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Boys v Imperial Homes (Qld) Pty Ltd[2024] QCATA 35

Boys v Imperial Homes (Qld) Pty Ltd[2024] QCATA 35

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Boys v Imperial Homes (Qld) Pty Ltd [2024] QCATA 35 

PARTIES:

daniel jay boys

(applicant/appellant)

v

imperial homes (qld) pty ltd

(respondent)

APPLICATION NO/S:

APL270-20

ORIGINATING APPLICATION NO/S:

BDL252-18

MATTER TYPE:

Appeals

DELIVERED ON:

15 March 2024

HEARING DATE:

12 April 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member D J McGill SC

ORDERS:

  1. The appeal, so far as it is on questions of law, is allowed in part.
  2. The amount ordered to be paid by the appellant to the respondent in paragraph 1 of the decision of the Tribunal of 5 August 2020 is varied to the amount of $22,173.45.
  3. The appeal, so far as it is on questions of law, is otherwise dismissed.
  4. Leave to appeal is refused.
  5. Any party seeking costs is to provide submissions in writing in support of the order sought to the associate to the Deputy President of the Tribunal, and to the other party, within twenty-eight days of the date of the decision of the Appeal Tribunal. 
  6. If such submissions are provided, the other party may provide any submissions in response in writing, to the associate and to the other party, within twenty-eight days from the receipt of the submissions from the other party. 
  7. A party may reply, in the same way, within fourteen days from the date of receipt of the submissions in response.
  8. The Appeal Tribunal will decide any question of costs on the papers pursuant to the QCAT Act s 32.
  9. The parties have liberty to apply in relation to the question of costs. 

CATCHWORDS:

BUILDING ENGINEERING AND RELATED CONTRACTS – REMEDIES FOR BREACH OF CONTRACT – POWER TO SUSPEND OR DETERMINE – Termination under contract – whether right to terminate has arisen – whether substantial breach of contract – whether repudiation – whether substantial breaches of non-essential terms – whether construction substantially completed – nature and extent of defects or omissions – adequacy of reasons – whether to grant leave to appeal – whether issue not dealt with 

Queensland Building and Construction Commission Act 1991 (Qld) s 77(3)(c)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3(b), s 4(c), s 28(2), s 28(3)(d), s 43(1), s 142

Archibald v Powlett [2017] VSCA 259

Bellgrove v Eldridge (1954) 90 CLR 613

Boncristiano v Lohmann [1998] 4 VR 82

Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57

Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 21

Edwards v Sovereign Homes (Qld) Pty Ltd [2020] QCATA 146

Hickman & Co v Roberts [1913] AC 229

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115

Maksymiuk v Savage [2015] QCA 177

Nicholls v Kline Industries International Pty Ltd [2022] QCATA 103

Qline Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2009] 2 Qd R 566

Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

Thallon Mole Group Pty Ltd v Morton [2022] QDC 224

Thallon Mole Group Pty Ltd v Morton [2023] QCA 250

APPEARANCES & REPRESENTATION:

 

Appellant:

S McNeil, instructed by Taylor David Lawyers

Respondent:

M Williams, instructed by Becker Watt Lawyers

REASONS FOR DECISION

  1. [1]
    This is an appeal and application for leave to appeal from the decision of a Member in a building case.  On 21 September 2018 the respondent commenced a proceeding in the Tribunal claiming from the appellant the amount owing as final payment under a building contract.[1]  The appellant by counter-application sought an amount for damages for breach of contract, claiming that he had validly terminated the contract.  After a hearing in October 2019, the Member on 5 August 2020 ordered the appellant to pay the amount of the final payment, less an amount for defects and an amount for late completion damages, together with interest under the contract. 
  2. [2]
    On 4 September 2020 the appellant filed in the Tribunal an application for leave to appeal or appeal.  Under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the QCAT Act”) s 142 the appellant has a right to appeal from the decision of the Member on a question of law, but requires the leave of the Tribunal to appeal on a question of fact, or of mixed fact and law.  So far as the appeal is on a question of law, it is to be decided as an appeal in the strict sense, and the powers of the Appeal Tribunal are limited.[2]  If leave is granted to appeal, the appeal is to be decided by way of rehearing: the QCAT Act s 147.  In that event, the Appeal Tribunal has to conduct a real review of the evidence before the Member, and the Member’s reasons, and to make up its own mind as to the matters in dispute, having due regard to the advantages of the Member in having presided at the hearing, particularly in relation to issues of credibility; but it is necessary for the appellant to show some error on the part of the Member.[3]  It is preferable to deal first with the matters relied on as questions of law.

Background

  1. [3]
    The appellant and the respondent on 27 April 2017 entered into a contract for the construction of a dwelling house in Brisbane using the Housing Industry Association form of contract.  There were two owners identified in the contract as parties, but only the appellant was a party to the proceeding.  The Member noted that no point was taken about this.[4]  The contract price including GST was $690,000.  The works were identified by reference to a set of architect plans, a set of engineering drawings, the respondent’s building schedule of 3 April 2017, and a BER certificate dated 24 April 2017.  Work was to commence within 30 days of finance approval, and to reach practical completion within 212 days after commencement.[5]  The Member found that the work commenced on 24 July 2017: [4]. 
  2. [4]
    It appears that the appellant first became concerned about the works at a relatively late stage in the construction, in early April 2018,[6] which led him to investigate and prepare a document listing a number of matters of concern to him, which he sent to the respondent on 1 May 2018.  There was no formal response to this, and on 27 June 2018 the appellant sent a notice to remedy substantial breaches, under the contract Clause 28.[7]  Ultimately in oral submissions this notice was not relied on, so I do not need to consider the details.  The respondent referred the dispute to the Queensland Building and Construction Commission, so it could not be relied on.[8]
  3. [5]
    On 19 July 2018 the respondent sent the appellant a notice of practical completion, claiming that that occurred on 5 July 2018.  The appellant disputed that practical completion had been reached, and on 29 July sent another notice to remedy substantial breaches.  The respondent disputed that substantial breaches existed.  On 11 August 2018, just after midnight, the appellant gave a notice purporting to terminate the contract immediately.  The following day the appellant changed the locks on the house, and the Member found that on about then he started moving personal items into it; he has subsequently lived there: [242](e). 

Decision of the Member

  1. [6]
    By the time of the hearing the parties had prepared a Scott Schedule which identified 85 items in issue, although a number were withdrawn by the appellant at the hearing, and some were agreed.  The Member identified 23 defects, some of which were covered by more than one item,[9] and allowed a total of $20,868 as rectification costs for them.  The Member found that they were not major or structural defects or substantial breaches of the building contract, considered either individually or collectively, and that the appellant was not entitled to terminate the contract under Clause 28: [237].  As well, there had been no repudiation of the contract by the respondent, entitling the appellant to terminate at common law: [220].  Although the house was liveable at the time specified in the notice of practical completion, it had not reached practical completion because the respondent had failed to comply with the provisions of Clause 25: [214]. 
  2. [7]
    The Member found that the appellant had not been entitled under the contract to take possession of the house, and that by doing so he repudiated the contract, and when this was accepted, became liable for the payment due on practical completion: [239].  The Member dealt with disputes as to some variations claimed, and found that the final claim for practical completion was $53,678.25, from which he deducted the amount allowed for rectification of defects, $20,868, and an amount of $8,550 he allowed for late completion damages, leaving an amount of $24,260.25 which the appellant was ordered to pay: [282].  The appellant was also ordered to pay interest at the rate specified in the contract, 18%, from 11 August 2018, while the respondent was ordered to deliver all keys, remote control devices, certificates and warranty/operational documents relating to the house within 30 days.  Directions were given as to submissions about costs. 

Grounds of Appeal

  1. [8]
    The appellant’s application identified 21 grounds of appeal, although grounds 8, 15 and 20 were not pursued at the hearing.  Apart from that, there was some duplication in the grounds.  For example, Ground 21 alleged (without particulars) that the Member had denied the appellant procedural fairness, but the specific allegations were to be found in Grounds 1, 5(b), and perhaps in Ground 19, although that ground is so vague and unparticularised as to be meaningless as it stands.  The same can be said for Ground 16: 

The Tribunal Member erred in his determination of the existence, extent, cost and reasonableness of the defects, omissions, contractual departures and rectification works in the Scott Schedule.

  1. [9]
    It is relevant to recognise that, for the purposes of an appeal, there is a distinction between a question of law and a question or fact, or of mixed fact and law: there is an appeal as of right in the former case, but the appellant requires leave to appeal in the latter case.  No attempt was made in this application to identify whether grounds of appeal raised questions of law or questions of fact, let alone to identify with the appropriate precision what the relevant questions of law were.[10]  Ordinarily the Appeal Tribunal will consider any questions of law raised by an appellant first, as the outcome of its consideration of those questions may well influence the question of whether or not to grant leave to appeal. 
  2. [10]
    The appellant sought to argue first Grounds 12(e), 13 and 14, which, as argued, raise a question of law, but potentially a hypothetical one:  If a builder achieves practical completion but has not yet complied with the contractual requirements for making a claim for the final payment under the contract, and the owner then purports to terminate the contract, in circumstances amounting to repudiation of the contract by the owner (by purporting to terminate without grounds under the contract or at common law) can the owner thereby avoid payment of the amount properly payable under the contract on practical completion?  That is certainly a question of law, but whether it arises depends on whether other findings, generally findings of fact, which are also challenged in the appellant’s application, are sustained. 
  3. [11]
    The Grounds of appeal include that the Tribunal erred in failing to find that the appellant validly terminated the contract (Ground 10), and in finding that the appellant breached Clause 24 of the Contract by taking possession of the house: Ground 11.  If the appellant was not entitled to terminate the contract, purporting to do so and taking possession of the house without either having paid the builder the adjusted contract price or the consent of the builder was repudiation entitling the builder to terminate: Clause 26(3)(a).[11]  Logically therefore at least Ground 10 must be resolved in order to determine if the question of law identified earlier even arises. 

Ground 10 – substantial breach

  1. [12]
    The appellant under Ground 10 challenges the finding that neither notice identified any breach of contract which amounted to a substantial breach of contract.  The term “substantial breach” is not defined in the contract.  The Member at [221] found that the defects which he had found to exist following his consideration of the issues in the Scott Schedule “are not major or structural defects or substantial breaches of the Building Contract.”  There was no discussion of the question of what amounted to a substantial breach for the purposes of the contract, but it is obvious enough from the summary of the findings about defects at [193], and the discussion of those items where defects were identified earlier in the reasons, that none of them was a major or structural defect, and that none of them was substantial. 
  2. [13]
    No close analysis of what amounts to a substantial breach is required for that purpose.  Most have amounts allowed for rectification of under $1,000, and four had amounts under $100.  The most costly rectification was for Item 10, the stacker doors, for which $5,159 was allowed on the basis that the bottom track for the doors should have been recessed into the floor so that the top of the track was level, or almost level, with that floor level.  This involved replacing the stacker doors, at the amount found.  The findings made about the stacker doors are findings of fact. 
  3. [14]
    On the basis of the factual findings, the conclusion that none of the defects amounted to a substantial breach of the contract, either individually or collectively, was really obvious.  There is nothing to suggest that there was an error of law in relation to the test for a substantial breach.   What was submitted in respect of Ground 10 (and Ground 12) was that the Tribunal erred in failing to consider and determine the issues that comprised the appellant’s claim, constituting an error of law; and erred in failing to provide reasons for determining that the appellant repudiated the building contract, constituting an error of law.[12] 
  4. [15]
    There is no substance in the latter point, as the conclusion, of repudiation by the appellant, follows necessarily and obviously from the conclusion that the appellant was not entitled to terminate the contract by his purported notice of termination, and was in breach of the contract Clause 26 by his taking possession of the house.  These were obviously repudiation of the contract, and nothing more was required by way of reasoning from the Tribunal. 
  5. [16]
    The former error was said to arise in two ways: by failing to consider, in the case of each defect found, whether that specific defect was a minor, major or structural defect.  That was not really to the point.  For the purposes of the definition of practical completion, and Clause 25, what mattered was whether or not any defects or omissions were “minor”; for the purposes of Clause 28, what mattered was whether the builder was in substantial breach of the contract.  There is however some overlap, in the sense that, if a defect is “minor”, it is difficult to see how it could also be “substantial”, at least in the absence of any provision deeming some particular breach to be substantial. 
  6. [17]
    What the Member did was go through the list of contentious defects, and in each contested case made findings about the nature and extent of any defect found.  Once that point had been reached the conclusion, that the defect was minor, was obvious, and did not require any elaboration by way of reasoning.  Reference was made, by way of an example, to the failure to provide rear patio stairs, the stairs having been removed to avoid an issue of low height clearance.  If the stairs could be removed they were not structural, and the ability to reinstate them, at a modest cost (and presumably in a way to overcome the clearance issue) showed that the defect was minor, and not a substantial breach.  Really nothing more than that was required by way of reasoning. 
  7. [18]
    I do not accept that the reasoning expressed by the Member in respect of this issue was inadequate.  Whether a defect is or is not minor, and whether a breach is or is not substantial, are essentially conclusions as a matter of judgment once the necessary findings have been made about whether there is a defect at all, and if so, about its features, and the cost of rectification of it.  Even in a marginal case there is not much required, or even possible, by way of exposition of reasoning, and these are not marginal cases.  Leaving aside the correctness of the specific findings about the matters relied on as defects in the Schedule, the conclusion that these are minor defects, and do not amount to substantial breaches of the contract, is obvious enough.  I do not consider that there was any inadequacy in the reasoning provided by the Member in this respect. 
  8. [19]
    A Member deciding an issue of this nature is not required to write a dissertation on the seriousness of breaches of building contracts.  Reasons for decisions are required,[13] but such reasons as are appropriate for a Tribunal of this nature, that deals with matters in ways which are accessible, fair, just, economical, informal and quick.[14]  Essentially what is required is a practical explanation of the reasons for which the Member reached a decision, and if an assessment is a matter of judgment, there may be little else to be said.  I do not accept that there was any error of law in terms of inadequacy of reasons in this respect. 

Payment under the contract or otherwise

  1. [20]
    The appellant advanced an argument that, because the building contract had been terminated prior to the point where the respondent had become entitled under the terms of Clause 25 of the Contract to the payment on practical completion, that amount never became payable under the Contract, and the Member erred is awarding that amount, subject to adjustment.  The appellant relied on the proposition that, even if the Contract had been repudiated by the appellant and validly terminated by the respondent, this had happened before the amount payable on practical completion was payable under the terms of Clause 25, because the specified procedural steps had not been taken by the parties prior to termination. 
  2. [21]
    Of course, if the Contract was wrongly repudiated by the appellant and terminated by the respondent, the respondent would also be entitled to damages for breach of contract, and to the extent that, in those circumstances, the appellant had not been paid already for work done under the contract, once the contract had been terminated the respondent would have had a right to a restitutionary claim in respect of work not paid for.  But the appellant submitted that the respondent had not pursued such causes of action in the proceeding in the Tribunal, and accordingly was not entitled to success on either basis, as an alternative to a claim in debt under the contract. 
  3. [22]
    Leaving aside for a moment whether the latter proposition is correct, it can be said that the former proposition is also not correct, as a matter of law.  It is a well-established principle that a party cannot insist on a condition if non-fulfilment is that party’s own fault, described as basic in contract law.[15]  An example is Hickman & Co v Roberts [1913] AC 229.  A building contract provided for the builder to be paid on the certificate of the architect in the sum certified.  After work had been done, the architect, acting at the instance of the owner, failed to issue a certificate, the builder sued, and was held entitled to recover, on the basis that the owner was precluded from relying on the absence of the architect’s certificate by his own wrongful act. 
  4. [23]
    That decision was considered by Muir J (as his Honour then was) in Qline Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2009] 2 Qd R 566.  That was a case under the unlamented Subcontractors Charges Act 1974 (Qld), so it was relevant to distinguish between an amount payable under a contract and damages for breach.  His Honour at [61] discussed Hickman (supra) and said at [60] that there was authority for the proposition that “where payment under a contract is dependent on a determination by a party to the contract, or its agent, and the determination is not made or duly made through the fault of that party, the Court may proceed to decide, as a question of fact, the amount of the payment.” 
  5. [24]
    His Honour referred to other decisions, and to what he described as the “related principle which exonerates one of two contracting parties from the performance of a contract when the performance of it is prevented and rendered impossible by the wrongful act of the other contracting party.”[16]  On the particular facts of that matter the principle was held not to be applicable.  Nevertheless, this analysis has also been referred to favourably in the Court of Appeal.[17]  In the present case, if the contract had been, as the Member found, wrongfully repudiated by the appellant, so that it was validly terminated by the respondent, and if the house was complete in a practical sense, then this principle may well have meant that the respondent had a cause of action in debt arising out of the contract.  Even if the amount was not yet payable prior to termination, it could have been made payable by further steps which could have been taken apart from the termination of the contract. 
  6. [25]
    There is however no reason why the respondent’s claim was required to be advanced only on that basis.  A party in that position is not confined to any particular cause of action, and neither was the Member.  There were no pleadings, as is usual in the Tribunal;[18] indeed the QCAT Act and the QCAT Rules make no mention of pleadings, or of such a thing as a cause of action.  In some areas of its work, the Tribunal has limited jurisdiction because of the terms of the relevant enabling Act, but the jurisdiction under the Queensland Building and Construction Commission Act 1991 (Qld) (“the Act”) is not limited in terms of what causes of action may be pursued. 
  7. [26]
    The form of application for a domestic building dispute, used by the respondent in this matter, requests in Part B some very limited information about the general nature of the dispute, and of the relief sought by an applicant, but there is no provision in the QCAT Act or Rules binding or limiting an applicant in any way to the content of the application, or to pursue the relief sought in the application on any particular legal basis.  It must be remembered that the Tribunal is expected to operate usually with parties without legal representation,[19] so it is unsurprising that there are no constraints of that nature.  To treat the ticked box “payment of an amount owing” on the fourth page of the form as a representation that the applicant was in some way confined to a claim for debt arising out of the building contract is to approach the matter in a manner completely foreign to the operation of the Tribunal.  This is not a Tribunal for taking technical pleading points; it is a Tribunal which is expected to act fairly and according to the substantial merits of the case.[20] 
  8. [27]
    It follows that the appellant had, from the terms of the Application, no legitimate expectation that the money claim brought against him was to be pursued exclusively by a cause of action in debt.  It does appear that from time to time such assertions were made by the representative of the appellant in written submissions, or during the hearing, to the evident bemusement of the Member.[21]  It did not follow that the appellant was entitled to ignore the possibility of a cause of action other than in debt, much less than that the Member was obliged to.  In any case, the application form also had a tick next to the box for “an award for damages and interest on the damages”.  No separate amount was claimed, so the obvious inference was that the claims were advanced in the alternative, although as I say I do not consider that what an applicant puts in the form confines the claim anyway. 
  9. [28]
    If for some reason the termination of the Contract by the respondent had the effect of preventing it from recovering in debt, it was also entitled to recover damages for breach of contract.  That includes compensation for non-payment for works if payment would have been recoverable but for, on this hypothesis, the wrongful repudiation of the contract by the appellant.  That would include the amount of the final payment, including amounts properly charged in respect of additional things done or provided (“variations”), less any allowable damages for defects in the work, and for delay.  That is what was allowed. 
  10. [29]
    A further alternative claim was available to the respondent, in restitution, in respect of work done for the appellant and not paid for.  Not only did the terms of the application not amount to a representation that no restitutionary claim was pursued, the respondent in a statement filed before the hearing expressly relied on restitution.[22]  That was sufficient notice to the appellant to meet such a case.[23]  I do not consider that the Member erred by saying so. 
  11. [30]
    The respondent submitted that, once the contract was terminated, all the rights under the contract merged, and in those circumstances the starting point for the adjustment of rights between the parties was the finding that practical completion of the house had been achieved.  That approach receives support from the decision of Muir DCJ, as her Honour then was, in Thallon Mole Group Pty Ltd v Morton [2022] QDC 224, another dispute arising from a building contract, where there was a finding that the owner had validly terminated the contract.  Nevertheless, when assessing damages for breach of contract in favour of the owner, her Honour deducted that part of the contract price which had not been paid (and was not held to be payable) to the builder from the claim for damages for rectification of defects and uncompleted work: [774]–[777].  A challenge to this conclusion was abandoned on appeal.[24] 
  12. [31]
    Another way of looking at it is that, once the contract is terminated, the requirements under the contract for certain steps before payment of the last progress payment go with it, and the builder, having completed the house, subject to the doctrine of substantial performance, becomes entitled to the contract price, subject to deductions for prior payments and damages for deficiencies in performance.  This is probably best characterised as an entitlement in restitution, but it can also be characterised as a basis for damages for breach of contract.  In my opinion, in the Tribunal it does not matter how it is characterised. 
  13. [32]
    So long as the finding stands that practical completion of the house had been reached, the respondent must be entitled to the balance of the contract price, otherwise the appellant will be profiting by his own wrong in repudiating the contract.  It is a well established principle that a party to a contract is not allowed to do that.  What the appellant was entitled to was the house built in accordance with the contract, in return for the contract price.  If the amount of the contract price has not been paid, damages assessed for breach of contract to cover completing the house and rectifying the defects will have to have deducted the amount of the contract price not paid: Thallon Mole (supra).  Where as here the damages are less than the unpaid part of the contract price, the balance is payable to the builder, by analogy.  That was the calculation undertaken by the Member, and however it is analysed, his approach was correct. 

Allowance of interest

  1. [33]
    Related to this was the appellant’s submission that the Member had erred in awarding interest on the final payment as adjusted under the contract.  If the respondent was entitled to recover this as a debt arising out of the contract, the respondent was entitled to interest.   Clause 8 of the contract is expressed in terms wide enough to cover an amount owing for damages as well as for debt, so the same applies if the respondent was entitled to recover damages, with interest running from the date of the appellant’s breach, 11 August 2018, so the position is the same.  By analogy, if the respondent’s right to recover is properly characterised as a restitutionary right, it is also within the interest clause, and the position is the same. 
  2. [34]
    If this is incorrect, interest may be awarded on damages under the Act s 77(3)(c).[25]  Finally, if as a result of the appellant’s repudiation of the contract the respondent lost the benefit of an entitlement to interest under Clause 8 of the contract, it would be entitled to the amount of the interest lost as damages for breach of contract.[26]  The amount payable to the appellant as damages was deducted from the amount payable to the respondent before interest was calculated: Reasons [281].  The appellant has no cause for complaint about his liability to pay interest. 

Claim for solatium

  1. [35]
    Ground 18 was that the Member erred in refusing the appellant’s claim for damages for solatium, that is to say, for mental distress, upset and inconvenience.  The Member at [242] discussed the evidence in support of the claim, which was quite limited, and after distinguishing a decision where an award was made in a building dispute,[27] rejected the claim, essentially on the basis that the evidence did not show sufficient distress or inconvenience to justify an allowance on this basis.  In written submissions, this ground of appeal was advanced only on the basis of errors referred to in Grounds 10, 11 and 16.  In substance, it was that, because the deficiencies in the house were more substantial than the Member found, the finding that the consequences were too insubstantial to justify an award of damages on this basis was not justified, and should be set aside. 
  2. [36]
    One would expect that there would be clarity on the question of whether an owner who has been in dispute with a builder can recover an award of damages of this kind, but the authorities appear to be inconsistent.  There is high authority that damages of this nature are not awarded for breach of contract except in cases where the object of the contract was to provide pleasure or enjoyment,[28] which is not the case with a building contract.  But another exception has been recognised, where the damages flow from physical inconvenience caused by the breach of contract, and this has been the basis on which a number of awards of such damages have been made in building cases. 
  3. [37]
    The issue was discussed by the Court of Appeal in Victoria in Archibald v Powlett [2017] VSCA 259 at [53]–[67], where the Court set aside an award of such damages on the basis that in that case there was no physical inconvenience to the owner, just additional trouble and work to deal with the breaches of contract.  Reference was made to an earlier decision of that Court, Boncristiano v Lohmann [1998] 4 VR 82, where the then President said at 94:

It now appears to be accepted, both in England and Australia, that awards of general damages of the type to which I have referred can be made to building owners who have suffered physical inconvenience, anxiety and distress as a result of the builders’ breach of contract, but only for the physical inconveniences and mental distress directly related to those inconveniences which have been caused by the breach of contract. 

  1. [38]
    The Court said that the relevant inconveniences were the actual disruption and physical imposition resulting from the building work not having been performed as agreed: [66].  The case illustrated the difficulty in separating a claim for inconvenience from one for distress and anxiety.  The approach in Archibald was approved in Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57 at [88], where the Court upheld the decision at trial to reject a claim for damages on this basis. 
  2. [39]
    The law as to damages of this nature was considered in some detail by the Appeal Tribunal in Edwards v Sovereign Homes (Qld) Pty Ltd [2020] QCATA 146 at [235]–[266].  A distinction was drawn between damages for physical inconvenience of the kind discussed in Archibald (supra) and a payment of the kind awarded in Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, as an alternative to rectification costs.  In Ruxley a contract to construct an in-ground swimming pool was breached by constructing it one foot six inches short of the depth specified in the contract,[29] and the owner sued for damages, seeking the cost of reconstructing the pool.  The House of Lords rejected that as unreasonable, and reinstated an award of a sum by way of compensation for loss of amenity because the pool was not as deep as sought.  That was a good deal more than the nominal damages the plaintiff was entitled to at a minimum, but only a fraction of the cost of reconstruction. 
  3. [40]
    Ruxley was applied in Coshott v Fewings Joinery Pty Ltd [1996] NSWCA 122, and was distinguished by Keane JA, with whom Williams JA agreed, in Kirkby v Coote [2006] QCA 61 at [58], noting that in that matter the respondents had not been left with a “perfectly serviceable” house which resulted only in aesthetic disappointment.  His Honour did not however suggest that the decision was in error, or that it was inconsistent with the approach in Bellgrove v Eldridge (1954) 90 CLR 613. 
  4. [41]
    In Bellgrove a house had been constructed with defective concrete foundations, and the builder argued that it nevertheless had some value, and damages should be assessed on the basis of the reduction in value; but the Court held that the measure of damages was the cost of rectification.  This was said to be the general rule in such cases, even if that required demolition and reconstruction, subject to a qualification that the work undertaken must be a reasonable course to adopt.  It was said for example that if a room was painted the wrong colour the other party was entitled to the cost of repainting; but if a building with rendered walls was built with new bricks instead of the second-hand bricks specified, “no one would doubt that … the owner would not be entitled to the cost of demolishing the walls and re-erecting them in second-hand bricks.”  The Court went on to say that the qualification did not deny “a building owner the right to demolish a structure which, though satisfactory as a structure of a particular type, is quite different in character from that called for by the contract.”  They added:

Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of dealing with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship and materials.  As to what remedial work is both “necessary” and “reasonable” in any particular case is a question of fact.

  1. [42]
    In Edwards the Tribunal referred to the decision in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 which was said to have questioned the decision in Ruxley, and to have suggested that the unreasonableness exception in Bellgrove v Eldridge applied only in exceptional circumstances.  In Tabcorp the Court, at [16], cited a passage from Radford v De Froberville [1977] 1 WLR 1262 at 1270, where Oliver J said:

If [the plaintiff] contracts for the supply of that which he thinks serves his interests – be they commercial, aesthetic or merely eccentric – then if that which is contracted for is not supplied by the other contracting party I do not see why, in principle, he should not be compensated by being provided with the cost of supplying it through someone else or in a different way, subject to the proviso, or course, that he is seeking compensation for a genuine loss and not merely using a technical breach to secure an uncovenanted profit. 

  1. [43]
    Tabcorp was not a case of a breach of a building contract, but of a breach of a lease.  The tenant of a building demolished and reconstructed the decoration of the foyer, without the consent of the owner, or even prior warning.  The foyer had been redecorated, at some expense and to the taste of the owners, not long before the lease was granted.  The issue was whether the measure of damages was the cost of reconstructing the foyer in the former distinctive style, or the diminution of value in the building as a result of the change, a much lower figure.  The Court upheld a decision in favour of the former, and it is clear from the first five paragraphs of the judgment that the facts had excited strong emotions.  It was as if the Court was seeking the highest measure of damages, as a means of punishing the tenant. 
  2. [44]
    Hence it was suggested that the intention in Bellgrove was that the “unreasonable” qualification would apply only in an extreme case, such as the example given of the superior bricks.  The court doubted the approach in Ruxley, which can be seen as inconsistent with the passage from Bellgrove I have quoted, but was content to distinguish it.  It did not overrule Bellgrove, nor did it say that the qualification in Bellgrove should be confined to a situation such as the qualification postulated in Radford. 
  3. [45]
    I wonder if it would have made a difference in Tabcorp if the tenant had reconstructed, at some expense, a very basic, old fashioned and rather tatty foyer with something modern and attractive, which had actually enhanced the value of the building.  Would the Court have awarded the cost of ripping out imported marble and timber panelling, and reinstating the tatty old decoration?  In such a case I would expect any court would have to wonder whether the qualification in Radford applied, but would it feel confident to say that that was the case, and it was not just an eccentric owner standing on his rights?  It would be much more satisfactory to resolve the question by reference to whether or not reconstruction was reasonable in the circumstances.  The owner in Tabcorp would not have been the loser if that approach had been applied, as shown by the finding at [20].[30]  It is also difficult to see why eccentric owners should be humoured. 
  4. [46]
    Recently the Court of Appeal approved the application of the Bellgrove principle, in circumstances where a builder had installed a glass pool fence in a way different from that provided in the contract, and the owner wanted the cost of rectification.[31]  The Court noted that the Court in Tabcorp had described the principle as applicable in “fairly exceptional circumstances”, and held that the trial judge was entitled to find that that situation applied.  The Court took into account that the change was made for a practical reason concerning water run-off, and evidently what was built was satisfactory as a glass pool fence: [89]. 
  5. [47]
    In Tabcorp the issue was not resolved, and it has not yet been settled by the High Court.  When it is, I hope that the reasonableness limitation from Bellgrove is retained.  To entitle a party with the benefit of a contract to insist on performance beyond the level of what is reasonable strikes me as not merely lacking in justice and fairness, but as positively unworkable in the real world. 
  6. [48]
    For present purposes, I consider that the position is that an owner can be entitled to damages for inconvenience in the limited circumstances outlined in Alexander (supra).  On the findings made by the Member, there was no entitlement to damages on that basis, and no error of law has been shown.  As to the consequences for damages if there is a departure from the requirements of the contract in circumstances which do fall within the exception where rectification would be unreasonable, if there is no reason to think that any diminution in value will have been suffered, I consider that, consistent with the approach in Edwards, damages on the Ruxley approach should not be awarded.  Strictly speaking, in those circumstances the appellant would still be entitled to nominal damages. 

Variations

  1. [49]
    Another question of law raised was said to be inadequacy of reasons in relation to the entitlement of the respondent to payment for variations.  This was advanced in conjunction with a submission that the effect of Clause 20 of the Contract, and the Act Schedule 1B ss 41–44, was that the respondent was not entitled to claim any payment for any variations, or at least any of the variations in dispute.  Clause 20 of the Contract provides a mechanism for documenting variations in the contract works, but does not say that no variation is to be paid for unless it is documented in that way.  The Act does not provide that remuneration cannot be recovered for undocumented variations, and s 44 expressly provides that a failure to comply with the statutory provisions for documentation does not make the contract unenforceable.[32] 
  2. [50]
    It is possible to formulate a contract in such terms that no amount will be payable for any additional work not otherwise encompassed by the contract unless it is documented in a particular way, but some care would be necessary in order to do this with sufficient clarity to prevent the ordinary consequence from following when someone asks a tradesman to do something, in circumstances where the natural implication is that it will be paid for.  There is nothing in Clause 20 which would be effective to exclude that.  It is always relevant to consider whether the alleged variation is not more than part of the work required under the contract anyway, but so long as that is not the case, there is nothing in the Clause, or in the Act, to the effect that the owner gets that work for free, as the builder is not entitled to charge for it.   
  3. [51]
    This was not a contract which provided for an architect or a superintendent to give directions to the builder.  The plans, engineering drawings and building schedule set out details of what was to be supplied and what work done under the contract, and obviously anything else requested was going to be extra. 
  4. [52]
    The Member approached the matter in this way, deciding whether or not the appellant had requested the additional work, and what amount was properly payable for it.  So much was clear enough from the reasons, and there was no inadequacy in the reasons.  The point made earlier, that the respondent was not confined to a claim in debt under the contract, applies here as well.  Work which was requested by the appellant had to be paid for, and there was generally no dispute about the quantum claimed. 
  5. [53]
    It was submitted for the appellant that he had never been told that things he had requested would cost more, and how much more, so that there was never any oral agreement either.[33]  But that is not how the law works.  If an owner asks a builder to do something not covered by the contract, the ordinary inference is that the builder will charge, a reasonable price if the price is not agreed.  It is incumbent on the owner to ask if it will cost more, and if so, how much, not on the builder to volunteer that it will cost more, let alone how much it will cost, if not asked. 

Level of rear deck: Ground 9

  1. [54]
    Ground 9 alleged that the Member failed to have regard to the effect of Clause 13 of the contract in relation to an issue about the height of the rear deck, relative to the floor level of the adjoining room.  One of the defects alleged by the appellant was that the design of the house called for the level of the rear deck to be the same as the level of the floor of the adjoining room, with a stacker door in the wall between the deck and the room.  This was said to have been a deliberate design feature, shown on the architect’s drawings.  Close examination of the architect’s drawings does show that the same level is marked for the floor level of the room and the floor level of the deck, although the drawings contain no specific indication to the effect that in this respect the design departs from what the respondent’s witness said was ordinary building practice, to make it more difficult for water to enter the room during storms.[34]  The respondent also noted that the engineering drawings showed a step down at this point.[35]
  2. [55]
    One matter mentioned at the hearing was that the plans made no provision for draining water from the lower tracks of the stacker doors.  Water, from storms or cleaning, falling against the closed doors will drain to the lower tracks, which have to be drained or the water may overflow into the house.  Commonly such tracks have holes on the side facing the outside for drainage, but that will not work if the outside level is the same as the inside, and some other provision for draining has to be made.  The plans made no such provision.  Given this, the absence of any specific warning on the plans and that the common practice is to have at least some step down, I find it a little surprising that the Member seems to have had some disposition to find that the deck level was to have been the same. 
  3. [56]
    Clause 13 of the contract set out a procedure which was to be followed if either party became aware of any error, ambiguity or inconsistency in or between the contract documents, which was not followed by the parties in this respect.  The effect of the clause was to establish a default order of precedence of relevant documents, but that order of precedence did not distinguish between the architect’s plans and engineering plans.  Clause 13 referred to documents in item 16 of the Schedule to the contract, but there were no documents listed in Item 16 of the Schedule; the documents defining the work to be done were listed in Item 9 of the Schedule.  Insofar as there was any ambiguity in the contract, Clause 13 provided no assistance in the resolution of it. 
  4. [57]
    I am unable to see how, in these circumstances, Clause 13 was of any relevance to the resolution of this issue.  This ground has not been made out.  There was no requirement for the Member to make specific findings about the particular matters listed in the submissions for the appellant.  The Member found that the discrepancy in the level of the deck was minor, so that it was neither a substantial breach of contract nor something inconsistent with practical completion, and that, if it was a breach of contract, the principle in Bellgrove applied and it was not reasonable to reconstruct the deck to a higher level.  Once that conclusion had been reached, which was a question of fact, it was unnecessary to make any further findings in order to resolve the issues in the proceeding.  It follows that there was no deficiency in the reasons. 

Notice to remedy substantial breach

  1. [58]
    The appellant complained that the Member had failed to deal with the matters raised in the notices to remedy substantial breaches, except to the extent that they were covered by the Scott Schedule.  As I have said, I do not need to be concerned with the first notice.  The defects were the dominant feature of the second notice, but reference was also made to a failure to complete the works within the “building period” stated in Item 10 of the Contract.  That alleged that there was a substantial breach of the contract because of that failure, not on the basis of the length of time taken beyond that period.  Expressed in this way, it was clearly not a substantial breach of the contract.  Time is not of the essence of a building contract.  There was therefore no substance to ground 2 of the second notice. 
  2. [59]
    Grounds 3 and 5 of the second notice also referred to defects, said to be also breaches of legal requirements.  These were covered by the Scott Schedule.  In the case of alleged breaches of clause 36, I doubt if this can amount to a substantial breach of the contract anyway.  The Act provides its own remedy for breach of the statutory warranties referred to in Clause 36, and they do not include termination of the contract, so I cannot see how a breach of Clause 36 can be a basis for termination of the contract under Clause 28. 
  3. [60]
    Finally, ground 4 alleged a breach of Clause 11, by a failure to provide to the appellant certificates of inspection as soon as practicable after receipt.  This is a common provision in building contracts, yet it appears to be a common practice among builders not to provide inspection certificates to owners until the end of the job.[36]  For present purposes, I consider it clear enough that a breach of this obligation is not a substantial breach of the contract for the purposes of Clause 28.  It was not alleged that relevant certificates of inspection were not obtained by the respondent, and all that was relied on was the failure to hand them over.  In the circumstances, the second notice to remedy really stands or falls on the proposition that the defects identified, either individually or collectively, amount to a substantial breach of the contract.  That was the issue examined in detail by the Member.  Once that was done, the outcome for the notice was obvious.  On the basis of the findings made by the Member as to the defects relied on, the conclusion that the appellant was not entitled to terminate the contract was correct.  Indeed, I regard it as obviously correct. 

Termination at common law

  1. [61]
    The appellant also submitted that the Member had not dealt with the question of whether the termination of the contract by the appellant could be supported at common law.  For a party to be able to terminate at common law, there must be either repudiation, breach of an essential term, or a sufficiently serious breach of an intermediate term to justify termination.  The Member certainly dealt with the issue of repudiation at [217] to [220].  As to whether there was a breach of an essential term, that depends largely on the terms of the contract.[37]  No term was identified by the appellant as an essential term which had been breached.  Clause 28 of the contract identifies three things which justify an owner giving a notice to remedy breach of covenant, but even then the builder has the opportunity to remedy the breach, and if that occurs, the owner cannot terminate the contract.  The only express right to terminate immediately is under Clause 29, dealing with insolvency.  In this context, where such detailed provision is made for termination, it is difficult to argue that any other provision of the contract by implication gave a right summarily to terminate the contract. 
  2. [62]
    The test of a sufficiently serious breach to justify termination is whether the breach is so serious as to deprive the other party of a substantial part of the benefit to be obtained under the contract.[38]  It follows from the finding that the construction of the house was substantially complete that the appellant had not been deprived of a substantial part of the benefit of the contract.  Accordingly the appellant was not entitled to terminate on this basis at common law either. 
  3. [63]
    It was submitted for the appellant that the delay in completing building the house, 171 days after the date for completion specified in the contract, was a sufficiently substantial breach of contract to justify termination at common law, on this basis.  I consider that there are two difficulties with this.  The first is that this contract contained a provision for liquidated damages for delay in Clause 32, which is supposed to be an agreed pre-estimate of the damage the owner suffers as a result of that delay.  The existence of a liquidated damages clause does not necessarily insulate a builder from a sufficiently serious delay being grounds to terminate a contract, but it is a relevant factor in deciding whether that has occurred. 
  4. [64]
    The second is that termination for delay arises in a context where the effect of the delay is continuing, and as a result the builder is not making sufficient progress in the building work.  Where, as here, the owner waits until the house has been built in practical terms, I do not consider that it is open to the owner to terminate the contract because of the delay, and as a result not to have to pay the balance of the contract price, as well as recovering liquidated damages.  In the absence of any special provision in the contract making the timely completion of the house a substantial part of the benefit to be received under the contract, the presence of the liquidated damages clause would indicate that it is not, so the test for termination at common law on this basis cannot be satisfied. 
  5. [65]
    In the light of the findings made by the Member, the appellant had no entitlement to terminate the contract at common law either.  It necessarily follows that the purported termination by the appellant was ineffective, and cannot be relied on as justifying his taking possession of the house.  That was therefore a breach of contract, and indeed an act of repudiation, which the respondent was entitled to, and did, accept. 

Credibility of appellant’s expert witness

  1. [66]
    Grounds 6 and 7 of the appeal alleged errors in the treatment of the evidence of the expert witness called by the appellant.  It was said that the Member had expressed a negative early view of the witness, before all of the written material had been considered.  There was one point during the hearing, when the Member was encouraging the parties to resolve the dispute by negotiation if they could, that he said that, without having made a final decision, the appellant certainly had some issues but there were some where it was going to be difficult to make findings in his favour.[39]  A little later he said of the appellant’s expert witness, that he was “very disappointed in” that expert’s views.[40] 
  2. [67]
    That was not an early view; it was said after most of the hearing had occurred, after the two expert witnesses had given evidence together and been cross-examined, and after there had been most of the other oral evidence.  The Member would also have had the opportunity to refer to a good deal of the written material during that process, even though, as he said, he had not had the opportunity to read through all of the (very extensive) written material before starting the hearing.  He was in a position to have formed the opinion that he expressed in his reasons, that both of the experts had acted as advocates for their clients, a factor which was probably obvious enough from the extreme divergence in their opinions.  In a context where the Member was encouraging the parties to be realistic about settlement, his comments, which were clearly preliminary views only, were not inappropriate, and did not involve any prejudgment of the issues. 
  3. [68]
    There was no inadequacy in the reasons given about the appellant’s expert.  That an expert witness is acting as an advocate for a particular party is essentially a matter of impression, and the Member would have been in a good position to assess that.  The appellant also submitted that the Member had failed to acknowledge and respond to his submissions attacking the evidence of the respondent’s expert.  It is not necessary for the reasons for decision to address every piece of evidence, and every argument which is advanced.  The Member also regarded that expert as acting as an advocate, and in those circumstances the Member was under no obligation to respond to further submissions attacking that witness.  The weight that the appellant’s witness deserved had nothing to do with the weight the respondent’s witness deserved. 
  4. [69]
    Having read the transcript and his reports, my impression, so far as I could form one, was that the finding about the appellant’s witness was justified.  For example, at p 1-147 he was evasive about whether it was normal practice just to overlap sarking, when he had said it should also be taped.[41]  In his report about the wall sarking he said that vapour permeable membrane was required to satisfy the BCA P2.2.2 and P2.2.3 including 3.12.1.1 and 3.12.3.5, but it is clear to me from my examination of those provisions that they do not require any such thing.[42]  When speaking about the sarking being inadequate in terms of vapour penetration, he spoke as if this was a requirement of the BCA,[43] when that was not the case.  I take a dim view of that sort of thing. 
  5. [70]
    He characterised Items 58 and 59 as defects, with the heads of doors not aligned with the heads of adjacent windows, when in fact both had been constructed strictly in accordance with the dimensions given in the drawings in the contract,[44] so they were not defects at all.  Something does not become a defect simply because he thought it should have been done differently.  There were a number of items on the Scott Schedule which the expert had supported as defects or incomplete work, which were abandoned during the hearing.[45]  It was clear from the Member’s comments that he knew the expert witness as an expert.[46]
  6. [71]
    Faced with considerable divergence in the opinions of two unimpressive witnesses, the Member certainly had a difficult task in resolving the conflicts, but he still had to do his best.  No doubt that often meant falling back on common sense.  My impression is that the Member’s reasons explain how each factual matter was resolved by him.  That is what reasons are supposed to do, and is all that is necessary.  There is no substance in Grounds 6 and 7. 

Loadings on damages for defects

  1. [72]
    Ground 17 complained that the Member had failed to allow for the loadings that the appellant’s expert had added to cost estimates in respects of the defects or incomplete work.  The Member at [225] disallowed this loading, on the ground that many of these matters could have been rectified by the respondent, at no or little cost, if the appellant had not purported to terminate the contract and taken possession of the house.  As well, on occasions during the hearing when the experts differed on rectification costs, the Member arrived at a figure, and said that he would not allow any loading.  In those situations, and probably in others as well when he adopted a figure between those of the experts, he was in substance making a finding as to the cost of fixing the defect or supplying the omission, that is, what the appellant would have to pay to fix it. 
  2. [73]
    The loadings were contentious between the experts, and the resolution of this issue was a matter for the Member.  The process was perhaps to some extent associated with the fact that, on the approach of the appellant’s expert, rectification was a significant building project, whereas on the approach of the respondent’s expert it was a relatively minor exercise. 
  3. [74]
    There is also the consideration that the appellant was under a duty to mitigate his damages.  If the respondent was willing to fix any of the defects without charge, it seems to me that this was a factor relevant to the assessment of damages.  It seems clear enough that the appellant would not allow any rectification work by the respondent, but apart from that it does not appear that this issue received much consideration at the hearing.  I expect this reasoning lies behind what the Member said at [225].  In any event, any error here was an error of fact, and leave is required. 
  4. [75]
    The reasons at [225] however make no reference to GST.  Both experts made an allowance for GST on their cost estimates, and if the figures provided by the experts were provided on a basis that did not include GST, it was appropriate to add GST to whatever amount was allowed for rectification and completion.  It appears that all of the discussion of costs in the course of the evidence of the experts at the hearing was on the basis of amounts not including GST, and on the face of it an allowance for GST should have been added to whatever total was allowed as damages by the Member.  That was not done, and no explanation for not doing it was included in the reasons.  It appears as if the Member overlooked this point. 
  5. [76]
    The failure to deal with the question of GST can be characterised as an error of law.  The appropriate way to deal with it is simply to add the appropriate allowance for GST to the amount allowed for rectification of defects or incomplete work.  Before assessing the effect of this on the decision of the Member, it is necessary to consider whether leave to appeal on any question of fact, or of mixed fact and law, should be given.  There are no other questions of law to be considered. 

Questions of fact, or of mixed fact and law

  1. [77]
    It is apparent therefore that, in substance, the matters the appellant seeks to ventilate on this appeal are essentially matters of fact, or of mixed fact and law.  For that the appellant requires leave to appeal.  The discretion to grant leave is on its face unfettered, but it will usually be granted only where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice caused by that error, or there is a question of general importance upon which a decision of the Appeal Tribunal would be to the public advantage.[47]
  2. [78]
    The most significant defect alleged by the appellant, in terms of the cost of rectification asserted by his expert witness, was that the sarking on the external walls was unsuitable, and required removal and replacing, which would require also the removal and replacement of the wall cladding boards which had been installed over it: Item 1 on the Scott Schedule.  The appellant’s expert based this on the requirement of the manufacturer of the boards (which were not timber boards, but functioned like weatherboards) that its particular “weather barrier” be installed under the boards, or that any alternative product must be capable of satisfying the standards as a high water barrier, and a low or medium vapour barrier.  He said that the sarking used (which was not that specified in the contract schedule) was not shown to be a low or medium vapour barrier, described as a “vapour permeable membrane”, and that in the case of most of it, it was a type used for thermal requirements only.  He referred to certain provisions of the Act, and said that the existing sarking had to be replaced with a compliant vapour permeable membrane to comply with the requirements of the BCA P2.2.2 and P2.2.3 including 3.12.1.1 and 3.12.3.5.  He said this was a major defect and a structural defect, and if not done the structural framing would be subject to mould and rot during the life of the building. 
  3. [79]
    This evidence is most significant for what it does not say.  In particular, it says nothing about the properties of the sarking specified in the contract.  A failure to provide that sarking was a breach of contract, but the relevant question is, what needs to be done to put the appellant in the same position as if the contract had been performed, that is, as if the specified sarking had been provided.  The appellant’s expert said nothing about that;[48] his evidence was to the effect that the sarking provided should have been that recommended by the manufacturer of the wallboards, although he did not identify any contractual or regulatory requirement for that to be provided.[49]  It is not a requirement under the BCA, because the applicable provision of the BCA does not require any sarking under this type of wallboard, for the purposes of waterproofing: 3.5.3.2.[50]  I was referred during submissions to a figure in the BCA, Figure 3.5.3.2, which showed vapour permeable sarking beneath wallboards, but this applies to vertical or diagonal profiled timber boards: see 3.5.3.2(b)(iii). 
  4. [80]
    The criticism of the sarking used was that it was not vapour permeable, and was for thermal insulation only.  He did not say that it was not suitable for thermal insulation, and the house has apparently been certified by an appropriate person as having adequate insulation.  There was no criticism of the sarking for its waterproofing properties (leaving aside for the present issues of defective insulation) and there is no evidence that it is not as effective as, or possibly more effective than, the sarking required by the contract.  The appellant is not entitled to recover as damages for breach of contract the cost of installing what his expert regards as more appropriate sarking than that provided for by the contract. 
  5. [81]
    Even if some general statement in the contract, about the house being properly built, could be the basis for an argument that there was an obligation to use this superior type of sarking, that could not stand in the face of a specific provision in the schedule, setting out the specifications of the house to be built, of a particular type of sarking.[51]  To be fair, this issue also escaped the respondent and its expert witness, and there was no evidence from them either about the properties of the specified sarking.  But the appellant carried the onus of showing a substantial breach of contract, or a breach other than minor in relation to practical completion, and this evidence did not discharge that onus.   
  6. [82]
    Item 2 was that the sarking was also defective in that the joins were not taped.  I have already mentioned this matter, and pointed out that the appellant’s expert was not correct when he said that the BCA required this.  There was in fact no requirement for this sarking to be both overlapped and taped.  There is no justification for leave in relation to this Item.  Item 3 was critical of the installation of the roof sarking, and again there was a conflict in the evidence of the experts.  The Member preferred the evidence of the respondent’s expert – [49] – but allowed a sum four times the amount that expert had suggested for taping up some penetrations in the sarking shown on photographs.  No good reason to grant leave to appeal in relation to this issue has been shown. 
  7. [83]
    Item 4 alleged gaps in the wallboards exceeding acceptable tolerances.  Again this reflected a disagreement between the experts.  The appellant’s expert conceded that the vertical joins were acceptable – p 163 – but said that there were gaps in horizontal laps.  The respondent’s expert said that these could be rectified by filling and painting – p 164 – and that the amount allowed by the Member would “well and truly cover” the cost of the work involved.  There is no reason to think that if I gave leave to appeal I would resolve this conflict differently, and no ground for leave has been shown. 
  8. [84]
    The next challenge was to the outcome concerning Items 10, 11 and 25, which the Member dealt with together.  These deal with at least four separate matters, since Item 10 covers complaints about the level of both the rear deck, and the track for the stacker doors opening onto it.  I have already said something about this, in relation to the adequate of the Member’s reasons about these items.  The Member allowed for the replacement of the stacker doors, so as to enable the lower track to be set in to the floor, to avoid creating a ridge at the entrance, but did not allow for changing the deck floor levels, on the basis of the application of the principle in Bellgrove (supra). 
  9. [85]
    The simplest way to deal with this issue is to say that, if I had to decide whether there had been a breach of contract on the part of the respondent in not building the decks at the same height as the adjacent inside floor, I would decide that there was no breach.  In circumstances where it is common building practice for there to be at least a small step down onto an outside deck, where the drawings did not state or indicate clearly that that practice was not to be followed on this occasion, and did not provide any mechanism to drain the lower track of the stacker doors, and where there was a good practical reason for the existence of a step down – to prevent the entry of water, from storms or cleaning[52] – I consider that the preferable interpretation of the drawings is that the deck was to be built close to the level of the inside floor, but with some step down.  Giving leave to appeal on this issue would not assist the appellant. 
  10. [86]
    The appellant sought to challenge the finding on Item 16, where $1,216 was claimed and $450 was allowed, based on the estimation of the appellant’s expert of the cost of rectifying the particular (aesthetic) defect that the Member found to exist.  This is not the sort of issue justifying leave to appeal.  The appellant submitted that the Member had misunderstood the evidence of the appellant’s expert in regarding the issue as of aesthetic importance only.[53]  The appellant’s expert was quite clear in his evidence that timber packers were not suitable in such a situation: p 2-62, 63; AB 1874, 5.  The respondent’s expert disagreed. 
  11. [87]
    The appellant’s expert relied on Australian Standard AS1684.2 at 4.2.2.1, AB 2134, which says relevantly: “Packing of joints having minor deficiencies in depth may be utilised, provided the packing is fixed, and is of corrosion-resistant and incompressible material over the full area of contact.”  It does not say expressly that timber packing is not to be used, and it strikes me as odd if timber was regarded as compressible and hence unacceptable as a medium for packing a timber joist.  There is no point in my giving leave to appeal to reconsider this point, as I would also prefer the evidence of the respondent’s expert,[54] and conclude as the Member did that this was only an aesthetic issue. 
  12. [88]
    Item 21 complained that the bearer supporting the front deck was a smaller size than that specified in the engineering drawings.  There was no dispute that there was a departure from the engineering drawings, but the bearer used was regarded by the engineer as structurally adequate.[55]  The Member applied the principle in Bellgrove, and did not allow any damages.  If the bearer is structurally adequate there is no structural defect, and I consider that it was open to the Member to apply the Bellgrove principle.  The appellant submitted that the Member had not provided reasons for the conclusion, but the reasoning is obvious.  It is a perfectly satisfactory deck functionally and visually, and requiring the bearer to be replaced is the equivalent of demolishing a wall of new bricks to rebuild it with second-hand bricks.   No ground for leave to appeal has been shown. 
  13. [89]
    Item 26, tannin staining from deck timbers, was the subject of conflicting evidence between the experts, which the Member resolved in favour of the respondent.  This again involved a conflict of evidence between the experts, and the submissions for the appellant were essentially that the evidence of the appellant’s expert should have been preferred, and that the Member had not referred to it, and to the supporting material as to building practice.  Again, this is essentially just a conflict of expert evidence as to how a problem should be fixed, which the Member has resolved one way.  The experts agreed that it would only be a temporary problem,[56] and in such circumstances spending over $7,000 to rebuild the deck can be seen as an unnecessary expense.  It was not necessary for the Member to refer to all the relevant evidence.  Given my general view of the appellant’s expert, there would be no point in my reconsidering this.  No good reason to interfere, or to grant leave to appeal, has been shown. 
  14. [90]
    Items 53 to 55 were described in the Appeal Defects Schedule as minor and maintenance repairs.  The Member said that Item 54 had already been covered by Items 50 and 52, resolved in favour of the appellant, and, confronted with an intractable conflict between the experts as to the cost of rectification, found an intermediate figure, albeit one much closer to the estimate of the respondent’s expert.  Again, there was a conflict of expert evidence, essentially as to what is required to rectify minor painting defects in the house.  As I interpret the transcript at p 2-126, 7, AB 1937, 8, the appellant’s expert conceded that it would cost less if all the painting were done as one job, and that may have influenced the Member.  In any case, the Member had to do something, and his approach was reasonable.[57] 
  15. [91]
    One unusual feature of these items, or more precisely Item 55, for that was the Item under which the Member made the allowance, was that during the hearing he said he would allow $1,000 for this item – p 2-127, AB 1938 – but in his reasons he allowed $800: [126], AB 25.  I expect that the figure given during the hearing was just a preliminary view, and that changed before the decision was delivered.[58]  In any case, given the amount of the difference, there is no ground for giving leave to appeal for this.  I should add that I do not read the Member’s reasons as meaning that he was intending to “split the difference” between the estimates of the experts, but rather just to adopt an intermediate position.  Again, there is no basis for leave. 
  16. [92]
    Item 75 concerned the construction of the driveway between the garage and the road.  The complaint was that this did not follow the driveway shown on the drawing, but there was evidence which the Member accepted that the drawing was indicative only, and such driveways are always constructed to suit the conditions of the site.  The road which the land abutted was on a slope, and the driveway would have to cope with the transition between the flat garage floor and the sloping property alignment, and the need to avoid disturbing the various services buried under the footpath.[59] 
  17. [93]
    There was a meeting on the site between the appellant, the builder and the concreter who was subcontracted to construct the driveway.  The concreter explained to the appellant what he proposed, and said he could look at the boxing for the driveway the next day, before the concrete was poured, to see if he was happy with it.  In the event he did not see the appellant again, and the builder told him to go ahead.  The Member found at [168] that the appellant had agreed to what was proposed for the driveway, a finding involving the credibility of the witnesses, and one which I would be unlikely to overturn.  The Member did not accept the criticisms put forward by the appellant’s expert of the driveway as constructed, in circumstances where there were no tests or proper surveys made by him to support the criticisms, a plausible enough justification. 
  18. [94]
    It was submitted that the Member erred in saying that the concreter’s evidence supported that of the respondent: [168].  It is true that the concreter’s evidence was that it was the respondent who gave him the go ahead rather than the appellant: p 1-110.  However, it is unlikely that that would have occurred has the appellant objected to what was proposed, and in context the fact that the concreter was told to proceed supported the proposition that the appellant agreed to, rather than rejected, what was proposed.  The appellant in evidence at p 2-231, 2, AB 2042, 3 was very evasive about whether he did agree to the proposed change to the driveway, but it seems to me that at p 2-231 line 47 he accepted that he did take the advice he was offered.  He certainly did not give evidence that he then rejected the advice he was given, and insisted on the driveway being constructed in accordance with the outline on the drawings.  That supports the comment at [163] that the appellant agreed to something.  I see no reason to reconsider the Member’s finding on this Item. 
  19. [95]
    Item 76 was that, as a result of the relocation of the driveway closer to the front entry, the slope of the section of footpath between the driveway and the entry was too steep, and unsafe.  This is illustrated in the third report of the appellant’s expert,[60] which shows the cut footpath in a raw state.  The appellant’s expert, in the Scott Schedule, described his solution to this and Item 75 as replacing the entire driveway, acknowledging that it was “an extreme measure.”  The respondent’s expert said that the problem could be overcome by landscaping, which looks obviously correct to me.  The Member rejected Items 75 and 76 by the application of Bellgrove, and there is no point in my giving leave to appeal to reconsider that decision.  
  20. [96]
    A complication arose with the construction of the path from the footpath to the front entry, when it was found that, to avoid a conflict with the foundations of a retaining wall which had been built previously by the neighbour on that side, it was necessary to change the level of the path to some extent.  In the end, as constructed it was found by the Member to be unsafe, and he made an allowance for its reconstruction under Items 79 and 80.  The Member accepted the estimates for the work provided by the appellant’s expert, but made a deduction for the cost of replacement tiles, on the basis that the tiles were laid on the defective path by the appellant after he had taken possession of the house, and so the cost of replacing the tiles should not fall on the respondent.  He noted that this issue had not been raised during the hearing, or addressed in the documents, but allowed what he described as an arbitrary figure: [190]. 
  21. [97]
    The appellant complained that he had been given no opportunity to make submissions about this issue, or to provide any evidence about the cost of the tiling, and that the reduction made by the Member was arbitrary.  That is true, and I expect that the problem here is that everyone was rushing to get through the evidence in the two days available, and it was only later when the Member went through the material in detail that he realised that there was this question about the tiling.  The written submissions of the appellant do not dispute the factual foundation, that the appellant had laid tiles over the defective path and stairs after taking possession of the site, or the logic of making an allowance for the cost of the tiling, just the quantification of that amount. 
  22. [98]
    In oral submissions however the issue appeared to be clarified, as arising because of the different positions under Items 79 and 80.  The appellant submitted that the landing and stairs covered by Item 79 had been built and tiled by the respondent, so an allowance for tiling was made by the appellant’s expert in Item 79 in the Scott Schedule.  In the case of the front path, the tiles had been supplied by the appellant, and laid only after the front path had been rectified, and no allowance for tiling had been included by the appellant’s expert in the Scott Schedule for Item 80.  On this basis it was submitted that the deduction was not justified, and the amount allowed for these two items should be increased by $800. 
  23. [99]
    It was not correct to say that the issue was not raised before the Tribunal.  The respondent in written submissions to the Tribunal dated 15 November 2019 drew attention to the patio and steps finish in the specifications in the contract, which said “plain concrete to suit tiling.”[61]  On this basis it was submitted that the front entry concrete path steps were constructed in plain concrete, and had been tiled later by the appellant.  The appellant made further written submissions below, on 2 December 2019 and 29 April 2020, but only the former made reference to Item 80, at AB 1541, 2, and there the appellant admitted that he decided to have the entry steps tiled but added “and have the non-compliant riser height rectified at the same time does not negate the builder’s obligation … .”
  24. [100]
    The issue in Item 79 is that the two steps between the path and the landing produce three risers, which are of inconsistent heights, which the Member found was unsafe.[62]  This is illustrated by the expert’s photographs, which also demonstrate that the appellant had had the steps tiled before the inconsistent risers were rectified.  His statement in the submissions of 2 December 2019, which he signed personally, was therefore not true.  So the issue was raised by the respondent, and the appellant gave an incorrect response.  He did not refer the Tribunal to any evidence about the relevant quantum, I suspect because there was none.  There was no breach of natural justice. 
  25. [101]
    I might add that the drawings for the house, also part of the contract, show on p 3 AB 70.256 the area outside the front door, the area described by the appellant’s expert as a landing, as “Portico”, and it is marked “waterproofed and tiled”.  The area behind the ground floor, under the rear deck, is marked “Patio”, and also shown as tiled.  The part of the Schedule quoted by the respondent’s submissions was from the section for “concreting”.  The section for “floor and wall tiling” on AB 70.237 includes as Part (g) “External Tiling – Portico (2.5 m x 2.5 m)” with tiles “throughout”, with a PC allowance in the contract for the tiles.  Schedule 3 AB 70.199 does include a PC item for all floor and wall tiles. 
  26. [102]
    The position seems to be, therefore, that the contract provided for tiling the Portico, but not the steps down from it; there is no reference to steps in the tiling schedule.  The steps as constructed by the respondent were defective because of inconsistent risers, as found by the Member, but before then the appellant had had tiles laid over them, as shown in the photographs, and effectively as he admitted.  Assuming that by doing so he did not waive his right to complain of this defect, he is certainly not entitled to any increased cost of rectification due to the need to remove his tiles, or the cost of replacing tiles over the rectified steps, both of which appear to be included in the estimate of his expert in Item 79 in the Scott Schedule. 
  27. [103]
    In the absence of evidence as to the extent to which the expert’s estimate has been inflated because of the tiles, the Member effectively had a choice between making an arbitrary reduction in the estimate, and disallowing Item 79 altogether, because the appellant had not proved quantum.  He chose the approach more favourable to the appellant, and there is certainly no justification in my granting leave to appeal just to reconsider the size of that reduction. 
  28. [104]
    Certainly none of this was raised in evidence, particularly with the appellant’s expert in cross-examination.  That was really the product of the way in which the hearing was conducted.  But given that the amount involved is only $800 I have no intention of sending the matter back to the Tribunal for the reconsideration of Item 79 at a further hearing, with proper cross-examination of all relevant witnesses. 

Conduct of the hearing

  1. [105]
    It was not surprising that this issue was not raised during the hearing.  The hearing was ostensibly set down for only one day;[63] in the event it occupied most of two days, even with the Member sitting late on both days, and starting early on the second.[64]  Even then, it often seemed to be rather rushed, particularly during the period when the two experts were giving their evidence.  That was done pursuant to a direction made by someone else some time earlier.  I have never favoured the idea of taking the evidence of two experts together, and reading the transcript of what happened in this hearing did nothing to endear me to the process.[65] 
  2. [106]
    The structure adopted seemed to be that the items in the Scott Schedule which were in dispute, basically all of them except for the ones which were withdrawn, were worked through one, or more if they appeared to be related, at a time, by essentially an inquisitorial process, with it seems limited cross-examination by either party of the other party’s witness.  The Member asked questions, but largely in an apparent attempt to find out just what the issue was in each instance, and to ensure he understood the position of each witness.  This would have been more difficult for him because he had not had access to the mountain of material filed in the proceeding prior to the first day of the hearing.[66] 
  3. [107]
    It also appears from the transcript that the process accelerated as it went on, and for some items not much attention was paid during the hearing to whatever issues the item raised.  This seems to have come from a desire on the part of all involved to ensure that the hearing finished in the two days available.  I do not recall an instance where the Member did not allow the representative of a party to ask questions, although on occasions the representative was asked to wait and ask any questions later.  In view of this, and bearing in mind that there was no general complaint about the conduct of the hearing from the appellant, and the statutory requirement for efficiency and informality in the Tribunal,[67] I will not consider giving leave to appeal because of this; but I cannot help wondering if this matter would have been dealt with better if four or five days had been allocated to it, and if the experts had given evidence separately, and been cross-examined conventionally by the representatives of the parties. 

Further issues about leave

  1. [108]
    The schedule of items challenged on appeal also referred to Items 81–85, which sought that the respondent hand over to the appellant keys, remote control units, warranty documents and operation manuals for items supplied by the respondent.  This appears to have been covered, favourably to the appellant, by paragraph 3 of the Member’s decision.  The argument advanced in relation to Items 81–84[68] does not make sense in view of this. 
  2. [109]
    Those submissions also referred to Item 45, the cost of installing a range hood, which the Member rejected on the basis that the range hood was to be supplied by the appellant, and that had not occurred before the contract was terminated: [112].  The contractual obligation to install a range hood could not arise until the range hood had been supplied by the appellant, and if that had not happened by the time the contract was terminated, there was no prior breach of contract about this by the respondent.  The argument advanced by the appellant depended on the findings, that the appellant had not validly terminated the contract, and had breached the contract by taking possession, being overturned.  As will appear further below, neither of these findings will be overturned, so this item falls away. 
  3. [110]
    The written submissions also referred to Item 12, a complaint that the stairs, constructed to link the back yard and the area on the ground floor behind the house, had insufficient head height clearance, where the only issue at the hearing was quantum, and the Member allowed an amount between the estimates of the two experts: [85].  The complaint on appeal was that the Member had not referred to some submissions by the appellant, essentially that the proposal by the respondent’s expert involved lowering the height of the top of the wall to which the stairs climbed, since the pinch point was at the edge of that wall.[69]  This was said to change the design, and to interfere with something already certified by the engineer.[70]  But the appellant’s expert proposed a more extensive alteration of the area behind the house, to which the same objections could be raised.  The proposal of the respondent’s expert is obviously simpler and less disruptive. 
  4. [111]
    The issue is complicated because it appears that what was ultimately built was different from the design in the contract anyway.[71]  From a comment of the respondent’s expert at the hearing it appears that by then the experts had agreed on the solution proposed by the respondent’s expert.[72]  It may be that the Member did not come to grips with the fact that initially the experts were proposing different solutions,[73] not just different estimates for the same solution, but the situation had since changed.  It would not assist the appellant for me to reconsider this point, as I would adopt the solution proposed by the respondent’s expert, and reduce the award.  

Practical completion

  1. [112]
    It follows that there is no basis to grant leave to appeal based on the reconsideration of any of the decisions on specific defects relied on by the appellant.  It is convenient then to consider whether leave should be given to reconsider the decision that practical completion had been achieved in a practical sense, that is, without considering the requirements of the contract as to notices.  The Member dealt with this issue at [31]–[35] and at [195]–[216].  I will not reconsider the matters decided by the Member in relation to specific defects, and the findings will be modified only to the extent of adding an allowance for GST. 
  2. [113]
    Apart from the evidence of the respondent and its expert, there was also evidence of an inspection by a firm of building inspectors which certified that the house had achieved practical completion,[74] the house received the final certificate once the short stairs from the area outside the ground floor to the top of the low retaining wall had been removed – [208](f) – and when the house was inspected by the QBCC in response to the complaint of the appellant, the Commission did not require the respondent to carry out any rectification work: [34].  The Member applied the definition of practical completion in the contract, and it was not alleged that he had applied the wrong legal test.  The appellant’s argument challenging this finding really turned on my accepting the existence of additional defects, or taking a different view as to what it was appropriate to do by way of rectification.  In the circumstances I am not persuaded to give leave to appeal to reconsider the finding on this issue.  

Other questions of fact

  1. [114]
    It was argued as part of Ground 3 in the Appeal that there was no evidence of any agreement to support the claims for variations in dispute, on the basis that there was no evidence that the appellant had been told of any additional costs to be incurred as a result of the change.[75]  As I have said earlier, that is not the correct approach to the issue of whether additional building work has to be paid for.  I have dealt with the legal issues arising from the Ground of appeal dealing with the variations earlier.  In the circumstances, there is no good reason shown for giving leave to appeal to reconsider any questions of fact or mixed law and fact concerning the variations. 
  2. [115]
    The appellant has had some success on Ground 17, in relation to GST.  Otherwise, the matter raised is a question of fact.  Again, this was essentially a conflict between experts, where the Member preferred the evidence of the respondent’s expert, and also took into account a consideration of failure to mitigate on the part of the appellant.  In the circumstances I do not consider that leave to appeal on this issue is justified. 
  3. [116]
    Overall therefore the appellant has failed to show that there is justification for the grant of leave to appeal.  I have considered the issues on which leave to appeal was sought separately, but there is a common theme running through most of them, that the Member erred in not accepting all the evidence of the appellant’s expert.  Conflicts of evidence are not readily reconsidered on appeal unless there is good reason to think that the approach to the resolution of them has been erroneous, and that has not been shown.  On the contrary, I consider that the Member acted appropriately in being wary of the evidence of the appellant’s expert.  Apart from this, a lot of the individual matters raised were relatively trivial, so that they do not risk a substantial miscarriage of justice.  Leave to appeal is not to be granted to enable an Appeal Tribunal to tinker with a decision of the Tribunal.  The imposition by the legislature of a requirement for leave to appeal indicates that ordinarily the parties will have their day in the Tribunal, and that is it.  It is open to the appeal Tribunal to grant leave to appeal generally, or limited to particular questions of fact or mixed fact and law.[76]  Whether considered individually or collectively however, the submissions of the appellant do not justify the grant of leave on either basis in this matter.  Leave to appeal will be refused. 
  4. [117]
    Ground 13, dealing with the calculation by the Member of the amount payable, is a question of fact.  There will be some adjustment to this amount as a result of the partial success of the appellant on Ground 17, but otherwise on the approach I have adopted there is no reason to reconsider this calculation.  The Member at [193] listed the amounts he allowed for the specific Items of defective or incomplete work on which the appellant succeeded in whole or in part, which totalled $20,868.  For the reasons I have given earlier, GST should have been added to this figure, in the sum of $2,086.80, to give $22,954.80.  It is this figure, together with the amount allowed for late completion damages of $8,550, which is to be deducted from the amount of the unpaid balance of the contract price plus the allowance for variations, $53,678.25: [277].  Deducting those two amounts produces a balance payable to the respondent of $22,173.45.  This amount should be substituted for the amount of $24,260.25 in the decision of the Member. 
  5. [118]
    The decision of the Appeal Tribunal is therefor as follows:
  1. The appeal, so far as it is on questions of law, is allowed in part.
  2. The amount ordered to be paid by the appellant to the respondent in paragraph 1 of the decision of the Tribunal of 5 August 2020 is varied to the amount of $22,173.45.
  3. The appeal, so far as it is on questions of law, is otherwise dismissed.
  4. Leave to appeal is refused.
  5. Any party seeking costs is to provide submissions in writing in support of the order sought to the associate to the Deputy President of the Tribunal, and to the other party, within twenty-eight days of the date of the decision of the Appeal Tribunal. 
  6. If such submissions are provided, the other party may provide any submissions in response in writing, to the associate and to the other party, within twenty-eight days from the receipt of the submissions from the other party. 
  7. A party may reply, in the same way, within fourteen days from the date of receipt of the submissions in response.
  8. The Appeal Tribunal will decide any question of costs on the papers pursuant to the QCAT Act s 32.
  9. The parties have liberty to apply in relation to the question of costs. 

Footnotes

[1]  I shall refer to Mr Boys as the appellant and Imperial Homes (Qld) Pty Ltd as the respondent. 

[2]  The QCAT Act s 146; Pivovarova v Michelsen (2019) 2 QR 508 at [9]. 

[3] Allen v Queensland Building and Construction Commission [2024] QCA 24 at [113].  For a fuller exposition of a rehearing, see Doerr v Gardiner [2023] QCA 160 at [65]–[70]. 

[4]  Reasons [14].  See the Contract Clause 38.5, AB 70.227.  I shall for convenience refer to appeal book pages as “AB (page number)”. 

[5]  Schedule 1 Item 13, AB 70.194.

[6]  Statement of appellant 8 April 2019 para 22, AB 80.

[7]  AB 239. 

[8]  Statement of Miller 8 April 2019 para 42, AB 363; annexure NM07, AB 572.  See Contract Clause 28.5; AB 70.222. 

[9]  Overall, some allowance was made for 40 items. 

[10]Maksymiuk v Savage [2015] QCA 177 at [5]. 

[11]  Treating the contract as being at an end and excluding the builder from the site is repudiation at common law:  Qline Interiors Pty Ltd v Jezer Construction Group Pty Ltd [2009] 2 Qd R 566 at [29], [30]. 

[12]  Appellant’s outline of submissions para 160. 

[13]  The QCAT Act s 28, s 122.  See generally Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at [57]–[65]. 

[14]  The QCAT Act s 3(b).  See Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 at 485. 

[15] Butcher v Port (1985) 3 ANZ Insurance Cases 60-638 at 78,927, 8 per Cooke J. 

[16]  At [62], quoting from Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd [1947] AC 428 at 436.  He also discussed Edwards v Aberayron Mutual Ship Insurance Society (1876) 1 QBD 563; and Butcher v Port (supra). 

[17] Multiplex Constructions Pty Ltd v Abigroup Contractors Pty Ltd [2005] QCA 61 at [44]–[45].  See also McArthur v Mercantile Mutual Life Insurance Co Ltd [2001] QCA 317 at [63]–[72]. 

[18]  There were directions on 11 February 2019 for filing and serving statements of evidence, and a Scott Schedule, and on 17 September 2019 for a joint statement of agreed facts and issues for determination, which does not appear to have been filed.  On 27 September 2019 there were directions for the parties to file the terms of the orders sought, including the amount and the basis on which it was claimed, but this appears to have been covered by the written submissions filed on 2 October 2019.  Nothing was said which limited the claim to a particular cause of action. 

[19]  The QCAT Act s 43(1). 

[20]  The QCAT Act s 28(2).  See also s 3(b); s 4(c); s 28(3)(d). 

[21]  For example, transcript p 1-89. 

[22]  Statement of Miller 4 June 2019 para 221–230. 

[23]  If the appellant did not do so, that was his own fault, or the fault of his lawyers. 

[24]  [2023] QCA 250 at [77].  The appeal and cross-appeal were both dismissed. 

[25]  The effect of the Building and Construction Commission Regulation 2018 s 54 is that the interest is payable at the rate provided in the contract Clause 8. 

[26]  Under the approach in Hungerfords v Walker (1989) 171 CLR 125. 

[27]Williams v Stone Homes Pty Ltd [2014] QDC 64. 

[28] Baltic Shipping Co v Dillon (1993) 176 CLR 344. 

[29]  6 feet, rather than 7 feet 6 inches.  Said to be “perfectly serviceable” as a swimming pool.

[30]  The passage from Tabcorp at [19] relied on in written submissions in reply para 41(d) needs to be understood in the context of the whole of [19]. 

[31] Thallon Mole Group Pty Ltd v Morton [2023] QCA 250, at [78]–[91].  The change had been requested by the architect, but the process under the contract for a variation had not been followed.  The trial judge rejected an argument that the owner was acting unreasonably in seeking rectification of another defect: [2022] QDC 224 at [373]. 

[32]  Prior to 1 July 2015, the Domestic Building Contracts Act 2000 (Qld) s 84 contained restrictions on recovery for undocumented variations, but that Act has since been repealed. 

[33]  Written submissions filed 10 March 2021 paras 84, 85. 

[34]  Miller transcript p 1-28, AB1641.  Otherwise some provision would have been necessary to drain water from the door tracks, which was not shown on the drawings.  See also Gilligan p 1-97, 8, AB 1710, 1.

[35]  Engineering drawing S32, AB70.289. 

[36]  Perhaps this is because the certificates have to be shown to the building certifier at the end of the job, and it is easier for the builder if it still has the certificates.  But if so, why do builders agree to this clause in the contracts? 

[37] DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 431. 

[38] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at 140. 

[39]  Page 2-177, AB 1988. 

[40]  Page 2-179, AB 1990. 

[41]  He also referred to the Building Code of Australia (“BCA”), which does not require both overlapping and taping.  In his report 23 April 2019 at para 51 he referred to AS4200.1 as justifying taping, but that is for a membrane installed as a vapour barrier, and the whole point of his criticism of the membrane in Item 1 was that it was not supposed to be a vapour barrier. 

[42]  Report 23 April 2019 para 40, AB 1201.  BCA at AB p 2580, p 2918-9, p 2959-60.

[43]  Transcript p 1-121, 122, 123, speaking of it at times as the National Construction Code (NCC). 

[44]  As seemed to be acknowledged in his third report dated 23 April 2019 p 47, AB 1234. 

[45]  Items 5, 18, 19, 22–24, 33–36, 51, 56, 60, 61, 63–68. 

[46]  Transcript p 2-136, AB 1947. 

[47] Amundsen v Queensland College of Teachers [2011] QCATA 2; Lida Build Pty Ltd v Miller [2011] QCATA 219 at [7]-[9]; GDLA v GMG [2017] QCATA 18; Nicholls v Kline Industries International Pty Ltd [2022] QCATA 103 at [6]. 

[48]  In oral evidence he said that the product specified was Sisalation Breathable Barrier – p 1-122, AB 1735 – but that was not correct.  The Contract specifications item 12 specified Wall Sisalation Wrap: AB 70.231.  There was no evidence of the properties of Wall Sisalation Wrap. 

[49]  He relied on statements in the installation instructions of the manufacturer of the wallboards, and the Clause “Cladding” on Sheet 15 (notes) in the drawings, AB 70-276.  Apart from the fact that that is a general provision, Clause 13(6) of the contract gives specifications priority over plans.  I am not sure that the recommendation as to vapour permeability of the sarking used under the wallboards is really part of the manufacturer’s specifications for fixing the cladding anyway. 

[50]  See AB 2740.  It follows that there was no substance in the appellant’s submission that there was a breach of the BCA, and hence of the Contract Clause 36(1)(b).

[51]  Specific provisions always displace general provisions.  The appellant advanced the argument that this was a breach of Clause 36(1)(a) – AB 1446, 7 – but Clause 36(1)(d) entitled the respondent to use the sarking specified in the contract. 

[52]  Miller transcript p 1-28, AB 1641.  Indeed, if the level of the deck was the same as the level of the floor, there would arguably be a breach of the BCA requirement F2.2.2, and hence a breach of contract in the absence of a specific provision. 

[53]  Written submissions filed 10 March 2021 para [258]–[262]. 

[54]  In view of my earlier comments about the appellant’s experts, in the event of a conflict I would prefer the respondent’s expert, unless in a particular case there was good reason for a different result.

[55]  Kelly p 2-146, 7, AB 1957, 8.  He also said that the appellant agreed with his advice that it was better to leave it as it was than to rectify it: p 2-145, AB 1956. 

[56]  Both experts p 2-95, AB 1907. 

[57]  See for example the way the trial judge in Thallon Mole Group (supra) dealt with one issue at [553]. 

[58]  Another example of such a change of mind, this time in the appellant’s favour, occurred with Item 80.  During the hearing the Member said he would not allow it – p 2-135 line 37, AB 1946 – but in the event did allow it: [190]. 

[59]  See Drawing Sheet 5 in the contract, AB 70.258. 

[60]  Report dated 23 April 2019 pp 50, 51; AB 1237, 8. 

[61]  Submissions at AB 1503, under Item 80.  Contract Schedule AB 70.230. 

[62]  See the photos on p 53 of the report of the appellant’s expert of 23 April 2019, AB 1240. 

[63]  That was the expectation of both parties at the start of the hearing: Transcript p 1-4; AB 1617.  The Member said that it was set down for two days.  I have not checked the directions given. 

[64]  Adjourned at 5.44 pm on the first day, p 1-199, AB 1812, resumed at 8.56 am, and finished the evidence at 5.22 pm: p 2-236 (!), AB 2047.  There was some time lost during the hearing, but not much. 

[65]  Each of the experts complained at least once of the other expert’s cutting him off: p 2-33 lines 7-13, AB 1845, p 2-116 line 4, AB 1927.  I acknowledge that this issue is one on which the minds of judicial officers differ.  I once attended a talk by a Federal Court judge who was enthusiastic about concurrent evidence, where I sat next to a recently retired Federal Court judge, whose views matched my own. 

[66]  Transcript p 1-2; AB 1615. 

[67]  The QCAT Act s 3(b), s 4(c). 

[68]  Appellant’s submissions in writing filed 10 March 2021, paras 305, 306. 

[69]  Appellant’s submissions filed 10 March 2021 paras 247–255. 

[70]  The argument that the proposal is unsound in engineering terms (AB 1527) is speculative.  The point was not put to the engineer when he was called. 

[71]  Transcript p 1-197. 

[72]  Transcript p 1-196; the appellant’s expert did not dissent from this. 

[73]  See notes to Item 12 in the Scott Schedule. 

[74]  Reasons [200]; Report of the building consultant at AB 592. 

[75]  Written submissions filed 10 March 2021 para [84]. 

[76]  This follows from the QCAT Act s 114(a). 

Close

Editorial Notes

  • Published Case Name:

    Boys v Imperial Homes (Qld) Pty Ltd

  • Shortened Case Name:

    Boys v Imperial Homes (Qld) Pty Ltd

  • MNC:

    [2024] QCATA 35

  • Court:

    QCATA

  • Judge(s):

    Judicial Member D J McGill SC

  • Date:

    15 Mar 2024

Appeal Status

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

Cases Cited

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Allen v Queensland Building and Construction Commission [2024] QCA 24
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Cite 1 - [2024] QCA 24
Amundsen v Queensland College of Teachers [2011] QCATA 2
1 citation
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Cite 1 - [2011] QCATA 2
Archibald v Powlett [2017] VSCA 259
2 citations
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Cite 1 - [2017] VSCA 259
Cite 2 - [2017] VSCA 259
Baltic Shipping Company v Dillon (1993) 176 CLR 344
1 citation
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Cite 1 - (1993) 176 CLR 344
Bellgrove v Eldridge (1954) 90 CLR 613
2 citations
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Cite 1 - (1954) 90 CLR 613
Cite 2 - (1954) 90 CLR 613
Boncristiano v Lohmann [1998] 4 VR 82
2 citations
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Cite 1 - [1998] 4 VR 82
Cite 2 - [1998] 4 VR 82
Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57
2 citations
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Cite 1 - [2021] NSWCA 57
Cite 2 - [2021] NSWCA 57
Coshott v Fewings Joinery P/L [1996] NSWCA 122
1 citation
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Cite 1 - [1996] NSWCA 122
Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1996] 2 Qd R 462
2 citations
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Cite 1 - [1996] 2 Qd R 462
Cite 2 - [1996] 2 Qd R 462
Doerr v Gardiner [2023] QCA 160
1 citation
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Cite 1 - [2023] QCA 160
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
1 citation
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Cite 1 - [2009] 2 Qd R 219
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 21
1 citation
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Cite 1 - [2009] 2 Qd R 21
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 C.L.R 423
1 citation
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Cite 1 - (1978) 138 C.L.R 423
Edwards Aberayron Mutual Ship Insurance Society (1876) 1 QBD 563
1 citation
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Cite 1 - (1876) 1 QBD 563
Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146
2 citations
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Cite 1 - [2020] QCATA 146
Cite 2 - [2020] QCATA 146
GDLA v GMG [2017] QCATA 18
1 citation
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Cite 1 - [2017] QCATA 18
Hickman & Co. v Roberts (1913) AC 229
2 citations
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Cite 1 - (1913) AC 229
Cite 2 - (1913) AC 229
Hungerfords v Walker (1989) 171 CLR 125
1 citation
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Cite 1 - (1989) 171 CLR 125
Hyundai Heavy Industries Co Ltd v Papadopoulos (1985) 3 A.N.Z. Insurance Cases 60
1 citation
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Cite 1 - (1985) 3 A.N.Z. Insurance Cases 60
Kirkby v Coote [2006] QCA 61
1 citation
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Cite 1 - [2006] QCA 61
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115
2 citations
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Cite 1 - (2007) 233 CLR 115
Cite 2 - (2007) 233 CLR 115
Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219
1 citation
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Cite 1 - [2011] QCATA 219
Maksymiuk v Savage [2015] QCA 177
2 citations
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Cite 1 - [2015] QCA 177
Cite 2 - [2015] QCA 177
McArthur v Mercantile Mutual Life Ins Co Ltd[2002] 2 Qd R 197; [2001] QCA 317
1 citation
Jump To
Cite 1 - [2001] QCA 317
Multiplex Constructions Pty Ltd v Abigroup Contractors Pty Ltd[2005] 1 Qd R 610; [2005] QCA 61
1 citation
Jump To
Cite 1 - [2005] QCA 61
Nicholls & Anor v Kline Industries International Pty Ltd [2022] QCATA 103
2 citations
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Cite 1 - [2022] QCATA 103
Cite 2 - [2022] QCATA 103
Panamena Europea Navigacion (Compania Limitada) v Frederick Leyland & Co Ltd (1947) AC 428
1 citation
Jump To
Cite 1 - (1947) AC 428
Pivovarova v Michelsen(2019) 2 QR 508; [2019] QCA 256
1 citation
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Cite 1 - (2019) 2 QR 508
Qline Interiors Pty Ltd v Jezer Construction Group Pty Ltd[2009] 2 Qd R 566; [2002] QSC 88
3 citations
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Cite 1 - [2009] 2 Qd R 566
Cite 2 - [2009] 2 Qd R 566
Cite 3 - [2009] 2 Qd R 566
Radford v De Froberville (1977) 1 W.L.R., 1262
1 citation
Jump To
Cite 1 - (1977) 1 W.L.R., 1262
Ruxley Electronics Ltd v Forsyth (1996) AC 344
2 citations
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Cite 1 - (1996) AC 344
Cite 2 - (1996) AC 344
Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272
2 citations
Jump To
Cite 1 - (2009) 236 CLR 272
Cite 2 - (2009) 236 CLR 272
Thallon Mole Group Pty Ltd v Morton [2022] QDC 224
3 citations
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Cite 1 - [2022] QDC 224
Cite 2 - [2022] QDC 224
Cite 3 - [2022] QDC 224
Thallon Mole Group Pty Ltd v Morton [2023] QCA 250
3 citations
Jump To
Cite 1 - [2023] QCA 250
Cite 2 - [2023] QCA 250
Cite 3 - [2023] QCA 250
Williams v Stone Homes Pty Ltd [2014] QDC 64
1 citation
Jump To
Cite 1 - [2014] QDC 64

Cases Citing

Case NameFull CitationFrequency
MA & SK Jokovich Pty Ltd v Garland [2025] QCAT 1912 citations
Munro v Camdun Pty Ltd t/as Asset Carpentry & Building Supplies [2024] QCAT 4523 citations
1

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