Parry v Ewart[2000] QDC 54

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal to the District Court from a decision of the Queensland Building Tribunal of 22 September 1998. Under the Queensland Building Services Authority Act 1991 (‘the Act”), an appeal lies from the Tribunal to this court by leave of this court: s. 94.  An application for such leave was filed by the appellants on 19 October 1998 and came before me on 7 December 1998;  on that occasion both parties appeared by counsel, and the appellants sought to argue both the application for leave and the appeal.  This is often a convenient arrangement, because it will save costs if leave is granted; otherwise the appeal would have to be argued on a later date, ordinarily before another judge, thereby increasing the costs.  On this occasion, however, counsel for the respondent expressed some concern about his ability to do justice to his client’s case, since he had not expected that the appeal would be heard instanter if leave were given.  I decided on that day to give leave, but adjourned the hearing of the appeal to give counsel for the respondent the opportunity either to provide submissions in writing or, if he wished to make oral submissions, to have the matter relisted by arrangement with my associate.  Counsel for the appellants did not at that stage wish to add to the submissions made in support of the application for leave. 

2. [2]
   Thereafter I heard nothing more about the matter for a long time. I did, on a couple of occasions, make some inquiries about the matter, and ultimately I suspect it was an inquiry from me directed to counsel for the appellants which resulted in the respondent’s submissions in writing being filed in the District Court Registry on 10 November 1999. The mere filing of such submissions in the Registry however did not cause them to come to my attention; there was no reason for the Registry to know that it was appropriate to bring them to my attention, and they did not come to my attention until 3 December when I was provided with a letter from the solicitors for the respondent inquiring as to the progress of the appeal. It was only after I received that letter that I realised that it was appropriate for me to be considering the matter; I then put the file in the queue of matters awaiting my attention for the preparation of reserved judgments, and it reached the head of that queue in May this year. It is for this reason that this matter has taken much longer to reach this stage than would ordinarily be the case with such an appeal.

3. [3]
   The respondent was at the relevant time building a home at Sunshine Beach. Three builders had been involved in the construction of the home at different stages, but the appellants were engaged by the respondent as tilers separately after enough building work had been completed to enable tiling work to be carried out. The tiling work was undertaken by the appellants, not as sub-contractors to a builder, but pursuant to a contract between them and the owner of the home, the respondent.

4. [4]
   In the proceedings in the Tribunal the respondent claimed against four parties, and the appellants before me were the third respondent in the Tribunal. Prior to the commencement of the hearing in the Tribunal, the respondent before me settled her claim against the first and fourth respondents in the Tribunal, and the application proceeded against the second and third respondents, in the case of the second respondent in the absence of any appearance by or on behalf of that respondent. At the conclusion of the hearing, the Tribunal made the following orders:

“1. That the third respondents pay to the applicant the sum of $23,729 within 28 days of the date hereof failing which the third respondents will in addition pay interest at the rate of 11% per annum on such amount as remains outstanding until it is paid.

2. That the third respondents pay the applicants costs of and incidental to the claim against the third respondents in accordance with Scale G of the Magistrates Courts Scale of Costs.
3. That the second respondent pay to the applicant the sum of $500 within 28 days of the date hereof failing which the second respondent will in addition pay interest at the rate of 11% per annum on such amount as remains outstanding until it is paid.
4. That the second respondent pay the applicant’s costs of and incidental to the claim against the second respondent in accordance with Scale A of the Magistrates Courts Scale of Costs.”

There was then a mechanism provided for assessing the costs payable under orders 2 and 4 if the parties were unable to agree.

5. [5]
   The appellants had undertaken extensive tiling work for the respondent, and the claims made against them related to tiling work undertaken on a verandah upstairs, a bathroom upstairs, a bathroom cum laundry downstairs, and an area adjacent to an indoor swimming pool downstairs. The respondent sought the cost of rectification of defective workmanship in the tiling on the verandah and consequential damage as a result of water penetration caused by the defective tiling, and rectification of defective tiling in both bathrooms, and part of the area near the swimming pool, together with rectification of damage to a bedroom wall and carpet. This last claim was dismissed by the Tribunal and I need not be concerned with it. In all of the other claims, the respondent was successful in the Tribunal, and there were findings that the respondent was entitled to compensation in respect of them in specific amounts, which totalled the overall amount ordered to be paid. These matters were dealt with separately by the Tribunal, and it is convenient for me to do the same.

Upstairs Verandah

6. [6]
   The respondent’s house is of an unusual design, one which was adopted to assist her in coping with an unfortunate medical condition. The downstairs part of the house incorporates a relatively large room where there is an indoor swimming pool. Along one side of the upper floor, there is an open verandah, the floor of which is above part of the swimming pool. The verandah is exposed to the weather, and there has been a problem of water penetrations to the pool area below. A building inspector employed by the Queensland Building Services Authority, whose evidence it seems the Tribunal generally accepted, expressed the opinion that the main cause of water penetration to the pool area was the lack of a waterproof membrane below the open verandah. The tiles on the verandah were laid directly on compressed FC sheeting which was fixed to hardwood floor joists supported by tasbeams.

7. [7]
   This problem was aggravated by a failure to provide an appropriate fall, i.e., slope towards the edge of the verandah to enable water to run off it rather than to lie on it. In one part of the verandah there was a low area where there had been an attempt to rectify the water problem by installing a drain in the floor, which he described as not entirely successful. A building consultant, Mr. Montgomerie, a witness on behalf of the respondent, agreed that the verandahs did not have the appropriate fall to the external edge, and that there was no waterproof membrane fitted prior to the tiling of the verandahs. The recommendation of the manufacturer of the compressed FC sheeting was that decks which protected living areas directly below required the provision of suitable membranes either above or below the deck structure. Mr. Montgomerie was of the opinion that the principal problem was the failure to provide the waterproof membrane; the mere provision of a tiled surface with adequate fall would not be sufficient.

8. [8]
   According to the reasons of the Tribunal member, the appellants case before him was that they had raised with a Mr. Halliday, who they alleged was supervising these works on behalf of the respondent, whether to install a waterproof membrane over the verandah, and were told not to proceed with such installation. That was denied by Mr. Halliday, and this conflict of evidence was resolved in favour of the respondent. The appellants also disputed that there was a need for a waterproof membrane, and that the entry of water was a cause of the deflection of the tasbeams and the need for rectification work. The Tribunal member concluded that a waterproof membrane ought to have been installed before tiling work commenced and that the absence of this membrane was a cause of water entering the laminated beam below, which resulted in deflection and deterioration of that beam, requiring rectification. In addition, the tiles had to be taken up and reinstalled with a waterproof membrane in the verandah area, and the front door entrance had to be rectified because of water ingress. The costs were assessed by Mr. Carey in a way which was said not to be contested by the appellants at $11,850, $4,765 and $600 respectively, and the total of these, $17,215, was ordered to be paid to the respondent because of this.

9. [9]
   The submissions on behalf of the appellant were that in such circumstances the tiler was under no contractual obligation to give advice concerning the need for a waterproof membrane, that the installation of such a membrane was not required by the relevant standard, and that there was no negligence in respect to a matter on which tradesmen may legitimately differ. It was submitted that there was a failure to have regard to certain relevant evidence, and that it was wrong to treat the liability of the appellants as tortious rather than contractual. It was also submitted that the plaintiff was an owner/builder, and so required a permit under Division 8 of Part 3 of the Act.

Was The Respondent An Owner/Builder?

10. [10]
    As to this last point, one consequence of issuing a permit for an owner/builder under s. 44 is that notice of this must be given to the Registrar of Titles and for seven years thereafter notification of this must appear on the file attached to the register of the land: s. 46. Further, if land is offered for sale within six years after completion of the building work, the vendor must give a warning in the prescribed form to the purchaser otherwise the vendor is taken to have warranted that the building work was properly carried out: s. 47. There is also a requirement under Regulation 13(4) that an applicant for an owner/builder permit to carry out building work of a value exceeding $10,000 must have completed the relevant course of instruction required by the Board’s policies on the issue of an owner/builder permit unless exempted by the Authority. It was then submitted that it followed from subsection (5) that the prohibition in s. 42(1) of an unlicensed person carrying out building work applied to the respondent. If the respondent had breached this prohibition she had committ ed an offence: subsection (9).

11. [11]
    The Act speaks separately of carrying out building work, supervising building work and undertaking to carry out building work. It is also clear from s. 42(4) that the concept of carrying out building work is wide enough to include sub-contracting for carrying out building work. It is possible to imagine a situation where an owner enters into a series of contracts with individual tradesmen to do the work necessary to enable building work (for example, constructing an extension) to be carried out, and does not do any of the actual work herself. If such a person enters into one contract for the whole of the work to be done, she would clearly not commit an offence under s. 42 if she did not hold an owner/builder permit for that work. There is nothing that I have found in the Act which would suggest that the position was intended to be any different if more than one contract was entered into, but the owner was still having all of the work done under one or other of the contracts.

12. [12]
    I am not aware of any authorities on this point, and was not referred to any in the course of argument. There was some discussion of s. 42 in Marshall v. Marshall [1999] 1 Qd.R. 173, which generally does not throw any light on this issue, although it is of assistance to note the statement by McPherson JA at p. 177 that:

“A principal object of the legislation, both in its original and in its current form, is to prevent unlicensed builders from doing certain kinds of building work.”

Another consideration is that the section is a penal provision, so that any ambiguity should be resolved in favour of narrowing the circumstances which give rise to the commission of an offence: Beckwith v. R (1976) 135 CLR 569 at 576. 

13. [13]
    In my opinion, s. 42 does not make it an offence for an owner to enter into a series of contracts with tradesmen to have work done, so long as she either does not actually carry out any of the work herself, or obtains a permit under s. 44. In addition, the provision will not apply in circumstances where the work is excluded from the definition of building work by Regulation 3A. Accepting that the respondent did not have a permit under s. 44, I do not think that that is relevant to the determination of whether there had been an actionable failure on the part of the appellants to advise the respondent of the need for a waterproof membrane. The respondent was not an owner/builder, so she did not need a permit under s. 44, and the Tribunal did not, in this respect, commit any error.

Implied Obligation To Warn Respondent

14. [14]
    It was submitted that the tiler’s job was simply to lay tiles on the surface and that the tiler was not under any contractual obligation to do anything else. Reference was made to the decision in Ownit Homes Pty Ltd v. Batchelor [1983] 2 Qd.R. 124 where Thomas J, as His Honour then was, at p. 131 noted that in circumstances where a plan was defective:

“The builder is entitled to build the structure strictly in accordance with the defective plan and be paid the full contract price.”

His Honour however noted that “commonly planning defects are remedied as the job progresses and the cost is charged as an extra”.  In addition, that did not apply where the builder was responsible for design, as occurred in the case that His Honour was considering, so that decision does not throw any light on the question of whether it is part of the obligation of the builder to draw attention to an aspect of the design which was defective. 

15. [15]
    In any case, that is not really the point here. It is artificial to speak in terms of the “design” of tiling work; the tiler was simply instructed to lay tiles on a particular surface. The issue is whether the tiler should have refrained from doing so unless the surface was suitable to have tiles laid on it, or at least advised, if that were not the case, that something else ought to be done first.

16. [16]
    It was submitted that there should not be implied a duty to advise because in ordinary circumstances where a tiler was employed by a builder, there could be no obligation to give advice as to work which ought to be done by the builder, or perhaps by another sub-contractor. There are, I think, two answers to that proposition. The first is that the content of the implied obligation to carry out the work in a proper workmanlike manner must be assessed in the context of the particular contract which has been made, and therefore in the context of the identity of the contracting parties. The appellants in this case were not contracting with a builder, and they must have known that. It is well recognised that a term will be implied into a contract to do work that the work will be done with proper care and skill: Young & Martin Ltd v. McManus Childs Ltd [1969] 1 AC 454 at 465, Streeter v. McLennan [1959] Qd.R. 135.  This obligation is referred to in various terms, but it is essentially the same obligation as that spoken of by the member of the Tribunal when making the finding (at p. 10) that:

“Proper workmanship by the [appellants] required the installation of a waterproof membrane above or below the deck structure in accordance with the manufacturer’s recommendation before tiling works were commenced.”

This was not a conclusion which applied generally to contracts to undertake tiling work;  it was a conclusion arrived at in relation to the content of the obligation which would be implied into this particular contract, or, perhaps, the steps required of the appellants in order to perform their contractual obligation in the particular circumstances in which they found themselves. 

17. [17]
    Part of the difficulty is that it would not necessarily be apparent from looking at the surface of the deck whether or not a waterproof membrane had already been installed. This is because the waterproof membrane can apparently be installed either below or above the compressed FC sheet floor, and presumably if it were installed below it might be difficult or even impossible to tell by looking at the sheeting whether it had been installed. But the fact that it can be installed on top means that one cannot assume from the presence of the sheeting that the membrane has been installed beneath it; whoever was responsible for building the floor may well have taken the view that the waterproof membrane could be installed by someone else on top of it. If the waterproof membrane ought to have been installed beneath the sheeting, there may have been some justification for an assumption that it had already been installed, on the basis that someone engaged to do work would be entitled to assume that other work had been done properly in the absence of some indication to the contrary. But that was not the situation here; constructing the flooring without a waterproof membrane is not defective work as far as it goes, because the membrane can be installed afterwards, on top.

18. [18]
    In these circumstances, the question essentially is one of fact; what ought a reasonably competent tiler to do when asked to lay tiles on such a balcony deck. Mr Perry said that he did not regard waterproofing as necessary because it was not required by the Noosa Shire Council: p. 63. This was because the enclosed pool below was in his view not a “habitable area”. He though it would be wet anyway from condensation. But these matters would have been obvious to the experts, who expressed the opinion that waterproofing was necessary (e.g., Mr Montgomerie at p. 37), and it was open to the Tribunal to accept their evidence.

19. [19]
    The Tribunal had the evidence of Mr. Montgomerie, a building consultant, that it was the tiler’s duty to inform the respondent that it was imperative to install a waterproof membrane to achieve a reasonable standard of the work and compliance with the relevant building standard, prior to starting work on the tiling, and indeed that this was critical: reasons p. 7. This evidence was accepted by the Tribunal, and there is no apparent reason why the Tribunal was not entitled to accept it. Indeed, the evidence is inherently logical. Whether or not any such waterproof membrane ought to be placed under the floor sheeting, it should certainly be placed under the tiles. The consequence of laying tiles without there being such a membrane is that the surface will not be waterproof, so that either some form of surface waterproofing will have to be attempted, or water penetration will have to be accepted, or the tiles will have to be lifted and the work done again. Obviously in these circumstances it is appropriate to warn of the need for this work to be undertaken, and if the appellants were not licensed to undertake the work themselves, to warn of the need for it to be undertaken by someone else. The conclusion arrived at by the Tribunal on this point is unsurprising, and justified by the evidence.

Implied Obligation To Warn Builder?

20. [20]
    The second answer is that, if the appellants had been acting under a contract with a builder, it is by no means clear that there was no duty on them to give similar advice to the builder. In such circumstances, the tiler should not be beginning work until the builder says that it is in order to begin work. Once that point is reached, if the tiler has reason to think that it may not be in order to begin work, because necessary preliminary work has not been completed, there may well be an obligation to raise the matter with the builder, even if this is a matter of which the builder ought to be aware. It is said in Hudson “Building and Engineering Contracts” (11^th ed., 1995) at p. 542, that even where there is no reliance on a contractor for design work a contractor may be liable for breach of contract in failing to warn the owner or architect or engineer of some deficiency in design which becomes apparent in the course of undertaking the work.  This may qualify somewhat the point made by Thomas J in Ownit Homes (supra);  the builder who recognises that there is a defect in the plans but goes ahead and builds in accordance with them may be entitled to recover the contract sum, but may be liable for damages for breach of contract for failing to draw attention to the deficiency which was discovered.  A number of examples are given in Hudson of decisions from Canada and the United States of America. 

21. [21]
    Such a conclusion was reached by Newey J, the official referee, in Equitable Debenture Assets Corporation Ltd v. Moss (1984) 2 Construction Law Journal 131, where reference was made at p. 132 to the judgment of Bailey J in Duncan v. Blundell (1820) 3 Stark.6, 171 ER 749, where His Lordship said:

“Where a person is employed in a work of skill, the employer buys both his labour and his judgment;  he ought not to undertake the work if it cannot succeed, and he should know whether it will or not; of course it is otherwise if the party employing him choose to supersede the workman’s judgment by using his own.”

22. [22]
    Duncan was cited with approval by Lord Upjohn in Young & Marten Ltd (supra) at p. 472, and by the Court of Appeal in McKone v. Johnson [1966] 2 NSWR 471 at 473.  A similar point, about whether there was in a building contract an implied warranty of fitness for purpose, was discussed by Barwick CJ in Cable (1956) Ltd v. Hutcherson Bros Pty Ltd (1969) 123 CLR 143 at 150, where His Honour noted that whether reliance was placed on the skill and judgement of the builder may be important in determining whether the builder has promised to produce a result, or merely to do specific work.  In that case, where there were detailed design drawings which had been approved by the owner’s engineer, the builder’s obligation was limited to carrying out the specified work in a workmanlike manner. 

23. [23]
    Counsel for the respondent has identified one decision of the Court of Appeal of British Columbia, with facts similar to those in the present case: Sansan Floor Co v. Forst’s Ltd [1942] 1 WWR 553.  In that case the defendant, which was erecting a building, asked the plaintiff to lay asphalt tile flooring which the plaintiff did on a plain wooden floor which was not waterproof.  As a result of water seeping through the tiles, they began to crack and buckle.  The court held that it was the duty of the plaintiff to advise the defendant as to the proper surface to be provided for the tiles and not to attempt the work unless a proper installation had been provided.  The court at p. 558 characterised the argument for the plaintiff as being:

“That notwithstanding the fact that the lack of waterproofing cannot be said to be a latent fact, nevertheless he was entitled, even though he knew what was being done at a time when the danger could have been averted, to say this was no affair of his – that his sole concern was to provide and lay his tile on a smooth surface held down by resin coated nails.  I think his position is unsound.”

The argument there rejected was similar to one of the arguments advanced before me.  The view of the Court of Appeal in that case seems to be similar to that adopted by the Tribunal at p. 2. 

Was Waterproofing Required By The Standard?

24. [24]
    It was submitted that it was not correct to say that waterproofing this surface was required by the Building Code of Australia F1. 4, because that code required waterproofing of walls and roof, but this deck surface was neither. That is an unattractive argument; the deck being open, it functions as a roof to whatever was below. No doubt the reason why the code speaks of walls and roof is that they are ordinarily what exclude the elements from any enclosed space, but I think it an unlikely interpretation of the code that it was to be acceptable for anything other than walls and a roof in the strict sense not to be waterproof. The deck was not itself enclosed, but it was over an enclosed space. One would expect therefore that it would be required to be capable of waterproofing that enclosed space.

25. [25]
    In this case the enclosed space enclosed an indoor swimming pool. In some circumstances the need for waterproofing in such a situation may well be diminished. A swimming pool and its surroundings would be a fairly wet environment anyway, and it would be possible, I suppose, to have it set up in such a way that waterproofing something like the deck above was not necessary or assumed. Plainly, that was not the case here. The Tribunal accepted evidence that one effect of the penetration of the water was damage to the supporting beams underneath, so obviously it was not the case that this particular enclosed space was not intended to be waterproof. As well, there were unprotected electrical cables under the deck: Exhibit 6. Mr. Montgomerie was of the opinion that it needed to be waterproof. In my opinion, any enclosed space prima facie ought to be constructed so that it is waterproof; accepting that in some cases that obligation may not apply, it is appropriate that someone doing work which will affect whether or not the space is waterproof to assume that the space is to be waterproof in the absence of a clear indication to the contrary. That was not provided here. In my opinion, there is nothing in the point about the standard being expressed only in terms of roof and walls.

Legitimate Difference Of Opinion

26. [26]
    With regard to the submission that there was not necessarily negligence in failing to take a step which is controversial, that argument is not an answer to the findings made by the Tribunal. The evidence accepted by the Tribunal was that it was the tiler’s duty to inform the respondent about these matters, and indeed that it was critical to do so. Plainly the witness was not talking about best practice in relation to the matter, or about a step which the witness would have followed himself; the witness was saying in effect that any reasonably competent tiler doing the job properly would have given that advice. This is not a situation where the factual foundation was laid for the argument that it is not enough to say that some people in the field believe that a particular step should be taken, where there is a legitimate body of opinion to the contrary, so that it is not negligence to follow that view rather than the view of those who think that the step ought to be taken. See for an example of this Greaves & Co (Contractors) Ltd v. Baynham Meikle & Partners [1974] 1 WLR 1261.  This argument in substance asked me to interfere with the findings of the Tribunal in a way which is not justified by the nature of the appeal, or indeed by the evidence before the Tribunal. 

Was Evidence Disregarded?

27. [27]
    It was submitted that the Tribunal had failed to have regard to a letter to the Tribunal Registrar dated 5 January 1998 to the effect that the respondent had been advised by a Mr. Chataway of the cost to waterproof the area above the pool. Mr. Chataway was the fourth respondent before the Tribunal. The claim against him had been settled prior to the commencement of the hearing: p. 1. There was no express reference to this letter in the reasons, although it does not necessarily follow that the evidence was disregarded. The letter was exhibited to the statement of Mr. Parry, filed 1 May 1998 and referred to on p. 4 of the judgment as Exhibit 9, as Exhibit “GMP1”: para. 3. This document was tendered in support of Mr. Parry’s statement that “At the commencement of the works I asked Mr. Peter Halliday, who I believed was running the job for the applicant at that time, whether he wanted to have the patio area waterproofed. Mr. Halliday informed me that they (being the applicant and Mr. Halliday) had looked into it and decided against it.” This was an issue which involved a conflict of evidence before the Tribunal, which was resolved by the Tribunal against Mr. Parry: p. 9.

28. [28]
    It is apparent from the original exhibit “GMP1” on the Tribunal’s file, which has been made available to me, that there is underlining and one annotation in pen to the photocopy document, the annotation reading “At odds with his own evidence”; this appears to have been applied by the Tribunal. Presumably this is a reference to the evidence of Mr. Parry. The annotation appears to relate to the respondent’s having made decisions based on cost rather than on practicality, and it may have been thought that this was not consistent with Mr. Parry’s admission under cross-examination (p. 92 of the transcript) that neither the respondent nor Mr. Halliday ever raised the question of money, or ever told him that certain proposed works would not be done because it was too expensive. It seems clear therefore that the Tribunal did have regard to that letter. The Tribunal obviously did not regard it as amounting to a warning that the floor needed to be waterproofed before tiles were laid. Whether it amounted to such a warning was a matter of fact to be determined by the Tribunal, and the Tribunal has obviously determined that point in a way adverse to the appellants.

29. [29]
    The fact that a quote for waterproofing was obtained and shown to the respondent does not necessarily demonstrate that the respondent knew that waterproofing was required in addition to tiling; the respondent was found by the Tribunal (p. 2) to be a person with little or no knowledge as to proper and correct workmanship, and she may well have thought that tiles would, if properly laid, be waterproof so that no other waterproofing was necessary. The Tribunal found that she was not warned that waterproofing was required in addition to the presence of the tiles, and indeed the evidence of Mr. Parry was not that he had warned about the need for waterproof but that he had inquired about whether or not this was required: p. 81. His view was that it was not required by the Noosa Shire Council in these circumstances, because “there is no habitable area below”: p. 63. This was the issue as to whether or not it was appropriate to waterproof the room containing the indoor pool, to which I have already referred. Overall, I think there is no substance to this ground.

Liability In Tort or Contract?

30. [30]
    Ground number 5 in the application is that the Tribunal erred in law in impliedly holding that the obligations of the tiler to the owner were tortious rather than contractual in the circumstances. I think it is sufficient to say that, although the issue is not discussed expressly in the reasons, it seems to me fairly clear that the Tribunal was proceeding on the basis that there was liability in contract for damages for breach of an implied term. In any case, it is not apparent why it would matter whether the liability was in tort or in contract.

Quantum

31. [31]
    There was also a submission in relation to questions of causation and quantum. The supporting beams had been damaged and were investigated. A report from Tasbeam Pty Ltd dated 29 January 1998 was provided via a report of Mr. Lindsay, the building inspector, which became Exhibit 13, and was relied on by the respondent: p. 4. Two tasbeams with spans of 5.2 metres were part of the supporting structure for the upper floor above the pool; these beams are laminated beams, and had been deflecting to a greater extent than the anticipated long term deflection in such circumstances. The increased deflection was said to be caused by increased moisture content of the beams, which showed signs of water penetration from the deck above, and had not been sealed with any protective coating. The recommended rectification was waterproofing the deck, adding laminations to the bottom of the beams, and cleaning and waterproofing the beams. The report noted the effect of high humidity from the swimming pool, but I read the report as attributing the principal cause of the difficulty to the ingress of water from the unsealed deck above.

32. [32]
    There was some disagreement before the Tribunal as to whether or not the tasbeams needed to be replaced. Ultimately, the Tribunal accepted the assessment of the required rectification work by Mr. Lloyd Carey (p. 11). This was filed on behalf of the applicant, and was said to have been essentially uncontradicted by the appellants: p. 3. Mr. Carey’s second report of 6 May 1998 refers at item 18 to the “beams to lower level” and states “the laminated beams require replacing to bring the building up to standard”. There is then a total of $4,765 allowed for the cost of replacing the beams. It is apparent from the figures quoted at p. l1 that the Tribunal has accepted as the appropriate damages the amounts in Mr. Carey’s report of 6 May 1998 at item 6, “Verandah and floor tiles” of $11,850, being the cost of removing the tiles, lowering the deck so as to achieve the correct fall, completing the deck, applying the membrane and relaying the tiles; item 17 which is the cost of rectifying water damage to the front door entrance of $600, and item 18, which is the cost of replacing the laminated beams. Mr Montgomerie was also of the opinion that the tasbeams needed to be replaced: Exhibit 7.

33. [33]
    Whether or not the tasbeams needed to be replaced was a matter for the Tribunal to determine by resolving the conflict of evidence. The Tribunal may well have been influenced by the fact that the tasbeam report was apparently the product of an inspection in January 1998, whereas the Tribunal did not decide the matter until September 1998 and, as Mr. Carey pointed out in his second report, the continuing delay was adding to the cost as the structure is continuing to deteriorate. In any event, this is a finding which was open on the evidence and there is no basis for concluding that the finding was unjustified, or the product of legal error, and no basis for interfering with that finding given the nature of the appeal, an appeal in the strict sense: Whywait Pty Ltd v. Davison [1997] 1 Qd.R. 225. 

34. [34]
    What is less obvious from Mr. Carey’s report is the need for the deck not merely to be waterproof, but to be reconstructed so as to produce the appropriate slope. It is clear from evidence accepted by the Tribunal that even if the deck had had the proper slope, the absence of the waterproof membrane would have led to damage, and that deficiency ought to be remedied. What is less clear is why the cost of lowering the deck so that it will have a proper slope is part of the cost of remedying a defect or deficiency in the work of the tiler. If the tiles are to be taken up in order to install a waterproof membrane, it may well be sensible to go on and remedy the absence of slope at the same time, but the absence of slope was essentially a deficiency in work done by builders, or at least people other than the appellants, and the cost of rectifying the absence of a proper slope to the deck ought not to be part of the damages that the appellants have to pay.

35. [35]
    I do not accept the submission on behalf of the respondent that the failure to warn the respondent of the necessity for waterproofing caused loss in the form of the cost of lowering the deck. This was based on the proposition that the loss of fall was caused by the sagging beams, which in turn was caused by the water penetration because of the absence of a waterproof membrane. But Mr. Carey’s assessment involves replacing the sagging beams, so it must be based on the need for the slope to be lowered notwithstanding this. Mr. Carey, in his report of 6 May 1998 (Exhibit 12), said under point 6:

“It was agreed [with Mr Montgomerie] that our original idea of sealing the floors would not solve all the problems as insufficient fall had been allowed in the original construction.  The solution is to pull up the complete deck and lower it so the correct falls can be achieved."

This evidence, led on behalf of the respondent, attributes the need to lower the deck to defective original construction of the deck, not to the laying of the tiles. That is not consistent with the respondent’s arguments. 

36. [36]
    Mr. Montgomerie, in his report of 20 March 1998 (Exhibit 6), para 6(i) expressed the opinion that the verandahs had not been constructed with the appropriate fall, and that this was operating in combination with the deflection of the laminated beams. This opinion was repeated in his later report, Exhibit 7. This evidence is inconsistent with the argument that the defection in the beams caused by the failure to waterproof was the reason why the deck needed to be lowered. This was raised in cross-examination with Mr. Montgomerie, who said that the effect of the deflection was to change minimal falls towards the edge into falls back towards the walls: p. 47. He attributed fault associated with the deflection to both the builder and the tiler, presumably because the builder had failed to provide proper falls, although that in itself would not have prevented deflection if the membrane were omitted: p. 49.  Damages are not apportioned on the basis of causation.  At no point did Mr. Montogmerie say that the level of the verandah had to be changed because of the omission of the membrane.  Nor did any other witness. This argument is therefore not an answer to the proposition that some of the compensation related to matters not the responsibility of the tiler. 

37. [37]
    It is necessary to dissect the figures in item 6 in Mr. Carey’s report of 6 May 1998 which were accepted in total by the Tribunal. The costs for removing and relaying the tiles would certainly be recoverable. The cost of installing the waterproof membrane is not a cost the appellants should have to pay; if they had done what the Tribunal concluded they ought to have done, this would have been a cost the respondent would have had to pay to someone else first before the appellants did their work. It is not an extra cost that the respondent has to pay because of anything done or not done by the appellants. There was therefore no justification in including this cost, $2,125, in the amount to be paid by the appellants. The costs associated with lowering the deck, $3,900, should also be deducted. The amount that ought to have been awarded against the appellants in respect of this item should have been limited to $5,825. There was no argument directed on behalf of the appellants to the remaining element of the quantum assessed by the Tribunal at p.11, so in my opinion it follows that the assessment the Tribunal ought to have made as the total cost of rectification should have been $11,190 instead of $17,215.

Downstairs Laundry and Bathroom

38. [38]
    There is downstairs a room which is both a laundry and a bathroom, having the usual laundry facilities together with a toilet and a shower. There is a door at one end leading to the indoor pool area, and a sliding glass door at the other end leading to a verandah; there is a bedroom on one side, and an open area on the other. There is a glass panel adjacent to the sliding glass door which forms one wall of the shower area. The shower is unusual in that the floor of the shower is the same level as the floor generally, and there is no hob, that is no barrier around the edge of the shower to contain the water. This was constructed to the respondent’s particular requirements, but it does mean that there is a tendency when it is used for more than the usual amount of water to escape from the shower on to the bathroom floor.

39. [39]
    According to the Tribunal, there were three problems with this area; there was a gap between the fixed glass of the window and the floor tiles which were about 60 millimetres above the aluminium sill, so that water running down the window, or spilling off the floor would gather in this pocket. From there it can escape into the floor underneath the tiles, because of a gap between the window sill and the base on which the tiles are laid, which has not been sealed. In addition, waterproof membrane has been laid under part but not all of the tiles, and water is penetrating to the floor, which is particle board, through other parts of the tiles. Finally, there is a problem with the fall of the tiles, which do not fall correctly to the bathroom floor waste, and water is allowed to pond in areas. The respondent claimed that apart from wetting the board under the bathroom floor, this had caused damage to carpet tiles in the adjacent bedroom.

40. [40]
    There was some conflict in the evidence in relation to these matters, but the Tribunal accepted the evidence of Mr. Lindsay and Mr. Montgomerie, who found that there was defective workmanship by the appellants, and assessed compensation at the estimate given in the report of Mr. Carey at $2,780, being the cost of rectification work to the laundry and the bathroom floor. There was also found to be responsibility for damage to the bedroom floor, but the Tribunal found that the respondent had not established the quantum of any claim in respect of this damage. The first report of Mr. Carey, 29 March 1998, deals with item 6:

“Laundry bathroom – lower level.  The solution to this problem is basically the same as the last item [ie verandah on upper level] in that everything has to be removed, floor lowered, joists reinforced, floor relaid, waterproofed and tiles relaid to falls.”

A figure of $2,780 is given, and the only additional information in the second report of 6 May 1998 is a breakup of this figure which includes figures of $450 each for flooring work and waterproofing work.

41. [41]
    The appellants accepted that they could not challenge the finding that the floor was defective in not falling properly, but submitted that there was a failure to recognise that there were difficulties associated with the design for which the tiler was not responsible. Again, the submission was that the tiler was not responsible for lowering the floor, but merely for any extra cost associated with work which ought to have been done differently. The tiler had undertaken some waterproofing, but only to a limited area, and the Tribunal was on the evidence entitled to find that the waterproofing was inadequate in the circumstances. It seems however that the appellants were not allowed to charge for the waterproofing which had been provided, because they were not licensed to do this work. If they had handled the matter properly, they ought to have advised the respondent that the floor needed to be lowered, and waterproofing installed, before the tiles were put in, and if that had occurred, the respondent would have been put to the cost of lowering the floor and installing the waterproofing anyway, so these costs are not extra costs made necessary by any defective work undertaken by the appellants.

42. [42]
    It does not seem to have been contentious at the hearing that the appropriate way to rectify these problems was to lower the floor. If that is the case, I do not think that that is the responsibility of the appellants, and I think there has been an error in the approach to the assessment of compensation by the Tribunal here as well. The Tribunal has essentially proceeded by finding that there was defective workmanship and then finding that it would cost X dollars to rectify the deficiencies in the current state of the premises, but this assumes that the cost of rectifying the deficiencies in the current state of the premises is the appropriate measure of compensation. Often that will be the case when work has been done incorrectly, but strictly speaking if there has been a breach of contract in failing to carry out work with proper skill, the measure of damages is the extra amount which the respondent will have to spend in order to put her in the position she would have been in had the contract been properly performed.

43. [43]
    In this case, had the contract been properly performed she would have been advised that she had to have the floor lowered and waterproofing installed before the tiling work was undertaken, so these would represent extra costs incurred by her at that time in order to achieve the same outcome as will be achieved by performance of the rectification work identified by Mr. Carey. Accordingly, these costs should be deducted when assessing compensation. In the absence of evidence directed specifically to this issue, it is, I think, appropriate to assume that the cost of doing the work as part of the rectification works would have been the same as the cost of doing the work had it been done initially following advice from the appellants. This, I think, is an error of law in the assessment of the compensation, and a matter properly the subject of intervention, notwithstanding the limited nature of the appeal. So far as I can assess the matter, the two amounts of $450 represent the work which would have been necessary anyway, and therefore should have been deducted from the compensation awarded, subject to an allowance (which I can only estimate) for the cost of replacing the floor boards damaged by water penetration, for which I allow $150. Accordingly, this assessment should have been $750 less, at $2,030.

Upstairs Bathroom

44. [44]
    The deficiency identified here was a failure to lay the tiles with a correct fall to the floor outlet, with the result that water ran towards the living room wall instead of draining away. Mr. Montgomerie was of the opinion that here again the tiles should be removed and relaid to provide correct falls to the floor ways and to prevent water from entering the adjoining bedroom and living room. The appellants’ argument here was similar to that advanced in relation to the laundry bathroom downstairs, that the tilers had been ordered to pay the costs of rectifying design faults as well as any defective workmanship of their own.

45. [45]
    One of the witnesses for the respondent, Mr. Carey, did initially regard this as a design problem: report of 29 March 1998. However, in his second report of 6 May 1998 he stated that “On closer inspection we found that it had not been built according to plan. The only solution is to pull the floor up and make the alterations required to set falls et cetera.” The amount he allowed included costs of demolition, waterproofing the floor and retiling the floor. It does appear that this floor was waterproofed by the appellants, but they were not entitled to do this work because they did not hold a relevant licence and the amount they charged for doing this work was ordered to be repaid: p. 19. The practical effect of this is that the respondent, if this stands, will not have paid for waterproofing for the bathroom upstairs, and that work would have been necessary in any event, so the cost of doing this should have been deducted from the cost of rectification. This is a sum of $228, leaving a balance of $846. This amount was awarded on the basis of an acceptance of the evidence of Mr. Montgomerie and Mr. Lindsay to the effect that the appellants could have created adequate falls in the area notwithstanding the use of the tiles specified by the respondent and the design constraints, including the respondent’s requirements for an absence of impediment to entering and leaving the shower.

46. [46]
    Mr. Montgomerie was cross-examined but it does not appear that he was cross-examined in relation to this aspect of his evidence. Mr. Lindsay was not required for cross-examination and was not cross-examined: p. 4. The evidence of the experts, led on behalf of the respondent and accepted by the Tribunal, was not challenged in cross-examination in relation to this matter. In these circumstances, it is impossible for me to interfere with the conclusion of the Tribunal that there was defective workmanship in the laying of the tiles in the upstairs bathroom, and the costs of raising them and relaying them as indicated should be allowed.

Other Matters

47. [47]
    The next area considered by the Tribunal was rectification of defective tiling near the pool: p. 16. This conclusion was within the terms of the general challenge to the decision of the Tribunal in the Notice of Appeal, but at the hearing senior counsel for the appellants conceded that there was no basis on which he could submit that was to occur it was appropriate for me to interfere on appeal with the conclusions arrived at on this matter. In these circumstances, it need not be considered further. Finally, the Tribunal ordered that the appellants refund to the respondent the amounts charged for carrying out waterproofing works. These amounts were recoverable because the appellants did not hold a licence for doing those works at the time when they were done, and the recovery of remuneration for such works is prohibited by s. 42 of the Act. The appropriateness of this part of the Tribunal’s order was not the subject of argument directly on appeal, although the fact that this amount was recovered was referred to in the course of submissions in relation to the appropriateness of the quantum assessed for certain defective workmanship. That was appropriate; the amounts charged for that work were properly recovered, but once that was to occur, it was appropriate to assess damages on the assumption that the respondent had not paid for any waterproofing work done by the appellants. That is the basis on which I have proceeded.

48. [48]
    It follows that the appeal should be allowed to the extent of reducing the amount ordered to be paid by the appellants to the respondent by an amount of $7,003 from $23,729 to $16,726 There should be a consequential change in the scale on which costs were allowed in paragraph 2 of the order, from Scale G to Scale F. The appeal is otherwise dismissed.

49. [49]
    I will circulate these reasons and invite submissions in relation to costs, but unless there is something in the circumstances not presently known to me, in my opinion the appropriate course is to make no order as to costs. The appellants have been partially successful, but their success has been fairly limited, and much more limited than the relief sought on appeal, which was an order that the respondent’s application to the Tribunal be dismissed. It was apparent from the way in which the application was argued that the appellants were conceding that it was not appropriate to go that far, but overall the appellants have not been substantially successful in relation to the matters actually in contention in the appeal. On the other hand, the appeal has been allowed to some extent, so it is not appropriate to order the appellants to pay the respondent’s costs.