Beatton v Strongbridge Homes Pty Ltd [2025] QCAT 184

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Beatton v Strongbridge Homes Pty Ltd [2025] QCAT 184 PARTIES: GEORGE BEATTON (applicant) v STRONGBRIDGE HOMES PTY LTD (respondent) APPLICATION NO/S: BDL104-22 MATTER TYPE: Building matters DELIVERED ON: 12 May 2025 HEARING DATE: 9 May 2024 HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: Strongbridge Homes Pty Ltd is to pay George Beatton damages in the sum of $19,500.00 (incl GST), by: 4:00pm on 20 June 2025. Any application for costs is to be made by filing in the Tribunal two (2) copies and giving to the other party one (1) copy of any submissions and evidence relied upon, by: 4.00pm on 27 June 2025. If any application for costs is made in accordance with order 2 above, then: (a) The other party must file in the Tribunal two (2) copies and give to the party making the application for costs one (1) copy of any submissions and evidence in response, by: 4.00pm on 25 July 2025. (b) The party making the application for costs must file in the Tribunal two (2) copies and give to the other party one (1) copy of any submissions and evidence in reply, by: 4.00pm on 15 August 2025. -- 1 of 17 -- 2 (c) Unless otherwise directed, the application for costs will be decided on the papers and without an oral hearing after 15 August 2025. If no application for costs is made in accordance with order 2 above, then there shall be no order as to costs. CATCHWORDS: TORTS – NEGLIGENCE – DUTY OF CARE – STANDARD OF CARE, SCOPE OF DUTY AND SUBSEQUENT BREACH – DAMAGES AND CAUSATION – GENERALLY – claim by subsequent homeowner – whether breach of duty by builder in undertaking building work – assessment of damages LIMITATION OF ACTIONS – CONTRACTS, TORTS AND PERSONAL ACTIONS – where initial works were undertaken more than six years before the application was filed – where rectification works undertaken less than six years before the application was filed Civil Liability Act 2003 (Qld), s 4, s 9, s 11, sch 2 Human Rights Act 2019 (Qld), s 9, s 11, s 13, s 24, s 25, s 31, s 48 Limitation of Actions Act 1974 (Qld), s 10 Queensland Building and Construction Commission Act 1991 (Qld), s 3, s 77, sch 1B s 4, sch 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 100, s 102, s 105 Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86 Atkinson & Anor v Van Uden [2020] QCAT 259 Bryan v Maloney (1995) 182 CLR 609 Campbell v Queensland Building and Construction Commission [2021] QCATA 34 Cerda v Jacob [2020] QCATA 57 Chau’s & Sons t/as Holiday Air Conditioning and Refrigeration Qld v Karam [2024] QCAT 476 Knox v Bellamy [2021] QCAT 192 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 Mallonland Pty Ltd v Advanta Seeds Pty Ltd [2024] HCA 25 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: P Burnitt, Director -- 2 of 17 -- 3 REASONS FOR DECISION [1] Mr Beatton purchased a house in about July or August 2015, which had been, in part, built by Strongbridge Homes Pty Ltd (‘Strongbridge’), a licensed contractor, for the previous owner. The evidence before me is that the original builder of the house went into liquidation and Strongbridge was contracted to complete the works. There is some evidence before me that the original builder went into liquidation on 13 August 2014.1 There is also some evidence before me that handover to the original owner occurred in or about September or early October 2014.2 [2] Although Strongbridge was directed3 to file a copy of the construction contract, a copy of the contract was not in evidence before me. Mr Burnitt, director of Strongbridge, gave evidence, and I accept, that it could not be found. In view of the time since the contract was entered into, it is not surprising that it was not able to be readily located. [3] His evidence was, and I accept, that: (a) the liquidator of the original contractor assigned the construction contract to Strongbridge so that it could complete the building works and get ‘building finals’; (b) it was a standard written contract without any “special standards or special things that we had to do”; (c) it contained a six month ‘maintenance period’;4 (d) Strongbridge’s scope of works did not include landscaping and drainage, which was to be completed by the owner. [4] Mr Beatton claims that Strongbridge’s work in relation to the home sewerage treatment plant (HSTP) at his home was defective and that he had to replace it in 2022. He commenced proceedings seeking compensation for the costs of rectification and costs.5 The Tribunal file records that he paid a filing fee of $358.6 There is no evidence of other costs incurred in relation to the proceedings. [5] Mr Beatton says that his costs to investigate the issues and to replace the HSTP were more than $20,0007 but agreed to limit his claim to $20,000 initially due to a belief that was the maximum the Tribunal could award. At the hearing, I clarified that the 1 Exhibit 10, Queensland Building and Construction Commission (‘QBCC’) Inspection Report dated 9 June 2016, p 6. 2 Exhibit 1, Application filed at the Bundaberg Magistrates Court on 1 April 2022 (the Application), part C, p 7, [4], There is some evidence that the Form 21 Final Inspection certificate was dated 17 September 2014. Exhibit 1, attachment 26 is a copy of the Final Plumbing compliance certificate which is dated 14 August 2015. It shows that the final plumbing inspection occurred on 5 September 2014. Exhibit 1. attachment 25, letter from Strongbridge to Mr Beatton dated 10 May 2016. Exhibit 6, Handover Inspection Report dated 3 October 2014. 3 Direction made 12 April 2024. 4 Building contracts usually contain a defects liability period, after practical completion, during which the contractor agrees to rectify minor defects or omissions. Without the benefit of a copy of the contract being in evidence it is not possible to make findings as to any limitations on the contractual obligations. 5 Exhibit 1, Application filed at the Bundaberg Magistrates Court on 1 April 2022 (the Application). 6 Ibid. 7 Exhibit 1 states $20,802.46. -- 3 of 17 -- 4 Tribunal’s jurisdiction in domestic building disputes is not limited to $20,000. Mr Beatton still advised that he limited his claim for damages to $20,000. [6] As there was no contract between Mr Beatton and Strongbridge, the claim is in negligence. Strongbridge denies that its work or the work of its sub-contractor, for which it was responsible, was defective. It says that it was not notified that issues with the work continued after its sub-contractor returned to perform rectification works in August 2016 and it was not given an opportunity to inspect the works prior to Mr Beatton replacing them. Mr Beatton points to correspondence from the Queensland Building and Construction Commission (‘QBCC’) to Strongbridge, and I accept, which clearly shows that issues with the HSTP continued after the rectification works in August 2016. [7] Mr Beatton, as applicant, is required to establish on the balance of probabilities that he is entitled to the orders sought. [8] A person involved in a building dispute may apply to the Tribunal to decide the dispute8 provided the person has complied with a process established by the QBCC to attempt to resolve the dispute.9 I am satisfied that the QBCC’s dispute resolution process has been complied with, enlivening the Tribunal’s jurisdiction.10 [9] A building dispute is defined to include a domestic building dispute.11 Domestic building dispute is defined to include a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of reviewable domestic work.12 A domestic building dispute also means a claim or dispute in negligence, nuisance or trespass related to the performance of reviewable domestic work other than a claim for personal injuries.13 [10] Reviewable domestic work14 is defined to mean domestic building work under sch 1B s 4 of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), which includes the erection or construction of a detached dwelling15 or the renovation, alteration, extension, improvement or repair of a home16 or associated works.17 The undisputed evidence is that the original works were works to construct a detached dwelling. For the construction of a detached dwelling, domestic building work includes the provision of services or facilities to the dwelling or the property on which the dwelling is, or is to be, situated.18 Examples given include water supply and sewerage. 8 Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’) s 77(1). 9 Ibid s 77(2). 10 Exhibit 1, attachment 2 QBCC letter 7 February, 2017 and attachment 3 QBCC letter 17 March, 2017. 11 QBCC Act (n 8) sch 2. 12 Ibid. 13 Ibid. 14 Ibid. 15 Ibid sch 1B s 4(1)(a). 16 Ibid sch 1B s 4(1)(b). 17 Ibid sch 1B s 4(3)(b). 18 Ibid sch 1B s 4(5). -- 4 of 17 -- 5 [11] I am satisfied that the dispute is a domestic building dispute between a building owner and a building contractor relating to the performance of domestic building work. The Tribunal has power to award damages.19 [12] The final oral hearing was conducted on 9 May 2024. The delay in finalising the proceedings is extremely regrettable and relates, at least in part, to resourcing issues. [13] A claim in negligence requires consideration of the Civil Liability Act 2003 (Qld) (‘CLA’). The CLA applies to civil claims for damages for harm.20 [14] The CLA defines ‘claim’.21 It includes a claim for damages based on a liability for damage to property or economic loss, whether that liability is based in tort or contract or on another form of action, including breach of statutory duty. ‘Harm’ is defined to include damage to property and economic loss.22 ‘Duty’ includes a duty of care in tort.23 ‘Duty of care’ means a duty to take reasonable care or to exercise reasonable skill (or both duties).24 [15] The Tribunal has held that to establish an entitlement to damages for negligent building work the following elements must be present:25 (a) a duty of care owed by Strongbridge to Mr Beatton; (b) the duty of care was breached;26 (c) damage which is not too remote has been suffered by Mr Beatton as a consequence;27 (d) any defence to the claim has been rebutted; and (e) the proportionate liability sections of the CLA have been applied. Did Strongbridge owe a duty of care to Mr Beatton? [16] I find that Strongbridge owed Mr Beatton a duty of care to take reasonable care and to exercise reasonable skill in the performance of the work to the standard of a licensed contractor. [17] Mr Burnitt in oral evidence accepted that Strongbridge owed a duty of care to Mr Beatton and denied the duty of care had been breached. [18] Although Mr Burnitt’s evidence is that the tanks for the HSTP had been installed prior to it taking over the construction contract, he accepted that Strongbridge having been contracted to complete the works assumed responsibility for the prior work. Mr Beatton’s evidence is, and I accept, that the work to create the dispersal area for the system was installed by Strongbridge’s sub-contractor a few days after he had purchased the home. 19 Ibid s 77(3)(c). 20 Civil Liability Act 2003 (Qld) (‘CLA’) s 4(1). 21 Ibid sch 2. 22 Ibid. 23 Ibid. 24 Ibid. 25 Knox v Bellamy [2021] QCAT 192 [87]. 26 CLA (n 20) s 9. 27 Ibid s 11. -- 5 of 17 -- 6 [19] I find that the relationship between Strongbridge and Mr Beatton was characterised by an assumption of responsibility by Strongbridge and known reliance by Mr Beatton so that it falls within one of the special categories of cases in which a duty of care is owed in respect of the work performed for the original owner. Although Mr Beatton was not the owner for whom the original building work was performed, he was the owner at the time that rectification work was undertaken by Strongbridge through its sub-contractor in 2016. A relationship of assumption of responsibility and reliance is even clearer in respect of the rectification work performed in 2016 than it is in respect of the original work. [20] The High Court in Bryan v Maloney28 found that there was a special relationship between a builder of a house and a building owner for whom the work was performed and in that case found that the builder owed a subsequent purchaser of the house a duty to take reasonable care to avoid the economic loss which the subsequent purchaser suffered as result of the diminution in value of the house due to the inadequacy of the footings constructed. [21] The Tribunal has recently considered the law of negligence in Australia since Bryan v Maloney29 in Chau’s & Sons t/as Holiday Air Conditioning and Refrigeration Qld v Karam30 and found that a homeowner could bring an action in negligence against a contractor because it fell into one of the established categories of duty of care so that it was unnecessary for an applicant to prove the respondent owed a duty of care. [22] The Tribunal in Chau31 noted in relation to a recent High Court decision of Mallonland Pty Ltd v Advanta Seeds Pty Ltd32: In domestic building cases involving the original parties to the building work, as recognised in Bryan v Maloney, there is an assumption of responsibility on the part of the building contractor. Accordingly, consideration of the vulnerability of the building owner in determining the existence of a duty of care is not required. This was recognised by Edelmann J in Mallonland albeit in the context of a subsequent purchaser: It suffices to say that if there were truly an assumption of responsibility in Bryan v Maloney, then any reference to "vulnerability" would be superfluous and confusing at best. [23] Mallonland33 confirms that a builder owes a subsequent purchaser of a house a duty to take reasonable care to avoid the economic loss. Even if Mr Burnitt had not conceded the point, I would have found such a duty of care existed. Did Strongbridge breach the duty of care? Did Strongbridge cause harm? [24] I find that Strongbridge breached the duty of care to Mr Beatton to take reasonable care. I find that Strongbridge’s breach caused harm to Mr Beatton, which was not too remote. [25] Strongbridge has not clearly sought in this proceeding to apportion liability to others. Neither Mr Beatton nor Strongbridge sought to join Strongbridge’s sub-contractor 28 (1995) 182 CLR 609. 29 Ibid. 30 [2024] QCAT 476 [41]. 31 Ibid [44]. 32 [2024] HCA 25. 33 Ibid. -- 6 of 17 -- 7 who performed the work. In the Application Mr Beatton contended that the sub- contractor was sold to another company and had ceased operating and that the plumber who supervised the initial installation and subsequent re-installation had retired.34 There is no detailed evidence before me as to the current status of the sub-contractor. [26] Strongbridge points to the “guarantee’’ provided by its sub-contractor until 26 November 2019.35 The letter of assurance refers to ‘any issues with the section of drain identified to have backfall beneath your dwelling.’ It does not on its face extend to issues with the HSTP more generally. [27] Section 9 of the CLA provides that: (1) A person does not breach a duty to take precautions against a risk of harm unless – (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought reasonably to have known); and (b) the risk was not insignificant; and (c) in the circumstances, a reasonable person in the position of the person would have taken the precautions. (2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (among other relevant things) – (a) the probability that the harm would occur if care were not taken; (b) the likely seriousness of the harm; (c) the burden of taking precautions to avoid the risk of harm; (d) the social utility of the activity that creates the risk of harm. [28] In deciding whether a breach of duty caused particular harm it is necessary to consider: (a) factual causation i.e., the breach of duty was a necessary condition of the occurrence of the harm; and (b) scope of liability i.e., it is appropriate for the scope of liability of the person in breach to extend to the harm so caused.36 [29] I find that it is reasonably foreseeable that if a licensed building contractor does not take care in performing work in relation to a HSTP either directly or by its sub- contractor a subsequent homeowner is likely to suffer loss and damage. [30] The evidence is that Mr Beatton made a complaint to the QBCC in or about May 2016, which included an item ‘the dispersal hoses activate every 10 minutes for 20 seconds during heavy rain indicating that storm water is leaking into the sewerage system.37 The complaint identifies that he first noticed this on 30 January 2016. Mr Beatton says that he believes that the tanks had already been damaged. 34 Exhibit 1, Part B, p 4, [8]. 35 Aarro’s Plumbing Pty Ltd letter dated 7 November 2016. There is some evidence that this date was amended to 17 September 2020, see Exhibit 1, attachment 24. 36 CLA (n 20) s 11. 37 Exhibit 1, attachment 5. -- 7 of 17 -- 8 [31] A QBCC inspector inspected the works in May 2016 and prepared an inspection report dated 9 June 2016, a copy of which is in evidence before me.38 The QBCC Inspection report noted that no representative of Strongbridge attended the inspection and that the inspector had no issues with the design of the ‘onsite domestic waste water disposal system, site and soil evaluation and land application area including spray irrigation’ and that: The installation of the effluent disposal system appears to have been completed from the house to the HSTP tanks including subsurface drainage by Strongbridge Homes Pty Ltd…. The drainage system appears to have functioned satisfactorily since the initial blockage October 2015. [32] Although the QBCC found that there was insufficient evidence at the time of the inspection to indicate defective building work in relation to the disposal hose activation complaint, the QBCC contacted Strongbridge’s plumbing and drainage sub-contractor who agreed to investigate the hose activation complaint. [33] There is evidence before me, and I accept that, the tanks as originally installed were not level as of 5 July 2016.39 [34] On or about 10 June 201640 and 13 July 201641 the QBCC requested Strongbridge to rectify items of work within 28 days. The QBCC was satisfied that Strongbridge was responsible to rectify some issues of defective work, including that the tanks were not level. [35] Most relevant to these proceedings, the QBCC requested Strongbridge to carry out work in relation to: item 3 of the complaint form has been investigated and it has been determined that the house drain has backfall approximately 4-8 metres downstream from the inspection opening behind the ensuite bathroom and another at 20-23 metres and 26-33 metres which is immediately upsteam of the HSTP (home sewerage treatment plant) adversely affecting the functional use of the system and may cause blockage of the drain. The treatment plant consists of two tanks, the primary tank is not sitting level in the ground and is also holding a higher than normal working level, this is likely due to the secondary tank being set at a higher level than the primary providing backfall between the two tanks. The secondary tank is also not set on a level base. [36] A decision by the QBCC not to request rectification or issue a direction to rectify is not determinative as to whether a claim in negligence may be established. [37] Mr Beatton says that Strongbridge’s sub-contractor attended to perform rectification works to the HSTP: (a) by applying silicon to the tank lids; and (b) reinstalling the tanks between 1 and 8 August 2016 and installing concreted anchor chains. 38 Exhibit 10, filed 19 April 2024. 39 Exhibit 1, attachment 15. 40 Exhibit 11. 41 Exhibit 12. -- 8 of 17 -- 9 [38] His evidence is that the scalloping around the tanks occurred during the re- installation/rectification works. I accept that Mr Beatton was living at the premises at the time the works were carried out. Mr Burnitt denied that Strongbridge or its sub- contractor was responsible for the scalloping around the tanks. The basis of denial does not appear to arise from any direct knowledge rather a belief that the sub- contractor, who Mr Burnitt considered competent, would not have done so. In support of Mr Beatton’s evidence there is some documentary evidence before me that the sub- contractor performed grading and shaping work as part of the rectification works.42 [39] In the absence of direct evidence from Strongbridge or evidence from the sub- contractor disputing it performed these works, I prefer Mr Beatton’s evidence. [40] There is some evidence before me that Jay Surman of Eco Water inspected the HSTP on 16 December 2016 and found that the re-installation was to the manufacturer’s standard. This is recorded in an email dated 1 February 2017 from Strongbridge’s sub-contractor to the QBCC, which forwarded an email of 1 February 2017 from Stewart Harrison to Strongbridge’s sub-contractor. 43 Neither Jay Surman nor Stewart Harrison gave a statement of evidence in these proceedings. Neither of them attended the hearing to confirm the certification and be questioned by Mr Beatton or me. I specifically raised with Mr Burnitt whether such witnesses were proposed to be called at the pre-hearing Directions Hearing.44 [41] On 15 January 2017 Mr Beatton reported to the QBCC that ‘Jay, the Earth Safe representative’, who had inspected the HSTP on 16 December 2016 ‘was of the opinion that water is entering through the tank lids but was unable to explain why the hoses would continue to activate hours after the surface water had disappeared.’45 This appears to be a reference to Jay Surman from Eco Water. [42] Mr Burnitt says that the QBCC Inspector ‘would have inspected’ the rectification works and that he must have been satisfied that the rectification works were to an acceptable standard because he closed the complaint.46 [43] Mr Beatton, who was residing at the house at the time of the rectification works, denies that any such re-inspection occurred. Mr Burnitt was unable to direct me to any specific evidence that the QBCC Inspector had re-inspected after the rectification works had been performed. [44] The QBCC letter dated 7 February 2017 does not specifically refer to the QBCC Inspector conducting a re-inspection. The QBCC letter dated 17 March 2017 does not specifically refer to the QBCC Inspector conducting a re-inspection. It states that ‘Stan Leyden Brummell notified the Commission that he had fixed up all things on your list.’ I understand that Mr Brummell was the sub-contractor’s plumber, who performed the works. It also notes that the sub-contractor47 had provided a letter of assurance,48 that there were possible issues with the activating of disposal hoses to be 42 Exhibit 2, attachment 37, email QBCC 5 May 2017. 43 Exhibit 14, statement of Peter Burnitt, annexure 6. 44 12 April 2024. 45 Exhibit 2, attachment 35, p 3. 46 Exhibit 1, attachment 2, attachment 3. 47 Aarro’s Plumbing Pty Ltd. 48 Letter dated 7 November 2016. -- 9 of 17 -- 10 monitored and that Mr Beatton was to contact the sub-contractor ‘in the first instance’ if future problems manifested. [45] The QBCC Inspector did not attend the hearing to confirm his findings or whether he re-inspected the works. Strongbridge did not seek a Notice to Attend be issued to the QBCC Inspector. [46] I find that it is more likely than not that the QBCC Inspector did not attend to satisfy himself that the works were to an appropriate standard because that is Mr Beatton’s evidence, who was residing at the premises, and there is no persuasive evidence before me that it did take place. [47] Mr Beatton contends that the issue of damage to the tank shells was not investigated in 2016 because other issues with the works were identified. [48] Mr Beatton’s evidence is that following the rectification works in August 2016 issues with the HSTP continued including the activation of the dispersal hoses during and after heavy rain and he sought the sub-contractor’s assistance as follows: (a) he noticed subsidence around the tanks on 26 November 2016; (b) two further sections of dispersal hoses were installed by Strongbridge’s sub- contractor on 6 February 2017; (c) adhesive foam was applied to the tank lids by Strongbridge’s sub-contractor on 6 February 2017 to assist the lids seal and prevent water entry; (d) on 2 April 2017 Mr Beatton wrote to the QBCC claiming that water was still entering the HSTP tanks during and after rain;49 (e) on 25 June 2017 Mr Beatton again wrote to the QBCC about the disposal hose activation issue continuing;50 (f) the sub-contractor’s plumber returned on 25 May 2020 to place a brick under the outlet pipe of the secondary tank after the pipe had become dislodged; (g) prior to 31 May 2021 the sub-contractor’s plumber delivered fill to address the subsidence and following his retirement suggested Mr Beatton seek assistance from Gainsite; (h) he noticed subsidence around the tanks in May 2021, July 2021, November 2021; and (i) on or about 2 December 2021 he witnessed water flowing out from under the primary tank indicating that the tanks ‘failed’ for a second time, 5 years and 4 months after the re-installation.51 Was it necessary to replace the HSTP? [49] I find that the reasonable and necessary rectification was to replace the HSTP. [50] The undisputed evidence is that the tanks, originally installed prior to Mr Beatton purchasing the home, were plastic tanks with a 15-year manufacturer’s warranty. The 49 Exhibit 1, attachment 24. 50 Exhibit 2, attachment 32. 51 Exhibit 2 [105]. -- 10 of 17 -- 11 tanks were required to be re-installed in 2016 because they were not level and the HSTP was not functioning as intended. [51] Mr Ben Howard of Coastal Waste Water Specialists (‘CWWS’) inspected the HSTP in February 2022, prepared a report and provided a statement.52 He was available to confirm his evidence and be questioned. The evidence is, and I accept, that Mr Howard has many years of experience in treatment systems. As CWWS was engaged to replace the system, Mr Howard is not entirely independent. I take this into account in considering the evidence. [52] Mr Howard’s evidence was that: (a) the HSTP was not installed to the standard of a reasonably competent contractor because the HSTP tanks had not been installed to the manufacturer’s recommendation nor to the Queensland Waste Water and Plumbing Code AS/NZS 1547 or 3500, which require the top of the tanks to be installed 100mm above ground level and that the standards for installation had not relevantly changed since 2000; (b) the tanks were 400 to 500mm too deep for the site and the tanks were not suitable for the site because the ‘invert’ was not deep enough to suit the drain; (c) the tanks could not be reused because they were ‘non-compliant for the invert’53 and the tanks structural integrity had been compromised; (d) he recommended installation of a new concrete tank at the correct depth i.e., replacement of the system; (e) the ground appeared to have been scalloped away to make it appear higher; (f) he did not inspect the HSTP before 2022; (g) tanks are required to be level/plumb give or take 10mm and that a competent contractor would install the tanks so that they are level; (h) although a different type of HSTP was installed in 2022 he estimated that there was about a $500 differential in costs between the replacement and the type originally installed; (i) because the tanks had been installed too deep for the site, during and following heavy rain, storm water was entering the HSTP causing issues with effluent quality, a health issue, and causing the dispersal hoses to activate frequently to drop levels in the system; (j) the plastic tanks were not suitable to be installed at that depth because they were not capable of withstanding the soil pressure, which more likely than not caused the primary tank to split, allowing water, soil and sand to enter and causing subsidence between tanks; (k) the installation of concrete anchors is an acceptable method of limiting hydrostatic lift of tanks; 52 Exhibit 5. 53 He gave oral evidence that ‘invert’ meant depth. -- 11 of 17 -- 12 (l) if the tanks had been properly installed, they may pop up but they were not likely to have sunk having regard to the soil type and the periods of rain since installation and re-installation to 2022; and (m) there was no evident manufacturing fault with the tanks. [53] Mr Dale Robinson of Gainsite Pty Ltd (‘Gainsite’) inspected the HSTP in March 2022, prepared a report and provided a statement.54 He was available to confirm his evidence and be questioned. The evidence is, and I accept, that Mr Robinson has many years of experience in treatment systems. Gainsite quoted to replace the system, but its quote was not accepted. As Gainsite was engaged to perform regular maintenance on the HSTP, Mr Robinson is not entirely independent. I take this into account in considering the evidence. [54] His evidence was that: (a) the HSTP was not installed to the standard of a reasonably competent contractor; (b) the relevant standards had not changed significantly since the HSTP was installed originally and since the rectification work was performed; (c) the tanks were installed too low; (d) the tanks should have been installed above ground level; (e) he recommended a new system be installed at a higher level; (f) it was not probable that the issue was a manufacturing issue with the tank nor a maintenance issue; (g) the system was serviced regularly by Gainsite at approximately 3 monthly intervals but not necessarily by him; (h) the alarms going off and the hoses activating frequently indicated stormwater was entering the treatment plant; (i) stormwater should not enter a HSTP if it is properly installed; (j) the installation of concrete anchors is an acceptable method of limiting movement of the tanks causing pipe breakages; (k) to address subsidence after rain Gainsite supplied trailer loads of sand but it would drop away. The cavity was quite deep and dangerous; (l) Gainsite carried out some investigations as to the cause of subsidence and that indicated there was a split in the tank or a hole; (m) because the treatment plant was installed too deep it put excess pressure on it during rain resulting in the tanks distorting; (n) no maintenance could rectify or prevent what happened; and (o) it was not likely that extra dirt was pushed around the tank to make it look like it was too low because the block is fairly flat with a slight fall to the road. 54 Exhibit 4. -- 12 of 17 -- 13 [55] The only witness to give evidence at the hearing on behalf of Strongbridge was Mr Burnitt, Strongbridge’s director. I accept Mr Burnitt has relevant experience and expertise, but he is clearly not independent. I take this into account when considering the evidence. As I understand it, his evidence is that he attended site on occasion but largely relied upon the sub-contractor to undertake the works. [56] Strongbridge relied upon a letter from the QBCC dated 7 February 201755 and the Eco Water ‘certificate’ referred to earlier at [40]. He also contended that there may have been movement of the tanks after the 2016 rectification work due to the rain experienced after periods of drought given the reactivate clay soil. Strongbridge did not lead any detailed evidence about this. As indicated earlier, Mr Howard rejected the possibility of the tanks sinking if properly installed. [57] I prefer the evidence of Mr Howard and Mr Robinson, who were both available to confirm their evidence and be questioned to the evidence of persons who did not attend the hearing and what essentially amounted to speculation by Mr Burnitt. [58] I find that the HTSP was not installed by Strongbridge, by its sub-contractor, to the standard of a reasonably competent contractor because the tanks were re-installed on or about 8 August 2016 too low, and therefore not in accordance with manufacturer’s recommendations and the relevant plumbing standards. I also find that it is more likely than not that the tanks failed and were required to be replaced as they distorted and split prematurely56 because they were installed contrary to the manufacturer’s recommendations and the relevant plumbing standards. Strongbridge failed to ensure that its sub-contractor undertook the works to an appropriate standard. [59] While there is some evidence that the initial installation of the HTSP was not to the standard of a reasonably competent contractor e.g. the tanks were not level resulting in a QBCC request to rectify and the dispersal hoses activated in much the same way before and after the reinstallation work, the evidence of Mr Howard and Mr Robinson was directed, as I understand it, more to the re-installation work in August 2016. [60] Strongbridge says that it was not notified that issues with the work continued and it was not given an opportunity to inspect the works prior to Mr Beatton replacing them. Mr Burnitt gave evidence that Strongbridge was not notified after 2017 that there was a problem with the installation and that if it had been contacted, it would have fixed it. Mr Burnitt gave evidence that the tank system had been installed before Strongbridge took over the works but accepted that it was responsible as the builder for the work and the rectification work. [61] Mr Burnitt says that when Strongbridge was served with the Application in this matter he called Mr Beatton but the replacement work had already been done. He accepted that the replacement system is not significantly superior to the system Strongbridge, via its subcontractor installed and re-installed. [62] As I understand it Strongbridge says that by not notifying it and allowing it to return and attempt to rectify the issues that Mr Beatton has not taken any steps, or any sufficient steps, to mitigate his loss. I accept that Strongbridge is likely to have been able to rectify the works at less cost to it than Mr Beatton was quoted by other contractors because it would not charge itself a margin for profit and overhead. 55 Exhibit 14, annexure 9. 56 Having regard to the 15-year manufacturer’s warranty. -- 13 of 17 -- 14 [63] Mr Beatton disputes Mr Burnitt’s claims that Strongbridge were not aware of ongoing issues and that Strongbridge would have rectified. He says that because of the extensive history of this matter he had lost confidence in Strongbridge’s sub- contractor, Strongbridge and the QBCC and rectification needed to be performed as a matter of some urgency. [64] Although Mr Burnitt said he would have inspected and attended to rectification, Mr Beatton says, and I accept, that Strongbridge had sought to deny any liability from an early time, including its response to issues raised on or about 10 July 201557 and its response dated 10 May 201658 both of which denied liability and sought to rely upon a contractual term referred to as a six month maintenance period, which it said had expired. His evidence is that he expected a similar denial would be forthcoming. Such denials are evident in the Response59 and Mr Burnitt’s statement of evidence.60 [65] In all the circumstances, I am satisfied that Mr Beatton’s failure to further notify Strongbridge prior to seeking quotes and commencing proceedings was not altogether unreasonable. Mr Beatton’s evidence is, and I accept, that the HSTP was not removed and the replacement system was not installed until June 2022, which was after the proceedings had been commenced and after Strongbridge filed its Response.61 Further, I accept Mr Beatton’s evidence that Strongbridge did not ask to inspect the HSTP upon receipt of the Application. Is the claim out of time? [66] I find that the claim for breach of duty of care in respect of the rectification or re- installation work is not out of time. [67] Section 10 of the Limitation of Actions Act 1974 (Qld) provides that actions founded on negligence may not be brought after the expiration of six years from the date on which the cause of action arose. The breach of a duty of care in relation to the rectification or re-installation work occurred on or about 8 August 2016. These proceedings were commenced on 1 April 2022, which is within six years from the date upon which the cause of action arose. What is the measure of damages? [68] I find that Strongbridge is to pay Mr Beatton damages in the amount of $19,500 (incl GST). [69] The Tribunal has previously found that:62 The object of an award of damages in tort is to restore a party … to the position they would have been in if the negligently performed building work had not occurred. Damages may include the cost of rectification. [70] The Appeal Tribunal has previously found that:63 57 Exhibit 7. 58 Exhibit 1, attachment 25. 59 Exhibit 13. 60 Exhibit 14. 61 Exhibit 13, filed 20 May 2022. 62 Atkinson and Anor v Van Uden [2020] QCAT 259 [61]. 63 Cerda v Jacob [2020] QCATA 57 [80]. -- 14 of 17 -- 15 ….the measure of damages is the cost of bringing the works into conformity with what would have been the result had the works been carried out in an appropriate and skilful way subject to the remedial work being necessary and reasonable. [71] Mr Beatton claims his costs to investigate and attempt to rectify the issues with the HSTP, including subsidence around the tanks. His evidence is that he incurred the following costs: (a) 2/12/2021 Gainsite $449.68 (incl GST) in respect of subsidence investigation which locates water emerging from around the base of the primary tank;64 (b) 13/12/2021 Gainsite $127.76 (incl GST) in respect of delivering sand to fill subsidence cavity at the tanks;65 (c) 10/01/22 Gainsite $188.87 (incl GST) in respect of new subsidence investigation which locates water entering primary tank at the base and finds that the secondary tank is distorted. Gainsite resealed the lid of the secondary tank as it had sprung loose due to distortion;66 (d) 20/01/2022 Gainsite $138.87 (incl GST) in respect of delivering sand to fill subsidence cavity at the tanks;67 (e) 14/02/2022 Gainsite $463.74 (incl GST) in respect of costs to evaluate locating a replacement treatment plant closer to the house;68 and (f) 18/02/2022 CWWS $125.00 (incl GST) in respect of preparation of a report on the condition of the HSTP.69 [72] On my calculation these expenses total $1,493.92 (incl GST). [73] Mr Beatton’s evidence is that on the advice of Gainsite he placed a tarpaulin over the plant on 26 February 2022 to assist to minimise the entry into the tanks of rain water. His evidence is, and I accept, that the issues with the HSTP resulted in effluent backing up and preventing use of the toilet cisterns and prevented him from having showers. The issues with the HSTP are not in the nature of minor defects or omissions. [74] Mr Beatton claims his costs to replace the HSTP. Mr Beatton sought three quotes which ranged from approximately $15,000 (incl GST) to approximately $36,000 (incl GST).70 Mr Beatton engaged CWWS to replace the HSTP, being neither the cheapest nor the most expensive quote. [75] His evidence is that he incurred the following costs: (a) 23/03/2022 CWWS $1,195 (incl GST) in respect of percolation test and waste water design;71 64 Exhibit 1, attachment 17. 65 Ibid, attachment 18. 66 Ibid, attachment 14. 67 Ibid, attachment 19. 68 Ibid, attachment 13. 69 Ibid, attachment 20. 70 Ibid, attachments 8, 10, 12. 71 Ibid, attachment 22. -- 15 of 17 -- 16 (b) 31/03/2022 CWWS $850 (incl GST) in respect of council plumbing approvals;72 (c) 29/4/2022 CWWS $3,444 (incl GST) in respect of deposit on placement of order for new system;73 (d) 02/06/2022 CWWS $12,054 (incl GST) in respect of instalment of new system;74 and (e) On or about 15/06/2022 CWWS $1,722 (incl GST) in respect of the final balance for the new system.75 [76] On my calculation these expenses total $19,265 (incl GST). [77] I find that Mr Beatton has incurred $20,758.92 (incl GST) because of Strongbridge’s breach of duty. Mr Beatton agreed to limit his damages to $20,000. Mr Howard’s evidence was that the cost of the replacement tanks installed in 2022 was in the order of $500 more than the cost of the tanks installed and reinstalled, for which Strongbridge was responsible. I therefore reduce the damages awarded to $19,500 (incl GST). Costs [78] Mr Beatton sought an order for costs. [79] It is a well-established principle that the Tribunal’s discretion to award costs in a building dispute76 is a broader and more general discretion than the one conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’).77 [80] The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in s 102(3) of the QCAT Act. It may award costs where a party makes a written offer to settle the dispute, the offer is not accepted within the time the offer is open and in the opinion of the Tribunal the decision is not more favourable to the other party than the offer.78 Even if the formal requirements to invoke this additional power are not met an offer to settle and whether it was unreasonably not accepted may be a relevant factor in the exercise of the discretion.79 [81] There is some evidence that Mr Beatton incurred a filing fee in bringing this proceeding. It is possible that Mr Beatton was required to pay Mr Howard and Mr Robinson for their attendance at the hearing or incurred other costs. An offer to settle may have been made. It is appropriate to make directions for submissions and further evidence to be filed in view of my findings set out above, prior to deciding whether the discretion to award costs should be exercised. 72 Exhibit 2, attachment 29. 73 Ibid, attachment 30. 74 Ibid, attachment 31. 75 Ibid; Exhibit 3, attachment 44. 76 QBCC Act, s 77(3)(h); Lyons v Dreamstarter Pty Ltd [2011] QCATA 142. 77 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’ ss 100 and 102. 78 Ibid, s 105; Queensland Civil and Administrative Tribunal Rules 2009 (Qld) r 86. 79 Campbell v Queensland Building and Construction Commission [2021] QCATA 34. -- 16 of 17 -- 17 Human Rights Act 2019 (Qld) (‘HR Act’) [82] The HR Act commenced on 1 January 2020. All individuals in Queensland have human rights.80 A human right may only be subjected to reasonable limitations.81 The parties who were not legally represented did not make any submissions about the application of the HR Act. [83] In deciding this application: (a) I am not acting as a public entity because I am not acting in an administrative capacity;82 and (b) I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with Mr Beatton’s human rights.83 [84] I accept that this application and the hearing potentially impacts Mr Beatton’s rights to a fair hearing and I considered them in conducting the oral hearing by allowing each party to give evidence and make submissions and in coming to my decision by considering the documents filed by and the oral evidence given by or on behalf of each party.84 [85] I accept that these proceedings and my decision potentially impacts other rights, in particular property rights85 and the right to privacy and reputation.86 I have considered Mr Beatton’s human rights and am satisfied that the decision is compatible with his human rights as any limitations on those rights are reasonable and justifiable.87 Any limitation of Mr Beatton’s human rights is consistent with the objects of the QBCC Act88 and the objects of the QCAT Act.89 80 Human Rights Act 2019 (Qld) s 11. 81 Ibid s 13. 82 Ibid s 9(4)(b). 83 Ibid s 48. 84 Ibid s 31. 85 Ibid s 24. 86 Ibid s 25. 87 Ibid ss 8, 13, 31, and 48. 88 QBCC Act (n 8) s 3. 89 QCAT Act (n 77) s 3. -- 17 of 17 --