Quaill v Dal Ponte[2024] QCAT 342

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   In 2021, when Ms Quaill was purchasing a house in Mt Surrounds, North Queensland, she engaged Mr Dal Ponte to conduct an inspection and provide a pre-purchase building report. Ms Quaill lived in an aged care facility near the Sunshine Coast in Southeast Queensland and was unable to be present for the inspection but had viewed the property on two previous occasions. She contends that Mr Dal Ponte failed to identify several defects.
2. [2]
   Ms Quaill initially filed the application in May 2022 as a domestic building dispute and sought Mr Dal Ponte repair and finish all work that he did not report on in the inspection report and pay her $100,000 in damages.
3. [3]
   Ms Quaill re-filed the application as a commercial building dispute in September 2022 and confirmed she was seeking $50,000 in damages. She also sought that disciplinary action be commenced against Mr Dal Ponte and that Mr Dal Ponte’s credentials be investigated as there was no QBCC identification number on his report.
4. [4]
   In response, Mr Dal Ponte denies any liability and states Ms Quaill proceeded with the purchase of the property with full knowledge about the condition of the property as Ms Quaill had inspected the property on two prior occasions. The report is limited in its scope and sufficiently addressed the matters for which it was obtained. In addition Mr Dal Ponte recommended Ms Quaill conduct further reports and investigations with other qualified building professionals to determine the extent of any repair work required. 

Background

5. [5]
   On or around 22 October 2021 Ms Quaill engaged Mr Dal Ponte to complete a pre-purchase building inspection on her proposed new home in Mt Surrounds at a cost of $330.
6. [6]
   Mr Dal Ponte inspected the house on 27 October 2021. His report is dated 27 October 2021 and was provided to Ms Quaill by email on 30 October 2021 over two emails. The first attached the report and the second email attached photographs (referred to in the initial email). The second email advised that the photographs were to give a general view of the exterior condition and while not defects did show that some areas are not sealed. In relation to the interior Mr Dal Ponte advised he was aware Ms Quaill had seen the interior, so he only took photographs of the required defects and noted that the owners had “stuff” boxed up everywhere which had an impact on his ability to inspect the interior.
7. [7]
   Mr Dal Ponte also contacted Ms Quaill after the inspection by phone to discuss the state of the property, that parts of the property were incomplete, and that significant work was required to repair the plastering on the ceilings.^[1]
8. [8]
   The report was 11 pages but only included seven pages about the inspection as the last four pages were definitions and explanations as to terms, conditions and limitations of the report. The purpose of the report is described as “to identify the major defects and safety hazards associated with the property at the time of the inspection. The inspection and reporting is limited to AS4349.1-2007”.
9. [9]
   No major structural defects were identified beyond the residential building; the incidence of minor defects were considered typical, and the incidents of major defects were considered low. The house was considered in average condition compared to similarly constructed and reasonably maintained buildings of approximately the same age. The report is not a detailed report and does not detail the checks conducted in each room or area of the house. It simply notes the defects identified and lists the areas without issue on the day of the inspection. The report also recommended electrical and plumbing inspections be undertaken and recommendations be sought from a carpenter, plaster, painter and engineer about repairs/works required.
10. [10]
    The report noted the following defects/issues:

    1. The eaves are not sealed on the walls on the east side which allows for vermin entry. The defects should be referred to a qualified building professional (carpenter) for the repairs/scopes of work required.
    2. There is cracking in the ceiling in the kitchen/dining room, study and back bedroom. The defect should be referred to a qualified building professional (plaster, painter and engineer) for the repairs/scope of work required.
    3. The internal areas have been partially renovated but some areas remained unfinished such as the main bedroom ensuite and some painting works. 
11. [11]
    After receiving Mr Dal Ponte’s report Ms Quaill sent the report to a friend (Mr Rundle), who was a builder and inspector, to review. He advised her that he did not see any major problems with the report. After receiving this advice Ms Quaill signed the contract for sale.^[2] The sale contract was dated 10 November 2021 and had a settlement date of 16 December 2021.
12. [12]
    Ms Quaill moved into the house on or around 16 December 2021. On or around 20 December 2021 Ms Quaill contacted the previous owners about her concerns with the property. They ignored her and then blocked her calls.
13. [13]
    On or around 17 January 2022 Ms Quaill first raised concerns with Mr Dal Ponte about the condition of the home and defects not being noted in the inspection report.^[3] As a result Mr Dal Ponte revisited the property on 24 January 2022 to perform another inspection and provided Ms Quaill with a written response to her concerns on 14 February 2022^[4]. 
14. [14]
    Ms Quaill arranged for another building report to be prepared by Complete Building and Pest inspections who inspected the house on 2 February 2022 and prepared a report which Ms Quaill provided to the tribunal. Ms Quaill confirmed at hearing that she did not rely on this report and accordingly it has not been considered by the tribunal.
15. [15]
    Ms Quaill subsequently made a complaint to the Queensland Building and Construction Commission (‘QBCC’) about the quality of Mr Dal Ponte’s inspection and report on 21 February 2022. QBCC inspector Mr Kevin Cameron (‘Mr Cameron’) inspected the property on 18 March 2023. He prepared a report dated 23 March 2022, which Ms Quaill has provided to the tribunal and relied upon in the hearing. Neither party sought to call or request to cross examine Mr Cameron at the hearing.
16. [16]
    Mr Cameron’s report concluded that Mr Dal Ponte’s report was not satisfactory as it was generic and short with limited information in the two pages of defects reported. It did not comply with the Australian standards as Mr Dal Ponte had not included his licence number or details of the inspection agreement, the conditions of the report or any concealments or limiting factors. In addition, item 14 being the lack of a safety step from the bedroom French doors was a major defect and considered a health and safety issue and should have been identified as such in the report.

Statutory framework – building disputes.

17. [17]
    The relevant enabling Act is the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
18. [18]
    The tribunal has jurisdiction to hear and decide building disputes;^[5] however, section 77(2) of the QBCC Act qualifies QCAT’s jurisdiction by first requiring an applicant to comply ‘with a process established by the commission to attempt to resolve the dispute’. The tribunal is satisfied that these obligations to have been complied with, based on the letter from the QBCC dated 25 March 2022 attached to the application.
19. [19]
    A building dispute about a prepurchase building inspection is a commercial building dispute. There is well established jurisprudence to this effect.^[6] A commercial building dispute may be a minor commercial building dispute if neither the claim nor any counterclaim exceeds $50,000 or a major commercial building dispute if the claim or counter claim exceeds $50,000.^[7] Unlike proceedings for domestic building dispute and minor commercial building disputes, the jurisdiction for the tribunal to decide a major commercial building dispute requires the consent of the parties to the dispute before the proceedings commence.^[8]
20. [20]
    The application commenced as a domestic building dispute, but when the issues with identified with the application, the applicant filed an application for a commercial building dispute seeking $50,000 in damages. At the hearing, despite advising she has lost over $100,000 Ms Quaill has confirmed that she elects to confine her claim to $50,000 to retain it within the tribunal’s jurisdiction.
21. [21]
    As such I am satisfied with the jurisdictional issues that this is a minor commercial building dispute, and the tribunal has the jurisdiction to hear this matter.
22. [22]
    Pursuant to s 77(3) of the QBCC Act, in deciding a building dispute the tribunal may award damages, interest, restitution, rectification or completion of defective or incomplete work, and costs.

Ms Quaill’s Claim

23. [23]
    Ms Quaill contended that Mr Dal Ponte had failed in his inspection report to identify the following issues/defects with the property:

    1. Repair leak and replace isolation valves on pipes under the house and in the pump house.
    2. Rotten and split wood on the deck and floorboards near the front door needs to be replaced.
    3. French doors need to be added where there is plasterboard, to provide a safe entry.
    4. The entire house needs to be replastered.
    5. The toilet has a leak which needs fixing.
    6. The cold tap pipe makes a hammering noise and needs fixing.
    7. Guttering needs to be replaced as non-complaint and some roofing needs to be nailed down.
    8. The kitchen needs more power points.
    9. The proposed ensuite need to be completely finished with all fixtures and lighting installed.^[9]
    10. A window in the master bedroom cannot open and shut easily.
    11. Two bedrooms need safety steps and handrails off the French doors to ensure a safe exit.
    12. Termites were identified near the property.
24. [24]
    In her initial application for a domestic building dispute filed on 12 April 2022, Ms Quaill also stated that she had a safety check conducted by an electrician who advised there were live unsealed wires in the ensuite and roof and a plumber explained the isolation valves had gone causing a leak under the house. Ms Quaill however provided no reports from either an electrician or a plumber to substantiate these claims and did not pursue these issues in the hearing.
25. [25]
    Ms Quaill stated that there were a lot of minor issues which added up and it was too much for a single woman of her age to do. She had relied on Mr Dal Ponte to tell her whether it was too much work for her to be able to do and she feels that this is elder abuse.
26. [26]
    Ms Quaill confirms she knew Mr Dal Pont’s report was very short with limited information^[10] but she trusted that he was honest, and she relied heavily on the report to be able to make an informed decision to buy the property or not.^[11] Ms Quaill states that she would not have brought the house if the report was honest or at least negotiated $100,000 less on the price.
27. [27]
    Ms Quaill asserts the losses she has sustained as a result of Mr Dal Ponte’s report are:

    1. $50,000 for losses on the sale of the house
    2. $25,000 for loss of opportunity to rent for the 12 months prior to the sale of the house.
    3. $30,000 for the costs Ms Quaill has spent to fix items in the house, which were not noted in the building inspection report from Mr Dal Ponte.
28. [28]
    Ms Quaill confirmed in the amended application and at hearing that while her loss has been over $100,000 she is limiting her claim to $50,000 damages. Ms Quaill confirmed at the hearing that she does not have invoices to evidence the costs spent to rectify issues with the home and she abandoned this claim and simply relied upon damages for the alleged loss of profits on the sale of the house and the loss of opportunity to rent.

Respondent’s Submission

29. [29]
    Mr Dal Ponte rejects Ms Quaill’s assertion that the report did not identify major defects.  In relation to the specific concerns Mr Dal Ponte states:

    1. There was no significant water pooling and no evidence of any leak under the house at the date of the inspection.
    2. At the time of the inspection the previous owner’s property including chairs, lounges, a table and pot plants were on the deck making it difficult to fully inspect but the overall condition of the deck appeared sound. The condition of the deck was weathered, and the report recommended cleaning and oiling to avoid further deterioration.
    3. At the time of the inspection the house remained furnished and there were a TV cabinet and curtains in front of the door and the lounge where the French doors were missing which was why this was not identified.
    4. The issue with plaster board on the ceilings and walls was noted in the report and Mr Dal Ponte contacted Ms Quaill to discuss this issue. Mr Dal Ponte also considered it a workmanship fault and not a structural fault.
    5. The bathroom leak and the issues with the cold water tap making a hammering sound were not present when the inspection occurred in October, and both are maintenance issues.
    6. In relation to the concerns about guttering, the roof had guttering but no downpipes. The property not having fascia boards does not constitute a structural defect and the inspection report stated the exterior of the house is incomplete and Mr Dal Ponte is not required to identify in the report any non-compliance with any Building Act or Code.
    7. In relation to the concerns about the number of power points, this is not included in the scope of work and the report recommended an electrical inspection was undertaken.
    8. In relation to the ensuite, during the inspection, the room was full of stored items and considered a storeroom. It was structurally sound and fit for purpose but incomplete as an ensuite and the report noted it was unfinished. Mr Dal Ponte believed, given Ms Quaill had inspected the property twice, she would have seen the room and would have considered her options about the room’s use. In addition Mr Dal Pointe had a conversation with Ms Quaill about the room and expressed concerns about it after inspection.
    9. The window issue is a maintenance issue and not a structural issue.
    10. In relation to the bedroom French doors need safety steps and handrails to ensure a safe exit. Mr Dal Ponte sent photographs to the applicant to show the back area was incomplete and he is not required to state compliance with any Building Acts or Codes.
    11. In relation to termites, the inspection report notes the presence of pests, but termite pest inspection was not included in the scope of works.
30. [30]
    In relation to the allegation in relation to elder abuse, Mr Dal Ponte strongly disputes this allegation and says it is untrue, recklessly made and without foundation as he was not aware of her personal status and rejects any allegation that he took advantage of Ms Quaill.
31. [31]
    At hearing, Mr Dal Pointe acknowledged that the report may not have been fully compliant with the Australian standards on some administrative issues, including the recording of his licence number, and that the tribunal may find the failure to detail in the report about the need for safety stairs from the French doors off the bedroom was a safety issue and as such should have been in the report and the failure to record this is a breach of the standards. However, Mr Dal Ponte states, in terms of any loss, Ms Quaill’s reliance on the report was not reasonable in the circumstance where the report recommend Ms Quaill gets advice from other building professionals and obtain other reports and he provided Ms Quaill with photographs of the outside, sent contemporaneously with the report which showed the missing stairs. Mr Dal Ponte asserts that in the circumstances it was unreasonable for Ms Quaill to solely rely on the report, and she made other enquiries of her own, including getting a second opinion on the report, and viewed the property twice which should have identified the stairs were missing.
32. [32]
    In addition Mr Dal Ponte states that even if Ms Quaill’s reliance on the report can be proven, Ms Quaill has failed to provide sufficient evidence to substantiate any loss directly attributable to the presale inspection report.

Hearing and Issues to be determined.

33. [33]
    The only oral evidence at hearing was from the applicant Ms Quaill and the respondent Mr Dal Ponte. 
34. [34]
    Ms Quaill did seek to call Mr Peter Rundle who provided a brief affidavit^[12] attaching a quote dated 8 August 2022 and a letter dated 13 November 2022. The statement is only three sentences long and merely confirms Mr Rundle inspected the property in August 2022 and “issued a quote to fix concerns about safety and non–compliant access to stairs and no landing or stairs off the bedroom”. The letter is four sentences long and effectively says the same thing and confirms that Mr Rundle stands by his quote.
35. [35]
    Mr Rundle’s statement was admitted as evidence at the trial but, as Ms Quaill stated that Mr Rundle has no new/fresh evidence to provide the tribunal and she had abandoned her claim for damages for costs to rectify, making this statement of limited relevance and the respondent advised they did not seek to cross examine Mr Rundle, Mr Rundle was not called as a witness. He was however allowed to sit with Ms Quaill during the hearing to support her.
36. [36]
    Ms Quaill made multiple references throughout the trial to Mr Rundle being her expert and having significant experience and having a view on whether there were issues with Mr Dal Ponte’s building report. There was however no evidence to support these claims. Despite Mr Rundle completing a statement, no information is provided about his experience or expertise, and all that is known from the header of his letter is that he holds building and pest licences and appears to work in New South Wales. Mr Rundle did not provide any inspection report and has provided no evidence to the tribunal about any opinion he has on the accuracy or otherwise of Mr Dal Ponte’s report and the basis for this opinion. All that is provided from Mr Rundle is a quote of costs of repairs to the property some 8 months after Mrs Quaill took possession.
37. [37]
    Both Ms Quaill and Mr Dal Ponte presented as witnesses who were seeking to be honest and answer all questions to the best of their ability. However at times Ms Quaill’s recollection was inaccurate or inconsistent. For instance she was adamant and repeated multiple times that the email from Mr Dal Ponte with the photographs was not sent until days after the report. However, the documentary evidence demonstrated they were sent on the same day only 11 minutes apart. Ms Quaill also denied that she had been contacted by Mr Dal Ponte after the inspection to discuss issues, even stating that Telstra could be contacted to confirm, but then when questioned further she acknowledged that she could recall a phone call and had been contacted.
38. [38]
    Ms Quaill expressed her case in lay rather than legal terms. However, I infer that in terms of the damages or compensation sought she contends, in substance, that Mr Dal Ponte has breached the contract between them by failing to perform the inspection as he was contracted to perform including breaching the Australian standards and/or has been negligent, and that she should be awarded damages for a loss that flowed from the breach, which she states is a reduced sale price and loss of opportunity to rent the property.
39. [39]
    A home owner who enters into an agreement with a building contractor for the performance of building work and who sustains loss arising from the performance of the work in a defective manner may make a claim against the building contractor for breach of contract.^[13] Where the breach of contract is established, the homeowner is, as far as money can do so, entitled to be placed in the same situation with respect to damages as if the contract had been performed.^[14]
40. [40]
    To establish a claim in negligence, the applicant Ms Quaill must prove that Mr Dal Ponte owed her a duty of care, that Mr Dal Ponte breached the duty, and as a result of the breach, Ms Quaill has suffered loss.^[15]
41. [41]
    The issues to be considered in terms of breach of contract or negligence are:

    1. What was the agreement that existed between Ms Quaill and Mr Dal Ponte?
    2. Did Mr Dal Ponte breach contract and/or was he negligent?
    3. If there was breach, what loss, if any, did Ms Quaill suffer?
    4. If there was loss, was it caused by Mr Dal Pont’s actions or breach of contract and what damages or costs, if any, should the tribunal award?
42. [42]
    In relation to the allegations of elder abuse made by Ms Quaill, Mr Dal Ponte denied he was aware of Ms Quaill’s personal status and Ms Quaill provided no evidence to demonstrate that he had any knowledge of her age or that she was a single female and sought to take advantage of her because of these factors. Mr Dal Ponte’s actions do not demonstrate any intention to take advantage of Ms Quaill, and when she raised concerns about the property, he communicated with her to try and resolve the issue, including doing a second inspection and providing a detailed written response to her.  Accordingly there is no evidence to support these allegations of elder abuse.
43. [43]
    Although not laboured at the hearing, for completeness the tribunal declines to take any action in relation to Ms Quaill’s request in the application for disciplinary action to be commenced against Mr Dal Ponte, as it is not appropriate to do so. That is a matter for QBCC as they are the ones empowered to investigate whether grounds exist for taking disciplinary action against a person.^[16] Accordingly Ms Quaill should raise any concerns in this regard with the QBCC.
44. [44]
    In relation to Ms Quaill’s request for Mr Dal Ponte’s credentials to be investigated, there is no evidence to suggest that Mr Dal Ponte is not a registered QBCC builder, and he acknowledged at the hearing that it was just an oversight to leave his QBCC number off the report. Ms Quaill can “investigate” Mr Dal Ponte’s qualifications herself as the QBCC licence register is publicly available to everyone on the QBCC website. 

What was the agreement?

45. [45]
    It is undisputed that there is a contract between Ms Quaill and Mr Dal Ponte in this matter, signed on or around 22 October 2021. Although Ms Quaill’s signature is not on the document, she provided an email on 22 October 2021 confirming she agreed to the terms and conditions and cost and was unable to scan back the copy.
46. [46]
    The contract noted that inspection included all timber structures within 30 meters of the main building and inspection of the property boundary and the inspector would provide comments on the state of repairs of the structure on comparable age of similar buildings and comment on the minor and major defects of the structures. The inspection was to be conducted to comply with Australian standards AS4349.1-2007 Inspections of Building (‘Australian standards’)
47. [47]
    The contract noted that limitations on the inspection could occur due to weather conditions, concealed areas or no access, floor coverings or areas being restricted by furniture and belongings, and as it is not an invasive inspection but visual only, no furniture or structures would be moved and there would be no evasive cutting or digging.
48. [48]
    The contract noted that the inspection did not include, amongst other things:

    1. Items which are non-structural.
    2. Timber pest activity (termites).
    3. Any area which could not be seen or where further examination was required, or which was obstructed or not readily accessible.
    4. Mould, Asbestos and Magnesite materials.
    5. Foundation footings.
    6. Concealed damp-proofing.
    7. Electrical wiring, including electrical appliances.
    8. Smoke detectors.
    9. Plumbing, drainage, surface water or ponding.
    10. Whether structures comply with building laws including regulation or Acts.
49. [49]
    Many of these same clauses are noted on the last four pages of the contract.
50. [50]
    A copy of the Australian standards was filed in the tribunal by the Respondent. Mr Dal Ponte states it is important to note that the standards confirm that a report is not a certificate of compliance of the property as to whether they comply with any requirement under any Act, regulation or local law and is not a warranty against problems developing with the building in the future nor does it identify unauthorised building work or work not compliant with building regulations.
51. [51]
    Mr Dal Ponte states the key sections of the standards are:

    1. Section 1.4, the definition, in particular the definition of major defect and significant item.
    2. Section 2.3 about the scope of inspection, being a visual inspection limited to identifying major defects and to form an opinion regarding the general condition of the property at the time of inspection. The extent of reporting is in relation to major defects, general impression regarding the extend of minor defects and any major defects that are an urgent and serious safety hazard.
    3. Section 3.2 about the areas to be inspected, including 3.2.2 about safe and reasonable access.
    4. Section 3.3 about defects.
    5. Section 4.2 about the requirements for the report’s contents which notes that any major defect and safety hazards should be identified but that for minor defects the report should describe the overall extent of minor defects, but the inspector is not required to comment on individual minor defects and imperfections. The report should also include any recommendation for further inspections and a conclusion. The notes also reference that minor defects such as blemishes, corrosion, cracking, weathering, general deterioration, unevenness and physical damage to materials and finishing are common to many properties and should be rectified as part of normal ongoing property maintenance. It is not intended nor expected the report will include details of specific minor defects. The standard required for the report to include a general assessment of the general incidence of minor defects in the subject residence compared with other similar properties.

Was there a breach of the agreement or negligence?

52. [52]
    Ms Quaill asserts that there were numerous issues with the house which she was unaware of as they were not included in Mr Dal Ponte’s inspection report and accordingly this must be breach of contract or negligence.
53. [53]
    Mr Dal Ponte disputes some of the issues were present during the inspections (such as the leaks in the bathroom and under the house) and contends that these issues were not within the scope of the report as they are minor defects or general maintenance issues and do not need reporting on and/or were unable to be detected due to areas being obstructed by the seller’s property.
54. [54]
    Ms Quaill raised during the hearing that she needed Mr Dal Pointe to tell her if the house was too much work for her as a single woman in her 70s and that she had another building inspector she had used in the past who had saved her from buying multiple houses due to them being too much work. This is not however the purpose of the report which Ms Quaill sought, which was limited to a report in compliance with the Australian standard which only requires reporting on major defects and to just give a general impression regarding the extent of minor defects and does not identify unauthorised building work or work not compliant with building regulations. There was provision in the contract for Ms Quaill to ask for special conditions or requirements in the inspection, but she did not do so. Accordingly the tribunal does not accept that it was a requirement of the agreement for Mr Dal Ponte to give Ms Quaill advice on whether the extent of work required on the property was within her capability.
55. [55]
    Accordingly the issues to consider in terms of breach of agreement or negligence are whether the alleged defects raised by Ms Quaill should have been recorded in the report and whether there was some other breach of the Australian Standards

Should additional defects have been included in the report?

56. [56]
    In terms of Ms Quaill’s concerns about the kitchen needing more power points and there being termites identified near the property, the tribunal finds that these were not within the scope of the inspection, as timber pest activity and electrical wiring is specifically excluded from the inspection pursuant to clause 11 of the agreement for building and inspection report which Ms Quaill confirmed she accepted the terms and conditions. Accordingly there is no breach of agreement or duty of care by Mr Dal Ponte in not raising these issues in his report.
57. [57]
    In terms of Ms Quaill’s concerns about the taps making a hammering noise and a leak in the toilet and under the house including a need to replace isolation valves, Mr Dal Ponte states he checked each of these areas during the inspection in October 2021 but there was no evidence of any water leak or issues on the day of the inspection. Ms Quaill has provided a QBCC report which demonstrated these issues were evident in March 2022, some 5 months after the inspection, and Mr Dal Ponte has attached in his material a response to his inspection in January 2022 which confirms that the issue with the tap making noises and the leak under the house were raised with him by Ms Quaill in January 2022 and these issues were evident during his second inspection on 24 January 2022.
58. [58]
    As noted in sections 1.2 and 2.2-2.3 of the Australian standards, the inspection is a visual inspection of the property to provide advice on the condition of the property at the time of the inspection and it does not warranty against problems developing with the building in the future. In light of Mr Dal Ponte’s evidence that he inspected the bathroom taps, the toilet and under the house and these issues were not evident at the time, and as the only evidence presented by Ms Quaill is that the issues existed after she took possession of the property and there is no other expert evidence or information to advise the likely period of time these issues have been occurring, there is insufficient evidence to make a finding that at the time of the inspection there were issues with the tap making hamming noises or with leaks under the house or in the bathroom.
59. [59]
    In addition commentary 4.2 of the Australian standards note that the report should not contain any assessment or opinion in relation to the assessment of any apparent defect including rising damp and leaks, the detection of which may be subject to prevailing weather conditions or recent occupancy and use services. Mr Dal Ponte did however recommend that Ms Quaill seek a further inspection from a plumber.^[17] Accordingly as it cannot be found the issues were present at the time of inspection and Mr Dal Ponte was not required to provide an opinion on leaks, there is no breach of agreement or duty of care by Mr Dal Ponte not raising these issues in his report.
60. [60]
    In terms of the plasterboard issue, the inspection report notes that there were issues in multiple rooms and provides photographs of the cracked plaster board in the kitchen/dining room, study and back bedroom. The report also noted in the general comments that the issue with the plaster board is the main issue. It is also uncontested that Mr Dal Ponte contacted Ms Quaill after the inspection to discuss this issue and advised her it may cost $10,000 to repair this plaster board. Ms Quaill appears to be alleging the problem was bigger than she was aware of, despite her own inspections of the house and reading the concerns in the report. However no evidence has been provided to demonstrate that the damage was worse than detailed in the report or that the repairs cost substantially more than the $10,000 estimated.
61. [61]
    In relation to the ensuite, Ms Quaill asserts all she thought was needed after reading the report was a bit of painting and she was misled by the report. This is not however what the report states. The report notes that the house had only been partly renovated and that some areas remain unfinished such as the main bedroom ensuite. The report also notes that some painting work is unfinished but does not state that all is needed in the ensuite is painting. Ms Quaill inspected the house on two occasions and had ample opportunity to observe the ensuite herself and could have made enquiries with Mr Dal Ponte if she wanted more information about the level of work needed to complete the unfinished ensuite.
62. [62]
    In addition there is no evidence to support a finding that the ensuite was a structural defect or major defect to warrant further information being included about the state of the room in the report. Ms Quaill raised concerns at hearing about there being gaps in the floor which were safety hazards or major defects. Mr Dal Ponte denied seeing this issue and indicated he had inspected under the house and had not observed issues with the flooring. There was no evidence in the QBCC report of this issue, and the only evidence Ms Quaill provided was some photographs which did not clearly show any gaps in flooring but had some light areas on the flooring which may have been gaps. Ms Quaill also failed to provide any evidence to demonstrate that any gaps were not within Australian standards and were defects or safety issues.
63. [63]
    Accordingly, in relation to Ms Quaill’s concerns that the entire house needed replastering and the proposed ensuite needed to be completely finished with all fixtures and lightening installed, the tribunal finds that these issues were adequately raised in the inspection report and accordingly there is no breach of agreement or duty of care in relation to these issues.
64. [64]
    In relation to the lack of safety steps off the French doors in the bedroom, the QBCC report notes that this is the major issue with the report as it is a health and safety issue and would be considered a major defect. Noting the purpose of the pre-inspection report was to identify major defects and safety hazards associated with the property at the time of the inspection, the QBCC report states that this issue should have been noted in the report.
65. [65]
    Mr Dal Ponte states that Ms Quaill would or should have been aware that these steps were missing and does not accept her evidence that it came as a shock to her when she moved to the property. Mr Dal Ponte states Ms Quaill would know the stairs were missing given he sent photographs to her on the same day as the report which clearly depict the French doors with no stairs and Ms Quaill would or should have observed this in her two inspections of the property. Notwithstanding this, Mr Dal Ponte did acknowledge in the hearing that the absence of the stairs is a safety issue and should have been noted in the report.
66. [66]
    The definition of “major defects” in the Australian standards includes a defect of significant magnitude where rectification has to be carried out to avoid unsafe conditions.^[18] The standards also note that major defects and any major defects that are urgent and serious safety hazards, including unsafe balustrades, are significant items which must be reported.^[19]
67. [67]
    Given the largely uncontested evidence in the QBCC report about the lack of stairs from the French doors off the bedroom being a safety issue, it is clear that this issue would fall within the definition of both a major defect and a significant item which must be reported on. Accordingly, given both the Australian standards and the stated purpose of the inspection report^[20] was to identify major defects and safety hazards, it was a breach of the agreement to fail to include this issue in the inspection report. Given the significance of the issues, the provisions of photographs identifying the lack of stairs was not sufficient to overcome the requirements to raise this issue in the report. The commentary in the Australian standards notes that where a defect is a serious hazard, the inspector has a professional duty to ensure the report clearly identified the hazard so that it is not easily overlooked by the reader.^[21]
68. [68]
    At hearing, Ms Quaill did raise a second safety issue, which she says is based on the advice from Mr Rundle that the stairs from the laundry were non-compliant and a safety issue. The only evidence to support this is a statement by Mr Rundle that he inspected the building to provide a quote to fix “concerns re safety and non-compliant access stairs and no landing or stairs off bedroom”. There were no photographs of the stairs provided, no measurements of details as to what was noncompliant and how this posed a safety issue and whether the issue was to such an extent it would meet the definition of a major defect. The mere fact the stairs may have been non-compliant, does not mean that this was an issue that should have been raised in the inspection report, as the contract and the Australian standards specifically confirm the report does not comment on whether the structures are compliant with any building codes, regulations or acts. In addition there is no other evidence to support the concerns with these stairs. This was not one of the issues raised by Ms Quaill in January 2022, and it was not identified either in Mr Dal Ponte’s second inspection or in the QBCC report. In the circumstances, there is no evidence upon which the tribunal could find that there are any safety issues with the stairs from the laundry.
69. [69]
    This leaves four remaining defects which Ms Quaill identified being rotten and split wood on deck which need to be replaced; plasterboard on the wall instead of French doors in the lounge; roof guttering needing to be replaced as non-compliant and some roofing needing to be nailed down; and that a window in the master bedroom cannot be opened and shut easily. Mr Dal Ponte stated that the seller had a large amount of property on the deck and the lounge which impacted on his ability to fully inspect the deck and the French doors, and the roof was right at the top of the height range for safely using a ladder, so he used a drone which did not identify any missing nails. In relation to the guttering Mr Dal Ponte states there was guttering but there were no downpipes or fascia boards, but this does not constitute a structural defect and he is not required to report on compliance or non-compliance with any Building Act or Code.  
70. [70]
    In relation to the windows Mr Dal Ponte states this is just a maintenance issue which was not identified until the QBCC inspection in March 2022, some five months after his inspection. The tribunal agrees that the issue with the window not opening easily is just a minor maintenance issue which is not unexpected in a 30-year-old property and that issue does not result in any breach of the agreement or duty of care.
71. [71]
    It appears undisputed that the sellers did have a lot of property at the house both at the time of Ms Quaill’s inspections of the property and when Mr Dal Ponte did his inspection. This issue was raised by Ms Quaill a number of times during the hearing. The fact that the agreement and the Australian standards note that the report was only to comment on accessible areas and did not need to comment on compliance with building codes or laws may account for why there was no mention as to the issues with the wood on the deck, the plasterboard in place of French doors and the non-compliant guttering and nails missing from the roof. In addition Appendix D to the Australian standards confirms that an inspection need not inspect or report on the adequacy of roof drainage as installed,^[22] which provides further reason why there was no mention of the alleged issues with the roof’s guttering and down pipes.
72. [72]
    In addition there is no evidence that any of these issues are anything but minor defects as there is no evidence to support that they were structural defects or that rectification needs to be carried out to avoid an unsafe condition, loss of utility or further deterioration. While Ms Quaill said she felt unsafe given there was plywood as opposed to a door, no safety issues have been raised about this by either the QBCC or Mr Rundle who Ms Quaill relied upon as an expert.
73. [73]
    Accordingly as they were minor defects there was no requirement for Mr Dal Ponte to comment on these issues individually. All that was required is a description of the overall extent of the minor defects including a general impression regarding the extent of the minor defect in comparison with a building of a similar age and type of building, which is in reasonable condition and constructed in accordance with the generally accepted practise at the time of the construction (e.g. approximately 30 years ago).^[23] The commentary in the Australian standards notes that minor defects are common to most properties and would be rectified as part of normal ongoing property maintenance.^[24]  
74. [74]
    Mr Dal Ponte did provided details in the report to confirm that the incidents of minor defects were typical with a similar house of this age and size and that the overall condition of the house was average. Accordingly there is no breach of agreement or duty of care by Mr Dal Ponte not raising these issues in his report.
75. [75]
    Ms Quaill appeared to contend in her evidence that the detail of the minor defects as typical was not correct and there were significantly more defects that would be typically expected in a house of this age which had been adequately maintained. She has however provided no evidence to support this position that the finding that the defects were typical was incorrect. While the QBCC report raised concerns that Mr Dal Ponte’s inspection report was generic and short with limited information, it does not identify any errors with Mr Dal Ponte’s assessment of the incidents of minor defect as being typical of what would be found in a house of this age. 
76. [76]
    Likewise, while the QBCC report identified one additional major defect being the lack of safety stairs off the French doors from the bedroom, the QBCC report does not indicate that this would change the assessment of major defects from low.
77. [77]
    As Ms Quaill did not rely upon any other reports and as the evidence from Mr Rundle provides no opinion on the assessment of the minor defects as typical and major defects as low, there is no evidence on which the tribunal can find that the Mr Dal Ponte erred in his assessments of the minor and major defects in the report. 

Did the report meet Australian standards?

78. [78]
    As noted above, Mr Dal Ponte’s report was not in compliance with the Australian standards for failing to raise a major defect which was a safety issue, being the lack of any stairs off the French doors in the bedroom. However Ms Quaill contends, and Mr Dal Ponte acknowledges to some extent, that there have been other failures to comply with the Australian standards. Mr Dal Ponte however contends that any other failures are purely administrative in nature and have not caused any loss to Ms Quaill.
79. [79]
    Considering the filed material including the finding in the QBCC report and the oral evidence of both parties, the tribunal finds that in addition to the failure to report the missing stars from the bedroom, Mr Dal Ponte’s inspection report failed to comply with the Australian standards in the following way:

    1. Failed to comply with s 4.2.2 by not including his QBCC licence number.
    2. Failed to comply with s 4.2.5 and s 4.2.7 in failing to include details about the areas that were not able to be inspected and any other factors limiting the preparation of the report.
    3. The structure of the report was not ideal or very helpful to the reader and meant strict compliance with s 4.2.8 and s 4.2.9, the conclusion and summary, was not maintained as the incidents of major defects and opinion of minor defects were not contained in the conclusion section but were contained in other areas of the report. There was also no clear summary and the details necessary in a summary were split across the first and third page.
80. [80]
    The tribunal accepts the failure to record the QBCC licence number and the issues with the conclusion and summary are purely administrative issues. However the failure to include limitations on the report is more than just an administrative matter and did impact on a number of areas of the house.
81. [81]
    Section 4.2.5 of the Australian standards requires that the report shall identify any area or item within the scope of the inspection that was not inspected and the factors that prevented inspection. The inability to carry out a full or proper inspection of the decking and a number of rooms of the house, including the ensuite and lounge, due to the seller’s property being stored in the house clearly constitutes a limitation for the purposes of the Australian standards and should have been identified in the report, so that Ms Quaill was aware and could have sought a further inspection of those areas if she wished. While it is acknowledged that Ms Quaill should have had some understanding of the seller’s property being all over the house and impacting on the ability to inspect, from her own experiences of the property and the comments in the email sent by Mr Dal Ponte to Ms Quaill on 30 October 2011, which advised there was a lot of stuff boxed up everywhere and this did not help with his ability to conduct the inspection, the comments in the email are not sufficient to meet the Australian standards. The information about limitations needed to be included in the report, not in a separate email, and needed to detail all rooms and areas that were impacted, not just a general comment that it was difficult with all the seller’s property in the house.
82. [82]
    Likewise the choice to inspect the roof by way of a drone as opposed to a personal inspection from a ladder, due to the height of the roof, should have been noted in the report as this is a potential limitation on the inspection.
83. [83]
    It is accepted that while a breach of the Australian standards, this was not a deliberate concealment by Mr Dal Ponte, and he indicated in his evidence that this was the first time he had had such an issue and he has changed and improved his practices since.
84. [84]
    These breaches of the Australian standards are breaches of the contract, which was to comply with the Australian standards. However in order to receive damages, Ms Quaill needs to demonstrate causation and that this breach led to a loss. 
85. [85]
    There is no evidence of any harm or loss as a result of the administrative breaches, in that there is no information to suggest Mr Dal Ponte was not licenced and the information necessary in the conclusion and summary was generally in the report, just in different sections. 
86. [86]
    In terms of the failure to identify limitations, while this failed to make Ms Quaill aware of the areas that had not been properly inspected, and thereby failed to give her the opportunity to seek a further inspection of these areas, no major defects arose as a result of these limitations. As discussed above, any minor defects that arose as a result of these limitations were not required to be individually mentioned in the report and there is no evidence upon which to state these additional defects result in the overall assessment of the minor defects being incorrect. Accordingly the tribunal finds that no loss is established from these breaches of the Australian standards.

What is the loss caused by any breach of agreement or duty of care?

87. [87]
    In order to recover substantial as distinct from nominal damages Ms Quaill would be required to establish that the breach of contract or breach of duty by Mr Dal Ponte led to a loss of opportunity that had some value.^[25]
88. [88]
    An opportunity will have value where there is a substantial, and not merely a speculative, prospect that a benefit will be acquired, or a detriment avoided. If the loss of chance had no more than theoretical or negligible value, then no compensable loss is established. As stated in Billingham & Anor v Schluter t/as Better Building Inspections Qld^[26] quoting the High Court of Australia in Sellars v Adelaide Petroleum NL:^[27]

the general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that she has sustained some loss or damage.

89. [89]
    Ms Quaill states that she would not have bought the house if Mr Dal Ponte’s report was honest, or would at least have negotiated $100,000 off the price. There is however no evidence that the previous homeowners would have accepted any lower price. Therefore this loss of opportunity is merely theoretical and speculative rather than substantial.
90. [90]
    Ms Quaill also stated that the illegal non-compliant issues stopped her from renting the house or selling the house at a reasonable price. However Mr Dal Ponte is not responsible for any issues involving illegal or non-compliant issues, other than the safety issue associated with the lack of stairs from the bedroom French doors, as the scope of the report specifically excluded commenting on whether the structures were compliant with any building laws.
91. [91]
    The only evidence of the costs associated with the missing stairs from the French door was the quote provided by Mr Rundle, which states that the cost to rectify this issue was $3,120 + GST, being a total of $3,432. Given Ms Quaill stated in the hearing she was willing to fix the structural and safety issues and that she spent $30,000 on the property^[28] it is unclear as to whether the stair issue was fixed by Ms Quaill and why an issue which only cost $3,432 to rectify caused her to lose the purported $30,000 in rent and $50,000 in loss of profits from the sale of the property.
92. [92]
    Ms Quaill confirmed at the hearing the losses she is relying on are the loss of profit from the sale of the home, which she asserts is $50,000, and the loss of opportunity to rent, which she states is $30,000.
93. [93]
    Ms Quaill asserts that as she sold the house for less than she bought it, this demonstrates the loss of $50,000. Ms Quaill purchased the house for $600,000 and sold it later for $562,500, being $37,500 less than what she bought it, Ms Quaill asserts that she should be intitled to $50,000 as she paid real estate commission and legal fees and administrative costs. This is however incorrect as these are standard costs associated with the sale of a house and not in any way attributable to Mr Dal Ponte’s report.
94. [94]
    The only evidence that Ms Quaill has provided to evidence the loss associated with the sale of the house is the original contract demonstrating she purchased the property for $600,000 and a letter from her lawyer on 29 February 2024 confirming settlement on 29 February 2024 and attaching the settlement statement, which confirmed the property sold for $562,500 and Ms Quaill received $549,941.89 after costs were taken out. This is insufficient to demonstrate loss being attributable to Mr Dal Ponte.
95. [95]
    There is no material provided to evidence the value of the house at the time Mr Quaill purchased it to demonstrate that she overpaid for the house based on reliance on the report. There is also no evidence of the quality of the house at the time Ms Quaill sold it. Ms Quaill asserted she has put $30,000 into the property for repairs but left a number of the safety issues unaddressed. What the impact of these repairs were on the house is unknown.
96. [96]
    There is also no evidence provided by Ms Quaill to support her assertion that the property was worth less when she sold it in 2024, than when she bought it in 2021 which was due to the errors in Mr Dal Ponte’s report.
97. [97]
    House prices can go up and down based on a number of different variants and the mere fact that the house was sold for less than what it was purchased for does not demonstrate that the loss is due to any issues with Mr Dal Ponte’s building inspection report. No evidence was provided from any real estate agent or other expert as to the market forces and values in the area, to demonstrate that this was not responsible for the reduced sale price.
98. [98]
    The area Ms Quaill bought in was a small rural area halfway between Townsville and Ayr, which would likely have a smaller market of prospective buyers than other areas which may also have affected the saleability of the property. The mere fact that house prices have increased in other areas in Queensland is not sufficient to demonstrate that Ms Quaill lost money on the house as a result of a bad deal due to reliance on Mr Dal Ponte’s pre-inspection report.
99. [99]
    Ms Quaill is the applicant, and it is her responsibility to provide the evidence to the tribunal to prove her case, including providing the basis for any loss and causation between the loss and the breach of contract or duty of care. In the circumstances Ms Quaill has not sufficiently demonstrated loss associated with the purchase or sale of the house which can on the balance of probabilities be attributable to the building inspection report and accordingly the tribunal declines to order any damages associated with any perceived loss associated with the sale of the property.
100. [100]
     Ms Quaill also sought costs for the loss of ability to rent the property. This is claimed to be $25,000 based on a rental of $600 a week, over a period of 12 months.^[29] The only evidence that Ms Quaill provided to evidence this was her statement and a letter from a rental agency dated 3 August 2023 that states the house is not fit to rent in its current state. The letter advises the following will need to be attended to and fixed before the property could be rented:

     1. Incomplete renovations need to be completed.
     2. The property needs to be sealed so that vermin cannot enter.
     3. There are safety issues which would need to be rectified to the Queensland standards of renting.
101. [101]
     The first two issues mirror the concerns raised in the inspection report, provided to Ms Quaill nearly two years prior, so these cannot be reasons linked to Mr Dal Ponte’s actions which resulted in an inability to rent the property. In terms of the mention of safety issues, it is unclear what the specifics of these safety issues are, and it cannot just be assumed that this means that lack of stairs off the bedroom French doors is the reason the property could not be rented. While if that safety issue was not rectified by August 2023, it may have been one of the concerns, there are also a number of safety issues which relate to standards for rental properties which are over and above those which are necessary in a person’s ordinary residence. This can include the need to ensure there are no loose cables or cords on curtains and blinds and the need to have interconnected smoke alarms.
102. [102]
     This letter does not provide evidence that Ms Quaill would get $600 rent from the property, if it was able to be rented, and in fact appears to confirm that no rental market appraisal had been completed. The letter is dated in early August and the property sold and settled in late February, so it also does not provide support for Ms Quaill’s assertion that she lost rent for a 12-month period.
103. [103]
     Ms Quaill has failed to provide any evidence to demonstrate that the loss of opportunity to rent the property is a real substantial loss as opposed to a merely theoretical loss. She has not evidenced that any loss in the ability to rent the property is caused by the actions of Mr Dal Ponte and she has not provided any evidence to support her claim that she would have received $600 a week over a 12-month period.
104. [104]
     In the circumstances Ms Quaill had not sufficiently quantified or demonstrated loss associated with any inability to rent the property or that if any loss could be established that it was attributable to the pre-purchase inspection report and accordingly the tribunal declines to order any damages associated with any perceived loss in the ability to rent the property.
105. [105]
     Given Ms Quaill has been unable to demonstrate loss that is attributable in any way to the actions of Mr Dal Ponte, there is no need to consider the issues as to whether Ms Quaill did rely on the report and whether that reliance was reasonable.

What damages and costs, if any, is Ms Quaill entitled to?

106. [106]
     Ms Quaill has failed to provide sufficient evidence to demonstrate any loss associated with or caused by the breach of the Australian standards and the failure of Mr Dal Ponte to report on a safety issue in relation to the lack of stairs from the French doors off the bedroom.
107. [107]
     Nominal damages have been identified as appropriate where there has been a legal wrong, but no direct causation.^[30] The sum of $100 has been identified as appropriate amount of nominal damages in other cases.^[31] In this matter, where there has been a failure to comply with the standards, it is appropriate to award nominal damages. Accordingly, Ms Quaill is entitled to the nominal damages in the amount of $100.
108. [108]
     The tribunal may award costs in a building dispute.^[32] It is clear from Ms Quaill’s application that she paid a filing fee of $358 to the tribunal. However, there are no other costs apparent from the material filed by Ms Quaill.
109. [109]
     Although Ms Quaill has failed to demonstrate loss, it has been demonstrated that the pre-purchase inspection report was not fully compliant with the Australian standards and a safety issue was left off the report. Therefore there was validity in Ms Quaill’s concerns with the building report.
110. [110]
     The amount of the filing fee is reasonable and was necessarily incurred by Ms Quaill in pursuing this claim. I therefore consider it is in the interests of justice to award the filing fee of $358 be paid by Mr Dal Ponte.

Orders

111. [111]
     The tribunal orders that Mr Giovanni Francesco Dal Ponte is to pay Ms Kathryn Anne Quaill $458.00 within 14 days which consisting of:

     1. Nominal damages in the amount of $100.00.
     2. Costs in the amount of $358.00 for the filing fee.