] which is not a substantial cost viewed on its own or when compared with the contract price. 
  5. [110]
    Having regard to the significance or consequences of the conduct alleged, on balance, I am not satisfied that this was a substantial breach at the time of giving the Breach Notice.  I therefore find that Mr Haimes was not required to rectify or commence to substantially rectify within the notice period.  If I am wrong on that, I find that it is more likely than not that Mr Haimes had commenced to substantially rectify by seeking engineering advice.

Brick cavities breached with mortar[81]

External wall – articular joints or control joints has mortar/render in them and areas already cracking[82]

External – weep holes blocked[83]

  1. [111]
    On balance, I am satisfied that Mr Haimes was in substantial breach of clause 36.1(b) in respect of these claimed breaches, at least when viewed collectively, when the Breach Notice was given.  I am not satisfied that Mr Haimes had rectified or commenced to substantially rectify these defects prior to the Stocktons’ termination.
  2. [112]
    Mr Helisma’s evidence in relation to these issues is that he observed that in some locations, which were accessible the external brick veneer cavities are not clear of mortar and weepholes were blocked preventing the cavity from draining.  His evidence is that failure to progressively clean mortar from the cavity and ensure weepholes are clear is unacceptable industry practice, causing water to track back inside the storeroom and water was evident in the cavity after performing water testing on the balconies.  Mr Helisma’s evidence is that the external brick veneer walls articulation and control joints are non-compliant in various respects.  His evidence is that rectification work will require removal of external brick veneer walls. 
  3. [113]
    Mr Haimes’ did not give very detailed evidence about these issues and did not rely upon independent evidence nor evidence from his subcontractor, who he contends performed rectification work.  
  4. [114]
    I prefer Mr Helisma’s evidence to Mr Haimes’ evidence on this point because he is an independent witness, was available to confirm his evidence and be questioned and his evidence on these issues is substantially consistent with the QBCC’s evidence and Mr Tacon’s reports.
  5. [115]
    He set out a scope of work to rectify.  His evidence was that the costs to rectify this item along with related ground floor brick works was $53,296.46.[84]
  6. [116]
    Having regard to the significance or consequences of the conduct alleged, on balance, I find the breach, at least when viewed collectively, was a substantial breach because rectification required deconstruction and the only evidence as to the costs to rectify before me were quite significant. 
  7. [117]
    Mr Haimes took some limited steps in relation to some of these issues. There is no evidence before me that Mr Haimes had a plan to address these matters.  I am not satisfied that he had commenced to substantially rectify these issues prior to the purported termination.

Brick cavities breached with mortar

  1. [118]
    Mr Haimes contends this would not be unduly difficult to rectify and would have been attended to prior to practical completion.  There is some evidence that he did not take any steps to address this item as he was attending to other items in the Breach Notice.[85]
  2. [119]
    The QBCC’s Technical Claims Manager considered that this was a defect as removing brickwork would be required to remedy.[86] He noted that it was unclear how much of the cavity is blocked.
  3. [120]
    Mr Tacon’s second report notes that in his opinion this was a major structural defect which can cause moisture defects inside the wall if not rectified.  He also observed that some galvanised brick ties had been used, that given the severe marine environment stainless steel ties ought to have been used, the galvanised ties ought to be replaced.  This was not a claimed breach included in the Breach Notice.
  4. [121]
    Mr Murphy’s evidence was that without removing building elements it was difficult to establish the extent of this issue.

Articular joints or control joints has mortar/render in them and areas already cracking[87]

  1. [122]
    Mr Haimes contends that his subcontractor rectified the issue on 28 April 2017. Mr Haimes did not seek to lead evidence from his subcontractor to support his evidence in this regard.
  2. [123]
    Mr Tacon’s second report notes that there were still control joints that had not been fixed.
  3. [124]
    The QBCC’s Technical Claims Manager considered that D2.3, was an item of incomplete work which could be remedied prior to practical completion.[88]
  4. [125]
    Mr Helisma’s evidence is that the external brick veneer walls articulation and control joints are non-compliant in various respects.  His evidence is that rectification work will require removal of external brick veneer walls. 

External – weep holes blocked[89]

  1. [126]
    Mr Haimes contends that although the item had not been rectified this was discussed with his subcontractor on 28 April 2017 so that he had taken steps to have it rectified prior to the purported termination.
  2. [127]
    Unsurprisingly, Mr Tacon’s second report notes that the weep holes remained blocked.
  3. [128]
    The QBCC’s Technical Claims Manager considered that this was an item of incomplete work which could be remedied prior to practical completion by removing the render.[90]

External gas hot water system[91]

  1. [129]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.  If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [130]
    Mr Haimes contends this item could have been addressed by practical completion. Mr Tacon’s second report conceded this.  The QBCC’s Technical Claims Manager considered that this was an item of incomplete work which could be remedied prior to practical completion.[92]
  3. [131]
    Mr Helisma did not include this in his report and accepted that this was a matter of incomplete work, which ordinarily would have been completed prior to practical completion.
  4. [132]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period, because I am not satisfied it was a breach and, in any event, I am not satisfied that it was a substantial breach.

External – no shrinkage gaps to window base[93]

  1. [133]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.   If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [134]
    Mr Haimes asserted that there were shrinkage gaps and somewhat inconsistently that the item could have been addressed by practical completion.  Mr Tacon contends that shrinkage gaps did not comply with the Building Code of Australia (BCA) and it would cause cracking if not rectified.
  3. [135]
    The QBCC’s Technical Claims Manager considered that this was ‘defective as the windows cannot drain and not installed with tolerances. To remedy requires significant removal of masonry and render.’[94]
  4. [136]
    Mr Haimes produced a letter from Trend Windows, the window manufacturer, which supported Mr Haimes’ method of construction.[95] Mr Murphy accepted that the work was not defective.[96]
  5. [137]
    Mr Helisma’s evidence is that it was not a “Major Defect”.[97]
  6. [138]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period, because I am not satisfied it was a breach and, in any event, I am not satisfied that it was a substantial breach.

Internal (media room, garage, ceilings level 1, 2 and ground – plaster and skirting damaged with mould[98]

Plaster – cut and damages[99]

  1. [139]
    I am satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of these items when the Breach Notice was given.   I find that Mr Haimes was in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged.  I am not satisfied that he had commenced to substantially rectify these issues prior to the purported termination.
  2. [140]
    Mr Haimes contends that much of the damage was caused by storms and that he had cut plasterboard from the ceiling to investigate the cause of the leak.  As I understand it, he also contends that the leaks were due to the carpenters not performing their work correctly contrary to his or his father’s instructions.[100] To the extent that the leaks were due to the carpenters’ failure to perform their work to an appropriate standard, I find that Mr Haimes was responsible as against the Stocktons, because the carpenters were his subcontractors. 
  3. [141]
    Mr Helisma described these issues as a collective of the waterproofing issues.  In his opinion the water penetration occurred due to the defective waterproofing system installed as part of the tiling to the balconies. His evidence was that this work requires the removal of the tile system, waterproofing and doors to the balconies.[101]
  4. [142]
    The QBCC’s Technical Claims Manager considered that this was an item of incomplete work which could be remedied prior to practical completion.[102]
  5. [143]
    Mr Stockton gave evidence that prior to termination it appeared that Mr Haimes had removed mould from the walls and skirting.[103]
  6. [144]
    Mr Haimes gave evidence that on 11 April 2017 he met with a relevant subcontractor, who siliconed the mitre in the parapet cap to make the works watertight.  On 3 May 2017 he met with another subcontractor to waterproof and seal the deck and says the balance of the work could have been addressed by practical completion.
  7. [145]
    Mr Tacon’s second report notes that the use of silicone was acceptable, but the sealing of the deck had not stopped water ingress.
  8. [146]
    Mr Murphy’s evidence was that Mr Haimes had undertaken extensive rectification work prior to his inspection in February 2018 but that water ingress was still occurring at balcony 3.
  9. [147]
    Having regard to the significance or consequences of the conduct alleged, on balance, I find that the breach was a substantial breach at the time of the giving of the Breach Notice because the evidence is that there was water penetration to multiple rooms.
  10. [148]
    Although Mr Haimes had taken some steps to rectify these issues within the notice period, the evidence is that this had not rectified the issues.  He did not give evidence of any plan to attend to the balance of the work to address these issues. The evidence is that quite extensive work was subsequently performed to address these issues.  In these circumstances, I am not satisfied that he had commenced to substantially rectify these issues prior to the purported termination.

External cladding above BBQ is substandard[104]

  1. [149]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.   If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [150]
    The Breach Notice identified that that the cladding above the BBQ corner was bowed by greater than the allowable tolerance.  Mr Haimes contends it would have been rectified ‘as part of practical completion’.  Mr Murphy’s report notes that no discernible imperfections existed.[105] Given the conflict in evidence I am not satisfied that this item was a breach of the Contract at the time the Breach Notice was issued.
  3. [151]
    Mr Helisma did not include this item in his report and accepted that this was a minor defect, which ordinarily would have been completed prior to practical completion.
  4. [152]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period because I am not satisfied it was a breach and, in any event, I am not satisfied that it was a substantial breach.

Internal dining area – tiles have lippage and are uneven[106]

  1. [153]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.   If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [154]
    Mr Haimes disputed that the lippage exceeded allowable tolerance.  Mr Murphy’s evidence was that the lippage did not exceed allowable tolerance.[107]
  3. [155]
    Mr Helisma’s evidence was that this was a minor defect, which ordinarily would have been completed prior to practical completion.  Given the conflict in evidence I am not satisfied that this item was a breach of the Contract at the time the Breach Notice was issued.
  4. [156]
    As I understand it Mr Helisma classified it as both a minor defect and a ‘major defect’.  If it was a breach, I am not satisfied that it was a substantial breach at the time the Breach Notice was given having regard to the significance or consequences of the conduct alleged and the conflict in Mr Helisma’s evidence.
  5. [157]
    I am not satisfied that Mr Haimes was required to rectify or commence to substantially rectify this item within the notice period, because I am not satisfied it was a breach and, in any event, I am not satisfied that it was a substantial breach.

Stairs are not consistent with height variation of 10mm[108]

  1. [158]
    I find that Mr Haimes was not in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.
  2. [159]
    Mr Haimes disputed this was a breach of the Contract. Mr Helisma’s oral evidence was that this was a matter of incomplete work, as was Mr Murphy’s evidence.
  3. [160]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period, because it was not a breach.

Outdoor area – finished floor level up to DPC bottoms of the weep holes[109]

  1. [161]
    I am not satisfied Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.
  2. [162]
    This item relates to the external portico and terrace.  Mr Tacon’s report stated that the finished tile height is located above the DPC bottom of the weep holes inhibiting their intended purpose of drainage of the brick veneer wall cavity.  He contended that there should be a 50mm step below the DPC weep holes.
  3. [163]
    Mr Haimes says that he sought advice on this issue from the certifier prior to the Stocktons’ purported termination.[110] 
  4. [164]
    Mr Murphy gave evidence that there is no requirement under the BCA or Australian Standards that calls for a 50 mm step down to the area in question and that weepholes are not required to a masonry veneer wall if the wall meets the requirements of the BCA Performance Requirements P2.2.2.  In his view the rendered and painted walls are deemed to have met the BCA requirements.[111]
  5. [165]
    Given the conflict of evidence I am not satisfied that this item was a breach of the Contract.
  6. [166]
    I am not satisfied that Mr Haimes was required to rectify or commence to substantially rectify this item within the notice period, because I am not satisfied that it was a breach.
  7. [167]
    However, I note that the exterior tiling is, in Mr Murphy’s opinion, a structural defect.[112]  He expressed particular concern that there was evidence of negative fall to the entry threshold of the front portico.  This was not the breach alleged in the Breach Notice.

Glass Doors – no provisions for weather proofing, no rebate or channelling to prevent water/moisture ingress[113]

Stacker doors – substandard work in attempt to weatherproof[114]

  1. [168]
    I am satisfied that Mr Haimes was in substantial breach of clause 36.1(b) in respect of these items, at least when viewed collectively, when the Breach Notice was given.  I am not satisfied that Mr Haimes had rectified or commenced to substantially rectify these defects prior to the Stocktons’ termination.
  2. [169]
    Mr Haimes contends that the frameless glass doors were a variation to the Contract and that he informed the Stocktons that occasionally storms may cause water to ingress and that he suggested drainage options which were not accepted. 
  3. [170]
    Mr Helisma’s evidence is that by the time of this discussion it was likely not possible for Mr Haimes to instal such a drain[115] and that a competent builder would only permit such a change if it complied with the performance requirements of the BCA.   The evidence is that the variation was discussed by email dated 25 August 2016.[116] Mr Tacon’s second report notes that the builder must comply with the BCA, NCC, P2.2.2.  
  4. [171]
    There is no evidence before me that Mr Haimes obtained written acknowledgement or informed consent from the Stocktons that he had warned them that the work would not comply with mandatory performance requirements and they accepted the work.  Mr Haimes says that claimed substandard work would have been rectified as part of the practical completion stage.
  5. [172]
    Mr Murphy’s evidence was that this work had not been installed in accordance with the BCA. Having regard to the significance or consequences of the conduct alleged, which was allowing water ingress, on balance, I find that this was a substantial breach.
  6. [173]
    There was no sufficient evidence before me that Mr Haimes commenced to address these issues or had a plan to address this combined item prior to the purported termination. I am not satisfied he had commenced to substantially rectify these defects.

Roof sheeting rusted[117]

  1. [174]
    I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [175]
    Mr Haimes contends that on 11 April 2017 he met with the relevant subcontractor to discuss the issue and replacement sheets would have been fitted to prior to practical completion.  Mr Helisma accepted that this was a minor defect, which ordinarily would have been completed prior to practical completion.
  3. [176]
    I am not satisfied that Mr Haimes was required to rectify or commence to substantially rectify this item within the notice period because it was not a substantial breach. 

Sliding Doors chipped[118]

  1. [177]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.   If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [178]
    Mr Haimes contends this item would have been attended to prior to practical completion.  Mr Murphy’s report notes he was unable to locate this alleged defect. Given the conflicting evidence I am not satisfied that this constituted a breach. 
  3. [179]
    Mr Helisma’s evidence was that this was a minor defect, which ordinarily would have been completed prior to practical completion, therefore I find if it was a breach, that it was not a substantial breach and Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period.

Pool area tiles[119]

  1. [180]
    I am not satisfied that Mr Haimes was in breach of clause 36.1(b) in respect of this item when the Breach Notice was given.   If I am wrong about that, I find that Mr Haimes was not in substantial breach of clause 36.1(b) when the Breach Notice was given, having regard to the significance or consequences of the conduct alleged. 
  2. [181]
    Mr Haimes claimed that this item related to the pool works, which was outside his scope of work and were works for which the Stocktons were responsible. 
  3. [182]
    Even if it formed part of the scope of works, about which there is some doubt, Mr Helisma’s evidence, which I accept, was that this was a minor defect, which ordinarily would have been completed prior to practical completion.
  4. [183]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period, because even if it was a breach, it was not a substantial breach.

Was Mr Haimes in substantial breach when viewing all the breaches together?

  1. [184]
    The Stocktons say that even if individually the breaches were not substantial when viewed together the breaches were substantial. 
  2. [185]
    For the reasons set out above, I find that Mr Haimes was in substantial breach of the obligation in clause 36.1 (c) in respect of items:
    1. D2.2, D2.3 and D2.4 when viewed collectively;
    2. D2.7 and D2.16 when viewed collectively; and
    3. D2.12 and D2.13 when viewed collectively.
  3. [186]
    In respect of each of these groups of items I am not satisfied on the evidence before me that Mr Haimes had commenced to substantially rectify the breaches.
  4. [187]
    I am satisfied when viewing these three groups of items collectively that Mr Haimes was in substantial breach of his obligations. Prior to the Stocktons’ purported termination, Mr Haimes had commenced to rectify some of the claimed breaches. I am not satisfied that when viewed collectively those steps evidence that he had commenced to substantially rectify the substantial breaches when viewed as a whole. As stated earlier in these reasons there was no sufficient evidence that Mr Haimes had a plan for how these items would be addressed in a timely manner to allow him to achieve practical completion.

Was Mr Haimes in breach of clause 36.1(d)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?

  1. [188]
    I find that Mr Haimes was not in breach of the obligation to carry out the works in accordance with the plans and specification as required by clause 36.1(d), in respect of the pivot doors, when the Breach Notice was given. 
  2. [189]
    Clause 36.1(d) provides that the works will be carried out in accordance with the plans and specification to the contract.  The Breach Notice relies upon one item of alleged non-compliance in respect of the pivot doors. 
  3. [190]
    The Breach Notice identified that the doors were not installed in accordance with the contract.  Mr Haimes contends that the parties agreed to vary the works.[120] Mr Stockton gave evidence that the variation only related to the price and not to the scope of works.  The inclusions schedule in the contract provides that the feature pivot window to lounge/courtyard was a provisional sum item with an allowance of $11,000 (incl GST).[121] The notation in variation 5 refers to ‘in lieu of pivot doors allowance’.[122]
  4. [191]
    The Contract drawings show three pivot doors.  However, the variation provides for two door handles and two door closers indicating an agreed change to two doors.
  5. [192]
    Although it could be clearer, the contemporaneous documentation, on balance, supports Mr Haime’s evidence that there was a variation to the scope of works.
  6. [193]
    I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period because Mr Haimes was not in breach of this obligation.

Was Mr Haimes in breach of clause 36.1(e)? Was the breach substantial when the Breach Notice was given? Even if he was in substantial breach had he rectified or commenced to substantially rectify?

  1. [194]
    I am not satisfied, on the evidence before me, that Mr Haimes was in substantial breach of clause 36.1(e) of the Contract when the Breach Notice was given on 18 April 2017.  If I am wrong about that, I am not satisfied that the Stocktons are able to rely upon such breach when the Breach Notice was given on 18 April 2017.  I find that Mr Haimes was not required to rectify or commence to substantially rectify this item within the notice period.
  2. [195]
    Clause 36.1(e) provides that the works will be carried out with reasonable diligence. 
  3. [196]
    The Breach Notice used the term due diligence.  Mr Haimes contends that the Stocktons applied an incorrect test.  The Stocktons contend, and I agree, that there is no substantive difference between carrying out the work with reasonable or with due diligence.
  4. [197]
    I accept that the Contract required Mr Haimes to progress the works with reasonable diligence to bring the works to completion in accordance with the Contract save minor defects or omissions by the date for practical completion or where strict compliance with the terms of the Contract regarding the date for practical completion have been waived within a reasonable time. 
  5. [198]
    The Stocktons contend that Mr Haimes failed to carry out the work in breach of clause 36(1)(e) as there was significant incomplete or defective work at the time of giving the Breach Notice and that the works had not been brought to completion within the time provided for in the Contract.
  6. [199]
    Mr Tacon’s report identified numerous items of incomplete work.  This is unsurprising as Mr Haimes had not claimed practical completion. 
  7. [200]
    Mr Haimes says that there were matters outside his control which contributed to the delay in completing the works and that he was progressing the works with reasonable diligence in all the circumstances. 
  8. [201]
    Mr Haimes points to various reasons for delayed progress, contends that he has explained why the progress was reasonable in the circumstances such that he was not in breach of the obligation to progress the works with reasonable diligence and therefore the Stocktons did not have a right to terminate.
  9. [202]
    He says that the Stocktons entitlement for breach of this warranty was for late completion damages agreed at $50 per day.[123]  He says this supports his contention that failure to proceed with reasonable diligence was not a substantial breach as the parties had agreed the applicable measure of damages.
  10. [203]
    The Tribunal[124] has previously accepted that:

The contract does not contemplate that late completion represents a substantial breach. It provides specifically for late completion damages in the event that the building period is exceeded in item 11 and clause 31. As a matter of construction, I am satisfied that damages are the remedy for late completion under the contract. However, if the delay was of inordinate length, a common law right to terminate may arguably arise.

  1. [204]
    The claimed breach by Mr Haimes was not a failure to bring the works to completion by the date for practical completion, which is compensated for by liquidated damages.  The claimed breach was that he had not carried out the works with reasonable diligence.
  2. [205]
    Mr Haimes relies upon Thunder Corp Pty Ltd v Queensland Building Services Authority[125] which stated:

[71] In an article entitled “Due Diligence and Expedition Terms in Building Contracts – Obligations and Issues”, George Govan QC discussed the Cleveland Bridge case and consistent with the decision in that case said:“In my opinion, the proper interpretation of the phrase “due diligence” in the context of building contracts disregards the personal characteristics of the builder. The only relevant consideration is whether the works have fallen behind what would reasonably be expected to be done to enable completion by the completion date, as adjusted from time to time. In other words, the term relates to delays in progress during the course of construction which will prevent the works from being completed by the completion date, not due to causes which would entitle the builder to obtain an extension of time under the contract, even if those causes are beyond the control of a conscientious builder.”

[72] I agree with this analysis and think that the correct enquiry in this case is whether the Works have fallen behind what would reasonably be expected to be done by the end of November 2007 taking into account delays which would entitle the applicant to further extend time for Practical Completion.

[73] From the statement of Jeffery Hills, I note that in the period 19 October 2007 to 28 November 2007 there were 20 days of rain. I accept the evidence of Mr Hills that “the progress of the works was significantly slowed by the rain”.

[74] On this basis I find neither the owner nor the respondent have shown that there was a lack of due diligence on the part of the applicant in the period to the last extended date for Practical Completion at the end of November 2007.

[75] As to the period after November 2007 I note that there was significant rainfall during December and the applicant took a four week break. The four week year end break is noted in the contract as a reason for delay. It is true as the respondent submits that there is no reference to when the break will commence and how the commencement of the break will be agreed. It is said the applicant failed to tell the owner when the works would continue after the break. For these reasons it is said the provision in the contract as to the 4 week break is void for uncertainty. I disagree. I accept the evidence of the applicant that he had organised a carpenter to commence work on 7 January 2008 and concreters to return in January 2008. I accept the evidence of the applicant that he told the owner he would be taking a 4 week break over the Christmas/New Year period and that all trades and suppliers stop work at that time so that it was impossible to have work performed in the period. The owner does not rebut this evidence in his statement.

[76] I also accept the submissions of the applicant that a building industry shut down over the Christmas /New Year period is well known to the public at large.

[77] I consider that there is sufficient certainty in terms of the timing of the 4 week break and the length of the break for the parties to be bound by it as a term of the contract.

[78] I consider the applicant would be entitled to claim a further extension to the date for Practical Completion to take account of these delays. There is no time when the extension should be claimed under the contract, simply “within a reasonable time”. Further the applicant had flagged his estimate of the likely Practical Completion date as at mid March 2008.

[79] I find that as at 19 December 2007 there was no default by the applicant under the contract, in terms of a lack of due diligence, which would justify the owner giving a Notice of Intention to Terminate.

……

[96] The common thread through all the cases on sufficiency of Notices of default is that the applicant receiving the notice could fairly discern what default on his part is alleged and what he must do to remedy the default.

[97] What must be done to remedy a breach of an obligation of due diligence is to work diligently to bring the Works to completion by a lawfully adjusted date for Practical Completion.

[98] ….. He has required as one would rightly expect that the applicant “schedule the remaining works to bring the remaining works to Practical Completion within a reasonable time”.

  1. [206]
    There are differences between the contract in Thunder and the Contract in this case in relation to when extensions of time could be sought.  In addition, in Thunder the contractor had sought some extensions of time.
  2. [207]
    Clause 6 of the Inclusion Schedule provides:

Build time for this property is approximately 52 weeks.  “House Build Time” is classed as the time taken from Footings to construct the house in its entirety.  This differs from the total Contract Construction Time, which includes Site Works, variations and unforeseen circumstances.[126]

  1. [208]
    The building period of 260 calendar days or a little more than 37 weeks is inconsistent with the Inclusion Schedule.  Having regard to the order of precedence clause, the general conditions and its supporting schedule, which specifies 260 calendar days, take precedence over the Inclusion schedule, which is a document listed in item 16.[127]  
  2. [209]
    On either the Stocktons or Mr Haimes evidence of when the work commenced and therefore the date for practical completion, there is no dispute that Mr Haimes did not complete the works by the end of the building period as required by clause 3.1 of the Contract. He had not sought any extensions of time.  However, I find that the Stocktons waived the non-compliance by not raising delay and continuing to vary the scope of the works after the expiry of the building period, for which they contend. 
  3. [210]
    I find that the Stocktons waived strict compliance with this term of the Contract and ought not be permitted to resile from the position they adopted without putting Mr Haimes on notice. 
  4. [211]
    There is no evidence before me that the Stocktons raised any concerns about delay with Mr Haimes prior to delivery of the Breach Notice.  The Stocktons were not inexperienced in the construction industry.  This was their third house build contract with Mr Haimes within a relatively short period of time.  Mr Stockton’s evidence is that he is an electrical contractor. 
  5. [212]
    The Breach Notice put Mr Haimes on notice that the Stocktons’ waiver of any failure to progress the works in accordance with the Contract could not continue to be relied upon and that he needed to progress the works to completion within a reasonable time. I find that at the time the Breach Notice was given the Stocktons were not entitled to rely upon any failure by Mr Haimes to progress the works strictly in accordance with the Contract.
  6. [213]
    Although there was some delay in progressing the works when compared with the building period provided in the Contract the evidence is that Mr Haimes had progressed the work to at least the enclosed stage, on Mr Helisma’s evidence, and between the fixing stage and the practical completion stage on Mr Haimes’ evidence.
  7. [214]
    Mr Haimes concedes that although he was aware that the Contract provided that extensions of time could be claimed he did not claim any extensions of time as a result of his professional and personal relationship with the Stocktons, and because the Stocktons’ son and son-in-law were engaged to work on the site, he says that he trusted the Stocktons and did not believe issuing extension of time claims was necessary.  He says that the Stocktons had not indicated that they were concerned by delay until the Breach Notice was delivered.  He says that he believes he was entitled to extensions of time of at least 344 days if he had made formal application in accordance with the Contract.  He says that he informed the Stocktons verbally of the reasons for major delays and that they were aware of the delays and progress.  Mrs Stockton disputed they were kept informed of delays after about December 2016. 
  8. [215]
    There was no direct evidence before me that the works as at 18 April 2017 were ‘seriously behind what could reasonably be expected’ in the circumstances.[128]  There was no independent evidence as to the reasonable time required to complete the work in the circumstances upon which I could rely to make a finding that Mr Haimes was in substantial breach of the obligation to carry out the work with reasonable diligence.

Failure to complete the works by the date for practical completion and the works being significantly delayed

  1. [216]
    The undisputed evidence is that Practical Completion was not achieved by 30 June 2016 as contended for by the Stocktons, nor by 15 December 2016 as contended for by Mr Haimes nor by the time the Contract was terminated on 5 May 2017.   I am not satisfied that this demonstrates that Mr Haimes was in breach of the obligation to carry out the work with reasonable diligence nor that Mr Haimes was in substantial breach of the obligation.
  2. [217]
    The Homeowners point to the failure of the Contractor to achieve practical completion by the time of termination as evidence of breach.
  3. [218]
    There is no evidence before me that the Stocktons raised concerns in relation to the rate of progress prior to giving the Breach Notice nor did they put Mr Haimes on notice that they required strict compliance with the Contract.
  4. [219]
    Evidence that the works were not brought to completion by the date for practical completion is some evidence of delay but does not necessarily equate to failing to perform the works diligently or unreasonably delaying or failing to maintain reasonable progress.[129]  It is necessary to consider the causes of delay to determine if the Contractor’s delay was unreasonable in the circumstances.[130]

What was the date for practical completion under the Contract? Did the Stockton’s obtaining of finance cause delay?

  1. [220]
    It is not necessary in these proceedings to make a finding as to the date for practical completion under the Contract.  These proceedings do not require a finding as to any entitlement to liquidated damages.  For the reasons set out below, I accept that the Stocktons’ delay in obtaining finance caused or at least contributed in the order of four months delay.  In the circumstances, such delay does not demonstrate a breach by Mr Haimes of the obligation that the works will be carried out with reasonable diligence.
  2. [221]
    The Stocktons contend that the work commenced on or about 14 October 2015, the construction period was 260 days such that practical completion was required by 30 June 2016 and that at the time of the Breach Notice the works were 292 days past the date for practical completion. 
  3. [222]
    Mr Haimes contends that the work commenced on 30 March 2016.  The construction period was 260 days such that practical completion was required, on my calculation, by 15 December 2016.
  4. [223]
    The Stocktons say whether or not the building period commenced on 14 October 2015 or on the date contended for by Mr Haimes, the works had not been brought to practical completion within the building period or even within months after such period expired by the time the Breach Notice was given on 18 April 2017.  
  5. [224]
    Some of the difficulty of determining when the building period commenced stems from Mr Haimes not giving a Notice of Commencement as contemplated by the Contract.[131] 
  6. [225]
    The Contract provided that the building period starts on the actual day of commencement.[132] Commencement under the Contract relevantly means ‘when the builder commences physical construction on site of the footing, slab or drainage system’.[133]  The Contract provided that the works must reach practical completion within 260 calendar days after commencement subject to clause 17, dealing with extensions of time.
  7. [226]
    Mr Haimes says that the works performed in October 2015 were variously:
    1. not part of the works under the Contract but rather were works related to the pool, which was not part of the Contract;[134] or
    2. were part of the works under the Contract but were regarded by the parties as a separable part of the works such that the balance of the works were subject to the finance condition. 
  8. [227]
    There is evidence that the Council had granted a development permit on 13 October 2015.[135]  That approval made clear that Building Works approval was also required to allow the development to be carried out.[136]
  9. [228]
    There was a dispute as to whether the works performed in October 2015 were in respect of the pool or works related to the house under the Contract.  It is likely that corroborating evidence could have been provided by Mr Haimes and the Stocktons or both, but such evidence was not provided. 
  10. [229]
    Mrs Stockton’s evidence was that the screw piers were not related to the pool but were part of the ground works in the Contract.[137]  Her evidence was that the pool shell, which was required to be installed prior to the piers, was completed on 29 October 2015 and the screw piers/footings for the house commenced on 13 November 2015.  Mrs Stockton’s evidence does not explain what work under the Contract is alleged to have been commenced by Mr Haimes on or about 14 October 2015.  The Breach Notice asserts that work commenced on site on or about 14 October 2015 when the block was cut, and the Stocktons’ lawyers’ letter dated 4 May 2017 asserted that Mr Haimes commenced work ‘on the piers of the property on 14 October 2015’.[138]
  11. [230]
    On Mrs Stockton’s evidence of commencement on 13 November 2015, on my calculation, practical completion was due 27 July 2016.
  12. [231]
    Mr Haimes points to the Special Condition, which replaced clause 7.2(a), which provided that the Contract was conditional upon the owner within 20 working days from the date of the Contract obtaining written finance approval from the CBA.  It also provided that the deposit was to be paid by the owner upon obtaining such approval.  Clause 7.2(c) of the Contract provided that the Stocktons were to give Mr Haimes a notice[139] stating whether the lending body had approved or refused to approve the loan within 20 working days from the date of the Contract. 
  13. [232]
    The evidence is that the Stocktons did not give such a written notice nor seek an extension of time within which to obtain finance.
  14. [233]
    Mrs Stockton’s evidence is that on 20 November 2015 they informed Mr Haimes ‘in person’ that finance approval had been obtained.[140] Mr Haimes disputes he was informed finance had been obtained. 
  15. [234]
    Unless the Stocktons notified Mr Haimes that the loan was refused the Contract ceased to be conditional upon the approval.[141]  Despite this provision, Mr Haimes did not invoice the Stocktons for the deposit at that time. 
  16. [235]
    Mr Haimes was not required to commence work until various pre-conditions were met including the owner obtaining finance in accordance with clause 7.2[142] (as modified by the special condition), the owner giving the builder a notice from the lending body that construction of the works may commence[143] and the builder receiving all approvals required under clause 2.3[144], whichever is the latter.
  17. [236]
    There was no evidence before me that the Stocktons gave Mr Haimes notice that their lender agreed that construction may commence, nor that they took any steps to pay the deposit or to seek an invoice for the deposit or to enquire as to when building approval would be sought or when work would commence or given the screw pier work was performed, when the work would continue.
  18. [237]
    Although Mr Haimes was not required to commence until the pre-conditions were satisfied that does not mean that he could not commence prior to these conditions being satisfied.
  19. [238]
    Mr Haimes says that the Stocktons told him that a suitable valuation of the proposed house and land was required to obtain finance approval and he took steps to assist them in obtaining such a valuation.  He says a valuation was obtained in early 2016.
  20. [239]
    Mrs Stockton’s evidence was that a valuation was required by their lender to ‘finalise’ the finance but that it had been approved. The Stocktons did not produce any documentary evidence as to finance approval nor explain why it was not produced.
  21. [240]
    Mr Haimes points to the payment of the deposit in late February 2016.  There is evidence before me that the balance deposit, invoiced 11 February 2016,[145] was paid by way of three payments made on 25, 26 and 28 February 2016.[146] 
  22. [241]
    He says following payment of the deposit, building approval was sought and that it was obtained on 17 March 2016[147] and work under the Contract commenced 30 March 2016.[148] 
  23. [242]
    Mr Haimes’ conduct is consistent with him waiving his right to regard the Contract as unconditional and essentially granting an extension of time to the Stocktons’ to obtain finance. The Stocktons’ conduct is not consistent with homeowners who have obtained unconditional finance approval in November 2015. 
  24. [243]
    In the absence of documentary evidence as to finance approval, I find that it is more likely than not that finance was not unconditionally approved until after the Stocktons provided a suitable valuation to their lender in early 2016.
  25. [244]
    Mr Haimes’ evidence is that work on the screw piers performed in October 2015, prior to the Contract being signed, was outside of the scope of the Contract and that work under the Contract commenced on 30 March 2016 after the deposit was paid in February 2016. 
  26. [245]
    There is no clear evidence of a separate written nor informal oral contract for the screw piers work.  Mr Haimes’ position that the screw piers were not part of the Contract works is inconsistent with the invoice dated 11 February 2016 for the balance of the deposit, which reduced the deposit by the amount previously paid for screw piers.[149] The clear inference is that the screw pier works were part of the contracted works because the amount paid for them was part of the Contract price.
  27. [246]
    I find that it is more likely than not that both Mr Haimes and the Stocktons agreed to vary the terms of the Contract such that whilst work under the Contract was commenced, the balance of the Contract was conditional upon the obtaining of finance and neither party had any expectation that the balance of the contract works would proceed until finance was unconditionally obtained.  
  28. [247]
    Mr Haimes says that the Stocktons’ delay in obtaining finance caused four months or 120 days delay.  I accept that the Stocktons’ delay in obtaining finance caused in the order of four months delay.  Such delay does not demonstrate a breach by Mr Haimes of the obligation that the works will be carried out with reasonable diligence.

Delay to progress of works due to conduct of Lane Stockton and Matthew Scholz

  1. [248]
    I am not satisfied that any such delay is the responsibility of the Stocktons as distinct from Mr Haimes.
  2. [249]
    Mr Haimes contends that Lane Stockton (the Stocktons’ son) and Matthew Scholz (the Stocktons’ son-in-law), carpenters contracted to perform work on this build caused at least five months (150 days) delay due to their failure to rectify frame defects, which he ultimately rectified himself on 17 January 2017.  Lane Stockton disputes Mr Haimes’ evidence.  Matthew Scholz did not give evidence in these proceedings. Mrs Stockton’s evidence refutes Mr Haimes’ evidence of delay and points to progress of the works during this time including as evidenced by the issuing of a number of progress claims.
  3. [250]
    Despite Mr Haimes’ assertions that they were in essence nominated sub-contractors, the Contract did not include any provision for or the consequences of nominated sub-contractors.  Although I accept that the relationship between Mr Haimes’ contracted carpenters and the Stocktons may have given rise to a need to proceed with a little more caution and diplomacy than arms-length sub-contractors, Mr Haimes was responsible for the work of his sub-contractors.  There is no sufficient explanation as to why he could not have taken steps to carry out or have the work undertaken by others prior to January 2017. 

Did variations or other conduct of the Stocktons cause delay?

  1. [251]
    There is insufficient evidence before me to find that variations or other conduct of the Stocktons caused a particular number of days delay. 
  2. [252]
    Mr Haimes contends that the progress of the works was delayed because of variations and because of conduct of the Stocktons,[150] which was disputed by the Stocktons.[151]
  3. [253]
    Neither Mr Haimes nor the Stocktons provided any independent evidence as to any delay to the critical path of the works because of these matters.  Mr Haimes gave oral evidence of the assessment of delay he and his father undertook.  Mr Haimes’ father did not give evidence in these proceedings.  There was no documentary evidence of the analysis before me. 
  4. [254]
    I accept that variations, including for omission of work from the scope, may cause delay but variations do not necessarily cause delay to the critical path.
  5. [255]
    On the limited evidence before me as to variations, all variations were documented after the Stocktons’ contended for date for practical completion of 30 June 2016.[152]  Dates of the variations commenced on 25 July 2016.  There is limited evidence as to when the variations were requested or became necessary.  The 1 March 2017 list of variations shows that a number of the variations were dated after the date for practical completion of 15 December 2016 contended for by Mr Haimes i.e., VTC 13, VTC 16 – VTC19.  The latter was dated 27 February 2017.
  6. [256]
    The Contract provided variation documents must state various matters and if there will be a delay because of the variation, a reasonable estimate of the delay.[153] This contractual obligation is also reflected in the QBCC Act.[154]  The variation documents before me do not contain such reasonable estimates.[155] Variation 6 indicated an extension of time may be incurred if the installation of joinery delays follow on trades.[156]
  7. [257]
    Mr Haimes says that the changes to windows and doors involved major structural reconfiguration and significant delays.  He says this caused 1 month or 30 days delay.  Variation V105/5 setting out these changes is dated 4 August 2016.  The evidence is that it was accepted, after about 7 weeks delay, by the Stocktons, when they signed it on 26 September 2016.[157]  Mrs Stockton concedes there were changes to the windows at frame stage and acknowledged that it caused some minor delay.[158]
  8. [258]
    I accept that it is more likely than not that the changes to windows and doors caused some delay for which Mr Haimes was not responsible.  I am not satisfied, on the evidence before me, that this variation or other variations caused a particular number of days delay.
  9. [259]
    Mr Stockton’s evidence[159] was that the works came to a complete standstill in February 2017.  Mr Haimes conceded this but blamed the Stocktons. 
  10. [260]
    Mr Haimes points to the Stocktons being continually late in making both progress payments and variation payments.[160]  Mr Stockton conceded that several invoices were paid later than the due date because of their financier’s requirements.[161]  As against Mr Haimes the Stocktons were responsible for their financier’s delays.  Despite this evidence there is no evidence that Mr Haimes exercised his contractual rights to formally suspend the works for failure to pay progress claims in accordance with clause 4.[162]  However an email of 24 February 2017 is evidence that Mr Haimes informally suspended the works because of a claimed failure to pay amounts owing.[163]
  11. [261]
    Variations were due for payment at the next progress payment unless a different time was agreed.[164]  The evidence as to when the variations were actually payable under the Contract is limited. The evidence is that Mr Haimes issued invoices for variations as distinct from including them as adjustments to progress claims as contemplated by the Contract. For the reasons set out earlier I am not satisfied that the variations were due for payment under clause 4, upon the issue of a separate invoice.
  12. [262]
    Even if I accept that payment for variations were in fact delayed, about which there is some doubt, in the absence of exercising a right to suspend, Mr Haimes was obliged to continue to progress the works.  Delayed payment is not expressly a ground for seeking an extension of time under clause 17.  To the extent such a delay may have been a ground for an extension of time as ‘anything done or not done by the owner’[165] there is insufficient evidence upon which I can rely to find that delayed payment caused actual delay to the critical path.
  13. [263]
    Mr Haimes says that the electrical rough in process by the Stocktons’ electrical contractor caused project delay of over two weeks.[166]  He says he believes he would have been entitled to an extension of time of 14 days. Mrs Stockton concedes there was some minor delay in relation to this work.[167]  I accept that it is more likely than not that the changes required by the Stockton’s electrical contractor caused some delay for which Mr Haimes was not responsible. 
  14. [264]
    Mr Haimes says that he chased the Stocktons for cabinetry supply and installation from November 2016 to April 2017 and that this delay made it difficult for his trades to efficiently continue their works.  Mrs Stockton denies that they or their joinery contractor delayed Mr Haimes.  Mr Biggs, the director of the joinery contractor engaged by the Stocktons, gave evidence of various delays to their work by Mr Haimes or earlier trades. 
  15. [265]
    On the evidence before me, I am not satisfied the issues with the joinery contended for by Mr Haimes caused delay or any particular number of days delay for which Mr Haimes was not responsible.
  16. [266]
    I am satisfied that Mr Haimes was not responsible for at least some of the delay. 

Termination at law

  1. [267]
    I am not satisfied that Mr Haimes repudiated the Contract.
  2. [268]
    The Stocktons submit that they had the right to terminate because Mr Haimes had repudiated the Contract.
  3. [269]
    They say that his conduct was such as to convey to a reasonable person, in the situation of the Stocktons, renunciation either of the contract as a whole or of a fundamental obligation under it.[168]
  4. [270]
    Although Mr Haimes’ response to the Breach Notice was to assert that the items would be attended to in the defects liability period, the evidence is, and I accept, that he did commence to rectify and he and his subcontractors were progressing incomplete works identified during the notice period[169] and that the Stocktons were aware that at least some of that work had been performed. This is not consistent with a contractor who has repudiated the contract.
  5. [271]
    The Stocktons contend that the failure to achieve practical completion by the time the Breach Notice was issued also manifested an intention not to be bound by the terms of the Contract.
  6. [272]
    There is no evidence before me that the Stocktons raised concerns in relation to the rate of progress prior to giving the Breach Notice nor did they put Mr Haimes on notice that they required strict compliance with the Contract.
  7. [273]
    For the reasons set out earlier, on the evidence before me, I am not satisfied that the delay was of inordinate length in the circumstances and therefore I am not satisfied that the failure to achieve practical completion was a repudiation of the Contract.
  8. [274]
    The Stocktons also point to other conduct of Mr Haimes e.g., failure to seek extensions of time and failure to properly document variations to include information about likely delay as evidencing an intention not to be bound.  There is no evidence before me that the Stocktons raised concerns about these matters. As stated earlier there is no evidence that they put Mr Haimes on notice that they required strict compliance with the Contract.
  9. [275]
    I am not satisfied that Mr Haimes was not ready, willing and able to complete the Contract.

Does the Human Rights Act 2019 (Qld) (HR Act) apply?

  1. [276]
    I find that the HR Act does not apply.
  2. [277]
    The HR Act commenced on 1 January 2020.  The transitional provisions provide that the HR Act does not affect proceedings commenced before the commencement.[170] No party made any submissions about the HR Act.  These proceedings were commenced before the HR Act commenced.
  3. [278]
    If I am wrong and the HR Act applied, in deciding this application I have in any event interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[171] In conducting the hearing and deciding this Application, I am acting as a public entity[172] in an administrative capacity. I accept that this application potentially impacts Mr Haime’s and the Stocktons’ rights to a fair hearing, and I considered them in conducting the oral hearing and in coming to my decision by considering the evidence given by or on behalf of and the submissions filed by each party.[173]
  4. [279]
    I accept that these proceedings and a decision under the QBCC Act potentially impacts other rights, in particular the right to privacy and reputation.[174] I have considered Mr Haimes’ and the Stocktons’ human rights and am satisfied that the decision is compatible with their human rights as the limitations on those rights are reasonable and justifiable.[175] The limitation of Mr Haimes’ and the Stocktons’ human rights is consistent with the objects of the QBCC Act[176] and the objects of the QCAT Act.[177]

Costs

  1. [280]
    All parties were legally represented in these proceedings.  It is appropriate to make directions allowing parties to apply for an order in relation to costs, should they wish to do so, failing which there will be no order as to costs.

Footnotes

[1]  Statement of Reasons and indexed bundle of documents filed 13 July 2018 (collectively referred to as SOR), SOR 3, pp 199-206.

[2]  Ibid, pp 215-216.

[3]  Stocktons’ submissions filed 30 April 2021, [39].

[4]  SOR3.

[5]  SOR16, pp 666-669.

[6]  GAR215-17.

[7]  The Queensland Building and Construction Commission (QBCC) received additional information from the Stocktons as part of their review proceedings, including a report from Mr Helisma, to which I will refer later.

[8]  Application to review a decision filed 5 June 2018 (Application).

[9]  QBCC’s submissions filed 13 April 2021; the Stocktons’ submissions marked as filed in GAR215-17 on 30 April 2021 and 8 June 2021 but apparently intended to be filed in this proceeding; Mr Haimes’ submissions filed 26 May 2021 and 20 July 2021.

[10]  [2010] QCAT 70, [23] (references omitted).

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 6 (QCAT Act).

[12] Queensland Building and Construction Commission Act 1991 (Qld), s 86(1)(i) (QBCC Act).

[13]  Ibid, s 86E.

[14]  Ibid, s 87.

[15]  QCAT Act, s 24.

[16]  Ibid, s 20.

[17] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[18] Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56, [45]-[47].

[19]  QBCC Act, s 3.

[20]  SOR1.

[21]  SOR3, p 91.

[22]  QBCC Act, Reprint 1 July 2015, ss 67X to 71AC (inclusive).

[23]  Ibid, s 69(2).

[24]  Ibid, s 69A(2).

[25]  SOR3, p 155.

[26]  Ibid, p 158.

[27]  SOR8, p 425.

[28]  Ibid, p 286.

[29]  SOR3, p 116.

[30]  QBCC Act, Reprint 1 July 2015, Schedule 1, s 66(1).

[31]  Ibid, s 66(5).

[32]  Ibid, s 66(2).

[33]  Ibid, s 66(5); Queensland Building and Construction Commission and Other Legislation Amendment (Postponement) Regulation 2015 (Qld), s 2; 28 October 2016.

[34]  SOR1.

[35]  SOR3, p 91.

[36]  Ibid, p 207.

[37]  Ibid, pp 169-198.

[38]  Clause 28.3.

[39]  Clause 2.4, clause 11.3

[40]  [2023] QCAT 21, [62].

[41]  Submissions filed 26 May 2021, [18].

[42]  Exhibit 2, LH8.

[43]  Clause 28.6.

[44]  Clause 4.

[45]  Exhibit 2, LH8.

[46]  SOR3, p 127, Inclusion Schedule, clause 2.

[47]  Clause 4.4(a).

[48]  Clause 4.4(b).

[49]  Clause 4.4(d).

[50]  Clause 4.4(e).

[51]  Clause 4.4(d).

[52]  SOR3, p 130.

[53]  Exhibit 1, LH4.

[54]  Submissions filed 26 May 2021, [18].

[55]  SOR3, pp 204 – 206.

[56]  [2000] 2 Qd R 377, 379 – 380.

[57] Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56, [96].

[58] Mazelous Pty Ltd v Herberton Shire Council [2003] 1 Qd R 174, 182-183; Allen & Taylor v Queensland Building and Construction Commission [2020] QCAT 63, [36].

[59]  Clause 28.2(i).

[60] Allen & Taylor v Queensland Building and Constriction Commission [2020] QCAT 63.

[61]  D1.1

[62]  SOR12, p 615.

[63]  QBCC’s submissions [14]-[17].

[64]  SOR15, p 665.

[65]  Contract, cl 25.4.

[66]  [2015] VSC 404, [56]-[58].

[67] Allen & Taylor v Queensland Building and Constriction Commission [2020] QCAT 63, [119].

[68]  Exhibit 11.

[69]  Ibid, p 4.

[70]  Clause 1 and 11.

[71]  Items D2.5, D2.8, D2.9, D2.14, D2.15 and D2.17.

[72]  Exhibit 11, p 8.

[73]  SOR8, p 466.

[74]  Ibid, p 260.

[75]  SOR 3, p 91.

[76]  Exhibit 6.

[77]  Referred to in the documents as D2.1; Exhibit 11, p 9, Item 1.

[78]  SOR15, p 665.

[79]  SOR 8, p 335.

[80]  SOR19, p 1594.

[81]  Referred to in the documents as D2.2; Exhibit 11, pp 15 and 16, part of item 4.

[82]  Referred to in the documents as D2.3; Exhibit 11, pp 15 and 16, part of item 4.

[83]  Referred to in the documents as D2.4; Exhibit 11, pp 15 and 16, part of item 4.

[84]  SOR19, p 1597.

[85]  SOR8, p 361.

[86]  SOR15, p 665.

[87]  Exhibit 11, pp 15 and 16, part of item 4.

[88]  SOR15, p 665.

[89]  Exhibit 11, pp 15 and 16, part of item 4.

[90]  SOR15, p 665.

[91]  Referred to in the documents as D2.5.

[92]  SOR15, p 665.

[93]  Referred to in the documents as D2.6; Exhibit 11, p 21, item 7.

[94]  SOR15, p 665.

[95]  Exhibit 6, p 15 (SOR36, p 2321).

[96]  Ibid, p 14 (SOR36, p 2320).

[97]  Exhibit 11, p 21, item 7.

[98]  Referred to in the documents as D2.7; Exhibit 11, p 23, item 10.

[99]  Referred to in the documents as D2.16; Exhibit 11, p 23, item 10.

[100]  Exhibit 1, LH6.

[101]  SOR19, p 1600.

[102]  SOR15, p 665.

[103]  Exhibit 4, [52].

[104]  Referred to in the documents as D2.8; Exhibit 11.

[105]  SOR27, p 1975.

[106]  Referred to in the documents as D2.9; Exhibit 11, p 36, item 18.

[107]  Exhibit 6, p 33(SOR36, p 2339).

[108]  Referred to in the documents as D2.10.

[109]  Exhibit 11, p 29, item 13.

[110]  SOR8, p 364.

[111]  Referred to in the documents as D2.11; Exhibit 6, p 23 (SOR36, p 2329).

[112]  Exhibit 6, p 23.

[113]  Referred to in the documents as D2.12; Exhibit 11, p 27, item 12; p 29, item 13.

[114]  Referred to in the documents as D2.13; Exhibit 11, p 29, item 13.

[115]  SOR18, p 704; Exhibit 11, p 30.

[116]  SOR 18, p 830.

[117]  Referred to in the documents as D2.14; Exhibit 11, p 35, item17.

[118]  Referred to in the documents as D2.15.

[119]  Referred to in the documents as D2.17.

[120]  Variation 5, item 2.

[121]  SOR3, p 117.

[122]  SOR8, p 444.

[123]  Clause 32.

[124] Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17, [85]; followed in Waymore Constructions Pty Ltd v Wyatt & Anor [2020] QCAT 251, [70].

[125]  [2011] QCAT 56 (references omitted).

[126]  SOR3, p 127.

[127]  Clause 13.6.

[128] Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303, [175].

[129] Hometeam Constructions Pty Ltd v McCauley [2005] NSWCA 303.

[130] Maynard v Goode (1926) 37 CLR 529 at 538 per Isaacs J.

[131]  Contract, cl 2.9; SOR3, p 102.

[132]  Contract, cl 2.7; SOR3, p 102.

[133]  Contract, cl 38.1; SOR3, p 114.

[134]  Exhibit 1.

[135]  SOR3, p 155.

[136]  Ibid, p 158.

[137]  Exhibit 8, [32].

[138]  SOR3, p 210.

[139]  Contract, cl 31.1 in relation to notices, contemplates written notice rather than oral notice.

[140]  Exhibit 8, [29].

[141]  Contract, cl 7.2(d).

[142]  Contract, cl 2.1(c), SOR3, p 102.

[143]  Contract, cl 2.1(f).  SOR 3, p 102.

[144]  Contract, cl 2.1(g).  SOR3, p 102.

[145]  SOR3, p 220.

[146]  Ibid, pp 221 – 223.

[147]  A copy of the building approval dated 17 March 2016 is at SOR18, p 831.

[148]  SOR3, p 208.

[149]  Ibid, p 220.

[150]  Exhibit 1, [54]-[65].

[151]  Exhibit 8, [7]-[17], [35-42].

[152]  SOR3, p 246 – 249.

[153]  Contract, cl 20.1(f).

[154]  QBCC Act, Schedule 1 B s 41(2)(d).

[155]  SOR8, pp 440 – 464.

[156]  Ibid, p 446.

[157]  Exhibit 2, LH11.

[158]  Exhibit 8, [36].

[159]  Exhibit 4, [18].

[160]  Exhibit 1, [65].

[161]  Exhibit 4, [20].

[162]  Contract, cl 19.1, SOR 3, p 108.

[163]  Exhibit 4, RJS6.

[164]  Contract, cl 20.7, SOR3, p 109.

[165]  Contract, cl 17.2(g).  SOR 3, p 107.

[166]  Electrical works were excluded from Mr Haimes’ scope of works.

[167]  Exhibit 8, [34].

[168] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61, [44].

[169]  SOR8, pp 362 - 364.

[170] Human Rights Act 2019 (Qld), s 108.

[171]  Ibid, s 48.

[172]  Ibid, s 9.

[173]  Ibid, s 31.

[174]  Ibid, s 25.

[175]  Ibid, s 8, s 13, s 31, s 48, s 58.

[176]  The QBCC Act, s 3.

[177]  QCAT Act, s 3.

Close

Editorial Notes

  • Published Case Name:

    Haimes v Queensland Building and Construction Commission & Ors

  • Shortened Case Name:

    Haimes v Queensland Building and Construction Commission

  • MNC:

    [2024] QCAT 326

  • Court:

    QCAT

  • Judge(s):

    Member Deane

  • Date:

    02 Jul 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

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Allen v Queensland Building and Construction Commission [2020] QCAT 63
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Botros v Freedom Homes Pty Ltd[2000] 2 Qd R 377; [1999] QCA 150
2 citations
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Cite 2 - [2000] 2 Qd R 377
Castle Constructions (Qld) Pty Ltd v Pourasad [2015] QCAT 17
2 citations
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Cowen v Queensland Building and Construction Commission [2017] QCAT 416
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Hampton Home Builders Pty Ltd v Queensland Building and Construction Commission [2023] QCAT 21
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Cite 2 - [2023] QCAT 21
Hometeam Constructions Pty Ltd v McCauley (2005) NSWCA 303
3 citations
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Cite 1 - (2005) NSWCA 303
Cite 2 - (2005) NSWCA 303
Cite 3 - (2005) NSWCA 303
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
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Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61
2 citations
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Cite 1 - [2007] HCA 61
Cite 2 - [2007] HCA 61
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
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Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Maynard v Goode (1926) 37 CLR 529
2 citations
Jump To
Cite 1 - (1926) 37 CLR 529
Cite 2 - (1926) 37 CLR 529
Mazelow Pty Ltd v Herberton Shire Council[2003] 1 Qd R 174; [2002] QCA 119
2 citations
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Cite 1 - [2003] 1 Qd R 174
Cite 2 - [2003] 1 Qd R 174
Minion v Graystone Pty Ltd [1990] 1 Qd R 157
1 citation
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Cite 1 - [1990] 1 Qd R 157
Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359
1 citation
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Cite 1 - (1931) 45 CLR 359
Stojanovski v Australian Dream Homes Pty Ltd [2015] VSC 404
2 citations
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Cite 1 - [2015] VSC 404
Cite 2 - [2015] VSC 404
Thunder Corp Pty Ltd v Queensland Building Services Authority [2011] QCAT 56
4 citations
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Cite 1 - [2011] QCAT 56
Cite 2 - [2011] QCAT 56
Cite 3 - [2011] QCAT 56
Cite 4 - [2011] QCAT 56
Waymore Constructions Pty Ltd v Wyatt [2020] QCAT 251
2 citations
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Cite 1 - [2020] QCAT 251
Cite 2 - [2020] QCAT 251

Cases Citing

Case NameFull CitationFrequency
Haimes v Queensland Building and Construction Commission [2025] QCAT 886 citations
1

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