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Gedoun Constructions Pty Ltd v Agius[2024] QCATA 2

Gedoun Constructions Pty Ltd v Agius[2024] QCATA 2

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gedoun Constructions Pty Ltd v Agius [2024] QCATA 2

PARTIES:

Gedoun Constructions Pty Ltd

(applicant/appellant)

v

Mark Elliot Agius

(respondent)

APPLICATION NO/S:

APL060-22

APL278-22

ORIGINATING APPLICATION NO/S:

BDL308-18

MATTER TYPE:

Appeals

DELIVERED ON:

16 January 2024

HEARING DATE:

12, 13 and 14 July 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Howe

ORDERS:

APL060-22

  1. 1.Leave to appeal refused.
  2. 2.Appeal dismissed.
  3. 3.The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.
  4. 4.The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.
  5. 5.Costs will be decided on the papers.

APL278-22

  1. 1.Leave to appeal refused
  2. 2.The parties are to file and exchange submissions on costs not exceeding 3 pages in length within 14 days.
  3. 3.The parties are to file and exchange submissions in response not exceeding 3 pages in length within 7 days thereafter.
  4. 4.Costs will be decided on the papers.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – NATURE OF RIGHT – SCOPE AND EFFECT OF APPEAL – APPEALS IN THE STRICT SENSE AND APPEALS BY WAY OF REHEARING – APPEALS BY WAY OF REHEARING – SCOPE AND EFFECT OF REHEARING – where a home owner sued a builder – where the owner claimed the construction was not built to correct cyclone rating standard – where the owner succeeded in his claim and the tribunal ordered the builder to pay costs of rectification to bring the construction to correct cyclone rating standard – where the builder appealed that decision – whether the member erred in construing standards – where standards were construed by the appeal tribunal – whether the member failed to address issues raised by an expert in an early report where the expert later took part in a conclave of experts and signed a joint report – whether the costs of bringing the construction up to higher cyclone rating standard were costs payable by the owner under the contract.

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B s 19, s 21

Coulton v Holcombe (1986) 162 CLR 1

Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446

O'Brien v. Komesaroff (1982) 150 CLR 310

Parr v Queensland Police Service [2021] QCA 216

Pickering v McArthur [2005] QCA 294

APPEARANCES & REPRESENTATION:

Applicant:

P Somers instructed by Russells, Solicitors

Respondent:

M Cooke instructed by Becker Watt Lawyers

REASONS FOR DECISION

  1. [1]
    The appellant, Gedoun Constructions Pty Ltd, developed subdivided land in a suburb of Townsville.
  2. [2]
    The respondent, Mr Agius, bought a block of land in the subdivision and entered into a building contract with the appellant.
  3. [3]
    Construction finished around August 2018 with the appellant claiming the work was practically complete. Disputes regarding the quality of some of the work arose. The Queensland Building and Construction Commission issued a direction to rectify to the appellant.
  4. [4]
    An issue arose regarding the classification and design wind speeds of the construction at the site. The respondent claimed the house was designed to a C2 wind classification when it should have been designed to C3. The site is in a cyclone area.
  5. [5]
    The builder commenced proceedings claiming outstanding monies due under the contract and the respondent filed a counter application seeking liquidated damages and general damages for breach of statutory warranty.
  6. [6]
    In the course of the hearing, wind experts were engaged by both parties and, following the experts meeting in conclave, they produced a joint report.
  7. [7]
    Following a 14 day hearing over a period of near 2 years, the appellant was ordered to pay damages of $190,140, liquidated damages of $32,050 and interest at the rate of 10% from the date of the decision.
  8. [8]
    The appellant was subsequently ordered to pay the respondent’s costs of the proceeding.
  9. [9]
    Proceeding APL060-22 is the appeal from the primary decision. Proceeding APL278-22 is the appeal from the costs decision.

The Australian Standards

  1. [10]
    The outcome of the proceeding below turned on the application of various Australian Standards relevant to the construction of the house. Both parties relied upon expert evidence. The experts considered the application of three standards:
    1. AS1170.2-2011;
    2. AS4055-2012;
    3. AS1684-2010.
  2. [11]
    The application of each of the standards may be summarised as follows:
    1. The scope of AS1170.2-2011 is to set out the procedures for determining wind speeds and resulting wind actions to be used in the structural design of structures subjected to wind actions other than those caused by tornadoes;
    2. AS4055-2012 specifies site wind speed classes for determining wind design speeds and wind loads for NCC buildings Classes 1 and 10 within certain geometric limits, amongst other things, where the width of the house including verandahs and excluding eaves exceeds 16 metres. Houses falling outside these geometric limits are not covered by the standard. In these circumstances, AS1170.2 applies;
    3. AS1684.3-2010 specifies requirements for building practice and the selection, placement and fixing of the various structural elements used in the construction of timber framed class 1 and class 10 buildings. The wind classification necessary for the use of the standard is to be determined using either AS1170.2 or AS4055. The standard does not apply where the maximum width of the building, excluding eaves, exceeds 16 metres.
  3. [12]
    The application of the standards, and the interaction between them, is as the learned member’s reasons reveal both complex and challenging.

Proceeding APL060-22

  1. [13]
    The appellant has filed an application for leave to appeal the decision on grounds of claimed error of fact and mixed law and fact and to appeal claimed error of law. Ground 5 of the appeal is no longer pursued.
  2. [14]
    An appeal on an error of law does not need leave, but appeals on the basis of error of fact or mixed law and fact requires leave.
  3. [15]
    Leave to appeal will usually only be granted where an appeal is necessary to correct a substantial injustice to the appellant and where there is a reasonable argument that there is an error to be corrected.[1] 

Grounds of Appeal

Ground 1:

The Member erred in finding that the design and construction of the respondent's house the subject of the proceedings ("the House") had not been undertaken according to relevant laws and legal requirements, because:

  1. (a)
    the Member did not consider and follow the process for the design and construction of a house in high wind areas as set down in the National Construction Code;
  2. (b)
    had the Member considered and followed that process, the Member ought to have found that the design and construction of the House was undertaken in accordance with relevant laws and legal requirements.

Ground 2:

The Member erred in:

  1. (a)
    finding that Australian Standard AS4055-2012 (and after amendment, Australian Standard AS4055 0018) (together, "AS AS4055") was not applicable because the width of the House exceeded the geometric limit in those standards;
  2. (b)
    not finding that:
  1. (i)
    the House, as designed and constructed, fell within the geometric limit requirement of AS AS4055 because the width of the House, including roofed verandas, but excluding eaves was less than 16.0 metres;
  2. (ii)
    as such, the wind rating applicable for the House:
  1. (A)
    could be determined under the provisions of AS AS4055; and
  2. (B)
    was a C2 rating, and not a C3 rating;

Ground 3:

The Member erred in rejecting the applicability of Australian Standard 1684.3 - 2010 in calculating the ultimate limit state for wind class and maximum design wind speed;

Ground 4:

The Member erred in calculating the applicable design wind speed under Australian Standard 1170.2 - 2011, in that when calculating the topographic multiplier, the Member:

  1. (a)
    failed to consider the site at which the topographic multiplier was to be calculated;
  2. (b)
    incorrectly applied the provisions of part 4.4.2 of Australian Standard 1170.2-2011 by selecting a point other than the top of the hill to calculate the topographic multiplier;

Ground 5:

Abandoned

Ground 6:

Alternatively, the Member erred in failing to apply clause 13.2 of the Contract between the appellant and the respondent when assessing damages, which required the respondent to pay for any increase in the Contract Price the appellant incurred, or was necessary to comply with any statute, other law or any requirement of a local government, private certifier or other body having jurisdiction over the works.

  1. [16]
    Grounds 1 and 3 are said to involve errors of law. The other grounds errors are identified as ones of fact or mixed fact and law.

Ground 1:

The Member erred in finding that the design and construction of the respondent's house the subject of the proceedings ("the House") had not been undertaken according to relevant laws and legal requirements, because:

  1. (a)
    the Member did not consider and follow the process for the design and construction of a house in high wind areas as set down in the National Construction Code;
  2. (b)
    had the Member considered and followed that process, the Member ought to have found that the design and construction of the House was undertaken in accordance with relevant laws and legal requirements.
  1. [17]
    The Appellant says the learned member made an error of law in finding that the builder was obliged to comply with the requirements of either Australian Standard AS4055 or AS1170. The appellant says that was not the only way of complying with the statutory requirements. There was also use of an alternate performance solution available; the builder adopted such; and that though an alternative performance solution was a live issue at hearing it was not addressed by the learned member.
  2. [18]
    The appellant relies on the following references in its closing written submissions in the hearing below to found a claim that the issue of an alternate performance solution was live and extant at the hearing:

At paragraph 1 an opening statement that:

”The prominent issue in this proceeding is the proper construction and application of relevant standards for site wind classification…;

At paragraph 13:

…warranties required Gedoun to comply with, inter alia, the Building Act 1975 (Qld) which incorporates the National Construction Code 2016;

At 50:

Compliance with the NCC is achieved by satisfying the Performance Requirements, which can only be satisfied by a Performance Solution, a Deemed-to-Satisfy solution or a combination.

At 51:

AS1684-2010.3 Residential Timber–framed Construction, Part 3: Cyclonic Areas is a deemed to comply standard, compliance with which satisfies the Performance Requirement in P2.1.1 of the NCC that a building or structure in a cyclonic area (as here) must, with appropriate degrees of reliability, perform adequately under all reasonably expected design actions, including wind action. To achieve the relevant performance requirement, the NCC mandates compliance with AS1684.3, and not (expressly) either of the wind standards.

At 55:

As to wind, it is submitted that the builder’s obligation in this case is to achieve the minimum standard necessary to comply with NCC performance requirement 2.1.1, which it may do complying with AS1684.3.

Finally at 71:

Alternatively, if the verandah on the southern side of the house is to be included in the measurement of maximum building width, as a matter of engineering judgment (a method of assessment expressly permitted under the NCC as set out above) the extent to which that geometric limit is exceeded is negligible and is substantially complied with. Dr Boughton disagreed with Mr Wright about this, preferring the interpretation that the geometric limitations within the standards are hard limits, but the requirement for an engineering judgement renders that exceedance negligible. It is submitted the Tribunal should find that the house complies with the building width limit in AS1684, alternatively, AS4055.

  1. [19]
    The closing submission at [71] refers to a “method of assessment expressly permitted under the NCC as set out above”. As best understood that refers to submissions made immediately before that at [66-70] under the heading Width. Paragraph [66] starts “The maximum building width is 16.18m.” The joint experts report at item 1.1 also entitled “Building Width” is cited as authority for that. The experts agreed about that and their finding is not challenged in the closing submissions.
  2. [20]
    What follows is mention of different definitions of building width in standards AS1683.3 and AS4055, but it concludes with the statement at [70] “…Given the exceedances over the 16m maximum building width limit is 18cm or only 1%, excluding the southern verandah for the measurement of the building width would ensure the building is within the limitation provided in AS 1684, section 1.4.2.”
  3. [21]
    The reference to the standard being exceeded by only 18cm or 1% refers to a view expressed by one of the wind experts set out in item 1.1.3 of the joint experts report where one of the experts, an engineer, said:

1.1.3.1 A 1% exceedances of the width limit for a 1.98m, 12% of the building length, for all practical purposes ought not exclude the application of AS4055.

1.1.3.2 This view is reached in light of the fact that over 80% of the width of the building is less than 16m, and, the building lies inside several other limits set in the Standard.

1.1.3.3 Applying a high precision to a limitation, in this case 16m on the building width, is inconsistent with the inexact art of trying to determine a wind speed at this location which has a 1 in 500 year probability of occurring and has a duration of 0.2 seconds.

  1. [22]
    Nowhere in the joint experts’ report, nor in the 14 day transcript of hearing, is there suggestion or mention made that the “practical purposes” approach suggested by the engineer constituted an alternative performance solution in lieu of deemed performance solution by compliance with Standard AS4055. In the joint experts report the expert in question incorporates into the joint report his comments made in one of his earlier reports whereby, instead of suggesting an alternative performance solution, he suggested the deemed to satisfy solution of AS4055 applied but, given the limited likelihood of extreme wind events occurring, he considered it would be safe to waive minor infringements of the Standard’s threshold application requirements, that waiver based on his subjective engineering judgment:

2.4.18 Conclusion on use of AS4055

2.4.18.1 The Commentary on the Standard states, among other things:

“This Standard has been derived for houses as a group or large numbers of buildings. In general, the level of reliability for the group is similar to that found by applying AS/NZ1170.2. However, it is recognised that a correct application of this Standard may lead to some houses with more conservative design loads, and others with less conservative design loads.”

2.4.18.2 The peak design wind gust has duration for the design of buildings is 0.2 seconds.

2.4.18.3 the annual probability of exceedances is 1 in 500.

As an experienced and I believe cautious practitioner, regularly using Australian Standards in real-world applications, I would consider it appropriate, safe and not unconservative to apply AS4055 – 2012….”

  1. [23]
    There was no issue concerning an alternate performance solution raised at the hearing below as suggested by the appellant. There was no poorly worded attempt to raise an issue about an alternative performance solution in the closing submissions. It was not an issue in the hearing before the learned member.
  2. [24]
    The appellant goes on to submit however, that even if the issue was not raised below, regardless whether that was occasioned by inadvertence or a tactical omission, it is now open for the appeal tribunal to consider the matter “fresh”. It is not clear what the issue is that should now be considered “fresh”.
  3. [25]
    In Coulton v Holcombe (1986) 162 CLR 1 Gibbs CJ, Wilson, Brennan and Dawson JJ said:

9. … It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise. In a case where, had the issue been raised in the court below, evidence could have been given which by any possibility could have prevented the point from succeeding, this Court has firmly maintained the principle that the point cannot be taken afterwards: see Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Bloemen v. The Commonwealth (1975) 49 ALJR 219. In O'Brien v. Komesaroff (1982) 150 CLR 310, Mason J., in a judgment in which the other members of the Court concurred, said at p 319:

"In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (1892) AC 473, at p 480; Suttor v. Gundowda Pty. Ltd. (1950) 81 CLR 418, at p 438; Green v. Sommerville (1979) 141 CLR 594, at pp 607-608). However, this is not such a case. The facts are not admitted nor are they beyond controversy.

The consequence is that the appellants' case fails at the threshold. They cannot argue this point on appeal; it was not pleaded by them nor was it made an issue by the conduct of the parties at the trial".

In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six Justices of this Court - University of Wollongong v. Metwally (No. 2) (1985) 59 ALJR 481, at p 483; 60 ALR 68, at p 71 - the Court said:

"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so".

  1. [26]
    In the words of Mason J in O'Brien v. Komesaroff, the appellant cannot argue this point on appeal; it was not expressly raised below at the hearing nor made an issue by the conduct of the parties at hearing. The error claimed to have been made is identified by the appellant as an error of law. The facts necessary to support this ground of appeal are not admitted and indeed their existence challenged. That is a critical impediment to any claimed error of law argument raised for the first time on appeal.
  2. [27]
    The issue was not raised or argued below. It cannot be raised and argued now, on appeal, for the first time.
  3. [28]
    This ground of appeal fails.

Ground 2:

The Member erred in:

  1. (a)
    finding that Australian Standard AS4055-2012 (and after amendment, Australian Standard AS4055 -2018) (together, "AS AS4055") was not applicable because the width of the House exceeded the geometric limit in those standards;
  2. (b)
    not finding that:
  1. (i)
    the House, as designed and constructed, fell within the geometric limit requirement of AS AS4055 because the width of the House, including roofed verandas, but excluding eaves was less than 16.0 metres;
  2. (ii)
    as such, the wind rating applicable for the House:
  1. (A)
    could be determined under the provisions of AS4055; and
  2. (B)
    was a C2 rating, and not a C3 rating;
  1. [29]
    AS4055 is available for use within certain geometric limitations. One such is that the width of the house must not exceed 16.0 metres. The learned member accepted that it was common ground between the experts that the house exceeded the maximum prescribed width of 16.0m. She accepted the opinion of Dr Boughton, one of the wind experts, that the dimensions prescribed by AS4055 were absolute limitations that could not be exceeded. That was because AS4055 was a simplified standard based on the far more complex and comprehensive AS1170.2 standard, and AS4055 relied on a number of assumptions which were only valid for houses within the geometric limitations prescribed by AS4055. She found the house here exceeded the width limitation prescribed by AS4055 and therefore that standard could not be used to determine the wind classification.
  2. [30]
    The appellant says the member erred as a matter of mixed law and fact in finding that AS4055 could not be used.
  3. [31]
    The appellant goes further and submits that both experts erred in finding that the width of the house, for the purpose of applying AS4055, exceeded 16.0m. Alternatively, the expert Mr Wright assessed the width correctly at 12.88m initially then erred in agreeing with Dr Boughton, the other expert, about the width being 16.18m, or Mr Wright was agreeing to a generic statement about the width of the house when he agreed it was 16.18m rather than speaking to width in terms of AS4055.
  4. [32]
    The appellant refers to clause 1.2(b) of AS4055 which states:

1.2 Limitations

For the purpose of this Standard, the following conditions (geometric limits) shall apply (see Figure 1.1):

…

  1. (b)
    The width (W) including roofed verandahs, excluding eaves, shall not exceed 16.0 m, and the length (L) shall not exceed 5 times the width.
  1. [33]
    Then to a commentary marked Appendix A to the standard at A1.2 which states:

A1.2 comment on clause 1.3 – geometric limits

The geometric limits presented in Clause 1.3 have been provided to enable some simplifications to the AS/NZS1170.2 methods for the most common geometries of housing. It is intended that 16m width limit be applied to the width of the tallest section of the house. For example, in many cases the various sections of a house (that is the basic rectangular box shapes) may be displaced horizontally with respect to each other. This could make the overall floorplan dimension greater than the 16m limit even though none of the sections of roof might be wider than 16m.

Such a house should be within the limits provided that none of the roof sections parallel to the wind direction being considered are greater than 16m (neglecting the width of these).

(emphasis added)

  1. [34]
    The appellant suggests a number of the design drawings show the house broken into two “basic rectangular box shapes” because the house was constructed on 2 levels. The higher box shape area has a measurement of 12.88 m x 7.36 m, and the lower a measurement of 15.58 m x 12.09 m.
  2. [35]
    The appellant suggests, relying upon that analysis, neither area exceeds the 16.0m limit.
  3. [36]
    Leaving aside that it was agreed between the experts and accepted between counsel for both parties at hearing that the width of the house was 16.18m, the difficulty with this argument is that the commentary comments on clause 1.3 of the standard, not clause 1.2.
  4. [37]
    Clause 1.3 is entitled Normative References. Standards AS/NZS1170 and AS/NZS1170.2.2 are then mentioned followed by reference to the National Construction Code. Immediately after that there are a number of diagrams set out in figure 1.1, which is entitled Geometry. The geometric limits referred to in clause 1.2, height roof pitch, are all to be found marked on the diagram examples found in figure 1.1 of clause 1.3.
  5. [38]
    The second diagram example in figure 1.1 shows a dwelling on 3 levels with split rooves and the 16m width measurement marked across and inclusive of the width of both upper floor levels, not simply that of the higher upper floor level under a separate higher roof.
  6. [39]
    That figure also has marked on it a roof pitch of 35° entitled “maximum”, height from ground level to underside of eaves of 6.0m also marked “maximum”, and indicates how a “maximum” house height of 8.5m is to be measured, and as stated, how a distance from outside wall to outside wall across both levels of the split level home (rather than only under the separate higher roof) comprises a width  of 16.0m for the purpose of calculating width under the standard. Thus the commentary in A1.2 stating the overall floorplan dimensions may exceed the 16.0m limit even though none of the sections of roof are wider than 16.0m. The second diagram in figure 1.1 offers visual clarity of such circumstances, and applies to the dwelling in question.
  7. [40]
    The appellant places emphasis on the wrong clause in the standard, 1.2, and ignores the example in Figure 1.1 found within the correctly referenced clause 1.3.
  8. [41]
    The experts and the member correctly found the house width was 16.18m and therefore the house was outside the geometric limits of AS4055.
  9. [42]
    As to the submission that Mr Wright initially and correctly agreed that the width of the house was 12.88m and did not agree with Dr Boughton that the width of the house for the purpose of applying AS4055, the experts produced a joint report. The joint report opens with the statement “The experts agree the maximum building width is 16.18.”
  10. [43]
    At hearing the experts’ joint report was admitted into evidence. It is unclear why the experts’ individual earlier reports were also admitted into evidence. By Practice Direction 9 of 2009 the joint report is taken to be both experts’ statement of evidence. Once admitted, the earlier individual reports (save for identified commentary or explanations of their views set out in any earlier reports identified in the joint report to be inclusions in the joint report) are not the experts’ statements of evidence. Indeed the transcript shows that after being given an exhibit number the individual reports played no part in the hearing and were not further mentioned. 
  11. [44]
    Counsel for the appellant concedes that it was never put to Mr Wright (who gave concurrent evidence with Dr Boughton) by either party that AS4055 could apply on the basis that the width of the house was 12.88m. Counsel maintains however that there was no need for him to be asked about the 12.88m width, because it was in his statement of evidence and therefore in issue.[2]
  12. [45]
    That is not correct. Mr Wright’s statement of evidence was the joint experts report. Practice Direction 4 of 2009 deals with expert evidence and conclaves of experts. By s 226 QCAT Act:

226Practice directions

  1. (1)
    The President may make practice directions for the tribunal about the practices and procedures of the tribunal not provided for, or not sufficiently provided for, in this Act, an enabling Act or the rules.
  1. [46]
    Practice Direction 4 of 2009 states the purpose of a conclave is to identify and clarify areas of agreement and disagreement amongst the experts on any issue in dispute. If experts have taken part in a conclave, the joint report produced by them from the conclave is taken to be their statement of evidence.
  2. [47]
    The learned member was entitled to rely on the joint report as the statement of evidence of the experts. The member was not obliged to consider an earlier contradiction in individual reports predating the joint report. Prior inconsistent individual reports of the experts cannot, without the express leave of the Tribunal, be relied on by any party. The Practice Direction makes clear:

20. Except with the tribunal’s leave an expert may not, whether in a statement of evidence or in oral evidence:

  1. (a)
    contradict, depart from or qualify an opinion about an issue the subject of agreement in the joint report; or
  2. (b)
    raise a matter not already mentioned in the joint report.
  1. [48]
    It is reasonable to assume that in the conclave of experts Mr Wright resiled from his earlier position that the width of the house, for the purpose of applying AS4055, was less than the required 16m and conceded the width was 16.18m.
  2. [49]
    The learned member was in turn entitled to conclude the width of the house exceeded the 16.0m limitation set by AS4055 based on the expert evidence and on the fact that that was not challenged by either the experts or the parties before her.
  3. [50]
    There are no prospects of success with this ground of appeal. Leave to appeal is refused.

Ground 3:

The Member erred in rejecting the applicability of Australian Standard 1684.3 - 2010 in calculating the ultimate limit state for wind class and maximum design wind speed;

  1. [51]
    AS 1684.3 is a residential timber frame construction standard for cyclonic areas.
  2. [52]
    The appellant says the learned member was wrong to reject using AS1684.3, and if that standard had been used, the wind classification would have been C2, the standard to which the dwelling had been constructed. That was an error of law.
  3. [53]
    Counsel for the appellant had submitted at hearing below:

… the house falls within the ultimate limit state for wind class C2. This submission is based on the argument that the effect of part 1.4.2 of AS 1684.3 is to provide that the maximum design wind speed calculated under AS AS/NZS1170.2 for this timber framed house is no more than 5% greater than 61 m/s, which is 64 m/s.[3]

  1. [54]
    There are two wind standards. AS4055 is derived from AS1170. AS4055 is a simplified standard for use by builders and other trades in the limited geometrical circumstances prescribed associated with a residential construction.
  2. [55]
    By contrast, AS1170 is a far more complex standard used by engineers and other professionals to determine wind classifications for all manner of constructions, not simply residential dwellings, and not limited by the geometric parameters of AS4055.
  3. [56]
    The learned member rejected the submission that the timber standard, AS1684.3, had application as submitted. She explained:

230 … I reject this argument for the following reasons:

  1. (a)
    One need only consider clause 1.1 of AS 1684.3 to appreciate that that standard addresses requirements for selection, placement and fixing of structural elements used in the construction of timber framed buildings; it does not address cladding. It is clear from Clause 1.16 of AS 1684.3 that prior to using the Standard, the design gust wind speed and corresponding wind classification is to be determined. This is reinforced by the flow chart in Figure 7 which first requires determination of the maximum design gust wind velocity under AS AS/NZS1170.2 or AS AS4055 .
  2. (b)
    In order to comply with AS 1684.3 as mandated by the NCC, a designer must first have regard to AS AS/NZS1170.2 or AS AS4055 as appropriate. Section 2.5 of AS AS/NZS1170.2 makes provision for the 5% difference between the ultimate limit state design gust wind speed determined from AS AS/NZS1170.2 and the ultimate limit state wind speed referred to in clause 1.4.2 of AS 1684.3 by providing that the wind direction multiplier for determining the resultant forces and overturning moments on complete buildings and wind actions on structural elements in cyclonic regions is 0.95.
  1. [57]
    The member’s reference to section 2.5 of AS1170 was a misstatement. There is no mention made in that clause about any 5% difference. The member intended no doubt to refer to the 5% wind direction multiplier mentioned in Part 3.3 and specifically clause 3.3.2 which provides:

Regions B, C and D

The wind direction multiplier (Md) for all directions in regions B, C and D shall be as follows:

  1. (a)
    0.95 for determining the resultant forces and overturning moments on complete buildings and wind actions on major structural elements.
  2. (b)
    1.0 for all other cases (including cladding and immediate supporting members).
  1. [58]
    AS1684 states at 1.16:

Prior to using the Standard, the design gust wind speed and corresponding wind classification shall be determined. It shall include consideration of terrain category building height and topographic and shielding effects (see clause 1.4.2).

(emphasis added)

  1. [59]
    That clause is followed by a flowchart, and the flowchart has a note referring one to either AS/NZS1170.2 or AS4055 for determination of the “maximum design gust wind velocity”.
  2. [60]
    We have confirmed that AS4055 was not available for wind classification given the building design exceeded that standard’s prescribed geometrical limits. Therefore the wind standard that had to be used was AS/NZS1170.2.
  3. [61]
    AS1684.3, clause 1.4.2, provides:

1.4.2  Wind classification

…

Either AS4055 or AS/NZS AS/NZS1170.2.2 shall be used to determine the wind classification necessary for the use of this Standard.

The wind classifications covered by this Standard shall be determined as follows:

  1. (a)
    Where the wind classification is determined from AS4055...
  2. (b)
    Where AS/NZS AS/NZS1170.2.2 is used to determine the maximum design gust wind speed, a wind classification shall be adopted in accordance with Table 1.1. The ultimate limit state design gust wind speed determined from AS/NZS1170.2 shall be not more than 5% greater than the ultimate limit State wind speed given in Table 1.1 for the corresponding wind classification adopted.
  1. [62]
    Table 1.1 referred to sets out three maximum design wind gust wind speeds. A wind classification of C1 has what is called an ultimate limit state of 50m/s, C2 an ultimate limit state of 61m/s, and C3, an ultimate limit state of 74m/s.
  2. [63]
    The appellant submits that after establishing a wind speed using AS/NZS1170.2, one then applies the 5% variation factor referred to in clause 1.4.2(b) of AS1684.3, which increases the C2 ultimate limit state design gust wind speed wind speed from 61m/s to 64m/s.
  3. [64]
    The member rejected that submission. She found AS/NZS1170.2 had already allowed the 5% variation factor by providing the 0.95 wind direction multiplier in cyclonic regions.[4] In this regard she accepted the opinion of Dr Boughton.
  4. [65]
    Returning to AS4055, one finds two discount factors there in Appendix A of AS4055, a 0.95 wind speed factor and additionally a 5% margin added to wind speed:

A3.1 Wind classification

In determining the application of the N and C classes to the selected site criteria that are given in Table 2.2, a number of simplifications of the methods in AS/NZS AS/NZS1170.2.2 were made. The classifications were derived from a range of design scenarios that were evaluated using AS/NZS AS/NZS1170.2.2. The following criteria were selected:

  1. (a)
    Annual probability of exceedances has been taken as 1/500.
  2. (b)
    A 0.95 factor on wind speed was allowed to account for the variation of orientation of houses within suburbs and groups of suburbs will only come from a single direction. There will be few for which this direction is the critical one with respect to terrain, topography and the house orientation.
  3. (c)
    A 5% margin has been allowed on the wind speed for the assigning of the N and C classes.
  1. [66]
    A wind direction multiplier factor of 0.95 is to be found in AS/NZS1170.2, but not the 5% margin.
  2. [67]
    The learned member’s conclusion that AS1684.3 had no application here was correct, but not on the basis determined by the member.
  3. [68]
    By clause 1.1.1 of AS1684.3 the scope and application of that standard is explained as follows:

This standard specifies requirements for building practice and the selection, placement and fixing of the various structural elements used in the construction of timber framed Class I and Class X buildings as defined by the Building Code of Australia and within the limitations given in Clause 1.4.

  1. [69]
    Clause 1.4 referred to is entitled Limitations and provides:

1.4.1 General

The criteria specified in this standard are specifically for conventional timber framed buildings and applicable to single and two story constructions built within the limits or parameters given in Clauses 1.4.2 to 1.4.10 and Figure 1.1.

…

1.4.5 Width

The maximum width of a building shall be 16000mm, excluding eaves (see Figure 1.1).

1.4.6 Wall height

The 3000mm [floor to ceiling, as measured at common external walls, that is, not cable or skillion ends (see Figure 1.1)].

  1. [70]
    The experts agreed in their joint report that the width of the building exceeded 16000mm (it may be noted that Mr Carpenter, an expert called for the builder, also conceded the height of walls from floor to ceiling exceeded the 3000mm limit as well).
  2. [71]
    This meant the design of the house was outside the geometric parameters of AS1684.3. That meant AS1684.3 could not be used.
  3. [72]
    To make clear, where a house design is within the geometric parameters of AS1684.3 rather than outside those parameters, which parameters are very similar to the geometric parameters applying to AS4055, but the designer chooses to use AS/NZS1170.2 instead of AS4055 to determine wind classification, then AS1684.3 may be used and that triggers the 5% grace factor found in clause 1.4.2(b) of AS1684.3 which is missing from AS/NZS1170.2 itself. Adding that 5% margin in such circumstances brings equivalence to the ultimate wind classification, regardless which wind standard has been used.
  4. [73]
    The member correctly rejected the availability of AS1684.3 in calculating the ultimate limit state for wind class and maximum design wind speed.
  5. [74]
    This ground of appeal fails.

Ground 4:

The Member erred in calculating the applicable design wind speed under Australian Standard 1107.2-2011, in that when calculating the topographic multiplier, the Member:

  1. (a)
    failed to consider the site at which the topographic multiplier was to be calculated;
  2. (b)
    incorrectly applied the provisions of part 4.4.2 of Australian Standard 1107.2-2011 by selecting a point other than the top of the hill to calculate the topographic multiplier;
  1. [75]
    We have determined the member was not wrong in rejecting the availability of AS1684.3 to determine maximum design wind speed.
  2. [76]
    The member went on to say that if she were wrong, then she preferred Dr Boughton’s calculations and findings that applying AS/NZS1170.2, the wind classification was C3.
  3. [77]
    The appellant challenges Dr Boughton’s figures. The challenge is pointless however.
  4. [78]
    At hearing the wind experts examined certain additional factors that had arisen from time of design to date of hearing, in particular the wind shielding effect benefit of newly constructed nearby homes near the subject site. They produced[5] figures of their findings about that. It meant a reduction in the wind speed estimates calculated by the experts. Dr Boughton calculated the design wind speed fell from 68.1m/s to 67.5m/s and Mr Wright’s figures changed from 61m/s to 61.5m/s.[6]
  5. [79]
    Both experts[7] agreed one then applies Table 2.1B (Cyclonic regions) to calculate the wind classification. At the lowest speed, 61.5m/s, the wind classification is C3.
  6. [80]
    As stated, the 5% margin granted by AS1684.3 was not available to increase the wind speed classification because the house was outside the geometrical limitations that constrained use of that standard.
  7. [81]
    There are no prospects of success in respect of this ground. Leave to appeal is refused.

Ground 6:

Alternatively, the Member erred in failing to apply clause 13.2 of the Contract between the appellant and the respondent when assessing damages, which required the respondent to pay for any increase in the Contract Price the appellant incurred, or was necessary to comply with any statute, other law or any requirement of a local government, private certifier or other body having jurisdiction over the works.

  1. [82]
    Clause 13 provided:

13.1 Compliance with statutory requirements

The Contractor must:

  1. (a)
    comply with all statutory requirements relating to the Works; and
  2. (b)
    give any notice or report, and pay any fee, in order to comply with Clause 13.1(a).

13.2 Increased cost of compliance

If the cost to the Contractor:

  1. (a)
    in complying with any statute, other law or any requirement of a local government, private certifier or other body having jurisdiction over the Works, increases after the date of the formation of this Contract; or
  2. (b)
    in carrying out the Works, increases after the date of the formation of this Contract as a result of the introduction or increase of any fee, tax, duty, charge, levy or regulation,

the amount of the increase is to be added to the Contract Price.

13.3 Variation due to compliance with statutory requirements

If the Contractor’s compliance with a statutory requirement requires a variation of the Works, the Owner must, within 5 Business Days after receiving a variation document provided by the Contractor that complies with the requirements set out in Clause 12.4, give to the Contractor a written notice agreeing to the variation unless the stated adjustment to the Contract Price, or method for calculating the adjustment to the Contract Price, because of the variation is unreasonable having regard to the extent of the work to be added to, or omitted from, the Works.

(Emphasis added)

  1. [83]
    Clause 13 engages where there a change to the cost of a build because of the commencement of new statutory compliance requirements or new or increased fees which have occurred after, but not before, the date of formation of the contract.
  2. [84]
    The appellant argues the respondent was obliged by clause 13.2 to pay the cost associated with any additional or increased costs to take the house from a C2 to C3 level of construction.
  3. [85]
    There was no change in wind classifications after formation of the contract however. The builder did not issue any variation document to the contractor in accordance with clause 13.2 prior to completion.
  4. [86]
    By item 7 of the contract schedule the appellant as contractor was responsible for supplying and preparing plans, specifications and foundations data.
  5. [87]
    Plans is defined in the general conditions to mean plans, drawings and designs relating to the Works described in Part C of the Appendix. Appendix Part C details 12 drawings. On two of those drawings, floor plan drawings, the wind classification is marked as C2.
  6. [88]
    The approved floor plan working drawings have the same wind classification C2 noted on them, as too do working drawings WD02 site plan and WD03 site layout plan, as well as WD10 blockwork set out plan.
  7. [89]
    The description of the work to be done under the contract is noted at item 5 of the contract schedule. The word “Works” where it occurs in the contract is defined in the general conditions to mean “the whole of the work to be carried out by the Contractor under this Contract, a description of which is contained in Item 5 of the Schedule, and includes variations to the Works.” The description of the Works in item 5 is simply “New Residential Dwelling”.
  8. [90]
    The building contract was a regulated contract in accordance with Schedule 1B Queensland Building and Construction Commission Act 1991 (Qld) and by s 19 of the Schedule to that Act the warranties mentioned formed part of the contract. Amongst other things, the appellant warranted by s 21 Schedule 1B that the work under the contract would be carried out in accordance with all relevant laws including the Building Act 1975 (Qld).
  9. [91]
    That required the appellant in turn to comply with the National Construction Code (‘NCC’) and the NCC required the appellant to build the dwelling in accordance with relevant standards of construction that in turn hinged on the relevant wind classification for the site.
  10. [92]
    It was at the design stage that the appellant was obliged to establish the correct wind classification. There is no evidence that an alternative solution was utilised. AS4055 did not apply. AS/NZS1170.2 had to be used and if it had been it would have stipulated the wind classification as C3. The design drawings should have been drawn using that rating. They were not. The builder was in breach of the agreement in failing to build to meet a C3 cyclonic rating. The costs involved in bringing the dwelling up to that standard is a matter of holding the builder to the agreement struck, not unanticipated additional costs incurred during the course of the build.
  11. [93]
    Clause 13.2 had no application in the circumstances.
  12. [94]
    This ground of appeal cannot succeed. Leave to appeal refused.

Conclusion and final orders in proceeding APL060-22

  1. [95]
    The appellant has failed to make out any of the grounds of appeal. Insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed.

Proceeding APL278-22

  1. [96]
    The appellant relies upon a single ground of appeal which may be summarised thus: if the appellant succeeds in the substantive appeal then the costs decision is likely to be in error as it followed the primary decision below.
  2. [97]
    Leave is required to appeal a costs order.[8]  There is no substantial injustice to the appellant required to be corrected in respect of the costs decision nor is there reasonable argument that there is an error to be corrected.

Conclusion and final orders in proceeding APL278-22

  1. [98]
    Leave to appeal is refused.

Costs in APL060-22 and APL278-22

  1. [99]
    The parties will be directed to file submissions on costs.

Footnotes

[1] Pickering v McArthur [2005] QCA 294 [3], cited with approval Parr v Queensland Police Service [2021] QCA 216 [7].

[2] Appeal transcript 1-61.

[3] Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446 [230].

[4] Ibid [230(b)]

[5] Exhibit 41

[6] T7-134 L19

[7] Mr Wright at T7-134 L44

[8] QCAT Act, s 142(3)(a)(iii)

Close

Editorial Notes

  • Published Case Name:

    Gedoun Constructions Pty Ltd v Agius

  • Shortened Case Name:

    Gedoun Constructions Pty Ltd v Agius

  • MNC:

    [2024] QCATA 2

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Howe

  • Date:

    16 Jan 2024

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Bloemen v The Commonwealth (1975) 49 ALJR 219
1 citation
Jump To
Cite 1 - (1975) 49 ALJR 219
Connecticut Fire Insurance Co v Kavanagh [1892] AC 473
1 citation
Jump To
Cite 1 - [1892] AC 473
Coulton v Holcombe (1986) 162 CLR 1
1 citation
Jump To
Cite 1 - (1986) 162 CLR 1
Gedoun Constructions Pty Ltd v Agius [2022] QCAT 446
2 citations
Jump To
Cite 1 - [2022] QCAT 446
Cite 2 - [2022] QCAT 446
Green v Sommerville (1979) 141 CLR 594
1 citation
Jump To
Cite 1 - (1979) 141 CLR 594
O'Brien v Komesaroff (1982) 150 CLR 310
2 citations
Jump To
Cite 1 - (1982) 150 CLR 310
Cite 2 - (1982) 150 CLR 310
Parr v Queensland Police Service [2021] QCA 216
2 citations
Jump To
Cite 1 - [2021] QCA 216
Cite 2 - [2021] QCA 216
Pickering v McArthur [2005] QCA 294
2 citations
Jump To
Cite 1 - [2005] QCA 294
Cite 2 - [2005] QCA 294
Suttor v Gundowda Pty Ltd (1950) 81 C.L.R., 418
2 citations
Jump To
Cite 1 - (1950) 81 C.L.R., 418
Cite 2 - (1950) 81 C.L.R., 418
University of Wollongong v Metwally (1985) 59 ALJR 481
1 citation
Jump To
Cite 1 - (1985) 59 ALJR 481

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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