DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from the decision of the Queensland Building Tribunal delivered on 27 June 2003 by which the Tribunal ordered that the appellant before me, the respondent before the Tribunal, pay to the applicant before the Tribunal the sum of $12,219.00 together with a filing fee of $200 by a particular date, together with interest at the rate of 10 per cent per annum from the date of filing the application. There was also a counterclaim by the appellant, which was rejected by the Tribunal. The appeal is brought pursuant to the Queensland Building Tribunal Act 2000 s 92, and is an appeal by way of re-hearing.^[1]

2. [2]
   In the proceedings before the Tribunal neither party was legally represented, although the appellant had had the assistance of a solicitor at one stage prior to the hearing, in connection with some earlier directions hearings, and in the preparation of a statement by him which became Exhibit 7 before the Tribunal. Neither party was represented on the hearing of the appeal.

3. [3]
   The appellant had a contract^[2] with the Body Corporate of a commercial building in North Quay to replace some concrete surfacing around the building. That involved digging up the existing concrete surface and laying reinforced concrete to a depth of about 50-70mm. The concrete was to have a polished and sealed surface, was to be marked out in overlapping rectangles about 1m by 2m, and was to have a small square feature in one corner of each rectangle. The contract referred to this as honed decorative concrete, with decorative tile inserts. Some areas were to be treated differently, but only in terms of the shape of the marking and the position of the square features. Initially the square features were to be ceramic tiles. Ultimately the squares were filled with terrazzo. The contract was dated 27November 2001, and provided for commencement of work on 1 December and practical completion on 10 January 2002.

4. [4]
   By a sub-contract dated 5 December 2001^[3] the appellant and the respondents agreed that the respondents would carry out the concrete polishing, seal the short cut joints with coloured Sikaflex, and apply the surface sealer to the concrete. The commencement date was given as 11 December, with the contract providing that the work would take “no more than 10 working days to be completed.”

5. [5]
   The appellant maintains that the respondents did not start work until 18 December, that they only worked for two days, that they then did little work until mid-February, and the work was so badly done that it ultimately had to be done again. The appellant also alleged that the effect of the respondents’ failure to do their work properly was that his contract with the Body Corporate was terminated, so that he lost the benefit of a payment which would otherwise have been made to him under that contract, and was exposed to a liability to the Body Corporate which it was pursuing against him in other proceedings in the Tribunal. By the counterclaim, the appellant sought to recover from the respondents both the balance of that contract price which was not paid, and the amount of any liability found by the Tribunal in favour of the Body Corporate.

6. [6]
   On the other hand, the respondents claim that they had largely completed their work under the contract by the date when the works were taken out of the hands of the appellant, and that there was no deficiency in the work they did, although there were serious problems with the concrete which they had to hone, because it was suffering from severe cracking. They claimed before the Tribunal to be entitled to payment of the contract price under their sub-contract, less a small allowance for a small amount of work not done, and that claim was successful.

The Tribunal’s judgment

7. [7]
   The Deputy Chair of the Tribunal who heard the matter reviewed the cases of each party in her reasons, and the evidence which was put before her by both parties, which was extensive. She concluded that the respondents had performed the works pursuant to the sub-contract except for the application of one sealing coat and some relatively limited extra grinding work, for which she gave a credit of $750. She also found that there was no evidence, by which I take it she meant no independent evidence, that any work of the respondents was defective, or indeed any material to support the proposition that the appellant’s contract with the Body Corporate had been terminated in February. She accepted the evidence of an expert witness, an engineer Mr Leddy whose report was put in evidence by the respondents and became Exhibit 3, that the cracking of the concrete had nothing to do with the polishing of the surface, but was attributable to the way in which the topping slab had been laid, which plainly had not been the fault of the respondents.^[4] She noted that other expert evidence, put in evidence by the appellant, appeared to be consistent with the proposition that the cracks in the concrete arose because of the matters which were not the responsibility of the respondents.^[5]

8. [8]
   In relation to this, the appellant’s argument appears to have been, and to be, essentially that, although the respondents were not responsible for the cracks forming in the concrete, they ought to have filled the cracks with a cement wash prior to honing the surface of the concrete. If that had been done the cracks would have been either completely or largely concealed, and have been of no great significance.^[6] As it was the cracks ultimately became a significant cosmetic blemish.

Fresh evidence

9. [9]
   I was shown various photographs of the work, including two sets of photographs which were not in evidence before the Tribunal. There were some photographs before the Tribunal, annexed to the appellant’s statement which became Exhibit 7, taken of the concrete surface after his contract had been terminated, and some rectification work had been done by someone else. It is possible to see various cracks in this concrete, with varying degrees of prominence. He tendered before me a large number of photographs which he said were taken, apparently by the Body Corporate or by the Architects, on the day on which his contract was terminated. He said that these were put in evidence in the other proceedings in the Building Tribunal, between himself and the Body Corporate, but that he had not had copies of these available at the time when the matter was proceeding before the Tribunal, so he was not able to put them in evidence before the Tribunal.

10. [10]
    The Court of Appeal has decided that additional evidence should be admitted on the hearing of an appeal from the Building Tribunal only if the fresh evidence rule is satisfied: Walker v Davlyn Homes Pty Ltd [2003] QCA 565. It may well be that this was evidence which could not with reasonable diligence have been obtained by the appellant at the time of the hearing before the Tribunal, and I am prepared to treat that limb of the fresh evidence rule as satisfied. The difficulty however is in showing that they would have made a significant difference to the outcome had they been put in evidence before the Tribunal, so as to satisfy the other limb of the rule. My problem, and no doubt the problem of the Tribunal had they been in evidence there, is that it is very difficult for me to say anything about the nature and quality of the work from examining the photographs.

11. [11]
    Some of them certainly show what appears to be honed concrete^[7], while others show work which appears to be to some extent still in progress, and others show concrete which appears to have a light and irregular coating of white material on parts of the surface. It may be however that this was simply something which needed to be cleaned off. There were some of the small decorative squares which had been concreted in but which had not been polished at the time when the photographs were taken. It may be that some of the white material was a by-product of this work which had not been cleaned away at that time. Without the assistance of some expert evidence to interpret this material, it does not really throw any further light on the situation, or provide any practical support for the appellant.

12. [12]
    The other set of photographs were attached to the respondents’ outline of argument which was filed in the court in accordance with the practice direction, but apparently not served on the appellant. These are photographs taken in December 2003, well after the hearing in the Tribunal, and show that there has been some further deterioration in the surface compared with its state as shown in the photographs which were in evidence before the Tribunal. It seems to me however that this is not of any particular significance; it simply shows that there are still cosmetic problems with the surface of the concrete.

Analysis

13. [13]
    The problem for the appellant is that, although there was a certain amount of expert evidence directed to the cause of the cracking, none of the experts addressed the question of whether there was anything that the respondents ought to have done under their contract in order to patch the cracks so as to make them less conspicuous. The respondents conceded before me that they had attempted to seal the cracks with resin, and the appellant suggested that this was something which actually made them more unsightly. But this was not supported by any expert evidence in the Tribunal.

14. [14]
    The saw cut joints were supposed to be sealed with coloured Sikaflex. The surface of the concrete as a whole was supposed to be sealed. Both of these things were required to be done under the sub-contract between the parties, but there does not seem to be anything in the sub-contract which required the respondents to do anything in relation to any cracks that appeared in the concrete.^[8] It may be therefore that it was a breach of the sub-contract for the respondents to put resin in the cracks; on the other hand, it is not immediately obvious how it was a requirement of the sub-contract for them to put a cement wash in the cracks, even assuming that that was a constructive thing to do in the circumstances.

15. [15]
    There was in evidence before the Tribunal (Exhibit No 6) a “Honed Concrete Finishes Specification” prepared by the Cement and Concrete Association, dated 15 May 2002. This document does not appear to be related specifically to this work, but to be a general statement about how such a surface is to be achieved. Among the matters stated in the document is the following:

“17.All minor imperfections (shall or shall not) be filled using a cement based coloured slurry and reground to ensure surface appearance is consistent.”

This is unhelpful, because it does not indicate even whether or not this was something which ought to have been done in this particular case, let alone who as between the appellant and the respondents was responsible for doing it. There is nothing in the material that I can find which indicates that it was the responsibility of the respondents rather than the appellant to deal with any problems which arose in relation to cracking of the concrete prior to the time when the surface was honed. In these circumstances there is no basis on which the appellant is entitled to complain about a failure of the respondents to fix in any particular way the cracks which undoubtedly appeared, for whatever reason, in the concrete.

16. [16]
    There was evidence before the Tribunal on the basis of which the Tribunal was entitled to find that the respondents had done most of the work that was required of them under the contract, notwithstanding such cracking as was present in the concrete. There was certainly evidence to the contrary put before the Tribunal by the appellant. In those circumstances, the Tribunal had to make a finding as to which evidence it preferred. The Tribunal was entitled to prefer the evidence of one party to the evidence of another; indeed in circumstances where the evidence of the parties conflicted, it had to prefer the evidence of one of the parties. The Tribunal heard from both sides, and from one expert witness, Mr Leddy.

17. [17]
    Although this is an appeal by way of re-hearing, it is well established that in such an appeal it is necessary for the appellant to demonstrate that there is something wrong with the decision under appeal, if it is to be set aside.^[9] That is not done simply by asserting that the evidence which was accepted was false, and that the Tribunal ought to have accepted contrary evidence, which was true. It is not possible to demonstrate from any independent document, or from any independent witness, that the evidence of the respondents ought not to have been preferred to the evidence of the appellant. I certainly could not reach that conclusion simply by looking at the photographs which the appellant sought to rely on as fresh evidence, or indeed the other photographs which were in evidence, or the other documentary exhibits.

18. [18]
    Overall the appellant has not shown that there is any good reason to interfere with the decision of the Tribunal. The appeal is dismissed.