AT Build Co Pty Ltd v WMB Property Group Pty Ltd [2026] QDC 47

DISTRICT COURT OF QUEENSLAND CITATION: AT Build Co Pty Ltd v WMB Property Group Pty Ltd [2026] QDC 47 PARTIES: A.T. BUILD CO PTY LTD ACN 631 552 844 (Applicant) -v- WMB PROPERTY GROUP PTY LTD ACN 658 047 315 (Respondent) FILE NO/S: BD 1820/25 DIVISION: Civil DELIVERED ON: 27 April 2026 DELIVERED AT: Brisbane HEARING DATE: 18, 19, 20 February 2026 JUDGE: Barlow KC, DCJ ORDERS: By 11 May 2026, either: (a) the applicant file and email to the associate to Judge Barlow KC an agreed proposed form of declaration and monetary judgment (including a specified sum for interest) and costs; or (b) each party file and email to the associate to Judge Barlow KC a submission, limited to 8 pages, about whether a declaration should be made and, if so, its terms, the proposed amount of a monetary judgment (including for interest) and costs, together with any evidence concerning those matters. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT –the applicant was the builder and the respondent was the principal – the parties contracted for the construction of two buildings on one site which were to be divided into 16 separate units – the applicant sues the respondent for an amount it contends is due under the contract – in response, the respondent contends that the applicant was not licensed to construct the buildings (which the respondent contends must be considered together as one building) as they were to include mezzanine levels within some or all of the units, such that they exceeded the gross floor area permitted under the applicant’s building licence - whether the contract provided for the applicant to carry out building work on buildings with a gross floor area of -- 1 of 29 -- ii over 2,000m2, including whether the contracted work was for two buildings, each of less than that area CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – the applicant was the builder and the respondent was principal – the parties contracted for the construction of two buildings on one site which were to be divided into 16 separate units – the applicant sues the respondent for an amount it contends is due under the contract – in response, the respondent contends that the applicant was not licensed to construct these buildings (which the respondent contends must be considered together as one building) as they were to include mezzanine levels within some or all of the units, such that they exceeded the gross floor area permitted under the applicant's building licence - whether the contract was for one building, or one undertaking to carry out building work, whether it obliged the applicant to build any of the mezzanines for which the respondent contends and, if so, whether that led the gross floor area to exceed 2,000m2 CONTRACTS – GENERAL CONTRACTUAL PRINCIPLES – FORMATION OF CONTRACTUAL RELATIONS – CONTRACT IMPLIED FROM CONDUCT OF PARTIES – the applicant was the builder and the respondent was principal – the parties contracted for the construction of two buildings on one site which were to be divided into 16 separate units – the applicant sues the respondent for an amount it contends is due under the contract – in response, the respondent contends that the applicant was not licensed to construct these buildings (which the respondent contends must be considered together as one building) as they were to include mezzanine levels within some or all of the units, such that they exceeded the gross floor area permitted under its licence - whether the contract between the applicant and respondent was wholly in writing (and what that writing comprised) or was partly oral LEGISLATION: Building Act 1975 s 12 Civil Proceedings Act 2011 s 67P Queensland Building and Construction Commission Act 1991 s 42, (1), (3), (4), s 67G(1), (3), (4) Queensland Building and Construction Commission Regulation 2018 s 8; schedule 2, Part 4, item 2(1), (2) OTHER MATERIALS: Building Code of Australia National Construction Code COUNSEL: M. Walker for the Applicant -- 2 of 29 -- iii S.B Whitten for the Respondent SOLICITORS: Shannon Clark Tuhtan for the Applicant CDI Lawyers for the Respondent Contents Summary .............................................................................................................................. 1 Relevant events leading to the contract ................................................................................ 2 The contract .......................................................................................................................... 4 The written terms .............................................................................................................. 4 WMB’s interactions with its solicitor .............................................................................. 6 The meeting on 8 December 2023.................................................................................... 8 The meeting on 12 December 2023.................................................................................. 8 WMB’s evidence .......................................................................................................... 9 ATB’s evidence .......................................................................................................... 13 Missing witnesses ....................................................................................................... 14 Discussion .................................................................................................................. 14 Was there an oral term of the contract? .......................................................................... 16 Were carpark mezzanines to be constructed under the contract? ................................... 17 Conclusions as to the contract ........................................................................................ 20 Was the construction within ATB’s licence? ..................................................................... 20 Building areas ................................................................................................................. 20 The statutory regime & licence limits ............................................................................ 22 Was the contract for the construction of one or two buildings? ..................................... 24 Conclusion – the works were within ATB’s licence ...................................................... 25 The result ............................................................................................................................ 25 -- 3 of 29 -- 1 Summary [1] On 12 December 2023, the parties entered a building contract in the form of Australian Standard AS4000-1997, with AT Build Co Pty Ltd (‘ATB’) as builder and WMB Property Group Pty Ltd (‘WMB’) as principal. The contract was for the construction of two buildings on one site, which were to be divided into a total of 16 separate units to be used as self-storage warehouses. [2] ATB sues WMB, by an originating application, for an amount that it contends is owed to it under the contract. [3] In response to that application, WMB contends that ATB was not licensed to construct (nor to agree to construct) those buildings (which WMB contends must be considered together as one building), as they were to include mezzanine levels within some or all of the units, such that they exceeded the gross floor area permitted under its licence. ATB’s building licence relevantly limited it to carrying out building work on this type of building with a maximum gross floor area of 2,000m2. On that basis, WMB contends that ATB was not entitled to charge for its work under the contract, apart from “reasonable remuneration” excluding any profit.1 The amounts that it now seeks and that it has previously been paid by WMB exceed such remuneration. Consequently, ATB’s application ought be dismissed. [4] Three principal factual issues arise from these contentions: (a) whether the contract provided for ATB to carry out building work on buildings with a gross floor area of over 2,000m2, including whether the contracted work was for two buildings, each of less than that area; (b) if the contract was for one building, or one undertaking to carry out building work, whether it obliged ATB to build any of the mezzanines for which WMB contends and, if so, whether that led the gross floor area to exceed 2,000m2; and (c) whether the contract was wholly in writing (and what that writing comprised) or was partly oral. [5] In a separate proceeding brought in the Supreme Court of Queensland, WMB claims restitution of the amount that it has paid to ATB for the building works, for which it contends ATB was unlicensed. That proceeding has been adjourned pending this court’s determination of the facts in this proceeding and, in particular, whether the works were beyond the scope of ATB’s licence. However, the pleadings in that proceeding are in evidence in this proceeding and, pursuant to an order of Judge Porter KC, they limit the issues in this proceeding. [6] For the following reasons, I find that: (a) the contract between the parties was wholly in writing, comprising the documents listed in and attached to the formal instrument of agreement; (b) under the contract, ATB was not obliged to build mezzanines over the carparks, nor in units 15 and 16; 1 Relying on s 42, Queensland Building and Construction Commission Act 1991 (the Act). -- 4 of 29 -- 2 (c) the building works that ATB undertook to carry out under the contract were for buildings with a gross floor area of under 2,000m2; (d) the works were within the limitations under ATB’s licence and therefore the undertaking to carry out the works was not in breach of that licence; (e) therefore, ATB is entitled to recover from WMB the amount of its claim. Relevant events leading to the contract [7] There was a substantial amount of evidence put before the court of communications between the parties in the months before and after the contract was signed and during the construction process. I do not propose to set out or refer to much of that evidence, as most of it is irrelevant, in my view, to the interpretation of the contract and the extent and nature of the construction work required under the contract. The crucial issues concerning the contract are: (a) whether it was wholly in writing or was partly oral; (b) whether it required ATB to construct mezzanine floors over the carpark of each unit and over substantially the entire floor of two units (15 and 16) that were to be owned by directors of WMB; (c) in either case, whether the “gross floor area” of the “building” to be constructed by ATB amounted to greater than 2000m2 (which requires consideration of the meaning of those terms and their application to this project). [8] The sole director of ATB is Adam Trustum. The principal director of WMB, at least for the purposes of this proceeding, is Ben Crawley. Both of them gave evidence. They had known each other for some years before the events the subject of this proceeding. Neither had much, if any, prior involvement in the construction of commercial buildings. [9] On 2 May 2023, Mr Crawley sent Mr Trustum an email2 asking him to work on the pricing for a project that they had clearly discussed earlier. He set out a list that he referred as “the below spec.” Most relevantly, it included the following: • Basic Construction of the buildings to the point of tilt slabs, driveways, plumbing, electrical, bathrooms, fencing, Gardens & electric gate. • All units have DA approved Mezz however these are to be left for owners to fit after settlements should they wish to or happy to offer an option for during the build and you can supply price per unit for this. • I will be appointing a project management company to be a liaison between yourself and WMB Property Group. • Due to recent bad experience with a building contract I will appoint my solicitors to approve and amend any building contract to ensure each party has a clear understanding of what expectations are for performance. [10] Attached to the email was a set of plans that had apparently been prepared for the purposes of obtaining development approval from the local council and that later formed part of a request for tender to construct the buildings.3 Relevantly, those plans 2 Trial bundle (exhibit 1), tab 20, p 521. (In future I will refer to tabs and page numbers in the trial bundle as, for example, TB20:521.) 3 TB20:523-539. A larger (and therefore more legible) version of the plans is exhibit 2. -- 5 of 29 -- 3 showed that the project would comprise two separate buildings, separated by a driveway and each divided into a number of industrial units, with one building containing seven and the other nine units. Each unit (apart from no 7) had provision for a space labelled “covered parking” (to which the witnesses and counsel during the trial referred as carparks). Each of them also included a plan for a full floor mezzanine area, with stairs from the ground to the mezzanine floor. None of the staircases was shown to go to the area over the carparks. [11] On 11 July 2023, Mr Crawley sent Mr Trustum by email a document headed “Invitation to Tender”4 that contained almost identical wording to that in his email of 2 May 2023 that is extracted in paragraph [9] above. The email also enclosed another copy of the same plans. [12] Later that day, Mr Crawley sent Mr Trustum a hyperlink to structural drawings for the project prepared by engineers.5 Relevantly, they show plans for the construction of floor joists that would, apparently, be sufficiently strong to bear the weight of a concrete mezzanine floor in each unit, both above the carparks and over the balance of the units (excluding a gap for stairs). In the car park areas and in many of the balance of the units, the joists were labelled FJ1 and others were labelled FJ2 to FJ6. [13] On 16 August 2023, Mr Trustum sent to Mr Crawley an email attaching what he referred to as a tender estimate.6 That document was later attached to the contract under the heading “Schedule of Rates”. It showed a total estimate for the works under the heading “Costs without Mezzanines to Each Unit” of $3,526,410.58. In a separate column it showed “Optional Price for Mezzanine to Each Unit”, which was summarised in a table headed “Optional Costs to Include Mezzanines to Each Unit” and totalled $538,730.23. Of particular relevance to part of the dispute, under the heading “Roof & Floor Framing” (not in the separate column for mezzanines), it showed a total in the estimate of works of $390,401 that included “Labour to Install Floor Joists” of $27,200. Despite the engineering plans, it showed no materials for floor joists labelled FJ1, whether in the overall works or for the optional mezzanines. It also showed no labour to install floor joists in the optional mezzanines column, but did show materials costs for FJ2 to FJ6. The relevance of these items will become clear later. The contract The written terms [14] The parties signed the contract on 12 December 2023, at a meeting attended by Mr Trustum for ATB, WMB’s solicitor, Mr Trickey, Mr Crawley and the other directors of WMB, Mr and Mrs Fowler. [15] Relevantly, the contract provided: (a) In the formal instrument of agreement:7 4 TB24:871-873. 5 TB28:1425-1440. A larger version of the drawings is exhibit 5. 6 TB25:1208-1211. A larger version is exhibit 3. 7 TB20:619. -- 6 of 29 -- 4 2 The contract sum is the lump sum of $3,500,000, inclusive of GST, the Contractor’s margin and the Contractor’s profits, subject to any adjustments made in accordance with the Contract. 3 The parties acknowledge and agree that the following documents together comprise the Contract between them in relation to the project … (a) Australian Standard General Conditions of Contract AS 4000-1997 (b) Annexure Part A (c) Annexure Part B Deletions, amendments and additions (d) Annexure Part C Approved form of unconditional undertaking (e) Annexure Part D Scope of Works (b) In the general conditions of contract (as amended by Part B): 1 Interpretation and construction of Contract In the Contract, except where the context otherwise requires: Contract has the meaning in clause 6; contract sum means: a) where the Principal accepted a lump sum, the lump sum; … including provisional sums but excluding any additions or deductions which may be required under the Contract. schedule of rates means any schedule included in the Contract which, in respect of any section or item of work to be carried out, shows the rate or respective rates of payment for the execution of that work and which may also include lump sums, provisional sums, other sums, quantities and prices; work includes the provision of materials; WUC (from ‘work under the Contract’) means the work which the Contractor is or may be required to carry out and complete under the Contract and includes variations, remedial work, construction plant and temporary works, and like words have a corresponding meaning. 2 Nature of Contract 2.1 Performance and payment The principal shall pay the Contractor: a) for work for which the Principal accepted a lump sum, the lump sum. 2.5 Adjustment for actual quantities Where, otherwise than by reason of a direction to vary WUC, the actual quantity of an item required to perform the Contract is greater or less than the quantity shown in a … schedule of rates: a) the Principal accepted a lump sum for the item, the difference shall be a deemed variation; … If such a … schedule of rates omits an item which should have been included, the item shall be a deemed variation. -- 7 of 29 -- 5 6 Evidence of Contract Until a formal instrument of agreement is executed by the parties, documents evidencing the parties’ consensus shall constitute the Contract. If such Contract requires a formal instrument of agreement, the Principal shall, within 28 days of the date of acceptance of tender, send it in duplicate for execution by the Contractor. Within 14 days after receiving them, the Contracts shall (if they are correct) properly execute both copies and return them. Within 14 days after receiving them, the Principal shall execute both copies, have them stamped as necessary and send one copy to the Contractor. The Superintendent may extend the time under this clause by written notice to the parties. 8 Contract documents 8.2 Principal supplied documents The Principal shall supply to the Contractor the documents and number of copies thereof, both stated in Item 15. They shall: a) remain the Principal’s property and be returned to the Principal on written demand; and b) not be used, copied nor reproduced for any purpose other than WUC. Item 15 listed only “Schedule of Rates.” 36 Variations 36.1 Directing variations The Contractor shall not vary WUC except as directed in writing. The Superintendent, before the date of practical completion, may direct the Contractor to vary WUC by any one or more of the following which is nevertheless of a character and extent contemplated by, and capable of being carried out under, the provisions of the Contract: a) increase, decrease or omit any part; … d) carry out additional work … 43 Waiver of conditions Except as provided at law or in equity or elsewhere in the Contract, none of the provisions of the Contract shall be varied, waived, discharged or released, except with the prior written consent of the parties. In the schedule, the date for practical completion was 31 August 2024. Annexure part D Scope of work [Insert or attach the drawings, specifications and other documents describing the scope of work here.] -- 8 of 29 -- 6 (c) Behind the heading page of part D was a three page timeline for the construction.8 (d) Behind that document was a heading page “Schedule of Rates”, behind which was a copy of ATB’s estimate of 16 August 2023.9 WMB’s interactions with its solicitor [16] Mr Crawley had a number of interactions with WMB’s solicitor, Mr Trickey, about the draft contract before it was finalised. [17] On 27 November 2023, Mr Trickey sent an incomplete draft contract to Mr Crawley, under cover of a long email in which he explained parts of the contract and sought further instructions. (The draft included a schedule of deletions, amendments and additions to the standard terms,10 none of which appears to be relevant to the issues before me, though they differ in some respects from the final schedule that became annexure B to the contract.11) Relevantly, Mr Trickey said:12 Build Contract Summary 1. The AS 4000 is the best/most appropriate template for your build. 2. The Contract has been prepared on the basis that the cost to build will be a fixed price of $3,500,000 inclusive of GST (not a bill of quantities or schedule of rates). A fixed price contract is more beneficial for you, as it provides certainty that the build will be capped at $3,500,000 unless there is a variation. 4. If you provide design documents to the builder and they tender/quote off such documents and it is later discovered that there are inconsistencies in the measurements or quantities, the builder will ask you which one is correct. If the correct interpretation makes the builder incur more or less costs, the Contract Sum will be adjusted accordingly. Furter (sic) instructions Please provide your further instructions in respect of the following: 1. That the Contract is to be a fixed price (as per numbered point 1 above). 2 With regard to the inclusion of concrete mezzanines in two units at your discretion, please advise whether such works will form part of the scope of works or whether they will be considered a “provisional sum”. A provisional sum is additional works that you can direct the builder to undertake (in addition to the scope of works). The cost to complete such additional works will be added to the fixed Contract Sum. If those works are to be a “provisional sum”, please confirm whether the builder’s profit margin is to be 6% (as per your initial instructions). 4 Who will be the superintendent (in other words, the person who will project manage, administer the Contract, respond to payment claims etc). Typically a superintendent is a quantity surveyor, project manager or engineer. 8 TB20:702-704. The parties referred to it as a Gantt chart, although it is not a chart. 9 TB20:705-708. 10 Exhibit 9; T2-67 – 68. 11 TB20:696ff. 12 TB26:1236-1240. -- 9 of 29 -- 7 8 I will require a very detailed scope of works document (more detail the better) and any/all other documents, drawings, plans and specifications that you have already provided to the builder. Disputes in build contracts almost always arise due to works/items that were not included in the scope of works. [18] Mr Crawley agreed that he had already told Mr Trickey that the contract was to be a fixed price of $3,500,000. He said he had told Mr Trickey that there were to be mezzanines in two units included in that price, but he had not told him that there were to be any mezzanines over carparks, probably because he expected it was a given because he did not see how it could be built without them. He agreed that the estimate given by ATB and the timetable for the works (the scope of works) were given to Mr Trickey by somebody for inclusion in the contract, but he did not instruct Mr Trickey to review either of those documents.13 [19] Mr Crawley could not remember meeting with Mr Trickey after receiving that email, but thought it was likely. Mr Trickey said that they met on 30 November 2023. Mr Trickey summarised the contract (essentially in accordance with his email) and then Mr Crawley gave him instructions on the matters on which he had sought further instructions. Mr Trickey prepared a file note of the meeting (a copy of the substance of his email), into which he typed those instructions.14 As to the matters that I have set out above, his notes of the instructions given were: 1. Ben confirmed yes. 2. Ben confirmed that the mezzanine was already included in the scope of works and in the fixed $3.5M contract price. 4. Ben advised TBA. 8. Ben instructed he will provide the scope of works. [20] I infer that Mr Crawley gave, or arranged for someone else to give, the contract estimate to Mr Trickey some time after that meeting. Mr Trustum provided the scope of works “Gantt chart” to Mr Crawley on the morning of 12 December 2023, before the contract was completed and signed. Mr Trickey then attached both documents to the contract. This was confirmed by Mr Trickey during his oral evidence, as discussed later. [21] During his oral evidence, Mr Trickey remembered Mr Crawley talking to him about two mezzanines, but he could not recall any discussion of mezzanines over carparks.15 The meeting on 8 December 2023 [22] Each of Mr Crawley and Mr Trustum recalled that they met at Mr Crawley’s office on 8 December 2023. They disagreed about what was said. [23] Mr Trustum said that they discussed ATB’s building cost estimate (exhibit 3), which Mr Crawley had up on his computer screen. The meeting lasted about 15 minutes. Mr Crawley pointed to the box on the third page of the document headed “Costs without mezzanine to each unit” and said, “Your price is $3.526 million. Call it 3.5 13 T2-107 – 109. 14 Exhibit 10. 15 T2-69. -- 10 of 29 -- 8 and you’ve got a deal,” to which Mr Trustum said, “Yes, all good.” Mr Crawley then said, “I’ll get my lawyer in, we’ll set up a meeting and get the contract signed.” Mr Trustum said there was no discussion of mezzanines on that occasion.16 [24] Mr Crawley denied saying, “Call it 3.5 and you’ve got a deal” and said they did not confirm the price at that meeting. He said:17 I would not have confirmed the contract price with Mr Trustum on that meeting because the other directors of WMB, Mr and Mrs Fowler, did not join us and I would not have said or indicated that a deal could be reached without first confirming pricing with them. I believed we were pretty close in pricing, and so we needed to all meet with my co-directors to nut out final details for the solicitor to finalise the contract if all details could be agreed. [25] Notwithstanding that statement, Mr Crawley had previously instructed WMB’s solicitor that the contract would be for a fixed price of $3.5M.18 Mr Trickey confirmed that and other instructions in the email that he sent to Mr Crawley on 27 November 2023 and in the file note that he made of the meeting on 30 November 2023 with Mr Crawley and two others associated with his businesses.19 Mr Trickey then completed the contract and took it to a meeting on 12 December 2023 at which two items in the schedule (Mr Crawley as superintendent and the date for practical completion) were inserted and the contract was signed and dated. [26] Mr Crawley had obviously settled on a fixed price of $3.5M before his meeting with Mr Trustum on 8 December. Indeed, he had settled on that price by 27 November. If Mr Crawley would not settle on a price without first discussing it with his fellow directors (which is possible), then he must have discussed it with them before he gave instructions to Mr Trickey. On 8 December, he was in a position to put that price to Mr Trustum and to agree with it. His evidence that he and Mr Trustum did not agree on that price on 8 December was clearly wrong. [27] I find that Mr Trustum’s account of that meeting is correct. Of course, that discussion did not in itself result in any binding form of agreement. The meeting on 12 December 2023 [28] WMB contends that, notwithstanding that the contract identifies the documents that comprise the contract, it included an oral term agreed between Mr Crawley and Mr Trustum during the meeting at which the parties signed the contract and before they did so. The alleged term was that, within the agreed price, ATB would build a mezzanine over each carpark to the units and a full floor mezzanine in each of units 15 and 16. There is no mention of those alleged terms in the contract. ATB denies that it agreed to build a mezzanine over any unit, including over any carpark within a unit. Mezzanines were to be optional extras if later chosen by each unit owner, with no obligation on ATB to construct them. 16 TB24:864-865, [11] – [17]. 17 Exhibit 7, 4th affidavit of Mr Crawley, [12(d)]. 18 T2-107:24-26; exhibit 10. 19 TB26:1232 (affidavit of Mr Trickey, [6]-[7]); exhibit 10. -- 11 of 29 -- 9 [29] The parties dispute what was said at the meeting and how it progressed. In order to determine whether there was such an oral term of the contract, it is necessary to determine what occurred during that meeting. WMB’s evidence [30] Mr Crawley affirmed four affidavits and was cross-examined at trial. [31] Mr Crawley said that he, Mr Trustum, Mr Fowler, Mrs Fowler and Mr Trickey met on 12 December 2023. Mr Trickey told everyone that the contract was an Australian Standard contract for a fixed price and spoke about the provisions in the contract. Mr Crawley said that he and Mr Fowler would be the superintendent and stated the date for practical completion. Mr Trustum did not object to anything said by Mr Trickey.20 [32] Mr Crawley said that he told Mr Trustum that WMB would agree to a fixed price of $3.5 million if the works included, in the scope of works for that price, full mezzanines in suspended concrete in units 15 and 16 (which Mr Crawley and Mr Fowler were respectively to acquire for their own use) and mezzanines over the remaining carparks in concrete instead of steel and timber. Mr Trustum said, “Yes, agreed” and they shook hands. No written changes were made to the contract document (apart from inserting the date, Mr Crawley’s and Mr Fowler’s names as superintendent and the date for practical completion). Mr Trustum, Mr Fowler and Mr Crawley then signed the contract. [33] In his cross-examination, Mr Crawley said that he recalled that he, Mr Fowler and Mr Trustum went through the “Gantt chart” that was ultimately attached to the contract as the “scope of works”. Mr Trustum had emailed it to him at 8.45am that day and he sent it through to the boardroom in his offices at 10.38am. He said Mr Trustum had arrived at about 10.00am, they were chatting generally about the property and then Mr Crawley sent this document to the boardroom so they could all see it. He wasn’t sure if they went through it before or after Mr Trickey arrived. [34] Once Mr Trickey arrived, he went through the contract, although Mr Crawley said he “zoned out,” as he does when it gets down to contract stuff. He relied on what Mr Trickey said and did not himself look in detail at the contract itself. [35] Mr Crawley denied that he and Mr Trustum discussed mezzanines after the contract was signed. Counsel for ATB put to him that he had said, “Don’t forget about the two mezzanines for my and Warren’s units,” to which Mr Trustum responded, “Yep. We’ll see how we go with that.” Mr Crawley disagreed. It was then put to him that there was no discussion about mezzanines over car parks, to which he responded that there was earlier in the day, though not at the exact time of signing the contract. [36] Mr Trickey gave evidence by affidavit21 that he attended at about 11.00am, when the other attendees (Mr Crawley, Mr Fowler and Mr Trustum) were already there. He did not remember two employees of WMB being present.22 Mr Crawley asked him to go 20 This paragraph and the next come from Mr Crawley’s first affidavit, [27]: TB25:932-933. 21 TB26:1233 [10]. 22 T2-70. This notwithstanding that, in his purported file note of the meeting prepared by him in October 2024 (exhibit 10), he recorded that “Zoe, Travis” were also there. -- 12 of 29 -- 10 through the contract provisions and he did that by reading out his email of 27 November to Mr Crawley and his instructions from his meeting with Mr Crawley on 30 November. Nobody raised any objection to anything. Mr Trickey made handwritten insertions specifying the superintendent and the date for practical completion and then the attendees signed the contract.23 [37] Mr Trickey said, during his oral evidence, that the scope of works document was provided to him by Mr Trustum on the date of the contract being signed, while the costs document attached to the contract under the heading “Schedule of Rates” had been provided to him by Mr Crawley or his secretary before 8 December 2023.24 [38] When tested about whether he actually read out the entire email, Mr Trickey said that, from memory, he read out everything above the heading, “Further Instructions” and he would have read out certain parts of the email below that heading or of his notes of his meeting with Mr Crawley on 30 November, where applicable and necessary, but he could not remember which. He did not agree that he did not mention that mezzanines would be constructed in units 15 and 16 and said that he would have said whatever was in his file note, but he agreed that he had no present recollection of what he had said. Nor could he remember any conversation between Mr Crawley and Mr Trustum about any mezzanines.25 [39] Mr Trickey said that he did not make a file note of the meeting on 12 December until about 10 months later, after Mr Crawley telephoned him. He described that conversation and his subsequent making of a file note in this manner during his cross- examination:26 So this file note, I took probably 10 months later after Ben called me. And what did Ben say to you when he called you?---He called one day, it would’ve been maybe sometime in October 2024 - - - Yes?--- - - - he said something along the lines of, “Hey, when we had that meeting to sign the contract, from memory, we mentioned or spoke about the mezzanine, didn’t we?” And from memory, my response was – well, all I did was read my email summary and the file note which had mezzanine commentary. Sorry, but by “file note”, you don’t mean the words appearing under the heading Meeting on 12th December 2023, you mean the earlier part of the document?---Yes. That’s right. Go on?--- And then he responded on that phone call with something along the lines of, “Yes, I remember you mentioned the Mezzanine,” something like that. And then that prompted me to go and make a file note. And so that’s what you prompted you, if you look down at paragraph – sorry. All the text under the heading Meeting on 12 December 2023 - - -?---Yep. - - - came into existence for the first time after this conversation you’ve described 10 months later?---Yes. 23 Trickey first affidavit, TB26:1233. 24 T2-67, T2-71. 25 T2-73 - 76. 26 T2-98; T2-100; T2-101. The document to which he and Mr Walker were referring was exhibit 10. -- 13 of 29 -- 11 Okay. And the events – sorry, so – and they were prompted by what you had been told by Mr Crawley?---Not all of it. No. But it prompted me to go and make a file note because I remember I didn’t make one. Yes?---Yep. But he suggested to you specifically, “We talked about the mezzanines, didn’t we?” Or words - - -?---Yes. - - that effect. Okay?---Yep. … … your note that you added 10 months later, simply copies and pastes the note of your first meeting, and the further instructions that you wanted at that time, and otherwise, changes your from instructions from “Ben” at – to, for example, in item 1 “everyone agreed to this.” It’s just copying and pasting from the note that you say you read out form on the 12th of December, with a couple of changes sometimes - - -?---Yes. - - - on what people agreed?---Yes. What was the purpose of that?---Um – well, for example, like I said, when Ben called, he prompted me to prepare a file note, so I copied/pasted from that file note in November, and then made changes, like, for example, the practical completion date in the superintendents, because that was information – or they were parts that were agreed to in the meeting. So?---And then also Ben advised me that, to his knowledge, the mezzanines were agreed to, so for that point I amended as well. … When you made this file note, did you actually have a recollection of what occurred at that meeting on the 12th of December, and who said what?---N – No. Uh – that was only based off what Ben said on the phone that day. Right. So your addition to this document, at paragraph 18, or item 18, on the second-last page, that it was confirmed that the mezzanine would form part of the scope of works and the fixed priced, was based upon not your recollection, but what you were told - - -?---Well, it was a combin - - - - - - by Mr Crawley; is that right?---A combination. My recollection was I read out my contract summary from my email, as well as my file notes from November. So it was that part, combined with what Ben told me on the phone. [40] In re-examination, Mr Trickey confirmed that, when he created his “file note”, he did not have a specific recollection that there was no objection to the statement that the mezzanine was already included in the scope of works and in the fixed contract price. He said:27 ---I just remember – it was – it was like roses and rainbows. Everybody was so happy and nobody objected to anything. Like, there – there were no disagreements about anything whatsoever. [41] He also said that he could have “gone back and touched up spelling mistakes” on 25 March 2025 before providing a copy of the file note to WMB’s solicitors during the trial.28 27 T2-103. 28 T2-102. This arose because the file note was not provided to ATB until during the trial and its metadata showed that it had been last amended on that date. -- 14 of 29 -- 12 [42] Mr Trickey’s purported file note of the meeting29 appears in the same document as his notes of his summary of the contract and his request for further instructions, together with his notes of the instructions he was given on 30 November 2023. [43] The purported file note relevantly states the following: Meeting on 12 December 2023 at approximately 10am Ben, Zoe, Travis, Warren, Merrideth and Adam attended I advised everyone as follows: 1 The Contract has been prepared on the basis that the cost to build will be a fixed price of $3,500,000 inclusive of GST (not a bill of quantities or schedule of rates). A fixed price contract is more beneficial for you, as it provides certainty that the build will be capped at $3,500,000 unless there is a variation. Everyone agreed to this. Furter (sic) instructions I required further instruction respect of the following: 17. That the Contract is to be a fixed price (as per numbered point 1 above). Everyone confirmed yes and that the fixed price includes all margins, profits, GST etc. Builder would take care of all approvals and certifications etc after the Contract was signed. 18. With regard to the inclusion of concrete mezzanines in two units at your discretion, please advise whether such works will form part of the scope of works or whether they will be considered a “provisional sum”. A provisional sum is additional works that you can direct the builder to undertake (in addition to the scope of works). The cost to complete such additional works will be added to the fixed Contract Sum. If those works are to be a “provisional sum”, please confirm whether the builder’s profit margin is to be 6% (as per your initial instructions). It was confirmed that the mezzanine would form part of the scope of works and the fixed price 20. Who will be the superintendent (in other words, the person who will project manage, administer the Contract, respond to payment claims etc). Typically a superintendent is a quantity surveyor, project manager or engineer. It was confirmed that initially it would be Ben and Warren. 23. I will require a very detailed scope of works document (more detail the better) and any/all other documents, drawings, plans and specifications that you have already provided to the builder. Disputes in build contracts almost always arise due to works/items that were not included in the scope of works. The scope of works was provided by Adam in an excel spreadsheet. ATB’s evidence [44] Mr Trustum swore five affidavits and was cross-examined at trial. [45] In his third affidavit, he said that, on 12 December, the discussion was limited to Mr Trickey reading aloud from the terms of the contract, which was then signed. He 29 Exhibit 10. The words that I have put into italics were those inserted by Mr Trickey into his “file note” in October 2024. -- 15 of 29 -- 13 then shook hands with the others there. He did not orally agree to increase the scope of work in the contract to include mezzanine work.30 [46] In his fifth affidavit,31 Mr Trustum “corrected” that statement. He related in detail what he says happened at the meeting, at which (he said) he, Mr Crawley, Mr and Mrs Fowler and Mr Trickey were present. He said he was given a copy of the contract and Mr Crawley said there were blank spaces for the superintendent and the completion date. Mr Crawley said that he and Mr Fowler would be the superintendents. Mr Trickey then inserted their names as superintendents. They then discussed the timing of completion. Mr Crawley brought up on the television screen a copy of the Gantt chart that Mr Trustum had sent him earlier that morning.32 The last item of work was external final fit off of power by 18 June 2024. Mr Trustum said he would need a couple of months to finish off the work and Mr Crawley nodded in agreement. They then agreed on the date for practical completion. [47] Mr Trustum went on to say that Mr Trickey then read the contents of the contract out loud to everyone. At one stage he said, “We are working to the detailed estimate provided on this page,” referring to the estimate that is referred to in the contract as the schedule of rates. Mr Trustum does not recall Mr Trickey reading from a file note, nor saying anything about mezzanines. The parties then signed the contract, after which Mr Crawley said something like, “And don’t forget the mezzanines in mine and Warren’s units.” Mr Trustum laughed and said, “Yep, let’s see how we go with that.” [48] In his oral evidence, Mr Trustum was adamant that Mr Trickey had read out the contract line by line, while Mr Trustum followed along with his hard copy of the contract. He said it took a good 15 or 20 minutes for Mr Trickey to read out the contract, following or during which the names of the superintendent and the date for practical completion were inserted in writing by Mr Trickey. The parties then signed the contract, after which there was some banter.33 [49] Later in his cross-examination, Mr Trustum was taken to the scope of works in the contract. He was asked where there was reference in it to the installation of lightweight roofs over the car parks. He said the document was not complete, as he had not had time, when he prepared it the night before the contract was signed, to complete the document. He said that, after the parties signed the contract, they (presumably he and Mr Crawley) discussed the fact that the scope of works was incomplete because he had not had time to complete it. But that would also depend on what they agreed, as the carpark ceilings were still under discussion. He denied that Mr Trickey said that the price included mezzanines in two units, but he confirmed that, after the contract was signed and during the banter, Mr Crawley said something like, “And don’t forget the mezzanines in my and Warren’s units.” He again denied agreeing to include mezzanines in those units or over the carparks in the agreed price and he said that he was never provided engineering or a plan providing for them.34 30 TB22:739, [8]. 31 TB24. 32 TB25:1214-1216. 33 T1-75 – 78; T2-22 – 29. 34 T2-3 – 4; T2-9. -- 16 of 29 -- 14 Missing witnesses [50] WMB did not call any other witnesses about the meeting. In particular, it did not call Mr Fowler, Mrs Fowler, Zoe or Travis.35 There was a satisfactory explanation for Mr Fowler being physically unable to give evidence. There was no explanation why the others who were (in the case of Mrs Fowler), or may have been (in the cases of Zoe and Travis) at the meeting, were not called to give evidence. [51] Given the importance of the allegation made by WMB that words spoken at the meeting comprised a term of what was otherwise a written contract, one would expect WMB to have called as witnesses all its representatives who were present at the meeting. In particular, one might have expected that the other director who was not unable to give evidence, Mrs Fowler, would be called, but also Ms Wallace and Mr Hedney, if they were there. It is open to me, in their absence, to infer that any evidence they may have given would not have assisted WMB’s case,36 although no submission to that effect was made to me by counsel for ATB. Nevertheless, I find it curious that none of them (particularly Mrs Fowler) was called on such an important issue. [52] It is possible that neither Mr Hedney nor Ms Wallace was present, as the evidence that they were there is slim. Mr Crawley did not say that they were there and it was not put to him that they were. Mr Trustum at one stage said they were present37 and he was not challenged about that. Mr Trickey’s file note made in October 2024 recorded them as being there, but his oral evidence was that they were not. However, he said he had very limited recollection of the meeting. He may have had a better recollection when he made the file note 16 months or so before trial and 10 months after the meeting. [53] Ultimately, I am not satisfied that Mr Hedney and Ms Wallace were present at the meeting, except perhaps during the early part before Mr Trickey arrived, or until just after he arrived. There was no reason for them to be present during the detailed explanation of the contract terms by Mr Trickey and while the contract was signed. I am, however, prepared to infer that Mrs Fowler’s evidence would not have assisted WMB’s case but, of course, that may simply be because she may not recall the words about the mezzanines that Mr Crawley said were exchanged between him and Mr Trustum before the contract was signed or the words that Mr Trustum said were exchanged after the contract was signed. I do not infer that her evidence would have contradicted that of Mr Crawley. Ultimately, the inference I draw does not affect my conclusions about what happened at the meeting and what comprised the contract. Discussion [54] During the witnesses’ evidence, it became clear to me that none of them had a clear recollection of discussions between them, either before or on 12 December 2023. Many of the differences between them, particularly between Mr Crawley and Mr Trustum, stem from their reconstruction of events that they had no particular 35 Zoe Wallace – Mr Crawley’s accounts administrator, to whom Mr Trickey referred as Mr Crawley’s secretary – and Travis Hedney – Mr Crawley’s general manager and, according to Mr Crawley, a shareholder in WMB (T2-82), although the ASIC records in evidence do not show him as a shareholder (TB19:298). 36 Jones v Dunkel (1959) 101 CLR 298, 320-321. 37 T2-22. -- 17 of 29 -- 15 reason to recall until about 10 months later (at the earliest), when some frustration crept into their discussions concerning the pricing of mezzanines. [55] I do not accept Mr Crawley’s evidence that, on 12 December 2023, he put to Mr Trustum that WMB would agree to a fixed price of $3.5M if the works included full mezzanines in units 15 and 16 and mezzanines over the carparks in the remaining units. They had already agreed on the price of $3.5M on 8 December, when neither of them apparently mentioned mezzanines, and Mr Crawley had told Mr Trickey, before then, that the price would be $3.5M. Mr Crawley had obviously discussed that price with his fellow directors before he gave instructions to Mr Trickey that led Mr Trickey to include that price in his 27 November advice on the proposed contract. [56] On the other hand, Mr Trustum was clearly wrong in his recollection that Mr Trickey read out the contract line by line. There would have been no point in such an exercise. Mr Trickey simply explained the principal rights and obligations under the contract. I accept that he read from his file note of his discussion with Mr Crawley on 30 November, insofar as it described the principal terms of the contract. I do not accept that he also read from the “Furter Instructions” part of that document, as the instructions, insofar as they referred to mezzanines, were inconsistent with the written contract and, in evidence, only Mr Crawley confidently asserted that reference was made to the mezzanines before the contract was signed. Mr Trustum denied that and Mr Trickey had no real recollection of what was said at the meeting, either at the time he made his purported file note or at trial. [57] The original proposal that the construction would enable mezzanines to be selected as an option for purchasers or to be installed after purchase itself, being optional, allowed for Mr Crawley and Mr Fowler to choose mezzanines for their units, but there is no evidence that, at the time Mr Trustum provided his quotation, there had been any election to have mezzanines and his costing did not include any allowance for mezzanines in the principal works, but only as an option. However, the costs without mezzanines included an item for labour for installing floor joists. WMB submitted that that item, taken in the context of plans that showed floor joists, including over the carparks, supported the proposition that ATB knew and agreed that there would be mezzanines over the carparks, allowing for it in his estimate. [58] I accept Mr Trustum’s evidence that labour for the floor joists was in the general costs column in error and it should have been in the costs for installing mezzanines. In his oral evidence, he said (and I accept, in the absence of evidence to the contrary) that floor joists could be installed over a light-weight roof on a carpark, as such a roof would not be flush with the tops of the walls but low enough to enable the installation later of joists if a unit purchaser wanted a mezzanine built over a carpark. The installation of floor joists would only be necessary to install a mezzanine, but that was not required under the contract and in the plans upon which Mr Trustum provided the estimate of costs. [59] I have already recorded that there was no allowance for FJ1 floor joists in the columns for optional mezzanines, but only for other floor joists.38 That also appears to be an error. Both errors could have resulted in variations to the total costs as items wrongly included (the labour for installation of floor joists) or not included (FJ1 floor joists for any optional mezzanines), under clause 2.5 of the general conditions of the contract. 38 At [13] above. -- 18 of 29 -- 16 That clause demonstrates the relevance to the contract of the “schedule of rates” even though it was not a schedule of rates contract. Although not referred to in the list of documents comprising the contract, it was attached to the contract and, I find, was intended to form part of the contract, comprising part of Annexure Part D – Scope of Works. Indeed, clause 8.2 and item 15 expressly provided that the schedule of rates was a “Principal supplied document” and one of the Contract documents. [60] I am prepared to infer that Mr Crawley and Mr Trustum had, at some stage before 8 December 2023, discussed the fact that Mr Crawley and Mr Fowler had decided that they may want to have full mezzanines in their units. But, in the absence of any direct evidence of any such a conversation, I am not satisfied that there had been any agreement that ATB would provide those mezzanines within the cost that Mr Trustum had estimated for the works excluding mezzanines. None of the documentation produced by the date of the contract referred specifically to any such mezzanines. While Mr Crawley had clearly convinced himself that they were to be included in the price, as he instructed Mr Trickey, there is insufficient evidence of such an agreement being reached and it is inconsistent with the documentation. If there were such a clear agreement, one might have expected Mr Crawley and Mr Trickey to ensure that it was expressly stated in the documented contract, especially given Mr Crawley’s statements that a recent bad experience had led him to engage a solicitor to ensure that each party understood what was required. Similarly, Mr Trickey made it clear to Mr Crawley that he should ensure that all work agreed on was included in the scope of works for the agreed price, pointing out specifically (and, in the circumstances, presciently) that, “Disputes in building contracts almost always arise due to works/items that were not included in the scope of works.” Was there an oral term of the contract? [61] Consequently, I am not satisfied that the conversation relied on by WMB as constituting an oral term of the contract occurred on 12 December 2023. The result is that there was no oral term of the contract to the effect alleged. [62] But even if I had been satisfied that there was such a conversation, either on 12 December 2023 or earlier, I do not consider that it would constitute an oral term of the contract. The contract was clear that it comprised the documents listed on the first page. That list and clauses 1 and 6 of the general conditions of contract (“Evidence of Contract”) made it clear that the contract was wholly in writing. Mr Trickey had been engaged to ensure that the documented contract reflected the agreement. The written contract allowed no room for there to be an oral term. To the contrary, as well as the above terms, clause 43 provided to the effect that no provisions would be varied, etc, except with the parties’ prior written consent. Counsel for WMB submitted to the effect that that clause was not relevant because the contract included the oral term rather than such a term constituting a waiver or variation of any provision of the contract. But the suggestion of an oral term is also inconsistent with the definition of “Contract” in clause 1 and the words of clause 6. [63] Furthermore, it would be an offence for ATB to enter into a building contract that was not wholly in writing and did not state relevant information as required by statute.39 That fact mitigates against ATB and Mr Trustum knowingly adding an oral term to the written building contract. I have no doubt that Mr Trustum, as an experienced 39 Act, s 67G(1), (3), (4). -- 19 of 29 -- 17 builder (even if not of commercial buildings), was conscious that he was required to ensure that the terms of a building contract were all written. [64] I find that there was no oral term of the contract: it was fully encompassed in the written documents specifically referred to as comprising the contract (subject to amendments or variations permitted under the contract). Were carpark mezzanines to be constructed under the contract? [65] For the reasons discussed above, the contract did not include mezzanines over units 15 and 16 within works to be done for the agreed fixed sum. [66] WMB contends that the contract nevertheless required the provision of mezzanines over the carpark in each unit. It points to the engineering drawings including floor joists over the carparks, which must be in preparation for the installation of mezzanines in those areas. Also, if there were to be no mezzanines built over the carparks, they would be open and the units would not be secure. [67] In his first affidavit, Mr Crawley exhibited plans and other documents that WMB had submitted to the local council for development approval. However, except to the extent that some of the documents sent to the council were subsequently provided to ATB, I consider them to be irrelevant to the contractual issue. [68] Mr Crawley described the carparks in this way:40 All of the units (except for unit 7) include a carpark space on the ground floor of approximately 16.2m2. … Each carpark space (“carpark”) was required to be fully enclosed, except for the front entrance which functioned as the carpark opening. In order to fully enclose each carpark, a mezzanine was required to be constructed over the concrete fixed walls of each carpark as shown in the approved plans dated 12 April 2023. [69] He went on (at [14]) to refer to a drawing depicting a mezzanine over a carpark, saying: The area highlighted in yellow depicts the mezzanine over the carpark, ensuring the carpark is fully enclosed and providing access to the top of the carpark via the stairs. … Without the yellow mezzanine or ceiling to the carpark, because the front entry was to be open, the unit would not be enclosed or secure as anyone could scale the grey or blue wall to enter the unit. It was, therefore, necessary to enclose the carpark with a ceiling, which would double as the mezzanine, or upon customer’s special requirements, part of a larger mezzanine for the upper level of the unit. [70] Mr Trustum responded to that paragraph in his third affidavit, first pointing out that the drawing to which Mr Crawley was referring was not created until about January 2025: a drawing that was not in the plans provided to ATB for the purpose of tendering, nor at any time before the contract. He went on to describe works that 40 TB25:927, [12]-[13]. -- 20 of 29 -- 18 would have been necessary to undertake in order to build mezzanines over the carparks and that were not included in his detailed quote, nor in the scope of works that he provided, both of which formed part of the contract. The absent works included stairs, for which there was no need unless a mezzanine was to be constructed. As to the requirement to enclose the carparks, he said:41 … because the mezzanine work was excluded from the Contract, the carpark enclosures were to be constructed with lightweight material. That is, the carpark enclosures were to be constructed with non-structural materials (e.g. gyprock). There was no access to those areas by foot and the carpark enclosure was not constructed to be a foot traffic area (for example as above, stairs were excluded from the Contract by reason of Part D of the Contract scope of works and schedule of rates). [71] Brett Collins is a director and the general manager of Westera Partners, the consulting engineering firm that prepared the engineering drawings. He provided an affidavit on behalf of WMB and he gave oral evidence. He explained the page of the structural drawings that Mr Crawley had provided to Mr Trustum for the purpose of developing his quote that showed the mezzanine and amenities framing plan.42 He also produced a revised version of that drawing that had been prepared in February 2024 (although there is no evidence that the revised drawing was provided to ATB). [72] Mr Collins explained the drawings, most relevantly saying:43 10. The mezzanine floor structure is designated by the marked extents of the ‘FJ’ elements. 11. The ‘FJ’ elements are standard design notation identifying structural floor joist elements. 12. A floor joist is a structural member that spans between supporting elements (such as beams or walls) and carries the load of the floor above, transferring that load to the building’s structural frame or load bearing walls. 13. The floor joists were only required as part of the mezzanine floor structure. 14. … 15. In respect of the drawings and markings: (a) The notation “FJ1” shown in the drawings over the carpark designates structural floor joists noted in the legend as “C20015 Floor Joist at 450 MAX CRS”. These elements are structural in nature and designed to support a floor and not merely as a ceiling over the carpark, although it would perform that function as well. (b) Both Drawing Rev A and Drawing Rev B show the mezzanine floor structure extending across the full floor area, including above the car parking bays. (c) The differences between the two revisions reflect client-driven changes to the mezzanine floor framing, particularly changes to the location of access stair penetrations for units 12 to 16. 41 TB22:738-739, [7]. 42 See [12] above, TB28:1430 and exhibit 5, drawing 3.0. 43 TB29:1443-1444, [10]-[15]. -- 21 of 29 -- 19 (d) Those stair location changes do not affect, and have never affected, the extent of the mezzanine floor over the car parking bays in either revision. [73] In his oral evidence,44 Mr Collins confirmed that both drawing revisions showed the mezzanine floor structure extending across the full floor area of each unit, including the car parking bays, other than the stair access points. Access to the mezzanines was by the stairs, which did not line up to the carparks. All units were designed to have full floor mezzanines, with the scheme of the floor joists to support those mezzanines. [74] Mr Collins also said that the references to floor joists required them to be spaced in a row, with different spacing depending on the size of the joist. They would be supported on the walls of the units by seat angles fixed to the walls, which were pre- cast concrete wall panels. [75] It is clear that the engineering drawings were designed to enable the construction of full floor mezzanines. They would also support the construction of a mezzanine over a carpark only, provided that the stairs were moved from their original locations (as shown in exhibit 5, which was Revision A as referred to by Mr Collins in his affidavit) to the locations shown in Revision B. However, both before and at the time of the contract, there was no drawing providing for stairs to rise to the carpark roofs, as provided in Revision B. The documents do not support WMB’s proposition that ATB had agreed (and was required by the contract) to construct mezzanines over the carparks. Nor was there any written direction by Mr Crawley or Mr Fowler as superintendent to vary the works under the contract to include mezzanines over the carparks. [76] It might have been Mr Crawley’s opinion that the carparks were to be enclosed with mezzanine floors as their roofs, but it appears that he said nothing about that to Mr Trustum before the contract was made. He agreed in his oral evidence that, at least by 27 November 2023, he had not told Mr Trickey that there were to be mezzanines over the carparks. He just assumed that there would be.45 There was no mention of such mezzanines in the pre-contractual or contractual documents, nor in Mr Trickey’s notes of Mr Crawley’s instructions. [77] The proposition that the carparks could only be enclosed and the units secured by the construction of mezzanines over the carparks is clearly wrong. As Mr Trustum said, they could be adequately secured by lightweight roofing. That would not prevent or complicate the later addition of whole floor mezzanines (or, indeed, a mezzanine only over a carpark if that was what a unit owner wanted). ATB had, in fact, included in its works under the contract the installation of bored piers and footings for mezzanine floors to all units, so that the option of full or partial mezzanines would be available for unit purchasers.46 But the proposal that they might be constructed over every carpark with steps going up to them as a standard feature of all units was not raised until about a month after the contract was executed, in January 2024.47 Engineering drawings for such a proposal were created in February 2024, as Mr Collins said, but they do not appear to have been provided to ATB. The first detailed document given 44 T2-59 – 61. 45 T2-108. 46 TB25:936, [39]; TB28:1421. 47 Exhibit 11. -- 22 of 29 -- 20 to ATB containing drawings (although not engineering drawings) for such a design was not prepared until August 202448 and it appears that they were not sent to Mr Trustum until October 2024.49 By about then, Mr Crawley had decided to engage Queensland Mezzanines to install mezzanines in all units. [78] WMB submitted that Mr Crawley’s email of 19 January 2024 (exhibit 11) was clear evidence of at least an oral agreement (or the parties’ clear intention purportedly reflected in the contract) that mezzanines over the carparks were included in the contract price. With respect, I do not accept that proposition. Until then there had been nothing said or, more particularly, written to the effect that the plans upon which the contract and price were based would be changed to move the stairs from the rear or side walls, rising along or toward the rear walls, to stairs up to the carpark roof in each unit.50 The email obviously followed at least one discussion between Mr Crawley and Mr Trustum, but any such discussion (about which there was no direct evidence) did not reflect the contract. I infer that the concept was first raised after the contract was signed. In January 2024, Mr Crawley was considering changing the location of stairs from what had previously been designed, plus adding mezzanines over all the carparks, in order to make the units more attractive to potential purchasers (as he said in his email to Mr Trustum). The attraction was to be that each unit would already have a small mezzanine (over the carpark), which a purchaser could then extend if desired, and without the need to include the cost of stairs in such an extension. No such point of attraction was raised before then. [79] I am not satisfied that there was any agreement that the works under contract included mezzanines over the carparks. The plans and engineering drawings did not provide for stairs up to the carparks. The first written suggestion that the stairs in each unit be reconfigured to go up to the carparks and that all carparks have a mezzanine built over them was made by Mr Crawley in his email of 19 January 2024. Those works were not included in the contract. They would clearly be an extra for which a variation would be necessary. Mr Crawley never directed ATB to make such a variation to the contract. Had he done so, it would have been at extra cost to WMB. Conclusions as to the contract [80] The contract was wholly in writing. It did not provide for the construction of mezzanines in any unit, whether only over carparks or over full floors, although the method of construction did include the necessary supporting structures that, once floor joists were installed by a mezzanine contractor, would enable the later installation of whole or partial mezzanines. ATB had no obligation to tender for or to build any such mezzanines if an owner (including Mr Crawley or Mr Fowler) sought to have one. Was the construction within ATB’s licence? Building areas [81] Given WMB’s allegation that ATB’s licence did not permit it to construct a building of over 2,000m2, that the total floor area of the works to be done by ATB under the 48 Exhibit 4, in the table of revisions, identifies that the “revised mezzanine layouts” were created on 19 August 2024. 49 TB23:840. 50 The initial engineering drawings (exhibit 5) and the concept drawings first sent to ATB (exhibit 2) both provided for the stairs to arrive at the mezzanine floors in places other than over the carparks. -- 23 of 29 -- 21 contract (which comprise one building for the purposes of the licence) was more than that area and that consequently ATB is not entitled to remuneration under the contract, it is necessary to determine what areas of construction were agreed under the contract and the areas of the buildings (both individually and together), depending on the different possible areas included in the contract. [82] According to the plans provided to ATB before it tendered for the contract, the total floor areas of the buildings when fully built would be: (a) ground floor, building one (units 1-7) – 703m2; (b) ground floor, building two (units 8-16) – 1,035m2; (c) full mezzanine floors, building one – 674m2; (d) full mezzanine floors, building two – 990m2; (e) total area of building one with mezzanines – 1,377m2; (f) total area of building two with mezzanines – 2,025m2. [83] Consequently, the total floor areas of both buildings would be: (a) without mezzanines – 1,738m2; (b) with a full mezzanine in each unit – 3,402m2. [84] The carparks were to have a standard area (within the units) of 16.2m2.51 Although I have found to the contrary, if WMB were correct in its contention that the contract required that each unit with a carpark have a mezzanine over the carpark and units 15 and 16 have complete mezzanine floors, then the area of each building and the total area would be: (a) building one (6 car park mezzanines – 97.2m2 - plus the ground floor area) – 800.2m2; (b) building two (7 car park mezzanines – 113.m2 - plus 2 full mezzanines – 185m2 - plus the ground floor area) – 1,333.4m2; (c) total area of both buildings – 2,133.6m2. [85] Alternatively, if the only mezzanines were to be over the carparks, the areas would be: (a) building one (6 car park mezzanines – 97.2m2 - plus the ground floor area) – 800.2m2; (b) building two (9 car park mezzanines – 145.8m2 plus the ground floor area) – 1,180m2; (c) total area of both buildings – 1,981m2. [86] For completeness, if the contract required full floor mezzanines only in units 15 and 16 and no mezzanines elsewhere (including over carparks), the areas would be: (a) building one – 703m2; 51 This figure comes from paragraph 12 of Mr Crawley’s first affidavit (TB25) and one page of the council approved plans in which the dimensions of the carparks (5.4m x 3m) are shown (TB25:1126). No plans given to ATB clearly showed those measurements, but given this evidence and in the absence of dispute about it, I find that it is correct. -- 24 of 29 -- 22 (b) building two (two mezzanines – 185m2 – plus ground floor area) – 1,175m2; (c) total of both buildings - 1,878m2. [87] Thus, it would only be if I had accepted WMB’s contention about the mezzanines over all carparks and full floor mezzanines in units 15 and 16 that the combined total floor area of both buildings together would be over 2,000m2. Neither building on its own would, in any of the mooted circumstances under the contract, exceed such a total floor area. (WMB does not suggest that the contract required ATB to build full floor mezzanines over all units.) [88] I have concluded that no mezzanines were included in the contract. So even if one treated the two buildings together as one building, or one considered the gross floor area of the total building works to be carried out under the contract, for the purposes of determining whether the contract was within the scope of ATB’s licence the works for which the parties contracted were well within that licence. [89] However, in case I were wrong and the scenario referred to in paragraph [84] above were correct, it is necessary to consider whether, in order to determine whether the works were within its licence, the two buildings for which it contracted are to be considered as one building in determining the gross floor area covered by the contract, or (more correctly, as ATB did not in fact construct any building over 2,000m2) the gross floor area of the building works that ATB undertook to carry out under the contract is to be considered by reference to the gross floor area of both buildings. The statutory regime & licence limits [90] A building contractor must have a licence under the Act. It is an offence for any person to carry out, or to undertake to carry out, building work unless the person holds a contractor’s licence of the appropriate class under the Act: s42(1). [91] “Building work” relevantly means the erection or construction of a building and any site work related to work of that kind. A “building” includes any fixed structure, but is otherwise not relevantly defined. (Schedule 2.) [92] In addition to being an offence, a person who carries out building work in contravention of s 42 is not entitled to any remuneration for the work, other than reasonable remuneration if the amount claimed is not more than the amount paid by the person in supplying materials and labour, but not including any allowance for the person’s own labour or for any profit for the work: s 42(3), (4). [93] Additionally, a building contractor commits an offence if it enters into a building contract that is not put into writing before starting to carry out the building work: s 67G(1). [94] Licences are divided into classes under the Queensland Building and Construction Commission Regulation 2018 (the Regulation). Each class of licence limits the licensee to the scope of work specified for that licence in the Regulation. -- 25 of 29 -- 23 [95] Both ATB and Mr Trustum held a “Builder – low rise” licence.52 Relevantly, such a licence is limited to:53 (1) Building work on a class 1 or class 10 building. (2) Building work on classes 2 to 9 buildings with a gross floor area not more than 2,000m2, … [96] A “class” means the class for the building under the Building Code of Australia (BCA): Regulation, schedule 8. The BCA comprises volumes 1 and 2 of the National Construction Code (NCC) published by the entity known as the Australian Building Codes Board: Building Act 1975, s 12. [97] The parties agree that the building or buildings the subject of this contract were class 7 buildings: that is, “a storage-type building”, which includes “a building that is used for storage.”54 [98] As the determination of the class of building is decided by reference to the NCC, relevant terms defined in the NCC must also apply, except to any extent that they may be inconsistent with the Act. [99] “Building” is not defined in the NCC, but in the Building Act it is relevantly defined as: 1 … a fixed structure that is wholly or partly enclosed by walls or is roofed. 2 The term includes … any part of a building. [100] “Floor area”, “mezzanine” and “storey” are relevantly defined as:55 Floor area: For the purposes of— (1) Volume One— (a) in relation to a building — the total area of all storeys; and (b) in relation to a storey — the area of all floors of that storey measured over the enclosing walls, and includes— (i) the area of a mezzanine within the storey, measured within the finished surfaces of any external walls; and … Mezzanine: An intermediate floor within a room. Storey: A space within a building which is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, … [101] The NCC also introduces a concept of a “united building”:56 Buildings are deemed united when two or more buildings adjoining each other are connected and used as one building. Applications 52 TB23:756-763 and TB23:772-779 respectively. 53 Regulation, s 8; schedule 2, Part 4, item 2(1), (2). 54 NCC, volume 1, Part A6 – Building Classification, A6G8 – Class 7 Buildings. 55 NCC, volume 1, schedule 1 - Glossary. 56 NCC, volume 1, Part A7, A7G1 – United Buildings. -- 26 of 29 -- 24 For A7G1, two or more buildings are a united building if they are connected through openings in the walls dividing them and together comply with all the requirements of the NCC as though they are a single building. A7G1 only applies to Class 2 to 9 buildings. Was the contract for the construction of one or two buildings? [102] ATB contends that, although the subjects of one contract, the building work that it undertook under the contract was for the construction of two buildings, each with a gross floor area of not more than 2,000m2. Therefore, the work that it undertook to carry out under the contract was within the limit on the scope of work imposed under its licence. [103] WMB contends that the work that ATB undertook to carry out under the contract was for one building, as the two structures were joined by shared services and a shared driveway and they were both to be constructed under the one contract. Looked at another way, the contract was an “undertaking to carry out” building work on a class 7 building or buildings with a gross floor area of over 2,000m2. It was therefore outside the scope of ATB’s licence and therefore ATB was not entitled to charge for its work, except to the extent permitted under the Act, s 42(4). [104] “Gross floor area” (the term used in the limitation on a low rise building licence) is not defined in either the NCC or the Regulation. Mr Whitten submitted that it cannot mean the same as “floor area” (the term used in the NCC), as that would render the word “gross” superfluous. He submitted that the addition of that word encompasses the floor area of every part of the building work the subject of one contract (or one “undertaking to carry out” building work). On that basis, while each building the subject of the contract may have had a floor area of less than 2,000m2, the gross floor area of the two buildings the subject of the contract was more than that area if the contract required the construction of mezzanines over the carparks and in units 15 and 16, as WMB contends. In that case, ATB undertook to carry out building work that it was not entitled to do under its licence. [105] Mr Whitten submitted that this construction is consistent with the protective objects of the Act, particularly to ensure the maintenance of proper standards in the industry and to ensure the safety of consumers and the public generally: s 3. The reference, in the limitation in paragraph (2) of the scope of work for a low rise licence,57 to building work on “classes 2 to 9 buildings with a gross floor area not more than 2,000m2” is to any one or more buildings within those classes that are the subject of one undertaking to carry out work. The use of the plural can be contrasted with the use of the singular in paragraph (1) of the scope of work. To read paragraph (2) to refer to the floor area of any one building would require the interpretation of that scope to add the word “each” so as to read, “Building work on classes 2 to 9 buildings, each with a gross floor area not more than 2,000m2,” which is unnecessary and impermissible as a matter of statutory construction. [106] In discussion, I suggested to Mr Whitten that one might read paragraph (2) as a shorthand way of referring to “a class 2, or class 3, or class 4, etc” building, similarly to the manner in which paragraph (1) refers to “a class 1 or class 10 building.” Mr Whitten submitted that I should not construe it in that manner, as the legislature 57 See [95] above. -- 27 of 29 -- 25 could easily have given that paragraph such a meaning by inserting the word “each” before “with a gross floor area,” which it did not. [107] Mr Whitten noted that, if a builder could make one contract to build multiple buildings, each of under 2,000m2, then a builder with a low-rise licence could contract to build a 12,000m2 hospital made up of six buildings, each of 2,000m2 or less, on a multi-million dollar project involving large numbers of trades and workers and considerable necessary coordination. That would be an absurd result, inconsistent with the differing classes of licence and the different qualifications and experience for each. [108] Mr Walker, counsel for ATB, submitted that I should construe paragraph (2) as if it referred to each building separately, as the same skills are required to construct one building as to construct more than one building of the relevant classes. [109] I do not accept WMB’s submission that the contract was for the construction of one building. Simply because some of the services (such as water and electricity) to each the building may have connected to a central service pipe or cable did not render the two buildings into one. That would, in any event, be inconsistent with the NCC concept of a “united building”, which may constitute one building for the purposes of the licence condition. [110] It is necessary to refer back to the prohibition in s 42 of the Act. That prohibits a person undertaking to carry out “building work” without a contractor’s licence of the appropriate class. “Building work” means the construction of “a building” (meaning any fixed structure) and related site work. [111] ATB’s undertaking under the contract was not to carry out the construction of “a building”, but the construction of two buildings. It was an undertaking to carry out building work comprising two buildings, but there was one undertaking to carry out building work. I agree with WMB that the reference, in paragraph (2) of the scope of works permitted under a low-rise licence, to the gross floor area of classes 2 to 9 buildings is to the total floor area of all buildings that comprise the subject of one undertaking or contract to carry out the building work. As Mr Whitten submitted, such an interpretation is consistent with the protective object of the Act and avoids the possibility of a low-rise builder undertaking a very large project such as the example given by Mr Whitten. While a low-rise builder would have the necessary qualifications and skill to build each of those buildings, in order to build many such buildings at one time would, as Mr Whitten submitted, require substantial additional skills involved in coordination and overall supervision of sub-contractors and materials. [112] Clearly this project involved two buildings. They were not “united buildings”, as they did not adjoin each other and were not connected and used as one building. Each was a class 7 building of not more than 2,000m2 but, if ATB were required by the contract to build all the carpark mezzanines and full floor mezzanines in units 15 and 16, their combined, or “gross”, floor areas would exceed that amount. [113] The consequence is that, if ATB were required under the contract to build the mezzanines for which WMB contends, then its undertaking in the contract to carry out all that building work would be in breach of s 42 of the Act. -- 28 of 29 -- 26 Conclusion – the works were within ATB’s licence [114] I have concluded that ATB did not undertake, in the contract, to build any mezzanines. Therefore, the works which it undertook to carry out were for buildings with a gross floor area of less than 2,000m2. The building works were therefore within the scope of works permitted under its licence. The result [115] The result is that ATB was properly licensed to enter into the contract and to carry out the required building works. Therefore, it was entitled to charge for and to recover remuneration for those works in accordance with the contract. Given the relevance of the first of these conclusions to the Supreme Court proceeding, it is appropriate that this court make a declaration to that effect. At present, I consider that such a declaration might be in these terms: The court declares that the applicant did not breach the conditions of its building licence (nor that of its director, Adam Trustum) in making and carrying out the contract between the parties made on 12 December 2023. However, I shall allow the parties to provide submissions as to an appropriate declaration (and indeed, whether I should make a declaration at all) before making it. [116] WMB does not challenge the amount that is due to ATB if I find that it was properly licensed to carry out the works. Consequently, there should be judgment for ATB for the amount claimed in the originating application: that is, $454,943.29 plus interest. ATB claims interest under the Act, s 67P, or under the Civil Proceedings Act 2011, s 58. Neither party has tendered evidence that enables calculation under the former, nor has either party made any submissions as to the appropriate rate of interest. [117] A monetary judgment should be for total amount that includes a specified amount of interest, ordinarily to the date of judgment. Therefore, I shall also give the parties an opportunity to make submissions about interest and costs. -- 29 of 29 --