Walker v Kordonsky[2004] QDC 32

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal from a decision of the Queensland Building Tribunal which on 26 July 2002 ordered the appellants^[1] to pay the respondent^[2] $10,886.75, being part of the amount the respondent had claimed as applicant in the proceeding in the tribunal, together with the reimbursement of his filing fee of $200.  On 9 August 2002 the appellants applied to have the decision reconsidered under the Queensland Building Tribunal Act 2000 (“the Act”).  On 19 August 2002 the chair of the tribunal refused their request, on the ground that the circumstances permitting a reopening under s 88 of the Act did not apply.  The notice of appeal to this court was filed on 23 August 2002.  The appeal is by way of rehearing in the usual sense:  Pointon v Redcliffe Demolitions Pty Ltd (2002) 23 Qld Lawyer R 103.

2. [2]
   The proceeding arose out of the construction of a house for the appellants. They had originally entered into a contract with a builder, Davlyn Homes Pty Ltd, to construct the house, but at about the completion of the frame stage a dispute between the parties resulted in each party purporting to terminate. Proceedings were commenced in the tribunal, which ultimately decided that the company was entitled to recover some payment from the appellants. The appellants counter-claimed for defective workmanship, in respect of which the sum of $500 was allowed by the tribunal. The appellants appealed to the District Court from that decision, which appeal was dismissed: [2003] QDC 292. The appellants applied for leave to appeal from that decision to the Court of Appeal. After the present appeal was argued before me, the Court of Appeal refused that application: [2003] QCA 565. The judgment of the Court of Appeal contained a number of important statements of principle as to the correct approach to appeals from the tribunal to this court under the Act. I am of course bound to apply the approach laid down by the Court of Appeal.

3. [3]
   After the relationship between the appellants and that company broke down, the appellants signed a contract with the respondent to complete the house. There was a dispute before the tribunal as to the terms and effect of this contract, and as to whether work under it had been completed by the respondent. The respondent claimed the balance of the money payable under the contract on the basis that work had been completed. By way of counter-claim the appellants alleged there were numerous aspects of the work which were not complete, and that various certificates had not been provided.

The tribunal decision

4. [4]
   The contract between the applicants and the respondent stated a total price of $72,126 which was divided into a lump sum component, prime cost items and provisional sums, but in each case the particular figure which was inserted was qualified by “(allowance)”. The tribunal concluded that this meant that all of the figures were actually estimates, and that it was appropriate to adjust the final amount payable by reference to any difference between the estimated figure, a breakdown of which was given in Exhibit 6,^[3] and the actual cost.  For this purpose the tribunal member went through the material and determined what the actual cost was of the various items, giving the appellants credit for payments made.  The tribunal member dealt with a number of particular inconsistencies and difficulties in the evidence, which appear generally to have been resolved in favour of the appellants, although some certainly were not. 

5. [5]
   The tribunal member then worked through a list of particular items. In some cases the actual amounts determined were greater than the estimates, but not very many, and in a number of cases the amounts were lower. Sometimes this was because the appellants had paid separately and directly for the item in question. Ultimately the contract price, adjusted to reflect actual costs, came to $66,023.73. A credit was given then for two payments totalling $51,815.85. There had also been some amounts paid by the appellants, in respect of which the tribunal found that the respondent reimbursed them, so this amount was not taken into account except for a small amount by way of adjustment because the amount of the reimbursement was actually slightly too high. After making a further allowance in respect of some plumbing expenses paid directly by the appellants, the tribunal determined that the balance owing was $14,066.75.

6. [6]
   In relation to the matters raised in the counter-claim, the tribunal member dealt with the question of whether certificates had been provided by saying that the certificates for the footings and slab were Davlyn Homes’ responsibility, a termite barrier certificate was the responsibility of the appellants because they had organised the installation of the Termi-mesh, a roof truss certificate was a matter also for Davlyn Homes and one had been provided in the proceedings in which Davlyn Homes was a party, a smoke alarm certificate had in effect been provided because of documentation from the respondent showing smoke detector installation, and a glazing certificate was not the responsibility of the respondent because the windows were provided by Davlyn Homes, and the shower screen was to be installed by the appellants. The tribunal concluded there was no evidence that the respondent was responsible for any additional certification which had not been provided, and declined to make any finding or order in respect of that issue.

7. [7]
   In relation to defective work, the only expert evidence available to the tribunal was the evidence of an inspector from the Building Services Authority, Mr Clayton, who had inspected the building in November 2001 after termination of the original contract, and again in April 2002, not long before the hearing of the matter in the tribunal started (on 10 May 2002).  The tribunal noted that his was the only evidence dealing with defects in the premises from any tradesperson or other expert.  His evidence was accepted.  He identified five aspects of work which he regarded as defective and the responsibility of the respondent, and on the basis of his estimate of rectification costs the tribunal determined that the reasonable costs of rectification of matters the responsibility of the respondent was $3,380.  That amount was deducted from the amount payable to the respondent, to leave a balance of $10,686.75.  The tribunal noted that no evidence was called by either party regarding the cost of rectification. 

8. [8]
   Finally the tribunal member considered a complaint that the bathtub had been installed back-to-front, but concluded that this was not the responsibility of the respondent. The bath had been installed by Davlyn Homes, in a position dictated by the location of the drain pipe penetration of the slab, although this meant that the part of the bath which was intended to double as a shower base was at the end away from where the taps and shower head had to be.^[4]   The respondent installed them in what would have been the correct position if the bath had been the other way round.  I cannot tell from the evidence whether there was any better alternative available to him.  The conclusion of the tribunal, that any fault was in the work done by Davlyn Homes, has not been shown to be wrong.

The appeal

9. [9]
   A notice of appeal was filed by a solicitor on behalf of the appellants, and contains a large number of grounds. It was filed on 23 August 2002, but an outline of argument was not filed until 23 December 2002.  It was filed on behalf of the appellants by a different solicitor.  An outline of argument on behalf of the respondent was filed on 18 June 2003.  An amended outline of argument was subsequently placed on the file, although the date on which this occurred does not appear.  What appears to have been a reply on behalf of the respondent was filed on 6 November 2003.  Both of these documents were apparently prepared by the parties in person, although the amended outline of argument for the appellants was well presented and organised, and it occurs to me that the appellants may well have had some assistance in its preparation.

10. [10]
    The grounds of appeal, and the matters covered in the outline of argument, in the amended outline of argument, and to some extent in the course of the submissions by Mr Walker before me, are wide ranging. The notice of appeal seems to challenge almost every aspect of the tribunal’s decision: the procedure involved in the hearing, the conclusion as to the true interpretation of the contract, the conclusions as to the amounts properly payable under it, and a failure to find additional matters justifying damages sought in the counter-claim.

Conduct of the tribunal hearing

11. [11]
    In relation to the question of procedure, it was submitted that the appellants had been denied a fair hearing because without fault on their part their witnesses did not give evidence before the tribunal and the tribunal had failed to adjourn the hearing to enable them to secure the attendance of their witnesses, or to permit them to tender evidence in the form of quotations for rectification work. The matter is referred to in grounds 1 – 3 of the notice of appeal, and in the appellants’ original outline of argument.

12. [12]
    Prior to the hearing there were directions hearings on 3 April 2002, when reference was made to obtaining an inspection by the Building Services Authority and a report for use in the proceeding, and on 29 April 2002, when the matter was listed for hearing on 10 May 2002.   Further, some directions were made on that occasion which included that the appellants file and deliver to the respondent one copy of their defence by 9 May 2002, by which date they were also required to “file in the registry two copies and deliver to the applicant one copy of their statement/s and statements of all witnesses to give evidence for them at the hearing of this matter;  attach to the appropriate statements all relevant documents and explain in that statement their significance.” 

13. [13]
    When the formal order for directions was drawn up, the paragraph dealing with this was followed immediately by a notice: “NB: These statements and documents should prove all of the issues involved in your defence. Sending of statements or documents by facsimile and/or email will not satisfy the direction to file statements. They must be posted or delivered by hand.” There was then a direction in these terms: “All witnesses are required for cross-examination, unless the parties agree that a witness’s evidence is not challenged in which case the witness need not attend (the right of the member to require the attendance of the witness is reserved).” This was followed by a notice in these terms: “NB All witnesses are required to attend the hearing unless the witness is excused or not required. Should a party be unable to secure the attendance of one of their witnesses at the hearing, that party should request the registrar to summons that witness to attend. A fee of $13.20 is payable to the tribunal prior to preparation of a summons. If a party wishes a witness to attend by telephone, application must be made in accordance with the tribunal’s practice direction.”

14. [14]
    The order recited that those directions were made in the presence of Mr Walker, who according to a note on the file was going to attend by telephone. A copy of the formal order would also have been sent to the appellants. They were also sent a notice of hearing, which identified the time, date and place of hearing, and included three notices, two of which were as follows: “Your witnesses (ie all persons who have provided statements) are also required to attend at the hearing unless the other party advises that they are not required for cross-examination. You are required to bring to the hearing your copies of all statements and documents relevant to the dispute.”

15. [15]
    The matter proceeded before the tribunal on three days, 10 May, 14 and 19 June 2002.  There is no transcript available, but the proceedings in the tribunal were recorded, the tapes have been made available, and I have listened to them.  On 10 May this matter came on, at the same time as the Davlyn Homes matter, so that Mr Clayton could give evidence on the one day in respect of both matters.  After his evidence, this matter was adjourned to a date to be fixed;  evidence continued for the rest of the day in the Davlyn Homes matter, which was then adjourned to 11 June.  On 10 May the tribunal gave some explanation to the appellants of what was required, by way of presenting evidence, explaining the directions which had been given earlier.  At the end of that day’s hearing the tribunal again explained what was required of a party by way of leading evidence, and cross-examination, and again directed that the appellants file and serve statements of the evidence on which they intended to rely.  Although there was no express reference to expert evidence being dealt with in this way it was obvious from what was said what had to be done in that regard. 

16. [16]
    There was a further notice of hearing in relation to the adjourned hearing on 14 June.  That notice included the same two notices as the earlier notice of hearing.  There was then the hearing on 14 June 2002.  The appellants say that they were unaware that they were required to bring witnesses to the tribunal hearings on 14 June, and that Mr Walker told the tribunal member that on 14 June.  The respondent says the appellants were advised by the tribunal member on that day that they were able to call witnesses to give evidence.  The appellants told the tribunal on 14 June that they did not have witnesses available, and were told that that was the day to produce them, so they would have to proceed without them. 

17. [17]
    The tribunal member had considerable difficulty on this occasion trying to get the respondent’s claim into some sort of order, and working out just what he was claiming, and on what basis. A lot of time was spent on this, and in identifying just what documents were part of the contract. Eventually it emerged that the respondent had not brought all of the documentation to prove just what he had spent on the contract. The tribunal was critical of this, but allowed him some additional time to file copies of all of this material, and serve copies. The appellants were also supposed to file and serve any other documents they had witnessing the expenditure on the work, as distinct from rectification work. Further directions were given, that the respondent have leave to file his amended statement of claim and that he file one copy and deliver to the appellants one copy of any invoices which substantiate the expenditure listed in Exhibit 9, and the appellants file one copy and deliver to the respondent one copy of the invoices to substantiate Exhibit 5, both by 18 June 2002. 

18. [18]
    The appellants had filed in the tribunal two statements by Mr Walker, one statement by Mrs Walker, and a statement by a plastering subcontractor. That indicates an appreciation by the appellants that statements of witnesses ought to be filed, although the only witness apart from the appellants themselves was one who did not deal directly with any of the matters that seem to have been in issue. She did make some comments which were critical of the attitude of the respondent. Mrs Walker’s statement said that the builder did not clean up at the end of the job, and complained about his putting waste in a rubbish bin, but otherwise did not contain any specific evidence of defective workmanship or possible breach of contract on the part of the respondent.

19. [19]
    Mr Walker and Mrs Walker were present at the hearing, and gave evidence, as did the respondent. All were crossexamined after a fashion, although neither party had any idea how to do this properly, and the process was strictly controlled by the tribunal. The matter was adjourned for further hearing to 3.30pm on 19 June 2002.   Very little happened on that day; there were some brief submissions about a few of the documents which the respondent had produced, and the decision was reserved.

20. [20]
    It seems clear that in accordance with its ordinary procedures the tribunal had provided notice in writing to the appellants of the need to obtain and file witness statements from proposed witnesses, and to have proposed witnesses available to give evidence unless it was agreed by the other party that cross-examination of them was not required. If the appellants failed to realise that this was required, it was not as a result of any failure of the tribunal. Mr Walker did not seek and was not refused an adjournment on 14 June;  rather the complaint is that the tribunal ought to have offered him an adjournment in order to obtain witnesses to support his case, when they had not been arranged by him at that stage.

21. [21]
    This is similar to some of the submissions on behalf of the appellant in Ball v Beard [2003] QDC 458, and I will not repeat what I said there.  I am not persuaded that there is any substance to these grounds.  It is not for the tribunal member to tell a party what evidence ought to be provided, or to adjourn a proceeding or offer an adjournment to enable more evidence to be put forward so as to support the party’s case.  It is ultimately the responsibility of the party in a proceeding before the tribunal to put together and run that party’s case.  I am not persuaded that there was any denial of procedural fairness in the way in which the proceeding was conducted.

22. [22]
    One matter which was the subject of a complaint is the fact that the respondent was able to put in evidence invoices and other documents evidencing amounts which he had paid to suppliers and subcontractors in relation to the work, without producing for cross-examination the people who had prepared those documents, but documents supposedly attesting to defects in the construction of the house were not considered by the tribunal. This confuses the evidentiary effect of these two types of documents. Because of the interpretation the tribunal placed on the contract, what was relevant in order to assess the amount payable under it was how much the respondent had actually paid to have various items of work undertaken on the house. These documents were evidence of what the respondent was charged for doing certain work or supplying certain goods, and therefore what payments he had made. The respondent was able to prove them because he was the one to whom they were provided, that is he could give evidence that they reflected what he had been charged by people who provided goods or services in the construction of the house. What mattered in the context of that interpretation of the contract was what the appellant had paid for the work, and that was something he could prove by his own evidence, which also made documents relating to those payments and evidencing them admissible.

23. [23]
    On the other hand, evidence by persons other than the appellants that there were defects in the house, and what those defects would cost to repair, would depend not on the evidence of the appellants but on the evidence of the people expressing those opinions. Proof of those matters depended not on the testimony of the appellants, but on the testimony of the people who had provided the letters. In order to make them admissible, they should have been called as witnesses, and indeed proper statements obtained from them.^[5]  By seeking to hand up a letter or other document from someone else purporting to state that there were defects in the premises, the appellants were not putting forward a document they could prove by their own evidence, but were putting forward a document whose value as evidence depended upon what was said in the document.  In those circumstances, the maker of the document ought to have been available as a witness unless the other party did not require that to occur, and there is no suggestion that the respondent was content for these letters to become evidence without the authors being produced for cross-examination.  In these circumstances, the tribunal was entitled to refuse to accept these documents as evidence of defects.^[6]

24. [24]
    The original submissions also say that the male appellant did not understand key aspects of the tribunal process and was suffering from a medical condition which affected his ability to comprehend the tribunal requirements. It is not clear how or why this should be apparent to the tribunal, and whatever expertise they might have in relation to building matters, there is no reason to think that the tribunal members can detect the presence of medical conditions by looking at a litigant in person. It is quite apparent from the tapes that neither party had any clear idea of how proceedings were to be conducted in the tribunal. The tribunal member did what she could to explain the requirements, but she could not run the appellants’ case for them. I am not persuaded that the hearing miscarried on this basis.

25. [25]
    It was submitted that the tribunal had acted contrary to s 41 of the Act in not receiving the letters attesting to damage to the house.  It is true that under subsection (4) the tribunal is not bound by the rules of evidence, and is required to conduct the proceeding with as little formality and technicality as the requirements of the Act and the proper consideration of the matters before the tribunal permit.  Nevertheless, one of the requirements of the Act is that the tribunal proceed in accordance with the rules of natural justice.  Apart from that, where there are disputes as to whether or not certain defects were present in the building, it is important that the party against whom the defects are alleged have a proper opportunity to challenge evidence that there are such defects.  For that reason, it is appropriate that the tribunal have a practice of requiring evidence of defects to be given by witnesses who are available for cross-examination, unless the other party does not require cross-examination. 

26. [26]
    In addition, there would be great difficulty in assessing the value of evidence in such circumstances, where a person not produced for cross-examination asserts that there is a defect present in a building, which the other party disputes, and an independent inspector from the Building Services Authority has apparently not detected. I cannot see how the tribunal could properly deal with evidence presented in such form, and do not consider that s 41 requires the tribunal to accept such evidence in such a form.  I am not persuaded that there was any breach of s 41 in this matter.

27. [27]
    There was tendered by the appellants before the tribunal only one piece of expert evidence, a report by a licensed builder, Mr Haskard. This became Exhibit 14, although there is no reference to it in the reasons of the tribunal.  It was produced late on 14 June, almost casually, by Mr Walker, and looked at by the tribunal, who said she would have regard to it only as evidence of the quantum of rectification costs in relation to the allegation that the bath had been put in back-to-front.  This was in the circumstances generous to the appellants, bearing in mind that it had not been filed or served on the respondent, who had no opportunity to challenge this aspect of it, by cross-examination or otherwise. 

28. [28]
    Mr Haskard’s report dealt with a number of matters which were also raised in the report of Mr Clayton, on which the tribunal did act. The first matter raised was bowing of the girder truss at the back of the garage, which was also item number two in Mr Clayton’s report. He said this required rectification, and this was treated as the respondent’s responsibility by the tribunal. Mr Haskard thought there was a similar problem on the left hand internal wall next to the front door. However, the deviation in other areas detected by Mr Clayton was no more than three millimetres which was said to be within acceptable standards. Item number 3 was the omission of the plaster cornice to the top of the kitchen cupboards, which was not dealt with by Mr Clayton; Mr Haskard estimated this at $100. The next item criticised the way in which the sink had been fitted into the kitchen cupboards. This was dealt with by Mr Clayton as part of item four and was treated as the responsibility of the respondent by the tribunal. Item 5 was the problem with the back of the oven cavity, which is in the same position. Item 6 was the installation of the bathtub back-to-front, which was dealt with by the tribunal.

29. [29]
    Item 7 dealt with defects in tiling to the bathroom and ensuite, and this matter was also dealt with by Mr Clayton in his item number 3, and was covered in the damages allowed by the tribunal. Item 8 was that the septic tank was giving off a very strong odour. Mr Clayton did not detect any odour at the time of his inspection: Exhibit 15, p. 10.  The problem with the septic tank may be associated with the fact that it is in a position where water tends to pool around it after rain.  The appellants argue that this indicates that it has been installed too low, although I would have thought that it should be able to operate properly and without odour whether or not there is water lying around it.  The respondent said that the height of the septic tank was dictated by the height of the drainpipe which was installed by Davlyn Homes.  If that is so, he is not really responsible for the height of the septic tank.  If there are drainage problems, it may be that the house has been built with the floor too low compared to the surrounding landscape, but if that is the case it was the fault of Davlyn Homes rather than this respondent.  The real problem is that the appellants did not have any proper expert evidence as to what was wrong with the septic tank, and why it was smelling.  That evidence should have been obtained at the proper time.

30. [30]
    Item 9 related to the connection between the stormwater drain and the downpipes; one was above ground when it should have been below ground, and there was a downpipe missing. Mr Clayton agreed that there was insufficient cover over at least one of the connections to the downpipes, and this was a matter taken into account by the tribunal. He considered however that there were sufficient downpipes already, there being five on the dwelling. Item 10 was the omission of the brick which was Mr Clayton’s item 1 and was taken into account by the tribunal.  Item 11 was the absence of keys for the back door, which was not taken into account by Mr Clayton.  It is something which can obviously be easily remedied.  Item 12 was the absence of a certification in relation to Termi-mesh treatment.  The tribunal proceeded on the basis that this was the responsibility of the appellants.  It is not clear whether this was arranged by them directly or whether this was something for which Davlyn Homes was responsible, but it does seem clear that it was not the responsibility of the respondent.

31. [31]
    Finally in relation to matters of procedure, ground 5 challenged the decision of the tribunal member to permit the respondent to be present during the hearing of evidence in the proceeding involving Davlyn Homes in the tribunal.  There is nothing as far as I can see in the Act which indicates whether the tribunal is to sit in public or in private.  There would be a presumption that a court would sit in public, and perhaps the same would apply to an administrative tribunal, but not necessarily.  In the absence of some specific provision in the Act, or in the regulations or any rules^[7] made under the Act, the matter would appear to be covered by s 41(2), which provides that the procedure is at the discretion of the tribunal.  Even assuming therefore that the respondent did not have the right to be present at the hearing of the other matter, because the proceeding was in public, the tribunal member in my opinion was clearly entitled to allow him to be present, and no reason has been shown why a decision to do so amounted to an error on the part of the tribunal.  In any case, he was present on the first day mainly because the evidence of Mr Clayton was (sensibly) taken then in relation to both matters.

Interpretation of the contract

32. [32]
    The next group of grounds is directed to challenging the decision of the tribunal in relation to the interpretation of the contract. The appellants challenged the conclusion that the total contract price was only an estimate, so that it was subject to adjustment in line with actual cost. Yet that was a conclusion which is plainly open on the terms of the document, in view of the insertion of the word “(allowance)” in the section of the contract price identified as the “lump sum component”.^[8]  Obviously, as the tribunal member appreciated, this was an unusual situation, and it was one where a standard contract document was modified to take account of the particular exigencies of the situation, but not modified very thoroughly.  In interpreting the contract, the tribunal was obviously striving to achieve an interpretation which gave commercial efficacy to the contract.  That is an appropriate approach to construction of a commercial document which has obviously not been professionally drawn:  Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840:  Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 at 109-110;  Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd (1968) 118 CLR 429 at 437. 

33. [33]
    This does mean that some aspects of the contract do not work properly, in particular the clause which provides for progress payment percentages including a base stage and frame stage, which had already been constructed. There are obvious difficulties applying that clause and condition 16, in relation to this contract, particularly in circumstances where the “lump sum component” is not a true lump sum, but is an allowance, more in the nature of a provisional sum.  It does not follow however that the contract is void for uncertainty, although it may well be that some parts of the contract cannot be given a literal interpretation.  In practice however there are no particular difficulties caused by item 10 in the Schedule, and condition 16, which require resolution in this case.   I have not been persuaded that the interpretation of the contract adopted by the tribunal member was wrong, and ground 6(a) fails.

34. [34]
    The next issue which arose in relation to the interpretation of the contract was one which achieved some prominence in the amended outline of argument for the appellants, and the oral submissions by Mr Walker at the hearing. It was submitted that the effect of the contract was that the respondent had agreed to rectify any defects in the work already undertaken, so that the respondent became liable for any continuing defects in work undertaken by Davlyn Homes. This is a matter of some significance to the appellants, because they now say that that work was so defective that it can only be properly remedied by demolishing the house and starting again.

35. [35]
    Reference was made by the appellants to the particulars inserted as a brief description of the works in Item 1 of the contract, which is in the following terms: “Lowset brick and tile dwelling. Carrying on construction from frame stage to final stage. Rectified any previous building works which was not completed to original contract.” Although the word “rectified” suggests the fixing of existing defects, when the clause is read as a whole it seems to me that its appropriate construction is that the respondent was agreeing to complete those parts of the early stages, the base stage and the frame stage, which had not been completed in accordance with the original contract. The position appears to be that essentially Davlyn Homes had constructed the base and frame stage, although there may well have been aspects of the work which had not been complete.^[9]  The wording of the contract suggests to me that what was contemplated was that the respondent would complete any aspects of the base and frame stage which were not complete, and then build the rest of the house.  That would be consistent with the list of components of the building which was Exhibit 6 referred to by the tribunal member. 

36. [36]
    I think it would be unlikely that a builder who was agreeing to finish a house which had been started by someone else would also agree to take on a warranty that the work already completed was done properly, and I am not persuaded that the wording in item 1 of the contract schedule on its true construction has that effect.  It is not at all clear that this point was considered directly by the tribunal member, although she certainly proceeded on the basis that the respondent was not responsible for any defects in the work undertaken by Davlyn Homes.

37. [37]
    The appellants in their amended outline of argument complain that excessive amounts were claimed by way of progress payments, and that this led to an overpayment which the appellants were entitled to recover. Reference was made to s 69(1) and (2) of the Domestic Building Contracts Act 2000, but that section is concerned with a situation where a building contractor has been convicted of an offence in relation to one of the other sections of the Act involving the receipt of an amount of money in excess of the amount which may lawfully be paid in accordance with the restrictions in that Act.  Plainly the tribunal was not concerned with that provision, and there is no indication that the respondent has been convicted of an offence against one of the sections under that Act, certainly not before the District Court, so there is no question of my having that power.  This provision is irrelevant for present purposes.

38. [38]
    Even if there was an overpayment in relation to the progress payments, that in my opinion does not matter. The payments were sought and were made, and the work continued, and the tribunal ultimately found that the amount payable under the contract for all the work done by the respondent was greater than the total of the progress payments which had already been made, so that there was some additional amount payable by the appellants. The only effect of earlier payments being larger than they should have been (if that was the case) is that there is less money for the appellants to pay now. It does not have the effect that either the balance of the contract money is not payable, or there is some entitlement to a refund now. This aspect of the appellants’ argument was misconceived.

Repudiation

39. [39]
    It was submitted that the respondent had failed to complete the work required under the contract, but rather had walked off the job. The respondent’s case in relation to this is that after the date stated in the contract as the completion date (18 January 2002) he had been told by the appellants that his contract had expired and he was no longer allowed on to the property.  He said he had allowed the appellants to move in earlier than this (22 December 2001), and worked around them until then, but that he was not allowed to work further after this date.

40. [40]
    The appellants certainly asserted before the tribunal that some of the work was incomplete. That matter was dealt with by the tribunal essentially as claims for damages for incomplete or defective work under the counter-claim. The tribunal appears to have proceeded on the basis that the work had reached practical completion, or was at least substantially complete, so that the respondent was entitled to be paid the amount payable under the contract, and any issue of incompleteness was to be dealt with by way of damages. Alternatively, given that the builder was only claiming under the contract for the work which had actually been done, the tribunal may well have been proceeding on the basis that any work which had not been done did not have to be paid for. It does appear that some matters were paid for by the appellants,^[10] and this led to deductions in determining the actual amount payable under the contract.  It is not clear whether these items were provided separately by the appellants either before or after 18 January 2002, or whether they have never been provided. 

41. [41]
    The tribunal has not resolved the question of how the contract came to an end. However, the tribunal accepted the evidence of the Building Services Authority inspector, Mr Clayton. His report became Exhibit 15.^[11]  Although he did not say directly that the building had achieved practical completion, he referred to various allegations that aspects of the work were incomplete in terms which indicate that any deficiency is properly regarded as a defect, and a matter which would not prevent the works from being substantially complete.  For example, in relation to the allegation that the brickwork is incomplete, he identified only that one brick had been removed to allow for wiring, and said that this required rectification.  Although he referred to some other aspects of rectification which had to be performed, these were dealt with by the tribunal under the counter-claim.

42. [42]
    In all the circumstances I am not persuaded there was any relevant error on the part of the tribunal in failing to find that the respondent had walked off the job before reaching the practical completion stage. It seems to me that in substance the effect of Mr Clayton’s report was that the job was at least substantially complete, if not actually at the stage of practical completion, at the time of his inspection. In those circumstances the matter was appropriately dealt with by treating any lack of completion as a defect and a matter for damages under the counter-claim. There is no substance in grounds 6(b) and (c). It also follows that there is no substance in ground 6(d), because there is no basis for a conclusion that the appellants were entitled to terminate the contract.  Some damages for breach of contract have been allowed in the counter-claim;  it is otherwise unhelpful to consider ground 6(e), which appears to be based on the assumption that there has been a wrongful repudiation of the contract by the respondent.  I am not satisfied that there was any such wrongful repudiation.

Quantification of the respondent’s claim

43. [43]
    Ground 7 deals with various aspects of the acceptance by the tribunal of the respondent’s evidence in relation to the cost of the work. The appellants submitted there was no evidence of its reasonableness. There are two difficulties with this challenge. The first is that what the tribunal was concerned with was what the work cost, rather than the question which would have been relevant on a claim for quantum meruit, of what was a reasonable amount to charge for the work that was in fact done. Strictly speaking if what the respondent is entitled to recover is the cost of the work done it is not necessary for him to show that those costs were reasonable; if the costs were not reasonable, that would be a matter for a counter-claim for damages for breach of an implied term in the contract that the work done would be such as was reasonably necessary, and it would be done at a reasonable price. But apart from this, there was no proper evidence before the tribunal to challenge the reasonableness of what had been paid by the respondent. The fact that the respondent paid these amounts for work is some evidence of reasonableness, and in the absence of any other evidence on the subject the tribunal was entitled to proceed on the basis that these amounts were recoverable.

44. [44]
    The matter raised in ground 7(e) is somewhat different, in that it alleges a failure to take into account all the money paid by the appellants.  However, that ground has not been enlarged upon anywhere in the submissions, and it is not clear to what this refers.  There was some money paid by the appellants to suppliers and subcontractors, and some of the payments were reimbursed by the respondent.  There was also some money paid by or on behalf of the appellants to the respondent.  The tribunal has taken these into account.  It has not been shown that the evidence revealed further amounts which ought to have been taken into account, but were not.  No doubt there were other payments made by the appellants;  for example, nothing was allowed in respect of painting of the house, on the basis that this was to be handled separately by the appellants.  In these circumstances any amount paid by the appellants for painting was irrelevant, and was properly not taken into account by the tribunal.  I do not know whether that is the sort of thing to which the appellants are referring.  All I can say is that the appellants have not shown that any payment by them which ought to have been taken into account was not taken into account.

45. [45]
    Ground 8 is that the tribunal erred in failing to find the identity of the person who undertook the plumbing work so the actual plumbing costs could be properly ascertained. The appellants claim that some of the plumbing work was undertaken by the respondent who does not hold a plumbing licence for that sort of work, and that this was in breach of the Domestic Building Contract Act 2000.  This was mentioned in the statement by Mr Walker which was before the tribunal and was raised at the hearing.  The tribunal apparently allowed, as part of the cost of plumbing, labour at $1,280 for the respondent personally.^[12]

46. [46]
    The fact that the respondent was unlicensed would not necessarily be an obstacle to his recovering payment for his work. He does hold a contractors’ licence, so he would not be prevented from recovering by s 42(3) of the Queensland Building Services Authority Act 1991.  It also follows that there was no breach of s 52(2) of the Domestic Building Contract Act 2000;  a licensed building contractor is entitled to contract for the carrying out of domestic building work which includes plumbing work without holding a plumbers’ licence.  The licence required to be held by s 52 is a contractors’ licence, as is made clear by subsection (3)(a).  The respondent held that licence.  As far as I know the mere fact that the respondent was not a licensed plumber is not something which would make remuneration for this work irrecoverable, and the appellants have not referred me to any statutory provisions to that effect.

47. [47]
    If there was something wrong with the work that would be another matter, but there is no evidence of that. Even if there is a provision in the contract express or implied that the work would be done by persons with proper licences, so that that provision has been breached, that would justify an award of only nominal damages. That would not be a sufficient reason to interfere with the decision of the tribunal. It does not seem to me that there was any good reason for the tribunal to deal with this issue in the circumstances, and no error has been shown in relation to this matter.

48. [48]
    The ninth ground in the notice of appeal challenges the conclusion that the contract price as adjusted was $66,023.75, and that the balance owing after deducting payments was $14,066.75. These are conclusions which follow from the various findings the tribunal made. The appellants have not explained how the correctness of those conclusions is challenged, other than by disputing the whole basis on which the tribunal proceeded. Those challenges are dealt with elsewhere. No challenge has been developed before me to the correctness of the conclusion arrived at by the tribunal member on the basis of the findings she made. Accordingly there is no substance to ground 9. 

Certification

49. [49]
    Ground 10 is again concerned with the issue of the responsibility of the respondent for work done by Davlyn Homes, although in this respect the appellants rely on an obligation of the respondent to secure a final certificate from the local authority, and to perform any work required to obtain it. The difficulty in the present case is that the local authority will not issue a final certificate unless matters, which were not the responsibility of the respondent because they were the responsibility of Davlyn Homes, have been addressed. But because the appellants’ claim against that company was essentially unsuccessful, those matters have not been and will not be addressed by it. The tribunal member referred to an inspection certificate dated 24 January 2002, although I cannot identify that document among the exhibits in either this matter or the Davlyn Homes matter.^[13]  However, a copy was provided by the appellants as Exhibit LVW-20 to the amended outline of argument.  That certificate provides a list of certificates said to be outstanding:  an engineer’s certificate for footing and slab inspections, termite certificates under slab and perimeter, truss certificate, smoke alarm certificate, and glazing certificate for windows and shower screens. 

50. [50]
    There was an engineer’s report provided to Davlyn Homes for a slab inspection,^[14] which the appellants claim is false because it occurred prior to the time when the slab was poured.  It is apparent however from the body of the certificate that the function of the report is not to confirm that the slab has been poured, but that everything is in order for it to be poured.  It refers to the moisture barrier and reinforcing being in place, for example, something which could not be detected if the slab had already been poured.  Obviously the certificate is intended to be given before the slab is poured, and this criticism by Mr Walker is unjustified.  Perhaps he has some misunderstanding of the function of the certificate.  It is not entirely clear why this certificate, apparently given in October 2001, had not been made available to the private certifiers for the council prior to January 2002, but I suspect that this has something to do with the dispute between the appellants and Davlyn Homes.  In any case, it is plainly not the responsibility of the respondent to procure engineering certificates for footing and slab inspections.

51. [51]
    With regard to the termite certificates, the tribunal concluded that the Termi-mesh installation was the responsibility of the appellants: para 28(b). An allowance of $1,000 in the estimate was not claimed by the respondent, and deducted by the tribunal: para 26. This was said to be on the basis that this had been “provided by Mr Walker”. Certainly there has been Termi-mesh installed, although I would expect that would have to be installed prior to the time when the slab was poured. I am therefore a little puzzled about this, but the explanation may well be that this was arranged and paid for directly by the appellants at the time when Davlyn Homes was doing the work. Whether or not that is the case, it seems clear that any termite certificates are not the responsibility of the respondent. Mr Haskard’s report refers to the existence of a certificate for the perimeter except for the front of the garage. Presumably if the front of the garage was sprayed and a certificate for that was provided that would satisfy the requirement for engineering certificates for perimeter spraying. There is no reason to differ from the conclusion that termite certificates were not the responsibility of the respondent.

52. [52]
    The tribunal noted that a roof truss certificate became Exhibit 23 in the Davlyn Homes matter. That certificate is dated 19 October 2001, and is a manufacturer’s certificate.  However, there are defects in the roof trusses, and presumably the trusses can be certified again after they have been rectified.  Some allowance was made for this in relation to the problem with the plaster work to the rear of the garage referred to earlier.  I would have thought however that any problem with the roof trusses was the responsibility of Davlyn Homes rather than the respondent.  The tribunal appears to have concluded that this was not a matter in respect of which the respondent was liable, and I am not persuaded to the contrary.

53. [53]
    With regard to the smoke alarm system, the tribunal was satisfied that the respondent had installed a smoke detector. In these circumstances there ought not to be any particular difficulty in obtaining whatever the certifier requires by way of a smoke alarm certificate. It does not appear that there was any expert evidence before the tribunal as to what sort of certificate is required, and how one would go about getting one, and from whom. In these circumstances, it was reasonable for the tribunal not to take that matter any further. With regard to the glazing certificate, the tribunal concluded that the windows had been purchased by Davlyn Homes, and that the shower screens were the responsibility of the appellants. If that is the case, again the respondent is not responsible for the certificates. There is no reason to differ from the approach of the tribunal in relation to these matters.

Fresh evidence

54. [54]
    The next ground of appeal complains about defective work which was identified after April 2002 being ignored by the tribunal. For practical purposes the tribunal did not take into account anything not referred to in the report from Mr Clayton of 10 April 2002, and he only inspected matters which were drawn to his attention at that stage.  This ground is connected with the limitation by the tribunal member of her consideration to the evidence of Mr Clayton, and is related to the matters discussed earlier.  One of the reasons for this was no doubt that on 10 May 2002 Mr. Walker informed the tribunal that it was necessary to look only at the reports of Mr. Clayton for evidence of defects for the counterclaim.  However, during crossexamination of Mr. Clayton, Mr. Walker mentioned another person, apparently an expert.  The tribunal asked if he was to be called, and, when Mr. Walker said he was, asked if a statement by him had been filed (there was none).

55. [55]
    Apart from this, the appellants are seeking to put before this court fresh evidence, that is material obtained as a result of a further inspection by another expert after the tribunal hearing. On 30 May 2003 an architect and builder, Mr Karrasch, prepared a report which dealt with some 75 items said by Mr Karrasch to require rectification.  Of course, that was not filed with the tribunal prior to the hearing, nor was any attempt made to put it in evidence at the hearing.  What the appellants ought to have done was obtain this report prior to the hearing of the tribunal, file this report in the tribunal and serve a copy on the respondent, and then have Mr Karrasch available to give evidence on 14 June.  But that was not done.  There was further information provided by Mr Karrasch on 27 September 2003, but that appears to relate to deficiencies in the concrete slab which is not the responsibility of this respondent.

56. [56]
    The appellants also sought to rely on a report by this architect in the Davlyn Homes matter, at the stage of the appeal to the District Court, but leave to introduce it as fresh evidence was refused. The Court of Appeal affirmed that decision, in terms which make it clear that additional evidence of this nature can only be introduced on appeal if it would comply with what are termed the “fresh evidence” rules. That is to say, to be admitted the evidence must be such that it could not with reasonable diligence have been obtained for use before the tribunal, it must be such that if given it would probably have had an important influence on the result of the case, and it must be apparently credible. In the present case the first requirement cannot be satisfied. There was nothing to prevent the appellants obtaining this material at the relevant time, that is prior to the hearing, but they were then content to rely on the reports of Mr. Clayton.

57. [57]
    Apart from this aspect however the other two requirements for fresh evidence do appear to have been met. The evidence is relevant to the work done by the respondent, and is apparently credible. Indeed, a representative of the Building Services Authority subsequently examined the premises and provided a report dated 29 September 2003, which responds to the report of Mr Karrasch.  He has it seems to me in that report essentially, or to some extent at least, confirmed 19 of the matters raised by Mr Karrasch, while his response to another six was expressed in such vague terms that it is not clear whether he was agreeing with Mr Karrasch or disagreeing with him.  He noted that some of the matters identified had already been dealt with by the tribunal, and did not respond to some others, but in my opinion there was enough acceptance of at least some of the points made by Mr Karrasch to show that his evidence was likely to have had an important influence on the result of the case, and is apparently credible.

58. [58]
    Mr Karrasch’s report is expressed in some respects in an unfortunate and unhelpful way. Parts of it are formulaistic and repetitive, and some of his statements about the method of rectification are essentially unhelpful, and do not refer to rectification of the physical premises. But these may well be simply deficiencies in expression, and do not necessarily mean that there is not substance in at least some of the matters identified by him.

59. [59]
    The crucial issue therefore is whether this material could not have been obtained with reasonable diligence for use in the proceeding before the tribunal. The appellants have not persuaded me that that was the situation. It would obviously have been open to them in April 2002 to consult someone like Mr. Karrasch, so that test cannot be satisfied. In view of the approach laid down in the Davlyn Homes matter by the Court of Appeal, it is therefore inappropriate for me to give leave to admit this further evidence for the purposes of this appeal.

60. [60]
    There are some other matters touched on in the amended outline of argument for the appellants, but I am not persuaded by any of them. There is no basis for interfering with the decision of the tribunal in this matter. Accordingly, the appeal is dismissed. The respondent does not appear to have been legally represented at any time, so there will be no order for costs. I have given this matter careful consideration, because, as the Court of Appeal noted, if there is any substance to the major complaints of the appellants, they have been left with a seriously defective house. So far as I can tell, and I have not heard its side of the story, the problems stem more from what was built by Davlyn Homes than by the respondent. Part of the difficulty is that the appellants are indiscriminate and disorganised in their complaints, and can become heated, but it does not follow that none of their complaints have any substance. Perhaps the Building Services Authority should have another look at this house, outside the constraints of proceedings in the tribunal.