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Plowman v Alpha Steel Building Systems Pty Ltd[2025] QCAT 85

Plowman v Alpha Steel Building Systems Pty Ltd[2025] QCAT 85

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Plowman v Alpha Steel Building Systems Pty Ltd t/as Ascot Homes and Gardens [2025] QCAT 85

PARTIES:

Ross Plowman

(applicant)

v

Alpha steel building systems pty ltd t/as ascot homes and gardens

(respondent)

APPLICATION NO/S:

BDL174-22

MATTER TYPE:

Building matters

DELIVERED ON:

11 March 2025

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

  1. Pursuant to s 77(3)(g) of the Queensland Building and Construction Commission Act 1991 (Qld) Alpha Steel Building Systems Pty Ltd t/as Ascot Homes and Gardens is to rectify or complete defective and incomplete work relating to stormwater discharge so that stormwater discharges to the street at the property of Ross Plowman in accordance with the Master Builders Queensland Residential Building Contract – Level 2 of 4 July 2019 and the terms of the Building Schedule, Item 7, Drainage of Stormwater and the Local Regional Councils stormwater discharge requirements from properties on or before 4.00pm Wednesday, 11 June, 2025;
  2. Otherwise than as provided in (1) above, the Application for domestic building disputes filed in the Tribunal on 8 June 2022 by Ross Plowman is dismissed.

CATCHWORDS:

CONTRACTS  – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – DOMESTIC BUILDING DISPUTE – terms of the contract – Whether the terms of the contract required design and construction to Livable Housing Australia Guidelines Platinum Design Level Standard – whether works defective – rectifying defective building work

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 100, s 102

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(3)(g), Schedule 1B s 4, Schedule 2 Dictionary

Campbell v Backoffice Investments Pty Ltd (2009) HCA 25

Equus Corp Pty Ltd v Glengallan Investments Pty Ltd (2004) HCA 55

Investrend Property Group Pty Ltd v Wegener [2012] QCATA 11

McDonald v Shinko Australia Pty Ltd (1999) 2 Qd R 152

Nick Seddon, Manfred Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis, 9th ed, 2008)

APPEARANCES & REPRESENTATION:

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

REASONS FOR DECISION

  1. [1]
    In these proceedings Ross Plowman (‘the Applicant’) is claiming damages for defective work and compensation for work not completed and costs from his building contractor, Alpha Steel Building Systems Pty Ltd trading as Ascot Homes and Gardens (‘the Contractor’).

Background Facts

  1. [2]
    The Applicant is the owner of land situated north of Brisbane in the State of Queensland. The Contractor carries on business as a builder in the same general locality.
  2. [3]
    In November 2018 the Applicant and various Builders, including the Contractor, commenced discussions to build a home at the Applicant’s property.
  3. [4]
    On 21 June 2019 the Applicant sent an email to a representative of the Contractor enquiring when he could sign the contract which was to be made “in my name only”.
  4. [5]
    Following further discussions, the Applicant sent an email to the representative of the Contractor stating “OK. Approved. Send contract.”
  5. [6]
    On 4 July 2019 the Applicant and the Contractor entered into a Master Builders Queensland Residential Building Contract – Level 2 for the construction of a low set brick veneer house on the Applicant’s land as per the specifications and plans. That contract had a fixed price component of $202,148.00, prime cost items and provisional sums making the final contract price $208,818.00. That contract also included:
    1. the Building Schedule (the Specifications);
    2. Plans prepared by the Contractor containing the Floor Plan and Elevations signed by the Applicant and approved by the local Regional Council; and
    3. the Master Builders Queensland General Conditions – Residential Building Contract – Level 2.
  6. [7]
    The evidence before the Tribunal also identifies that a Consumer Building Guide had been given by the Contractor to the Applicant before the signing of the contract. The Applicant says he has no record of a signed contract. The Contractor says that the Applicant would have been given a copy of the contract, specifications and plans when he signed those documents in accordance with standard procedures. The evidence from the Contractor is that they print two (2) copies of the contract and other documents for signing together at the office and present the customer with an Ascot Homes Folder containing those contractual documents. The Contractor also refers to the following statement from Gavin Quinn, Building Consultant for the Contractor:[1]

It is noted that I was present with Mr Ploughman when signing the contract, building schedule and current sketches.

As is always the case, copies of the Building Contract, Building Schedule and signed Plans would have been given to him.

  1. [8]
    On 25 September 2019 the Contractor commenced construction of the low set brick veneer home for the Applicant.
  2. [9]
    On 25 February 2020 construction of the brick veneer home was completed.
  3. [10]
    Progress claim payments were to be made in accordance with the contract. While the evidence does not set out any details of progress claims paid, nevertheless the Applicant’s case is that he has paid $208,818.00 in accordance with the contract.
  4. [11]
    On 17 June 2020 the Applicant notified the Contractor of building defects in the home. The list contained 19 defects.
  5. [12]
    By Saturday, 14 November 2020, the Applicant sent an email request to a representative of the Contractor regarding the complaints about the house defects and stated:

I would like advice in writing from Ascot Homes regarding your intentions to fix the defects/complaints in my house.

  1. [13]
    The Applicant says that he did not receive any response to that request. The Contractor (in its Response) states the following:

During the period of trying to rectify problems we found it difficult as the owner (the Applicant) was not there when arranged.

  1. [14]
    The Applicant denies this statement and says it “never happened” as the Applicant was then living in the house.
  2. [15]
    On 16 April 2021 the Applicant made a complaint to the Queensland Building and Construction Commission (‘QBCC’) in relation to eight (8) building defects in the home.
  3. [16]
    QBCC investigated this complaint.
  4. [17]
    On Friday, 20 August 2021 Carl Martin, Inspector for QBCC, sent an email to James Ferguson of the Contractor acknowledging QBCC’s receipt of the contract and stated:

Looks like the inspection will be on for 7/09/2021 at 11.00 am, letter will be sent out. Can you advise the size of the decking fasteners that were installed.

  1. [18]
    On 7 September 2021 an inspection by Carl Martin was conducted at the Applicant’s home of the building defects referred to in the Applicant’s complaints.
  2. [19]
    On 8 September 2021 the Inspector completed an Inspection Report. The result of that Report is that the Inspector did not find any defective work identified in relation to the eight (8) building defects referred to in the Applicant’s complaint. (Further details of this Report will be referred to below). QBCC decided that it would not direct the Contractor to rectify the building defects referred to in the complaint and also advised the Applicant that the Queensland Home Warranty Scheme is unable to provide cover for any of the complaint items. QBCC advised the Applicant that his complaint had been finalised.
  3. [20]
    On 8 June 2022 the Applicant filed in the Tribunal an Application for domestic building disputes. The Applicant made that Application in reliance upon the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’). The Applicant filed with that Application a Schedule of defective work/incomplete work which identified seven (7) items (to which reference will be made below) as being the items to be considered and determined by the Tribunal. While the Applicant previously identified 19 items of defective or incomplete work in his email of 17 June 2020, the Applicant was now only pursuing before the Tribunal the seven (7) items referred to in the Schedule for defective or incomplete work.
  4. [21]
    The Tribunal made a number of Directions for the Applicant and the Contractor to file evidence, statements or other documents in support of the case. In general terms, the parties then filed their evidentiary material for this Hearing. On 6 November 2023 the Tribunal made the following Direction:

Unless a party requests an oral hearing by 4 pm on 15 January 2024, the matter will be determined on the papers on the basis of the documents forming the Tribunal record.

  1. [22]
    No party requested an oral hearing and the Tribunal will now proceed to consider the evidentiary material and determine the Application for domestic building dispute.
  2. [23]
    On 11 April 2023 a Scott Schedule was filed in relation to the building disputes the subject of these proceedings.

Jurisdiction of the Tribunal

  1. [24]
    The Tribunal has the jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) or by an “enabling Act”.[2]
  2. [25]
    The Applicant has brought these proceedings in reliance upon the QBCC Act.
  3. [26]
    The QBCC Act provides that a person involved in a “building dispute” may apply to the Tribunal to have the Tribunal decide the dispute.[3]
  4. [27]
    The issue is whether the dispute in the Application for building disputes filed by the Applicant in the Tribunal comes within the meaning of the term “building dispute” in the QBCC Act. That term is defined to mean “a domestic building dispute” which, in these proceedings, means “a claim or dispute arising between a building owner and a building contractor relating to the performance of, or a contract for the performance of, reviewable domestic work”.[4] “Reviewable domestic work” means “domestic building work” for the:[5]
    1. renovation, alteration, extension, improvement or repair of a home; and
    2. includes work associated with the renovation, alteration, extension, improvement or repair of a home; and
    3. includes the provision of services or facilities to the dwelling or property on which the dwelling is to be built; and
    4. includes site work relating to work referred to above.
  5. [28]
    The evidence in these proceedings is that the contract was for the construction of a lowset brick veneer home on the Applicant’s land in accordance with the specifications and the plans attached to the contract. These matters come within the above definition of “building dispute” which entitles the Applicant in these proceedings to apply to the Tribunal for a determination that dispute.
  6. [29]
    The QBCC Act is the relevant “enabling Act” for these proceedings and the Tribunal has jurisdiction to hear and determine the Application for domestic building disputes filed by the Applicant on 8 June 2022.
  7. [30]
    The Tribunal has wide powers to resolve this dispute including the power to:[6]
    1. order payment of an amount owing by one party to another;
    2. award damages;
    3. order restitution.

Livable Housing Australia Guidelines Platinum Design Level Standard

  1. [31]
    The parties are in dispute as to whether the Livable Housing Australia Guidelines Platinum Design Level Standard is a term of the contract or otherwise incorporated into the contract.
  2. [32]
    The Applicant says he “devoted an extraordinary amount of time” with the Contractor ensuring design and construction of the home provided for the future needs of his wife and himself. He also says:

It was made clear throughout the consultation and design process that the home was to be designed and constructed to Livable Housing Australia Guidelines Platinum Design Level Standard.

The Ascot Homes Sales Representative was aware of this condition in email dated 16 November 2018 and throughout the negotiation.

  1. [33]
    The Liveable Housing Design Guidelines contain several performance levels. These include the “Silver Level”, the “Gold Level” and the “Platinum Level”. The Guidelines state that the levels of performance range from basic requirements through to best practice in liveable home design. The Platinum Level includes the features in the Silver Level and the Gold Level with:

Some further enhanced requirements for the core livable housing design elements plus all remaining elements.

All 15 elements are featured in the platinum level. This level describes design elements that would better accommodate ageing in place and people with higher mobility needs. This level requires more generous dimensions for most of the core liveable design elements and introduces additional elements for features such as the living room and the flooring.

  1. [34]
    The Guidelines also provide that the features of the Platinum Level are the same as the Gold Level except:

replace in (b) the minimum clear pathway width of 1100 mm with 1200 mm, and

replace in (c) the minimum dimensions of the leased 3800 mm (width) x 600 (length).

  1. [35]
    The Applicant says:

It is clear that the home has been designed and built to Liveable Housing Australia Guidelines Platinum Design Level Standard except for the issues contained in the Application for domestic building dispute filed 8 June 2022.

  1. [36]
    That Application for domestic building disputes contains the following details of alleged defective work and/or incomplete work said to have been reported to the Contractor on 17 June 2020:
    1. Tap Relocation;
    2. Shower incorrectly installed;
    3. Wheelchair Access;
    4. Back Steps;
    5. Timber Deck;
    6. Carport Design;
    7. Storm Water.
  2. [37]
    The Contractor says that the contract, specifications and plans were signed by both parties on the same date. It says that it is standard procedure that, at the signing of the contract, a copy of the contract and other documents is to be given to the owner. The Contractor’s response[7] to the Applicant’s claim states:

The Liveable Housing Australia Guidelines were not attached to the contract or specifications as signed by the owner.

The Contractor also states that the Inspection Report by Carl Martin, Inspector for the QBCC, does not mention the Liveable Housing Australia Guidelines.

  1. [38]
    The Applicant’s case is that the pre-contractual negotiations centred on the construction of the home being in accordance with the Platinum Design Level Standard (‘the Design Standard’). It is also part of the Applicant’s case that the home was designed and built to that Design Standard except for building defects referred to above. The issue then is whether the Design Standard was part of the terms of the contract.
  2. [39]
    The pre-contractual negotiations and particularly the email relied upon by the Applicant dated 16 November 2018 was some time prior to the signing of the contract on 4 July 2019. If the Design Standard relied upon by the Applicant was part of the contract then a reference to that Design Standard should be found in either the contract, the specification and/or plans signed by both parties on or July 2019.
  3. [40]
    Neither the Applicant nor the Contractor have identified any terms in the contract, the specification and/or the plans as containing a reference to the Design Standard. The Tribunal is satisfied that the terms of the contract, specifications and the plans do not contain any reference to the Design Standard and neither is the Design Standard incorporated by reference into the contract documents. The position is that the contractual documents are silent about and contained no reference to the Design Standard.
  4. [41]
    A further problem then is that clause 3.2 of the General Conditions provides that the contract is an “Entire agreement” and is in these terms:

The parties acknowledge that the terms of their contract are fully set out in this Contract, and may not be altered, varied, deleted or otherwise affected by reference to any prior representations, conditions or agreements, whether written or verbal…

  1. [42]
    By clause 3.2 the parties have agreed that even if there were negotiations, representations or other conditions made prior to entering into the contract, then unless those negotiations, representations or conditions are contained within the terms of the contract, they are excluded from being a term of the contract and are not permitted to alter, vary or otherwise affect the contract. The Applicant, by signing the contract on 4 July 2019 in the terms of the contractual document in evidence, has thereby excluded his prior negotiations and representations, including the email on 16 November 2018 (and emails sent at any other times), from being incorporated as a term of the contract in the circumstances discussed in these proceedings as the contract contains ontain no reference to those negotiations, representations or emai.l
  2. [43]
    The Tribunal has made previous determinations where contracts contain an “entire agreement” clause such as clause 3.2. In Investrend Property Group Pty Ltd v Wegener[8] the Appeal Tribunal determined the question whether a written agreement entered into between the parties encompassed the entire agreement. Senior Member Oliver in that case said:[9]

The basis of Mr Wegner’s claim clearly contradicts the terms of the written Agreement which specifies that he was to be paid on a commission basis only.

Investrend, naturally, take the position that the Commission Agreement by its terms, encompassed the whole of the transaction between it and that Mr Wegner. As a matter of principle this is undoubtably correct and supported by authority[10] the exception to this is if, in a performance of Agreement it is necessary to imply terms.[11] Parol evidence is also admissible if there are allegations of fraud or misleading and deceptive conduct.[12]

  1. [44]
    The evidence in the proceedings establishes that the various contractual documents contained no reference to the Design Schedule by that name. Clause 3.2 excludes the prior negotiations and discussions which do not find their way into the actual terms of the contractual documents.
  2. [45]
    However, that is not the end of this issue as there is evidence from the Applicant that the Design Standard was incorporated into the plans signed by the parties for the domestic building, apart from the seven (7) items referred to in the Application for domestic building dispute in these proceedings. This raises the issue whether or not those seven (7) items should be implied into the contract. The fact that the parties included most, but not all, of the Design Standards following what the Applicant says were lengthy negotiations and discussions prior to entering in the contract, suggests that the parties had settled on those parts of the Design Standard they wanted incorporated into the structure of the domestic building. The Applicant’s evidence is that he took a keen interest in the pre-contractual steps relating to features to be included in the building and at the end of that process signed the contract, the plans and the specifications. These factors satisfy the Tribunal that after the parties completed their lengthy negotiations and discussions they settled on those aspects of the Design Standard they required in the plans for the building. The Tribunal is not satisfied that there is scope in these circumstances to imply into the contract terms to include the seven (7) items to which the Applicant now refers. The parties’ contract was at all material times capable of performance without the necessity to imply the seven (7) items which the Applicant says are absent from the Design Standard.
  3. [46]
    The Tribunal is satisfied that while the parties did include aspects of the Design Standard in the plans, or in the specifications, those seven (7) items referred to in the Application for building disputes were not part of the terms of the contract and there is no scope for implying those terms into that contract.

Defective or Incomplete Work

  1. [47]
    The Applicant says there are seven (7) items of defective or incomplete work.
  2. [48]
    The Contractor denies any work is defective or incomplete.
  3. [49]
    Each of the items alleged to be defective or incomplete will be considered below.

Item 1 - Tap Relocation

  1. [50]
    The Applicant says that a plumber for the Contractor removed the tap which was located at the front entrance of the home but left the pipe upstand intact and visible. According to the Applicant:

I am left with the eyesore I paid to remove with a Variation.

  1. [51]
    The Applicant says that he asked the contractor to have this done before the brickwork commenced which would have enabled the pipe to be removed and relocated behind the brick cladding.
  2. [52]
    The Applicant’s documentary evidence consists of a photograph of the external pipe upstand left after removal of the tap and an email exchange in November 2019 which included the following:
    1. On Tuesday, 26 November 2019 Lindsay Williams, for the Contractor, said that the tap can be removed and further stated:

I thought I would leave you the opportunity to use them in the future if you wished but if you want them capped off elsewhere, I can do that.

  1. Later on Tuesday, 26 November 2019 the Applicant replied to Lindsay Williams in these terms:

OK. I don’t think that will be required. Please have them capped inside the brickwork. Now that is resolved I will get Gavin to raise a variation to relocate the taps. Please arrange for the relocation to happen…

  1. [53]
    The Applicant says he signed a building variation on 28 November 2019 to relocate the tap and upstand at the front of the house. The evidence in these proceedings includes a “Contract Variation Number 3” dated 27 November 2019 and signed by the parties on 28 November 2019 for “Extra labour & materials to install 2 Ext taps”. The description of those works in the “Contract Variation” is in these terms:

Variation to remove external taps from external walls as per selection plan to the left fence as per attached plan.

  1. [54]
    While the evidence includes the approved plans signed by the Applicant on 5 July 2019, the “Contract Variation” does not have attached the plan referred to in the above description nor does there appear to be available the selection plan also referred to in the description.
  2. [55]
    The Applicant states that the Contractor was requested in writing to remove the pipe upstand prior to the external brick cladding being installed and contends that:

The Respondent (the Contractor) has knowingly and with intent demonstrated there was never any intention to remove the whole device.

  1. [56]
    The tap was removed but the up stand was not removed. The Applicant seeks the removal of “the whole device”.
  2. [57]
    The response from the Contractor is the tap was removed in accordance with a variation. Apparently, the remaining pipe upstanding is for water supply to the dwelling.
  3. [58]
    The QBCC Inspection Report said it was observed that the tap had been relocated during construction to the left side of the property. The relocation of that service is a contractual matter and QBCC is not able to adjudicate contractual issues. It will take no further action in relation to this item. The Inspector considered this issue was building work but did not identify any defective work.
  4. [59]
    The evidence from both parties is that there was a variation relating to the tap and/or up stand at the front of the building.  The variation would state the scope of the works necessary in relation to the tap and the pipe up stand. Clause 12.3 of the General Conditions of the Contract states:

The parties may agree to vary the Works by adding work to, or omitting work from, the Works. The Contractor must ensure that any agreement to vary the Works is put in writing in a variation document and a copy given to the Owner, within five (5) Business Days from the date of agreement, and before any work the subject of the variation is started.

  1. [60]
    By Clause 12.4 the variation document must describe the variation and provide other details as specified in that clause.
  2. [61]
    In these proceedings the parties are in dispute as to the extent or scope of work to be performed in relation to the variation. The description in the “Contract Variation Number 3” is to move external taps from external walls to the left fence in accordance with an attached plan. The Applicant signed that Contract Variation on 28 November 2019. What is missing from that document are any words indicating a requirement for the Contractor to relocate the pipe upstand to behind the exterior brick wall or any other location. Without those words or indication of a requirement in the Contract Variation document there is no obligation on the Contractor to carry out the works complained of by the Applicant in this particular item in their dispute. Had that requirement been essential works for the Applicant as at 28 November 2019, it would be expected that he would have required an amendment to the “Contract Variation Number 3” before signing that document. It may well be the case the Applicant thought that might happen or even subsequently realised that the pipe upstand should have been relocated. The problem for the Applicant is his failure to include works in the Contract Variation making that a requirement. The evidence available satisfies the Tribunal that the Contractor has not failed to carry out its obligations under the Contract Variation. The Tribunal accepts the evidence of the Contractor and dismisses this claim by the Applicant. 

Item 2 – Shower Incorrectly Installed

  1. [62]
    The Applicant says that the Shower Combination was installed incorrectly.
  2. [63]
    The Applicant’s evidence consists of his statements and two (2) photographs, the first being during installation showing internal shower plumbing prior to wall sheeting and the second being following completion of the installation of the shower. These photographs are referred to in the Scott Schedule.
  3. [64]
    The Applicant appears to be saying that the first photograph shows installation and all the shower plumbing to be installed at 210 cm whereas the “tap” was installed at that height with the showerhead above that height. The ceiling height in the house is 2700 mm.
  4. [65]
    The Applicant says that the location of the shower rose was indicated on the house framing on 2 December 2019 in a meeting with Ascot Homes Supervisor. This was inspected with the Supervisor and it was agreed the location of the shower rose by a “circle” on the sarking with a marker pen. The Applicant says that the Contractor has taken no further action to rectify the height of the shower rose. The Applicant “strongly” denies that the location of the shower combination was decided with the plumbing subcontractor and says:

The Respondent is knowingly and with intent providing False, Misleading and Deceptive information to Pervert Justice and commit Perjury.

  1. [66]
    The response from the Contractor is as follows:

The Plumber is adamant about the request for the shower rose to be higher than usual due to his (the Applicants) height. As you can see in the photo, the combination tap is at standard height, but the rose is higher.

  1. [67]
    The Contractor accepts that the shower rose is 2100 mm high and from discussions between the plumber and the Applicant, understands that the Applicant is over six feet tall. He wanted the shower rose higher than 1.8 m.
  2. [68]
    The QBCC Inspection Report says that the Applicant’s home is a Class 1A building. The Report says that there are currently no recommendations in AS 1428.1 (design for access and mobility) that can be applied to these circumstances. This was identified as a contractual issue and is not regarded as defective and/or incomplete building work. The report concluded that QBCC will take no further action in relation to this item.
  3. [69]
    This dispute between the parties relates to the height of the shower rose and the tap. The approved plans do not deal with that particular topic or provide any relevant dimensions. The Tribunal has not been referred to any part of the specification which provides for the contractual height of the shower rose and the tap. Rather, according to the evidence of the parties, these dimensions were to be sorted out “on site” during construction. Those dimensions were the subject of conversation between the Applicant and the Contractor’s plumber, but unfortunately the respective versions are diametrically opposed and there is no common ground. The facts, as established by the evidence, suggest that the Applicant saw what he considered was the position of the shower rose prior to installation of the shower in accordance with the first photograph he has referred to in the Scott Schedule. Even if that was the case, any assumption on the part of the Applicant does not make that a contractual term or requirement. It appears that the plumber was on site and the parties are in a disagreement as to terms with their respective conversation. In these circumstances it is difficult for the Tribunal to decide this matter except on the basis of the version by the plumber, which is consistent with installing a shower rose at a height to suit the Applicant, rather than to provide for wheelchair accessibility in the shower. The Applicant bears the onus of proof in establishing that the Contractor failed to install the shower rose and tap in accordance with dimensions he required. The Tribunal is not satisfied, on the whole of the evidence referred to above, that the Applicant has satisfied that onus of proof. The Tribunal prefers the evidence from the Contractor relating to the discussion the plumber had with the Applicant and rejects the Applicant’s version of those events. Accordingly, the Tribunal finds that the Applicant has not established that the shower rose and tap were installed incorrectly and dismisses the Applicant’s claim for this item.

Item 3 – Wheelchair Access

  1. [70]
    The Applicant says that the Contractor did not provide any wheelchair access to the home. The Applicant contends that the Contractor refused to install wheelchair access.
  2. [71]
    He says the Contractor was “fully aware” the home was designed and constructed to Livable Housing Australia Guidelines Platinum Design Level Standard. The Applicant says that:

Substantial email correspondence with the Respondent (the Contractors) sales representative during negotiations prior to signing the Contract and Building Schedule made reference to the requirement for wheelchair access…

  1. [72]
    The Applicant’s material contains an email of 12 September 2019 making a request for flooring to the same level as wet areas and the patio so that the whole house is wheelchair accessible and a further email dated 13 January 2020 seeking to resolve the initial wheelchair access to the house “thru all doors”. The Applicant refers to the usual flat access through each door of the house and the only response by “Gavin” (for the Contractor) was in the following conversation:

Gavin said there would be no issues with this except for the carport being laid up to the sliding glass door at the same level as the internal floor.

Ascot Homes would not do this due to Building Code Specifications.

The Applicant then says “in my mind everything was OK and I could get what I wanted”.

  1. [73]
    The Applicant seeks reimbursement of $1,000.00 for the cost of installation of wheelchair access to the front of the house. In apparent support of this claim the Applicant has included a tax invoice from Mario Ciccone’s Concreting for $2,400.00 (excl. GST) to prepare, pour and supply materials for a 1.8 x 1.3 ramp and 2 x 4.8 cloth linen slab.
  2. [74]
    The response from the Contractor is that this was not mentioned in the specifications or the contract. There was no allowance for external concrete in the specification or the plans signed by the Applicant.
  3. [75]
    The Inspector from QBCC also considered the Applicant’s complaint that the slide door was to be level with internal timber floor so as to be wheelchair accessible. The Inspector observed:

the small height differential of approximately 2.00 mm above the aluminium still on the sliding door that leads to the carport;

that the Design for Access & Mobility Code AS 1428.1 does not cover Class I dwellings but commercially allows for and 5.00 mm maximum vertical for a Class 2-9 buildings. The Inspector considered that the 2.00 mm height differential would be acceptable…

  1. [76]
    The Report from the QBCC Inspector made the observation that a concrete path have been installed to match the height of the timber decking at the front of the house and a timber in fill on the outside of the sliding door had been installed to remove a gap between the carport slab and the door sill plate.
  2. [77]
    The Inspector considered there was no defect with the entry points and whether these entry points were to be carried out by the builder under the premium package was a contractual matter. The Report concluded that this complaint is a contractual issue where no defective and/or incomplete building work has been identified resulting in the QBCC not taking any further action.
  3. [78]
    This dispute centres on the requirement of the Livable Housing Australia Guidelines Platinum Level Standard. It has already been found by the Tribunal that this Design Standard is not part of the terms of the contract, plans and specifications between the parties although it is admitted by the Applicant that aspects of the plans and specifications contain dimensions compliant with the Design Standard. There is no building defect identified in this particular item. Nor is there any breach of contract by the Contractor. The Tribunal does not accept, and dismisses, the Applicant’s contention that this is a defect in accordance with the Design Standard. The Tribunal accepts the evidence of the Contractor. The Tribunal finds that the requirement for wheelchair access as claimed by the Applicant in this item is not established and dismisses this item of claim.

Item 4 – Back Steps

  1. [79]
    The Applicant says that there was no landing installed measuring 1500 mm x 1500 mm to the back door as per the Livable Housing Australia Guidelines Platinum Design Level Standard.
  2. [80]
    The Applicant says that no step was provided from back landing to the ground level. He claims this does not meet the Building Regulations (although no particular Regulation is identified). In later submissions the Applicant refers to the Building Code (without identifying any particular provision in the Code) as requiring a landing and back step.[13] As he says the distance from the house to ground level is 200 mm. The slab outside the back door appears on some plans and not on others.
  3. [81]
    The Applicant seeks to have the Contractor pay for the cost of installing the slab at the back door at a price of $1,000.00. In apparent support of this claim the Applicant attaches the tax invoice from Mario Ciccone’s concreting which has already been referred to above.
  4. [82]
    The response from the Contractor is this was not mentioned in the specification or the contract. The contract and the specification states “Nil” external concrete and looking at the photograph the Contractor believes it establishes a distance from the house to ground level of approximately 180 mm.
  5. [83]
    The Contractor states:

I don’t know how the plan changed from back step to no back step. It was not in the specification. The Building Approval was granted without the back step, so obviously the Building Code.

  1. [84]
    The Report from the QBCC Inspector considered there was no defect with the entry points and whether these entry points were to be carried out by the builder under the premium package was a contractual matter. The Report concluded that this complaint is a contractual issue where no defective and/or incomplete building work has been identified resulting in the QBCC not taking any further action.
  2. [85]
    The plans in evidence before the Tribunal do not show a step to be installed at 1500 mm x 1500 mm at the back door of the dwelling. The “Site Plan” approved by the Applicant does have a rectangular square on the exterior of the back door. This rectangular square could be the landing to which the Applicant refers but there are no dimensions or details relating to what this square is meant to represent. The more detailed “Floor Plan” does not appear to have the requirement for a landing at the exterior of the rear entrance for the dwelling. Rather, according to the Scott Schedule the Applicant says that the back step was provided on one plan but then disappeared on another plan. It rather appears that the Applicant’s case is that at some stage there was a plan which provided for a back step; however, as has already been explained, the approved plans signed by the Applicant do not contain the back step to which reference is made in this item.
  3. [86]
    The Applicant has not established to the satisfaction of the Tribunal that a step was to be installed at the back door of the dwelling measuring 1500 mm x 1500 mm. This allegation is not made out according to the documentary evidence before the Tribunal in the plans provided for the dwelling. Further, while the Applicant relies upon a breach of the Building Code, no relevant provision has been identified. The Contractor disputes there is a breach of the Building Code and asserts that from the photographs provided any step at the back door is within the standards for a step once turf is laid at the back of the dwelling.
  4. [87]
    The Tribunal is not satisfied that the Applicant has established the requirement in the Contract for the provision of the back steps as alleged. Nor is the Tribunal satisfied that the Applicant has established a building defect or an omission to provide materials required by the Contract. The Tribunal rejects the Applicant’s evidence on this item claimed and accepts the Contractor’s evidence. The Tribunal dismisses the Applicant’s claim for this item relating to the back step.

Item 5 – Timber Deck

  1. [88]
    The Applicant says that the timber decking “fastening devices” are not of an approved type under the Building Regulations. The Applicant says that the QBCC Inspector, Carl Martin, apparently confirmed this was the case in the course of his inspection. The Applicant in his submissions states:[14]

QBCC Report dated 18/09/202 states the Building Code specifications for the fixing of F17 hardwood 32 mm Decking Timber is 65 2.8 Galvanised Bullet Head nails. Not Screws.

  1. [89]
    The Applicant says a representative of the Contractor informed him that the carpenter was provided with these screws as the approved fastening devices.
  2. [90]
    The Applicant then makes the submission:[15]

The Respondent (the Contractor) knowingly did not request a “variation” to the Building Schedule from the Applicant to install the non-conforming Building Code device.

  1. [91]
    The Applicant requires the Contractor to rectify this issue by replacing screws with the approved fastening devices.
  2. [92]
    The response from the Contractor disagrees with the Applicant. It says that the QBCC Inspector, Carl Morris, had no issues with the screws or otherwise he would have ordered them to be replaced. The Contractor says the screws are fit for purpose.
  3. [93]
    The QBCC Inspector in the Report refers to the description of the complaint alleging a building defect as “screws used to fasten timber deck not required standard”. The Inspector observed that stainless steel screws had been installed to secure the floorboards down and there was little twisting or lifting of the floorboard edges. The Inspector then states:

there are two fixings currently securing the flooring down. Two 65 x 2.8 Galv. bullet hand nails are the minimum requirement for fixings. Currently the screws satisfactorily fixing the boards down.

The screws have the correct corrosion protection (SS).

Item number 8 of your complaint form has been investigated and there was insufficient evidence to reveal any obvious defective construction practices by Alpha Steel Building Systems Pty Ltd at the time of inspection.  Therefore, the QBCC is unable to provide you with any further assistance with the resolution of the item.

  1. [94]
    In that Inspection Report the Inspector includes “TABLE 5 – DECKING” for a residential decking which records that the screws used by the Contractor to fasten timber deck are compliant for a hardwood decking and that an alternative fixing using F17 screws 65 x 2.8 Galv bullet head were also compliant.
  2. [95]
    The evidence before the Tribunal is that there are two methods of fixing decking boards by either the galvanised decking screws used by the Contractor or F17 screws also galvanised and with the same dimensions. The independent evidence from the QBCC Inspector establishes that the screws used by the Contractor for the Applicant’s decking are suitable fixings. The Tribunal accepts the evidence from the QBCC Inspector. The Tribunal rejects the evidence and submissions of the Applicant as not being consistent with that provided in “Table 5 – Decking” referred to by the QBCC Inspection Report.
  3. [96]
    The Tribunal finds that the fixings used by the Contractor are suitable and appropriate for the Applicant’s decking and there is no basis established on which those fixings need to be replaced. The Tribunal dismisses the Applicant’s claim based on this item.

Item 6 – Carport Design

  1. [97]
    The Applicant says that the Contractor was negligent in the design of the carport. He says the carport design was to accommodate installation of a Roller Door.
  2. [98]
    On Thursday, 23 May 2019, the Applicant sent an email to the Contractor requesting:

Supply and install sandwich panel Skillion carport full length of the western side of the house approximately 12 m.

This does not include the concrete slab for the carport.

Supply and install Electric Roller door at the front of the carport (sufficient height?)

  1. [99]
    The Applicant was provided with a quote from the Contractor but was advised that the Contractor had forgotten to include the Roller Door in the price. This quote was accepted by the Applicant without the Roller Door. He says:

The Applicant agreed to instal a Roller Door later.

The Applicant arranged for supply and instal of a Roller Door. 

  1. [100]
    The Applicant relies on a photograph showing the carport as constructed and into which he can “just walk under the open door”. He says this concrete driveway cost $12,870.00. However, a Roller Door cannot be installed due to the design of the carport.
  2. [101]
    The Applicant says that the Contractor was fully aware that the internal height of the carport was to allow for the installation of a roller door after a concrete floor was installed in the carport. He says that the plans confirm that the carport and the house were to be on the same level when designing the carport with a roller door. A plan/drawing with the carport abutting the house is provided showing the carport being at the same level as the concrete slab of the home.
  3. [102]
    To overcome this problem the Applicant has installed a “Panel Lift Door” at an extra cost of $1,000.00 which he seeks to recover from the Contractor. A quote from Bundaberg Garage Doors dated 5 November 2021 is attached showing the cost of a B & D “Roller Door” (specification is for 3040 wide) is $1,829.00 whereas the cost to install a B & R “Roller Door” (specification is for a 3200 wide) is $2,830.00.
  4. [103]
    The response by the Contractor is that the carport was signed off by the owner (the Applicant). The carport construction did not include a slab or doors in the specification or contract. The Contractor says the door height depends on the slab. In the Contractors Submissions it states:

The carport, when the carport was after we had started construction, I refused to be part of the slab and door on the contract as I saw several problems;

The customer was requesting a slab height that would be non-conforming.

The door would be tight if the customer put the slab down as per his indications to do so. The owner signed the plans.

  1. [104]
    The Inspector from QBCC observed that a panel lift door had been installed at the front of the garage constructed by the Contractor. That door sits on the concrete slab installed by the owner. The Inspector considered that no defect is attributed to the Contractor. The matter is contractual in nature and the owner had the concrete floor installed subsequent to the construction of the carport. No defective building work was identified. Consequently the QBCC will take no further action in relation to be item.
  2. [105]
    The Applicant in discussions prior to entering into arrangements for the construction of the Carport did indicate to the Contractor and his intentions to install a garage roller door. The drawing[16] of the proposed carport provided by the Applicant shows that the height of the carport was to commence at the roof/roof gutter level of the dwelling and with a fall to the external part of the carport roof.  Apparently the commencement of the carport roof at that level adjacent to the dwelling roof gutter was acceptable to the Applicant. However, the construction of the carport appears to be the subject of a variation in “Contract Variation Number 2” of 22 October 2019. The parties accepted that variation apparently on about 30 September 2019. The variation was for the supply and construction of a 11.37 m x 3.5 m skillion verandah with the works described as follows:

Supply and construct 11.37 m by 3.5 m skillion verandah footing only.

  1. [106]
    For whatever reason (the reason is not explained in the evidence in these proceedings) the Contractor was responsible for constructing the footings for a concrete slab and the construction of the concrete slab was being undertaken by the Applicant or others on his behalf.
  2. [107]
    Whether the Applicant took into account the height required for a garage roller door prior to the construction of the concrete slab for the carport is not in evidence. Even if the Applicant had another contractor install the concrete floor there is no evidence as to what measures were adopted so as to facilitate the installation of a garage roller door. The evidence also falls short of excluding the possibility that a roller door other than the type envisaged by the Applicant could or might have been installed or whether the available dimensions, made it impossible for any alternate type of roller door to be installed. Even assuming that any type of garage roller door could not be installed in this carport, the evidence relating to any damage sustained by the Applicant in purchasing a garage tilt door is also insufficient. The quote from Bundaberg Garage Doors of 5 November 2021 provides the Applicant with two options for the supply of a garage door. The first option is for a B&D door with a width of 3150 mm at a cost of $1,829.00. The second option is for a wider door at 3300 mm at a cost of $2,830.00. Both options include the same motor unit and control units and handsets to operate the garage doors. Otherwise, both options provide descriptions of a garage door that is identical. The Applicant does not explain, or adequately explain, how either or both of these two options amount to an additional cost to him at $1,000 compared to his purchasing a tilt door rather than a roller door. On the basis of the evidence provided by the Applicant no loss or damage has been approved. The Applicant has not satisfied the onus of proof of establishing that he suffered damage. The Tribunal is not satisfied that the Applicant has sustained any damage.
  3. [108]
    The Applicant’s claim against the Contractor for this item is in negligence. The gist of a negligence claim is that damage has been suffered. The Tribunal has made a finding that the Applicant has not suffered any damage or damage proved in these proceedings. Accordingly, the Applicant’s claim must be dismissed. Further, the Tribunal is not satisfied that it was any term of the Contract Variation” that the work to be undertaken by the Contractor was to make provision for a garage roller door. Express terms of that variation did not include that requirement notwithstanding that the Applicant had previously discussed or brought to the notice of the Contractor that he wanted a garage roller door. The Tribunal is not satisfied on the evidence that the Contractor has failed to provide a carport design as claimed by the Applicant in these proceedings. The Tribunal dismisses the Applicant’s claim in respect of this item.

Item 7 – Storm Water

  1. [109]
    The Applicant says that stormwater is not discharged into the local council existing drainage system (gutter) but is discharged on the Applicant’s property and then on to the footpath.
  2. [110]
    The Applicant refers to the “Building Schedule” which provides that stormwater is to the “Street”. An email from Colin Slade dated 5 August 2020 states:

The building certifier imposed conditions for the stormwater to be disposed to the street gutter condition 3(c)(iii) and (f).

The approval does not endorse the discharge of stormwater across the public footpath.

The stormwater pipe must be extended underground and connect to the Street drainage system. You will need to instruct the builder/contractor to properly disposed of the stormwater as required…

  1. [111]
    Apparently, as constructed, stormwater discharge runs down the footpath past the neighbour’s property and eventually finds its way into the council gutter. The Applicant says this creates a hazard for pedestrians and is a Workplace Health and Safety issue, that makes him liable for legal action and compensation should anyone be injured.
  2. [112]
    The Applicant also refers to the Contractor knowingly and with intent providing false, misleading and deceptive information to pervert justice and commit perjury. The Applicant refers to the Contractor stating “there is no street gutter, every house in the street is the same”. The Applicant produced a photograph of a Council gutter down the street for approximately 1 km[17] and says it runs the full length of the road.
  3. [113]
    The Applicant requires the Contractor to extend the stormwater discharge to the street gutter as required in the Building Permit. 
  4. [114]
    The response from the Contractor is that there is no kerb and channel stormwater dispatch point on the front footpath. This was brought up with the QBCC Inspector, Carl Martin, who then referred the matter to Council. The Contractor’s Submissions are:[18]

There is no designated curb and channel on the block.

The Plumber has decided to put a bubbler just inside the customer’s property. This is due to several reasons;

You cannot put it on the footpath.

The old method on these blocks is to put the pipes directly into the drainage area which causes issue with them being driven over or crush.

The road is higher than the footpath/road verge.

The Council plumbing department approve the current position.

  1. [115]
    The QBCC Inspector observed the discharge point of the stormwater is within the property boundaries. The Applicant advised that he had referred this to the Local Authority and they have not taken any action. Further, the Applicant advised the approved plans were that stormwater was to go to the street. The Inspector considered that the stormwater discharge is not affecting the dwelling or adjoining dwellings. As a consequence there is no defective work identified and the QBCC is not able to adjudicate contractual issues. As a consequence the QBCC will take no further action in relation to this item.
  2. [116]
    The evidence in these proceedings includes the Building Schedule which in item 7 refers to “Drainage” in these terms:

Stormwater to: Street Channel.

  1. [117]
    While the Contractor refers to the Council Plumbing Department having approved the current position of the stormwater, the evidence before the Tribunal does not include that approval. The evidence in these proceedings is that the stormwater discharge as constructed by the Contractor discharges in the Applicant’s property and then flows along the footpath and eventually into the street drain/gutter. There is no controversy about those facts. However, the Building Schedule in the Contract has a requirement for discharge of stormwater to the street channel. The Applicant has provided photographs of a drainage system at the street site. The Contractor says there is no formed kerb and channelling which appears to be correct according to the Applicant’s photographs. However, the absence of a formed kerb and channel does not mean that the Contractor need not comply with the Building Schedule. There is clearly a stormwater channel constructed at the street according to the photographs. The evidence clearly establishes that the Contractor has not complied with the stormwater requirements in the Building Schedule. The Tribunal finds that the Contractor omitted to carry out the stormwater drainage as required by the Building Schedule. The Applicant seeks to have the stormwater drainage completed in accordance with the Contract. The Tribunal has the power to order the Contractor to complete the stormwater drainage works and will make such an order in these proceedings.[19]

“Other issues”

  1. [118]
    The Applicant’s statements and evidence refer to a number of “other issues” but for whatever reason these issues were not part of the complaint made to the QBCC and have not been included in the Application for domestic building disputes filed in the Tribunal.
  2. [119]
    As there has been no amendment made to the Application for domestic building disputes in these proceedings so as to include these “other issues”, they are not part of the dispute brought before the Tribunal. The Tribunal will not entertain or determine any of those other issues in these proceedings. 

Costs – Refund of QCAT Application Fees

  1. [120]
    The Applicant contends that the Contractor has caused the Applicant to incur the cost of the Application to the Tribunal without providing any valid proof or justification for not remedying the complaints.
  2. [121]
    The Applicant further contends that the Contractor has resorted to knowingly and with intent providing false, misleading and deceptive information to prevent justice and commit perjury to avoid the cost of rectifying the complaints. The Applicant further claims that a Queensland Police Service investigation is warranted into the false, misleading and deceptive information.
  3. [122]
    The Applicant claims $358.00 as a refund of his Tribunal application fees.
  4. [123]
    The general rule as to costs in the proceedings is that each party is to bear their own costs.[20] However, the Tribunal has the power to award costs against a party where it “considers the interests of justice require the tribunal to make the order”.[21]
  5. [124]
    The Applicant’s case for costs is that the Contractor has caused him to make this Application to the Tribunal in circumstances where there has been no relevant rectification or explanation for failing to provide any rectification of complaints. The major item of dispute related to whether the Design Standards applied in respect of the seven (7) complaints made by the Applicant in the Application for building disputes. That issue has been decided against the Applicant and in favour of the Contractor. Further, in the Tribunal’s consideration of the seven (7) complaints, all of them, apart from the stormwater drainage complaint, have been decided in favour of the Contractor. In the circumstances, the Contractor was justified in opposing the Applicant’s complaints, apart from the stormwater drainage issue. The fact that the Applicant was successful in respect of one of the complaints is not sufficient by itself  to warrant an order for costs. Accordingly, there is no basis on which the Tribunal should depart from the general rule that each party to the proceedings bears its own costs. The Tribunal declines to make an order as sought by the Applicant on this basis.
  6. [125]
    The second basis on which the Applicant sought an order for costs is that the Contractor had knowingly and with intent provided false, misleading and deceptive information to prevent justice, and committed perjury. The short response to this is that no such findings by the Tribunal as claimed by the Applicant had been made against the Contractor. The Contractor’s refusal to remedy the complaints made by the Applicant in the Application for domestic building disputes have been successful save and except in respect of the stormwater drainage issue. There is no basis on which to make any of the findings as contended for the Applicant. The Tribunal is satisfied that there is no basis demonstrated by the Applicant for a departure from the general rule that each party to the proceedings must be in their own costs. 
  7. [126]
    The Applicant’s claim for costs of $358.00 to reimburse him for the cost of filing the Application for domestic building disputes is dismissed.

Orders

  1. [127]
    In these proceedings the Tribunal orders as follows:
    1. Pursuant to s 77(3)(g) of the Queensland Building and Construction Commission Act 1991 (Qld)  the Contractor is to rectify or complete the defective and incomplete work relating to stormwater discharge at the Applicant’s property constructing drainage to the street channel in accordance with the Master Builders Queensland Residential Building Contract – Level 2 of 4 July 2019 including compliance with the terms of the Building Schedule, Item 7, Drainage of Stormwater and the Local Regional Councils stormwater discharge requirements from properties on or before 4.00pm Wednesday, 11 June, 2025;
    2. Otherwise than as provided in (a) above, the Application for domestic building disputes filed in the Tribunal on 8 June 2022 b is dismissed.

Footnotes

[1]  Contractor’s Response to the Claim filed 2 January 2024 at page 1 paragraph 1 and Attachment 1.

[2]  QCAT Act s 9.

[3]  QBCC Act s 77(1).

[4]  QBCC Act Schedule 2 Dictionary.

[5]  QBCC Act Schedule 2 Dictionary and Schedule 1B s 4.

[6]  QBCC Act s 77(3).

[7]  Response filed 2 January 2024 at page 1 paragraph 7.

[8]  [2012] QCATA 11.

[9]  [2012] QCATA 11 at [20]-[30].

[10]  Nick Seddon, Manfred Ellinghaus, Cheshire & Fifoot Law of Contract (LexisNexis, 9th ed, 2008) paragraphs 10.5-10.7; Campbell v Backoffice Investments Pty Ltd (2009) HCA 25.

[11]Equus Corp Pty Ltd v Glengallan Investments Pty Ltd (2004) HCA 55.

[12]McDonald v Shinko Australia Pty Ltd (1999) 2 Qd R 152.

[13]  See the Applicant’s Submissions filed 27 November 2023 at page 4 in item number 14.

[14]  Applicant’s Submissions filed 27 November 2023 at page 4 paragraph 15.

[15]  Applicant’s Submissions filed 27 November 2023 at page 4 paragraph 15.

[16]  See the Applicant’s Statement of Evidence filed 27 November 2023 at Appendix 8.  

[17]  See the Applicant’s Statement of Evidence filed 27 November 2023 at page 5 paragraph 17 and Appendix 10.

[18]  See the Contractor’s Response to the claim filed 2 January 2024 at paragraph 17.

[19]  QBCC Act s 77(3)(g).

[20]  QCAT Act s 100.

[21]  QCAT Act s 102.

Close

Editorial Notes

  • Published Case Name:

    Plowman v Alpha Steel Building Systems Pty Ltd t/as Ascot Homes and Gardens

  • Shortened Case Name:

    Plowman v Alpha Steel Building Systems Pty Ltd

  • MNC:

    [2025] QCAT 85

  • Court:

    QCAT

  • Judge(s):

    Member Carrigan

  • Date:

    11 Mar 2025

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Campbell v Backoffice Investments Pty Ltd [2009] HCA 25
2 citations
Jump To
Cite 1 - [2009] HCA 25
Cite 2 - [2009] HCA 25
Equuscorp & Anor v Glengallan Investments Pty Ltd [2004] HCA 55
2 citations
Jump To
Cite 1 - [2004] HCA 55
Cite 2 - [2004] HCA 55
Investrend Property Group Pty Ltd v Wegener [2012] QCATA 11
3 citations
Jump To
Cite 1 - [2012] QCATA 11
Cite 2 - [2012] QCATA 11
Cite 3 - [2012] QCATA 11
MacDonald v Shinko Australia Pty. Ltd.[1999] 2 Qd R 152; [1998] QCA 53
2 citations
Jump To
Cite 1 - [1999] 2 Qd R 152
Cite 2 - [1999] 2 Qd R 152

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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