Harrison and Anor v Meehan[2016] QCATA 197

REASONS FOR DECISION

1. [1]
   Karen and Scott Harrison are the owners of a property at Camp Hill. Michael Meehan is a builder. Mr and Mrs Harrison engaged Mr Meehan to carry out building work on their property, signing a master builders’ contract on 1 February 2013.
2. [2]
   Before completing the works, Mr Meehan ceased work on the site on 26 August 2013 and Mr and Mrs Harrison terminated the contract on 10 September 2013. Mrs Harrison subsequently obtained an owner builder permit on 19 September 2013 and engaged another builder, Inspired Construction, to complete the building works.
3. [3]
   Mr and Mrs Harrison commenced a proceeding in the Tribunal claiming $21,752.83 for damages and $117,708.84 for “rectification of completion of incomplete work” and legal costs.^[1]
4. [4]
   Mr Meehan filed a counter-application claiming the amount of $65,926, the monies he said were due to him under the building contract plus the cost of variations or, in the alternative, on account of monies owing to him pursuant to s 55(4) and s 88(4) of the Domestic Building Contracts Act 2000, interest and costs.
5. [5]
   On 10 June 2015, the Tribunal determined the application and cross-application, ordering that Mr Meehan pay to Mr and Mrs Harrison the sum of $54,740 with no order being made as to costs.
6. [6]
   The Harrisons have appealed the decision. Mr Meehan has also appealed the decision.

The appeal framework

7. [7]
   An appeal on a question of law is as of right.^[2] An appeal on a question of fact or mixed law and fact may only be made with the leave of the appeal tribunal.^[3]
8. [8]
   The relevant principles to be applied in determining whether to grant leave to appeal are well established: Is there a reasonably arguable case of error in the primary decision;^[4] Is there a reasonable prospect that the applicant will obtain substantive relief;^[5] Is leave necessary to correct a substantial injustice to the applicant caused by some error;^[6] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.^[7]
9. [9]
   If an appeal is one against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the appeal tribunal.^[8] In deciding the appeal, the appeal tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.^[9]
10. [10]
    Both appeals raise questions of law, questions of fact and questions of mixed law and fact.

The appeal by Mr and Mrs Harrison

Leave to appeal

11. [11]
    The Harrisons rely upon 13 grounds of appeal. Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9 10 and 13 involve questions of law. Grounds 11 and 12 involve questions of fact or mixed law and fact. It is therefore necessary for us to first consider grounds of appeal 11 and 12. If leave to appeal is granted, we must proceed to conduct the appeal by way of a rehearing of the matter, on the merits and upon the record of the evidence presented in the original proceedings, including the transcript of the proceedings.^[10]
12. [12]
    Mr and Mrs Harrison say the Tribunal mischaracterised the nature of their consequential loss claim as a contractual loss claim. They say the error is to be found at [60] and [61] of the reasons:

[60] A claim for skip bin supply, hire toilet and cost of clean up is not allowed. The builder was not engaged to perform work as a builder with overall control of the entire construction of the home and site. The owners apparently assumed responsibility for toilets and skip bins.27 The experts categorise clean up costs as being similarly the concern of a builder responsible for an entire construction project, not limited to carpentry and supervision of other trades as Mr Meehan was here. I accept the evidence of the experts.

[61] There is a claim by the owners for the cost of supply of trusses. As stated previously, that cost was removed from the contract by agreement of the parties when the builder was still on site. The builder did not charge for it. The reduction in the price payable to the builder takes that into account, and indeed that reduced contract amount I conclude was taken into account by the owners when the builder’s invoices were queried in August 2013. The owners have paid for it as agreed and have not been charged for it by the builder.

13. [13]
    At [67] of the reasons the learned member found:

The damages appropriately recoverable against the builder is therefore $54,740.68. Nothing is allowed for delay in completion of the project, such as the rent the owners paid, given Mrs Harrison waited to obtain an owner/builder qualification before engaging another builder, Inspired Construction, to complete the work.

14. [14]
    The evidence before the Tribunal was that the contract was terminated on 10 September 2013.^[11] The learned member found that the Harrisons were entitled to terminate the contract.^[12] This finding is not contentious. The evidence before the Tribunal was that, following termination, Mrs Harrison received a Statement of Attainment in a course in Preparation for Owner Builder Permit on 19 September 2013.^[13] Mrs Harrison paid an owner builder application fee to the Queensland Building and Construction Commission on 26 September 2013. On 15 October 2013 the Harrisons entered into a contract with Inspired Construction.^[14] At or about this time, Inspired Construction commenced building work.
15. [15]
    The reasons at [67] make clear that the learned member considered Mrs Harrison had unduly delayed in securing an owner builder’s licence and in taking steps to complete the building work. In our view, it was not reasonably open to the learned member to make this finding on the evidence before him. Within nine days of terminating the contract, Mrs Harrison had taken steps toward obtaining an owner builder’s licence. Within one week thereafter she had paid the appropriate licence fee to the QBCC. These steps speak not of delay but rather of celerity on the part of the Harrisons. 
16. [16]
    It is not an error of law to make a wrong finding of fact.^[15] Findings of fact by a Tribunal will not usually be disturbed on appeal particularly if any facts inferred by the Tribunal as forming the basis of its finding are capable of supporting its conclusions and there is evidence capable of supporting any inferences underlining such conclusions.^[16] An appellate Tribunal may interfere if the conclusion at first instance is contrary to compelling inferences which can be drawn from the evidence.^[17]
17. [17]
    In our view, the evidence did not support the finding by the learned member that the Harrisons unduly delayed in undertaking the completion of the building work. There is a demonstrated error of fact in the learned member’s decision. 

Should leave to appeal be granted?

18. [18]
    We have found that the learned member erred in finding that the facts supported a conclusion that the Harrisons unduly delayed in undertaking the completion works. It is in our view likely that a decision in the Harrisons’ favour on this ground of appeal will be determined on the appeal. A substantial injustice may have been suffered by the Harrisons if they are not entitled to seek recovery of additional costs they say they have incurred as a result of the breach by Mr Meehan of the contract.
19. [19]
    We therefore conclude that leave to appeal should be granted.

Rehearing

20. [20]
    As required by s 147(2) of the QCAT Act we will now proceed to decide the appeal by way of rehearing. Appeals by way of rehearing involve a new determination of the rights and liabilities of the parties, rather than a mere correction of the errors in the determination of the Tribunal below.^[18]
21. [21]
    An appeal by way of rehearing under s 147 of the QCAT Act is not a rehearing de novo. The Appeal Tribunal must make its own determination on the material before the Tribunal below (supplemented, if necessary by additional evidence if permitted under s 147(2)) with due respect for the findings of fact of the primary Tribunal, and due consideration of the advantages enjoyed by it.^[19]
22. [22]
    In rehearing the matter we have adopted the learned member’s primary findings of fact other than where those findings have been challenged in these appeals or where there is some doubt as to the findings made. We have otherwise formed our own views on the evidence consistently with the principles applicable in appeals by way of rehearing on the record of proceedings before a primary tribunal.^[20]
23. [23]
    It is appropriate to set out the relevant history of the proceeding in the Tribunal. The application for domestic building dispute was filed in the Tribunal on 28 May 2014. By that time, the Harrisons had engaged another builder, Inspired Construction, to complete the work left incomplete by Mr Meehan and the Harrisons and Inspired Construction had completed the building work. Before filing their application in the Tribunal, the Harrisons retained a building expert, Mr Sim. Mr Sim quantified the cost of completing the incomplete work in the amount of $162,401.59. Mr Sim’s report dated 5 May 2014 was attached to the application for domestic building dispute.
24. [24]
    Mr Sim was not briefed by the Harrisons with the actual building completion costs charged by Inspired Constructions nor was he instructed to cost the completion of the building works based upon the actual costs paid by the Harrisons to Inspired Constructions. In the application, the amount claimed by the Harrisons to complete the incomplete works was $127,440.07. The reason for the discrepancy between the amount claimed and Mr Sim’s quantification of the completion costs will become apparent in due course in these reasons.
25. [25]
    Various directions were made by the Tribunal during the proceeding below in accordance with usual case management practices. The Harrisons were directed to file the statements of evidence upon which they relied. The directions required the Harrisons to file and serve any documents referred to in a statement of evidence which were required to be identified, explained and attached to the appropriate witness statement. 
26. [26]
    The Harrisons’ first (joint) statement of evidence was filed on 21 July 2014 in which they said:

21. Inspired Construction along with a number of other contractors was appointed to complete the abandoned building works remaining under (sic) contract dated 1^st February 2013 (see Annexure J).
22. A number of defects were discovered by Inspired Construction from work completed by Michael Meehan, namely living room window not supported resulting in severe cracking in frame, upper back deck not level requiring severe cutting back by a grinder, main bedroom sliding doors not supported, underside of lower terrace roof not level requiring ceiling to be lowered, many walls requiring additional packing as timber frames not straight, door heights varied heights as an example (see Annexure K).

…

28. Payments made and associated calculations for liquidated damages, costs and interest (see Annexure P).

27. [27]
    Annexure “J” to the statement comprises in excess of 100 pages of various invoices, receipts, bank statements and emails which are not otherwise explained in the statement. Annexure “K” to the statement has a covering page with the words “Defect Photos”. The photographs are not otherwise described or explained. Annexure “P” to the statement has a covering page with the words “Payments and Calculations”. The first page of the annexure is a spreadsheet titled “Payments to Michael Meehan”. The second page is a spreadsheet titled “78 Bovelles Street, Camp Hill – Michael Meehan Breach of Contract”. The spreadsheet contains columns – the first with a heading “payments made to”, the second with a heading “date of payment”, the third with no heading and with amounts listed, the fourth with a heading “Contract Price” and further amounts which appears to be a running total with an initial figure of $160,302.46, the fifth with a heading ‘no. of days” and the sixth with a heading “interest”.
28. [28]
    The spreadsheet has a figure for “total payments made to complete contract works” of $312,708.84. From this is subtracted a figure of $195,000.00 described as “Less: original contract price of $195,000.00”. A figure of $117,708.84 is set out and described as “breach of contract difference – claim against Michael Meehan”. Further amounts are set out in the spreadsheet variously described as legal fees, builder’s licence fee, filing fee, cost of expert report and liquidated damages. A further “total damages and interest” figure of $21,752.83 and “total costs” figure of $4,930.59 are set out. The “payments made to” column contains only a name. There is no further description or explanation in the spreadsheet as to the information contained therein.
29. [29]
    The Harrisons filed a further (joint) statement on 5 November 2014 in which they said:

2(n). A number of different subcontractors were subsequently contracted to complete outstanding contract works. These subcontractors were managed and co-ordinated personally by Karen & Scott Harrison after obtaining an owner builder licence (QBCC OB# 115568).

(o). The remaining contract works were completed as per specifications and architect drawings WD00a to WD18.

30. [30]
    In the statement the Harrisons refer to an amount of $122,026.98 being “costs incurred to complete remaining/abandoned contract works”. There is a reference to “Inspired Constructions” and although the document does not expressly say so, the claim as set out appears to indicate that the stated figure was paid to Inspired Constructions for various described building activities. There is also a heading “Defects (refer Annexure K for sample photos of defects)” and below this is reference to various building work. There is no figure claimed for these “Defects” and whether any such claim is included in the amount of $122,026.98 is unclear. The statement refers to payments to various other entities and identifies a figure of $145,583.30 as “total paid to others to complete abandoned contract works”. This is then added to a figure identified as amounts paid to Mr Meehan. From this is deducted the original contract price and a figure is arrived at of $117,708.84 being identified as “breach of contract claim against Michael Meehan”. Added to this is a figure for legal costs, licence fee, filing fee, expert report fee and liquidated damages and a total figure is identified of $131,919.43 which is called “total claim against Michael Meehan for breach of contract”.
31. [31]
    It is clear that, from the outset, the Harrisons intended to, and did, pursue a claim for the completion of incomplete work based upon the actual amounts they had paid for that work to be undertaken. There was however no attempt by the Harrisons to particularise the details of the actual completion works carried out and the amount paid by them to third parties to complete the works by reference to each item of work. Despite reference to defective building work, the only evidence of such defective building work adduced by the Harrisons is limited to a number of photographs and six items said to be the defective work. No attempt was made by the Harrisons to quantify the cost of the rectification work.  
32. [32]
    In relation to the issue of defective work, the reports by Mr Sim, the report of Mr Haines, who was Mr Meehan’s building expert, and the joint report of the experts make no reference to defective building work. Mr Haines, prepared a Scott Schedule based upon the report prepared by Mr Sim.^[21] An experts’ conclave was conducted on 5 February 2015. The conclave was attended by Mr Sim and Mr Haines. The experts agreed that:

The result of this is that some items which Mr Sim considers are part of Mr Meehan’s scope of works and are not completed are not considered to be part of Mr Meehan’s scope of works by Mr Haines and therefore not Mr Meehan’s responsibility. So although these items may be required to be completed by Mr Meehan under Mr Sim’s scope of work they are not considered to be the responsibility of Mr Meehan by Mr Haines.^[22]

33. [33]
    It was therefore obvious to the parties prior to the hearing below that their respective experts had approached the quantification of the cost of completing the works on very different bases. It was also obvious to the parties that the experts had not addressed any issues in relation to defective work. Finally, it was obvious to the parties that the experts had not considered, in addressing the issue of the incomplete work, the actual costs incurred (and/or claimed) by the Harrisons.
34. [34]
    The Harrisons did not call evidence from any of the third parties who undertook the completion of the building work. The following exchange took place at the hearing between Mrs Harrison and the solicitor for Mr Meehan:

Mr Panayi^[23]: Who at Inspired Construction did all this work?

Mrs Harrison: What do you mean?

Mr Panayi: Who? Who did the work for – who’s …

Mrs Harrison: Did what work?

Mr Panayi: Who is Inspired Construction Pty Ltd?

Mrs Harrison: They’re carpenters

Mr Panayi: Carpenters?

Mrs Harrison: Yes

Mr Panayi: What are their names? You don’t remember?

Mrs Harrison: I do know their names

Mr Panayi: Well, you won’t give them to me?

Mrs Harrison: Tim was one of the carpenters

Mr Panayi: Yep. Tim who?

Mrs Harrison: Ben was – oh, I couldn’t even tell you his surname

Mr Panayi: All right. There was a Tim, there was a Ben?

Mrs Harrison: Yep

Mr Panayi: And – someone else?

Mrs Harrison: There was a younger guy

Mr Panayi: Yeah. Probably a trade assistant?

Mrs Harrison: Yeah

Mr Panayi: You see, you didn’t call Tim to give evidence today?

Mrs Harrison: No

Mr Panayi: You’re not going to call Ben?

Mrs Harrison: He didn’t want to be part of it

Mr Panayi: Let me ask the questions. Yes or no, really?

Mrs Harrison: No

Mr Panayi: Tim’s not coming today?

Mrs Harrison: No

Mr Panayi: Ben’s not coming today?

Mrs Harrison: No

Mr Panayi: So what I’ve got to go on, to try and understand what these invoices are, is your word, isn’t it?

Mrs Harrison: Yes

Mr Panayi: Yeah. Okay?

Mrs Harrison: They were threatened on site by Michael’s team. They didn’t want to form part of it.

Mr Panayi: All right?

Mrs Harrison: We had to get the police involved

Mr Panayi: Yes?

Mrs Harrison: They did not want to be part of it

Mr Panayi: Right. So they were worried if they came today, they’d get attacked by Mr Meehan?

Mrs Harrison: Correct

Mr Panayi: Physically? They thought they’d be …

Mrs Harrison: Well, I’m not saying physically, no, but they just didn’t want to – they didn’t want to form part of it

Mr Panayi: But you understand that if you don’t call a witness, there’s no evidence here as to what these invoices are about?

Mrs Harrison: Well, there’s a contract isn’t there…

Mr Panayi: Yeah?

Mrs Harrison: With Inspired Construction

Mr Panayi: Yep?

Mrs Harrison: As to what it involved; carpentry work

Mr Panayi: That’s not enough for – that’s not enough is it? If I sued you for $10,000 for the supply of plumbing works for – as a subcontractor to Nardia Plumbing and showed – no detail provided, no evidence, you’re not just going to take my word for it, are you

Mrs Harrison: Well, Michael was claiming the same sort of – on the same basis, was he not?

Mr Panayi: Two wrongs – two wrongs make a right. Is that what we’re going to take it as?

Mrs Harrison: No, no. Not at all

Mr Panayi: Okay. My point being is that Ben – Tim and Ben aren’t coming?

Mrs Harrison: Correct

Mr Panayi: And we just have your word for it as to what these invoices are for?

Mrs Harrison: Correct

Mr Panayi: Okay?

Mrs Harrison: With a subcontract attached to it

35. [35]
    We infer from the evidence of Mrs Harrison that she sought the assistance of representatives of Inspired Construction to give evidence in the proceeding and at the hearing and that those representatives declined to provide such assistance. The evidence of Mrs Harrison was that the representatives of Inspired Construction “… didn’t want to form part of it.” The “it” referred to by Mrs Harrison was, we infer, the proceeding.
36. [36]
    The parties filed submissions following the hearing. The Harrisons submitted that they were entitled to the actual costs incurred in having to engage a new builder to pick up Mr Meehan’s job and bring it to completion. The Harrisons said that they were also entitled to consequential damages arising directly from Mr Meehan’s breach. Attached to the Harrisons’ submission were two annexures.
37. [37]
    Annexure 1 is a table containing 4 substantive columns setting out a description of building work, whether the work was within the scope of works, “Homeowners quantum” and “Builder’s quantum (as per expert)”. The total amount identified as “Homeowners quantum” is $152,406.38. At the end of the table appears the following: “NOTE – total of “Inspired Construction” invoices for carpentry & supply of associated materials = $107,026.98”. Annexure 2 is a spreadsheet with the heading “78 Bovelles Street, Camp Hill – Michael Meehan Breach of Contract” which, in form and content, is largely the same as page 2 of Annexure “P” to the statement of the Harrisons filed 21 July 2014. Annexure 2 identifies a “grand total” of $130,559.43 “+ interest & costs”. The only apparent difference between Annexure 2 and Annexure “P” is that the former makes no claim for liquidated damages but includes a claim for rent of $7,920 and the latter makes no claim for rent but includes a claim for liquidated damages of $9,280.
38. [38]
    Annexures 1 and 2 to the Harrisons’ submission go no further in particularising and explaining their claim than the material previously filed and relied upon by them.
39. [39]
    It is, in our view, readily apparent from the way in which the Harrisons prepared and conducted their case, the evidence given by Mrs Harrison at the hearing below, and the written submissions made by the Harrisons following the hearing, that they had given some considerable attention to the formulation and quantification of their claim. It is also apparent that the Harrisons knew and understood that the quantification of their claim was on two separate, distinct and alternate bases – firstly the actual costs they incurred in completing the building work and secondly the reasonable costs of completing the building work based upon the opinion of Mr Sim. We say apparent because Mr Sim was not asked by the Harrisons to approach the quantification of the cost of the completion of the building work based on the actual costs incurred. The instructions to Mr Sim were limited to calculating the cost of the completion of the incomplete work. It was open to the Harrisons to have instructed Mr Sim to have prepared his report based upon alternate scenarios: the reasonable costs of completing the work and the actual costs of completing the work. That they did not do so at any stage of the proceeding speaks of a deliberate intention by the Harrisons to conduct the proceeding in the manner in which they did, rather than a lack of understanding as to the potential consequences of such conduct.
40. [40]
    The invoices relied upon by the Harrisons do not provide a breakdown of the work performed by Inspired Construction in any detail nor state a corresponding charge for itemised work. The invoices rendered by Inspired Construction set out the following:

Work completed from (date) to (date)

Trades (name) hours @ $50+GST per hour

Trades Assistant (name) hours @ $35+GST per hour

Supervision/Co-ordination (name) hours @ $50+GST per hour

materials at cost

41. [41]
    The actual work carried out is not identified in the invoices. The Harrisons’ bank statements reveal withdrawals and payments made to cash or to Inspired Construction. The bank statements provide no detail as to what the payments were for. There are notations beside some of the payment details in the bank statements indicating what the payment was for but no objective evidence to support Mrs Harrison’s evidence about these payments was tendered at the hearing. 
42. [42]
    The Harrisons have sought to present their claim on alternative bases: the actual costs they incurred in completing the incomplete work and the reasonable costs of completing the incomplete work based upon the expert opinion of Mr Sim. The evidence presented by the Harrisons as to the actual completion costs is confusing and incomplete. It is not possible to rely upon the various spreadsheets, unexplained invoices and unexplained bank statements as evidence of the costs incurred in completing the incomplete work. There is no statement of evidence of any person from Inspired Construction who might be able to explain exactly what work Inspired Construction carried out and what they were paid for. The fact that the scope of the works to be performed by Mr Meehan was ill-defined only highlights the deficiencies in the way in which the Harrisons presented their case.
43. [43]
    Ultimately, it is a question of the relevance and weight to be given to the evidence contained in the various invoices and bank statements. The Harrisons chose to present their claim in a particular way. We conclude, as did the learned member below, that any assessment of damages cannot be undertaken on the basis of the amount claimed by the Harrisons for the costs they paid to have the works completed.
44. [44]
    There is however evidence adduced by the Harrisons as to the cost incurred in having the building works completed which may be relied upon to make relevant findings. The learned member accepted that Mr and Mrs Harrison paid Inspired Construction $15,000 to supply and fix plasterboard. The learned member gave reasons as to why he considered that the reasonable sum allowed for that work was approximately two-thirds of the price for supply, fixing and finishing suggested by the experts. The learned member included the amount in the calculation of the amount to be paid to Mr and Mrs Harrison by Mr Meehan.^[24] In arriving at this conclusion, the learned member relied on the affidavit of Mrs Harrison annexing a receipt from Inspired Construction dated 18 March 2014 noting that payment was received by Inspired Construction on 17 November 2013 for the supply and installation of plasterboard sheets at the site.^[25] That evidence was clearly specific as to the amount of the payment and what it was for. We agree with the learned member’s findings and allow the claim.
45. [45]
    The Harrisons say that the learned member was aware that they were relying upon the Inspired Construction documents and the bank statements, that they were not calling Inspired Construction to give evidence and that the learned member erred in not warning the Harrisons as to the dangers of relying upon the documentary evidence. In rehearing the matter this ground of appeal falls for consideration as to whether leave should be granted for the Harrisons to adduce further evidence to support their claim.
46. [46]
    As we have found, the Harrisons undertook a careful and detailed preparation and presentation of their claim. They filed detailed statements annexing a large number of documents relied upon to support the claim for the cost of the completion of the building work. No statements by Inspired Construction were filed. The Harrisons engaged an expert who provided two reports. The expert was not asked to comment on the reasonableness of the costs incurred by the Harrisons in having Inspired Construction complete the building work nor did they brief the expert with the documents upon which they relied to support their claim. In the course of the hearing Mrs Harrison gave evidence that Inspired Construction did not wish to be involved in the proceeding.
47. [47]
    The learned member found that there was an absence of clear and detailed evidence of what Inspired Construction was asked to do, and did, and the reasonableness of the charges for what it did. This finding arose not out of any failure by the learned member to warn the Harrisons of the risks associated with relying upon invoices and the like, nor the failure by the Harrisons to call Inspired Construction, but rather the Harrisons’ failure to present their evidence in such a way that the findings they seek could, and can, be made.
48. [48]
    The Harrisons did not identify each item of work carried out by Inspired Construction and a corresponding amount paid. As to the reasonableness of the charges by Inspired Constructions, this was a matter to be addressed by either the Harrisons’ expert or a representative from Inspired Construction. In the absence of the Harrisons calling anyone from Inspired Construction to give evidence, that leaves only Mr Sim. That Mr Sim was not briefed to give evidence about the reasonableness of the cost of completing the work or indeed briefed with the documents relied upon by the Harrisons to support their claim for damages, is directly the result of the way in which the Harrisons conducted their case. In our view, there is no basis for allowing the Harrisons the opportunity to adduce further evidence.
49. [49]
    The Harrisons say that the learned member failed to discharge his obligations under sections 28 and 29 of the QCAT Act. Section 28 of the QCAT Act provides that in all proceedings the Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.^[26] Section 29 of the QCAT Act requires the tribunal to take all reasonable steps to ensure that each party to a proceeding understands the practices and procedures of the tribunal; the nature of assertions made in the proceeding and the legal implications of the assertions; and any decision of the tribunal relating to the proceeding.^[27]
50. [50]
    The effect of s 29 of the QCAT Act has been expressed thus:

While this provision largely reflects and embodies what the courts have said in recent years is the nature of the duty owed by the judicial system to, at least, self representative litigants, it also suggests that parties to proceedings before this Tribunal will receive, and have an entitlement to expect, assistance with the legal implications of the issues in the case.^[28]

51. [51]
    This is not a case where the evidence relied upon by the Harrisons as to the actual cost of the completion of the building work was, or is, rejected for a failure to call an appropriate witness in support of a document sought to be relied upon. Rather, the evidence is, as we have found, insufficiently clear or detailed to be safely relied upon to base an award of damages for the work done. As we have found, this is the consequence of the way in which the evidence was presented by the Harrisons which fails to adequately explain how the claim is quantified and their failure to have their expert, Mr Sim, consider the issue of the reasonableness of the completion costs actually incurred.
52. [52]
    In oral submissions in the appeal, Mr and Mrs Harrison submitted that the learned member fell into error at the point in the hearing when the scope of works was clarified. Before dealing further with this issue, it is necessary to pause to consider what transpired during the hearing as it is directly relevant to this rehearing.
53. [53]
    It was apparent after the commencement of the hearing below that there was significant dispute as to the actual scope of the building works Mr Meehan was required to perform under the contract. The scope of works was clarified during the course of the hearing. On the first day of the hearing Mrs Harrison gave the following evidence:^[29]

Michael (Meehan) was purely responsible for the carpentry of the house and to provide materials associated with the carpentry and also supervise all the trades.

54. [54]
    On the second day of the hearing, after the experts had been sworn in and before they commenced their evidence, there was the following exchange:^[30]

Member: Correct me if I am wrong, the parties’ agreement was that Mr Meehan would provide carpentry work, would provide goods associated with that and would supervise other trades in respect of the construction of the premises. Yes?

Mrs Harrison: Correct, yes, Member.

Member: All right. Mr Panayi, do you have a problem with that?

Mr Panayi: No, that’s – that’s my understanding also

Member: … As we go through I think Mr and Mrs Harrison can indicate those items in that they concede that they’re not part of the claim. It’s an awkward matter.

55. [55]
    The learned member indicated to the parties from the outset that he proposed to have the experts give their evidence concurrently.^[31] Indeed the transcript suggests that concurrent evidence was at the suggestion of the Harrisons.^[32]
56. [56]
    The Harrisons say that the learned member should have adjourned the hearing and made directions that:

    1. the experts re-cost the works taking into account the Inspired Construction documents;
    2. a further conclave be held and the production of a further joint report.

The hearing would then resume.

57. [57]
    Direction (a) which the Harrisons say should have been made goes well beyond the obligations imposed by s 29 of the QCAT Act. There was no basis for the learned member to make a direction that the experts consider the Inspired Construction documents. The Harrisons had not given their expert the documents before he prepared his reports and they had not asked him to consider the actual cost of the completion work. The effect of direction (a) would have been to advise the Harrisons how they should have prepared and conducted their case.
58. [58]
    The obligations under s 29 do not extend to the Tribunal being required to advise parties how to conduct their claim.
59. [59]
    Section 29 requires the Tribunal to ensure that each party to a proceeding understands the practices and procedures of the tribunal and the nature of assertions made in the proceedings and the legal implications of the assertions. What the Harrisons say were the obligations of the learned member would have required that he go well beyond advising the parties of the ‘legal implications of assertions’. It would amount to telling Mr and Mrs Harrison how to quantify their claim and how to brief their expert to prove that quantification. That was not what was required of the learned member.
60. [60]
    The learned member, having established with the agreement of the parties, the actual scope of the works, proceeded to have the experts give their evidence concurrently. This did not take the parties by surprise. It had been raised at the outset of the hearing. Neither party objected to the manner by which the learned member proposed to hear the expert evidence nor did either party seek an adjournment. Of course, it was open to the learned member to adjourn the hearing and to have directed the parties to have their experts provide further reports based upon the agreed revised scope of works but what would this have achieved? As we have found, the learned member was not required, nor would it have been appropriate for him, to advise the Harrisons how to quantify their claim or brief their expert regarding a particular method of quantification.
61. [61]
    In our view, the learned member’s decision to proceed to hear the expert evidence concurrently based upon the agreed revised scope of works was an appropriate one. It permitted the experts to consider each item of completion work by reference to the revised scope of works and the reasonable cost of such work. The parties were invited to ask questions while the concurrent evidence was being given.^[33] It is apparent from the transcript that the Harrisons understood the difference between the formulation of their claim based upon the actual costs of completion work and the formulation based upon the expert evidence.^[34]
62. [62]
    In conducting the hearing in the manner in which the learned member did, he was discharging the objects of the QCAT Act to have the tribunal deal with matters in a way that was accessible, fair, just, economical, informal and quick. To have adjourned the hearing and made the directions as submitted by the Harrisons, would have resulted in delay and expense to the parties in circumstances where there was no compelling reason to do so. There was, in our view, no failure to provide the Harrisons with procedural fairness and no failure by the learned member to discharge his obligations under s 29 of the QCAT Act.
63. [63]
    For the reasons we have set out, in rehearing the matter we do not intend to proceed other than on the basis of the evidence given at the hearing and the evidence before the learned member. In rehearing the matter it is open to us to consider the steps the Harrisons say the learned member should have ordered.
64. [64]
    Even had the learned member ordered the experts to attend a further conclave, the evidence relied upon by the Harrisons as to the cost of the completion of the building work is insufficiently clear or detailed for the experts to undertake a meaningful consideration of the quantification of the claim. What would be required for there to be any utility in a further conclave is for the Harrisons to provide further evidence addressing the shortcomings in the material filed in the proceeding. An appeal, including one conducted by way of re-hearing, is not the opportunity for a party to address and remedy inadequate preparation of their case.
65. [65]
    The Harrisons say that the learned member found that the Gantt chart prepared by Mr Meehan was reflective of the scope of the works. At [31] of the reasons the learned member found:

[31] I conclude the Gantt chart was prepared by the builder as his proposed timeline to complete his scope of work under his contract as he understood it at that time. It included supply and fixing of the exterior cladding and internal plasterboard, and neither item was an extra to the agreed scope of work.

66. [66]
    The finding at [31] must be read in the context of the preceding paragraphs [29] and [30]. Those paragraphs deal predominantly with the question of whether the exterior cladding and internal plasterboard were within the scope of works. The relevance of the finding at [31] is that Mr Meehan understood the scope of works to include the exterior cladding and interior plasterboard. We agree with the finding of the learned member. At reasons [32] the learned member found:

In so far as the evidence of the parties differ as to the scope of work of the builder’s contract, I prefer the evidence of the owners to that of the builder. I find the scope of work of the builder as agreed with the owners was for the builder to perform all carpentry work required on site, which the parties agreed included the supply and fixing of external cladding and internal plasterboard, and also for the builder to supervise other trades on site for an agreed fixed remuneration of $195,000.

67. [67]
    We find that the Gantt Chart did not reflect the scope of work to be completed by Mr Meehan. It represented what Mr Meehan understood the scope to be. The actual scope of work was the provision of carpentry work, the provision of goods associated with that and the supervision of other trades in respect of the construction of the premises.
68. [68]
    At [59] of the reasons the learned member set out the conclusion by the experts as to the reasonable costs to have the carpentry work completed and other trades supervised by Mr Meehan. On this appeal, and subject to the matters we address below, those findings are not contentious. We adopt those findings.
69. [69]
    The Harrisons say:

    1. The Tribunal failed to take into consideration that Mr and Mrs Harrison paid the cost of Finlayson for installation of ‘strip timber flooring’ in the sum of $7,368.90 which was also noted in the Gantt chart.
    2. The Tribunal failed to take into consideration that Mr and Mrs Harrison paid the cost of Big Rhino Crane Hire in the sum of $1,076.63 to ‘install’ the timber roof trusses.
    3. The Tribunal failed to take into consideration that Mr and Mrs Harrison paid the cost of AllFix Fasteners in the sum of $246.45 for nuts and bolts to tie down roof trusses.
    4. The Tribunal failed to take into consideration the fact that Mr and Mrs Harrison paid the cost of Nardia Plumbing themselves in the sum of $2,310.00 and
    5. Failed to take into consideration that Mr and Mrs Harrison paid the cost of Eagle Alliance in the sum of $1,432.08 to connect the property to water and electricity.
70. [70]
    Two invoices addressed to Mrs Harrison from ‘Finlaysons Supply & Install’ dated 22 November 2013 and 20 December 2013 respectively are in evidence.^[35] The invoices total $7,368.90 inclusive of GST and according to the invoices were for the installation of 168 X 14mm oak 12 l/m of flooring and then the ‘sanding and finishing’ of flooring.
71. [71]
    We note that the Finlayson’s invoice is addressed to Ms Harrison and not to Inspired Construction. There is no reference to the installation of the floor and sanding and finishing of the floor being part of Mr Meehan’s scope of works in the joint report of the experts.^[36] Evidence was given at the hearing regarding the flooring^[37]:

Mrs Harrison: Timber flooring.

…

Mr Panayi: No. It wasn’t excluded. No. I’m told it wasn’t so that’s a yes, it’s part of it. Is that right?

Member: Within the scope – gentlemen, please, within the scope of carpentry, laying of the timber floors.

Mr Sims: Are you referring to decorative timber floors or the structural timber floor?

Member: Is there a difference?

Mr Haynes: Like an overlay.

Mr Sims: Yes.

Mr Haynes: It it’s maybe a pre-finished overlay timber floor.

Mrs Harrison: It’s not a – yeah, not pre-finished, no.

Member: Mrs Harrison, just one moment. I mean, if there’s a general, we can get some exclusions from it.

Mrs Harrison: Yes. Sorry.

Member: So you’re just laying a substratum for tiles out of - - -

Mr Sims: It’s included.

Mr Sims: Yes.

Member: But if it’s going to be hardwood – 90 mil hardwood polished, that’s included.

Mr Sims: It depends. If it’s a fitted floor and the actual hardwood – finished hardwood floor is part of the – like, there’s two ways of doing this. You can have – you can put down your timber floor, which is your structural floor and somebody come along – comes along later and sands and polished it, well, the labour for fitting the actual timber floor is included then.

Member: Yes.

Mr Sims: But if you’re talking about an overlay, a floating timber floor - - -

Member: That’s different.

Mr Sims: - - - that’s a different kettle of fish.

Mr Haynes: Yes. Yes. I agree.

Mr Panayi: But I understand this is a floating floor, what we have here. This is decorative floor.

Mrs Harrison: It’s hardwood flooring. It’s hardwood flooring.

Mr Panayi: On top of – well, on top of yellow tongue flooring there was an additional. That’s not included according to Mr Meehan because it went on top of the substrate timber floor.

Member: So, gentlemen, your evidence would be that the substratum of timber is included but if it’s a floating timber floor, that’s not included in the general concept of carpentry.

Mr Haynes: That would be my interpretation.

72. [72]
    The flooring invoices were not put to the experts by Ms Harrison. The evidence of the experts was that flooring was not part of the carpentry work required to be carried out by Mr Meehan and that a floating timber floor is not carpentry work. We accept the evidence of the experts. The claim for installation of “strip timber flooring’ in the sum of $7,368.90 is not allowed.
73. [73]
    In relation to the trusses, the learned member found^[38]:

[61] There is a claim by the owners for the cost of supply of trusses. As stated previously, that cost was removed from the contract by agreement of the parties when the builder was still on site. The builder did not charge for it. The reduction in the price payable to the builder takes that into account, and indeed that reduced contract amount I conclude was taken into account by the owners when the builder’s invoices were queried in August 2013. The owners have paid for it as agreed and have not been charged for it by the builder.

74. [74]
    The Harrisons claimed $5,500.00 for the cost of the supply of timber roof trusses. They also claimed $1,076.63 for crane hire for heavy beams and roof trusses requested by Mr Meehan and an amount of $246.45 for nuts and bolts to tie down roof trusses. Mrs Harrison gave evidence that the supply and installation of the trusses was part of the scope of works and that the Harrisons had paid for the trusses to do Mr Meehan “a favour”.^[39] Mr Meehan installed the roof trusses prior to leaving the site in August 2013. The finding by the learned member that the contract price was adjusted by $5,500.00 to allow for the payment by the Harrisons for the roof trusses is not contentious.
75. [75]
    In his supplementary report, Mr Sim expressed the view that:

… as the cost of roof trusses, nuts and fasteners, and Crane hire have not been specifically excluded from the contract, they are included in the scope of work of the contract and thus, if the Applicant has paid for such items on behalf of the Respondent, the cost of these should be deducted from the contract sum.^[40]

76. [76]
    In his report Mr Haines assumes that the amount of $5,500.00 for the roof trusses was paid by the Harrisons to Mr Meehan and he makes allowance for this in calculating the sum owing to Mr Meehan.^[41]
77. [77]
    The experts’ joint report does not identify the trusses as being within the scope of works. The trusses were not addressed when the experts gave their evidence. Mrs Harrison gave evidence that Mr Meehan was to provide all work associated with the supply and erection of trusses^[42] and that Mr Meehan had requested the Harrisons obtain prices for the trusses.^[43] Mrs Harrison gave evidence that the payment for the trusses was intended to be an adjustment at the completion of the build.^[44] Referring to the material take off document, Mr Meehan gave evidence that he made allowance for the trusses “but not to supply”^[45]. It is implicit in his response that Mr Meehan accepted the erection of the trusses was within the scope of works. The learned member found that the materials take off document did not form part of the building contract. We agree with this finding. The Harrisons paid for the trusses and Mr Meehan installed the trusses before leaving the job site.
78. [78]
    In relation to the supply of the trusses, we prefer the evidence of the Harrisons and find that the supply and installation of the trusses was within the scope of works to be carried out by Mr Meehan.
79. [79]
    In calculating damages, the learned member allowed for the payment by the Harrisons for the trusses.^[46] This was an appropriate allowance. We allow additional amounts of $1,076.63 for crane hire for the installation of heavy beams and roof trusses requested by Mr Meehan and an amount of $246.45 for nuts and bolts to tie down the roof trusses.
80. [80]
    At [64] of the reasons the learned member found:

[64] Under Appendix I to the schedule to the master builder’s contract the builder was also required as part of the contract price to connect the property to water and electricity. Mrs Harrison is employed by Nardia Plumbing. The owner’s claim a cost of water connection of $2,100. There is an invoice from Nardia Plumbing to that effect dated 22 November 2013.^[47] The owners entered into the poorly documented and entirely careless agreement with the builder to save money. At hearing Mrs Harrison admitted she paid cash to the builder to avoid GST. I am not persuaded she paid the invoice from Nardia in full either. There is no record of any payment to Nardia for this in her bank records which are otherwise fairly complete. In the circumstances I allow an amount of $1,000 only under this head of claim.

81. [81]
    In these appeals, the finding that Mr Meehan was responsible for the connection of the water and electricity is not disputed. We adopt that finding. Mrs Harrison was employed as the chief financial officer for Nardia Plumbing. Nardia Plumbing undertook the plumbing works on the build.^[48] Oral evidence was not given at the hearing about the claim for water connection. Attached to the Harrisons’ statement is a tax invoice from Nardia Plumbing.^[49] Unlike a number of other invoices placed into evidence by the Harrisons, there is no indication on the Nardia invoice of it having been paid. The payment terms are “strictly 30 days”. There is nothing contained within the bank statements indicating payment of the invoice. It is a question of relevance and weight to be given to the evidence. It is also a question of procedural fairness to be afforded to Mr Meehan. In the absence of evidence of payment by the Harrisons of the Nardia Plumbing invoice we do not allow recovery of the amount claimed.
82. [82]
    At [65] of the reasons the learned member found:

In respect of the electricity connection, there is evidence of a payment of $2,750 made on 3 December 2013^[50] for this and that amount is allowed in full.

83. [83]
    The Harrisons say that the learned member failed to take into consideration their payment to Eagle Alliance Earthmoving relating to the cost of the connection of water and electricity. There are two invoices from Eagle Alliance Earthmoving totalling $1,432.08 inclusive of GST. An invoice dated 13 November 2013 describes the items of work as ‘3T combo, Dump fees – clean fill and a credit card charge totalling $1,137.66 inclusive of GST’. The second invoice dated 14 November 2013 describes the work as ‘4T combo and credit card charge 1%’ totalling $294.42 inclusive of GST. It is not clear from those records that Eagle Alliance Earthmoving was paid for the cost of connecting the water and electricity. The Harrisons have failed to discharge the burden of proof to the required standard in relation to this item. We make no allowance for the payment to Eagle Alliance Earthmoving.
84. [84]
    The Harrisons claim that the building works performed by Mr Meehan were defective. In their statement, the Harrisons said:^[51]

A number of defects were discovered by Inspired Construction from work completed by Michael Meehan, namely living room window not supported resulting in severe cracking in frame, upper back deck not level requiring severe cutting back by a grinder, main bedroom sliding doors not supported, underside of lower terrace roof not level requiring ceiling to be lowered, many walls requiring additional packing as timber frames not straight, door heights varied heights as an example (see Annexure K)

85. [85]
    The joint report of the experts did not consider or deal with alleged defective work.^[52] In his initial report, Mr Sim includes as attachment 1 “Photo & Video Observations”.^[53] Fifty photographs and six videos are referred to with a corresponding description for each. Mr Sim refers in his report to Attachment 1 as:

… a brief description of the contents of each photo and video upon which I determine the scope of works left to complete at the time of the photo/video.

86. [86]
    The photographs are not attached to the report. There is no video in evidence. Annexure “K” to the statement filed by the Harrisons are ten photographs said to depict defective work carried out by Mr Meehan. The photographs are not individually identified in any way by reference to what they are said to depict. 
87. [87]
    It is not possible to ascertain from Attachment 1, or the report of Mr Sim more generally, whether the photographs and videos depict incomplete work or defective work. It is not possible to ascertain whether the photographs annexure “K” to the Harrisons’ statement are among the photographs referred to in the report of Mr Sim.
88. [88]
    At the hearing, evidence was given by the experts about defective work:^[54]

Mrs Harrison: I suppose, again, with what we’ve just gone through, that’s assuming a seamless transaction between a carpenter that had finished the job, and to a new carpenter that came on board. Would there be additional work required for a new carpenter to come on board? I mean, it’s not a seamless transaction, is it? What steps are involved for someone new walking on a site that’s half built? Can you elaborate on what would be involved in - - -

Mr Sims: Do you want to go first?

…

Mr Haynes: Well, the only extra work that I – well, works involved that I would see is, yes, it would take – a carpenter would need to go over the works that had been completed - - -

…

Mr Haynes: - - - and probably satisfy themselves that the works were what was  - what is described on the plans, and the dimensions are all – sort of match up with what’s on the plans. That type of thing.

Mr Sims: I would agree with that.

Member: Not a significant task.

Mr Haynes: No. No.

Member. All right.

…

Mr Sims: That would depend on the condition of the job.

Mrs Harrison: Yeah.

Mr Sims: If there was defects that had to be rectified before they could proceed - - -

Member: Yes. That would have to be rectified. Well, may have to have to be rectified first, or simply fixed as you go along.

Mr Sims: Yeah. No builder wants to come along and inherit someone else’s mistakes.

…

Mr Sims: But I don’t think either of us have done any assessment on that regard.

Member: It wasn’t raised with you. No.

Mr Haynes: No.

89. [89]
    Mrs Harrison did not put to the experts the photographs which she asserts are evidence of defective work performed by Mr Meehan. There was questioning of the experts by Mrs Harrison as to how they had each formed an opinion about what works had been completed by Mr Meehan and what had not. ^[55] Those questions and the answers provided by the experts reflect that the focus of the Harrisons was on Mr Meehan’s incomplete work and not upon defective work.
90. [90]
    There is no evidence before us to make any findings about defective work. The Harrisons could have briefed their expert about claims of defective work. They did not do so. It was not for the Tribunal below or the Appeal Tribunal in this appeal to advise Mr and Mrs Harrison as to how to conduct their case. The Harrisons have failed to satisfy the evidentiary burden in relation to their claim for defective work.
91. [91]
    At [60], [61] and [67] of the reasons the learned member found:

[60] A claim for skip bin supply, hire toilet and cost of clean up is not allowed. The builder was not engaged to perform work as a builder with overall control of the entire construction of the home and site. The owners apparently assumed responsibility for toilets and skip bins.27 The experts categorise clean up costs as being similarly the concern of a builder responsible for an entire construction project, not limited to carpentry and supervision of other trades as Mr Meehan was here. I accept the evidence of the experts.

[61] There is a claim by the owners for the cost of supply of trusses. As stated previously, that cost was removed from the contract by agreement of the parties when the builder was still on site. The builder did not charge for it. The reduction in the price payable to the builder takes that into account, and indeed that reduced contract amount I conclude was taken into account by the owners when the builder’s invoices were queried in August 2013. The owners have paid for it as agreed and have not been charged for it by the builder.

…

[67] The damages appropriately recoverable against the builder is therefore $54,740.68. Nothing is allowed for delay in completion of the project, such as the rent the owners paid, given Mrs Harrison waited to obtain an owner/builder qualification before engaging another builder, Inspired Construction, to complete the work.

92. [92]
    We have found that the evidence before the learned member was not capable of supporting a finding that the Harrisons had delayed in completing the project. The evidence of the experts at the hearing was that skip bin hire was not Mr Meehan’s responsibility.^[56]  Evidence was given about general site clean up.^[57] The evidence of the experts was that additional labour would not be charged for clean up. That would happen as the work progressed.
93. [93]
    In relation to temporary toilet hire, Mrs Harrison appeared to concede at the hearing below during the examination of the experts that it came under the same category as the skip bin hire.^[58]
94. [94]
    In relation to scaffolding, the evidence of the experts was that this cost is usually the responsibility of the principal contractor on site. During the hearing there was an exchange between Mr Meehan’s solicitor, the learned member and Mrs Harrison regarding whether the cost of scaffolding could be considered consequential loss:^[59]

Mr Panayi: Of course, Member, you could allow scaffolding on the basis of breach afterwards. You could say, well, I find that Mr Meehan breached the contract. Mrs and Mr Harrison had to continue with scaffolding, and that would have prolonged the – as a damages item, but as a scope work - - -

Member: Consequential flowing from breach.

Mr Panayi: Yes, But is it part of the original scope of work? I think it’s common ground to say no, it’s not part of the original scope.

Member: Well that’s what the experts say.

Mr Panayi: as evidenced by – not just the experts.

Mr Sims: No It’s - - -

Mrs Harrison: And that the angle I’ve been coming from as well.

Mr Sims: I’m saying it is original – it is part of the original scope of works of the contract, but in answer to a different question to what I addressed here, and the question is, is scaffolding part of carpentry – no.

95. [95]
    The claims for skip bin hire, scaffolding hire and temporary fence hire fall for determination as claimed consequential losses. The rules in Hadley v Baxendale:

… prescribe the measure of damages in respect of breach of contract to include not only damage naturally resulting from the breach ("i.e. according to the usual course of things") but also damage which might "reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it". Additional or special knowledge known to both parties may widen or contract the scope of liability for breach. These rules have been merged in a single principle.^[60]

96. [96]
    There is a distinction between normal loss and consequential loss. Normal loss is loss that every plaintiff in a like situation will suffer. Consequential losses are anything beyond the normal measure, such as profits lost or expenses incurred through breach.^[61]
97. [97]
    In Environmental Systems Pty Ltd v Peerless Holdings,^[62] the Victorian Court of Appeal held (footnotes omitted):

In my view, ordinary reasonable business persons would naturally conceive of “consequential loss” in contract as everything beyond the normal measure of damages, such as profits lost or expenses incurred through breach. Despite the construction which has been put on “consequential losses” by cases such as Millar and Croudace, it would be unrealistic to suppose that the appellant and the respondent employed the expression “consequential loss” in cl 8.9 of the agreement advisedly in that sense. It is more likely in this context that they intended the expression to have its ordinary and natural meaning. Accordingly, I would construe the expression “consequential loss” in cl 8.9 as intended to have that meaning. Read in the light of the contract as a whole, and giving due weight to the context in which the clause appears, including the nature and object of the contract, I see no ambiguity which as a matter of principle would warrant a departure from that view. It follows as I see it that, although the judge’s approach in this case was in accordance with the English cases, it was not correct to construe “consequential loss” as limited to the second rule in Hadley v Baxendale.

98. [98]
    In GEC Alsthom Australia Ltd v City of Sunshine Ryan J held that:^[63]

…the term consequential loss connotes a loss at a step removed from the transaction and its immediate effects.

99. [99]
    The amounts claimed by the Harrisons for skip bin hire, toilet hire and scaffolding are as follows:

100. [100]
     Mr Meehan says that the amounts should not be allowed as consequential loss on the basis that he was one of a number of contractors engaged in working on the project, that the Harrisons were the principal contractors and that the completion of the project was dependent upon the Harrisons acting in a timely manner.
101. [101]
     The evidence of Mr Haines was that Mr Meehan was very likely to have reached practical completion “around 1 week early”.^[64] Mr Meehan’s evidence was that the date for completion was 14 October 2013.^[65] The building works were not completed until February 2014. Whilst we accept that the scope of works to be performed by Mr Meehan was more limited than as set out in the contract, it is clear that the parties expected the project to be completed by mid October 2013. The delay in completing the project was a consequence of Mr Meehan’s breach of the contract.
102. [102]
     The amounts paid by the Harrisons for skip bin hire, toilet hire, scaffold hire and fence hire are a consequence of the breach of contract by Mr Meehan. The amounts claimed are losses reasonably within the contemplation of the parties at the time they entered into the contract and are recoverable on this basis. We allow the amounts claimed but only beyond the original date for completion of 14 October 2013. An amount of $2,051.00 is allowed.
103. [103]
     The Harrisons claim for additional rent expenses incurred by them as a result of the delay in being able to move into the property. The learned member did not allow the amount claimed by the Harrisons finding at reasons [67]:

… Nothing is allowed for delay in completion of the project, such as the rent the owners paid, given Mrs Harrison waited to obtain an owner/builder qualification before engaging another builder, Inspired Construction, to complete the work.

104. [104]
     The claim made by the Harrisons in relation to additional rent is somewhat confusing. Whilst the statement by the Harrisons attaches a “Tenant Ledger” appearing to identify rental payments made by the Harrisons in respect of a property at Coorparoo, the spreadsheet being annexure “P” to the statement contains no claim for rental payments but does include a claim for liquidated damages.
105. [105]
     It was not until the Harrisons filed their submissions following the hearing below that the claim for rental payments was articulated in a spreadsheet attached to the submissions. The claim, for $7,920, is described as “Rental payments from date of practical completion under contract to ACTUAL completion date (17/10/2013 to 09/02/2014) @ $495/week”.
106. [106]
     The Harrisons rely upon rely upon a decision of the Supreme Court of New South Wales in Janet Campbell v C.J. Cordony & Sons Pty Limited^[66] where Hammerschlag J held that a claim by a homeowner for rental expenses after the homeowner was required to move into rental accommodation while rectification work was carried out satisfied the requirements in Hadley v Baxendale.^[67]
107. [107]
     The statement of evidence by the Harrisons filed 21 July 2014 does not depose to the circumstances in which the Harrisons entered into the contract with Mr Meehan insofar as might be relevant to their claim for additional rent. They do not depose to any knowledge Mr Meehan may have had as to their accommodation arrangements at that time. The relevance of the “Tenant Ledger” is made clearer by the following paragraph from the Harrisons’ statement of evidence:

Scott Harrison took 6 weeks annual leave from his work as a firefighter from 19^th November 2013 to 25^th December 2013 to co-ordinate contractors on site and ensure we would have a roof over our heads after our house rental expired on 24^th December 2013 (see Annexure M). (emphasis added)

108. [108]
     No claim is articulated in the statement of evidence for consequential loss in the nature of additional rental payments. Rather, the emphasis in the statement is upon the time Mr Harrison was required to take off work. We observe that in particularising their claim at this time, the Harrisons made no claim for consequential loss for rental payments or loss of wages.
109. [109]
     In the statement filed by the Harrisons on 28 July 2014, no claim is made for rental payments. Similarly, in the statement filed by the Harrisons on 5 November 2014 no claim is made for rental payments. We note that in the later statement, a claim is made for Mr Harrison’s “5 x weeks annual leave taken to co-ordinate and manage sub-contractors on site”. There is no further mention of the earlier reference to Mr Harrison addressing issues concerning the property the Harrisons’ were renting.
110. [110]
     At the hearing neither Mr Harrison nor Mrs Harrison gave evidence about either the circumstances in which the contract with Mr Meehan was entered into which might be relevant to the claim for rental payments or the claim for additional rental payments.
111. [111]
     The only evidence before the Tribunal in relation to the claim for rental payments is the tenant ledger. There is no evidence before the Tribunal of the tenancy agreement or other lease documentation relating to the rental premises. The Harrisons have not deposed to any relevant facts and circumstances relevant to, or supportive of, the claim for rental payments.  There is no evidence of when the Harrisons vacated the rental premises.
112. [112]
     The claim by the Harrisons for rental payments made by them is for the period from the date of practical completion to the date of actual completion. In their submissions filed following the hearing, the period during which the additional rent was paid, and claimed, is said to be 17 October 2013 to 9 February 2014. The amount claimed is $495.00 per week. The tenant ledger contains no information beyond an entry on 24 December 2013 although we note that the tenant ledger bears a date of 20 May 2014. There is no evidence of rental payments for the period from 24 December 2013 until 9 February 2014. It is unclear why the ledger information contains no information beyond 24 December 2013 when the claim by the Harrisons for rental payments continues past this date. The final entry in the ledger, “refund overpaid rent past vacate date (S & K Harrison)” is not otherwise explained by the Harrisons. 
113. [113]
     Even if the claim by the Harrisons for consequential loss in the form of rental payments could be maintained, and we make no specific finding in this regard, there is no evidence upon which such an award could be made. Accordingly, we do not allow the claim for rental payments.
114. [114]
     Mr and Mrs Harrison claim interest on damages. The learned member declined to award interest finding at reasons [69]:

The owners’ application did not limit the claim against the builder to carpentry and supervision of other trades. They referred to the scope of work relied on by their expert, Mr Sim. But Mr Sim was not advised of the builder’s limited retainer by the owners. He understood it was the entire construction work set out in item 3 to the schedule to the contract. The owners therefore purported to claim far more than carpentry and supervision. In result, the builder was put to additional and unnecessary costs in preparing his case and understandably resisted the owners’ claim in the circumstances. I conclude it would be unfair to order the builder to pay costs or interest.

115. [115]
     In MBP (SA) Pty Ltd v Gogic the High Court of Australia held:^[68]

The function of an award of interest is to compensate a plaintiff for the loss or detriment to which he or she has suffered by being kept out of his or her money during the relevant period.

116. [116]
     In Grincelis v House^[69] the High Court, citing with approval the decision in  MBP (SA) Pty Ltd v Gogic, held:

There is no doubt that this is a very important purpose of statutory provisions providing for the award of interest on the amount of a debt or damages in respect of the period between the cause of action accruing … and the date of judgment.

117. [117]
     The High Court further held:

It may be, however, that statutory provisions for interest serve not only that purpose, but also a purpose of encouraging early resolution of litigation. That statutory awards of pre-judgment interest may have such a purpose may be more readily understood in relation to claims for debts or sums certain than in personal injury cases where it will often be in the interests of the plaintiff to wait until injuries have stabilised before bringing the action to trial. For present purposes, however, it is sufficient to have regard to the compensatory purpose of interest.

118. [118]
     In Cashmere Bay Pty Ltd v Hastings Deering (Australia) Ltd (No.2)^[70], Daubney J held:

The discretion to award interest under the statute must, of course, be exercised judicially and in accordance with legal principle. In Queensland it was held by Andrews SPJ (Connolly and Thomas JJ concurring) in Hadzigeorgiou v O'Sullivan that “the proper approach to an exercise of discretion under the statute as to the granting of interest is that it ought to be granted unless there are proper reasons for withholding it.”

119. [119]
     Mr and Mrs Harrison say that unreasonable or tactical delay is one discretionary factor for considering to withhold interest^[71] but there is no such delay here. It is submitted that to deprive the Harrisons interest on their award of damages is to deprive them of an essential element in the achievement of true compensation for the loss suffered by them.
120. [120]
     Section 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) empowers the tribunal to award damages, and interest on the damages at the rate and calculated in the way, prescribed under a regulation. Section 77(3)(h) of the QBCC Act empowers the Tribunal to award costs.
121. [121]
     In our view, the Harrisons, having succeeded in the proceeding (albeit not to the extent claimed by them) are entitled to interest on the award of damages.  The contract provides for interest at the rate of 15% per annum on outstanding amounts owing by the owner to the builder.^[72] Interest cannot be awarded under the contract. It is appropriate to award interest at the rate of 10% being the amount allowed under the regulation.^[73]
122. [122]
     The damages payable by Mr Meehan to Mr and Mrs Harrison are assessed as follows:

Completion of carpentry work and supervision of trades  $30,923.34^[74]

Supply and installation of plasterboard  $15,000.00^[75]

Skip bin hire, toilet hire, scaffold hire and fence hire   $  2,051.00

Crane hire and roof truss hardware   $  1,323.08

Electricity connection  $  2,750.00^[76]

Builder’s margin  $  5,204.74^[77]

Insurance  $     513.00^[78]

TOTAL  $57,765.16

123. [123]
     There remains an amount owing by the Harrisons to Mr Meehan under the contract which we will address in Mr Meehan’s appeal and in our final orders disposing of the appeals.

The appeal by Mr Meehan – APL375-15

124. [124]
     Mr Meehan in his cross appeal says that the learned member erred in omitting to calculate the balance of the contract price owing to him by Mr and Mrs Harrison.
125. [125]
     Mr Meehan submits that the correct calculation based on the findings made by the Tribunal is $18,940.68 calculated as follows:

Sum Owed = (costs to complete/rectify) minus (balance held under the Contract)

  = $54,740 - $31,749.17

  = $22,951.51

126. [126]
     Mr Meehan says that the appeal tribunal can correct the error by simply changing the decision to reflect that Mr Meehan pay Mr and Mrs Harrison the sum of $22,951.51 resulting in Mr and Mrs Harrison now having to repay Mr Meehan the sum of $31,749.17.
127. [127]
     The parties agree, as do we, that the learned member erred by not taking into account the balance of the contract price owing by Mr and Mrs Harrison to Mr Meehan. The correct measure of damages is the contract price less the cost of completion or rectification work.
128. [128]
     We allow the appeal by Mr Meehan however make no further order other than requiring the parties to file and serve submissions on costs in view of the fact that the substantive order that we would otherwise make is addressed in the decision in the appeal by the Harrisons.

The assessment of damages in APL273-15

129. [129]
     The parties agree that there is an amount $31,749.17 owed by the Harrisons to Mr Meehan pursuant to the contract. This amount must therefore be deducted from the assessed damages of $57,765.16. This results in a nett assessment of damages of $26,015.99. Mr Meehan must pay the amount of $26,015.99 to Mr and Mrs Harrison. 
130. [130]
     Regulation 34B(2) of the Queensland Building and Construction Commission Regulations 2003 (Qld) provides that interest is payable on and from the day after the day the amount became payable. Until a decision to award damages is made no amount is payable.^[79] The original decision was made on 10 June 2015, and whilst we have varied the amount ordered to be paid by Mr Meehan to the Harrisons, it is appropriate that Mr Meehan pay interest on the sum of $26,015.99 at the rate of 10% from the day after the date of the original decision until the date the amount is paid.

Costs in both appeals

131. [131]
     Other than as provided for under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding.^[80]  The Queensland Building and Construction Commission Act 1991 (Qld) is the relevant enabling Act in respect of this proceeding. Section 77(3)(h) of the QBCC Act gives the Tribunal the power to award costs. A jurisdiction given in general terms allows the Tribunal to make an order as to costs that is justified in the circumstances. It is a broad general discretion which must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation.^[81]
132. [132]
     A successful litigant is, generally speaking, entitled to an order of costs, and to deprive a successful party of their costs is an exceptional measure.^[82] A successful party is entitled to recover their costs of a standard basis absent some special or unusual feature to justify a court departing from the usual practice.^[83]
133. [133]
     The Harrisons have been largely successful in the proceeding below and appeal APL273-15. Mr Meehan has been successful in cross appeal APL375-15. We will make orders for the parties to file submissions in relation to costs.