Currow v Sophocleous [2025] QCAT 174

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Currow v Sophocleous [2025] QCAT 174 PARTIES: JOANNE CURROW (applicant) v MICHAEL SOPHOCLEOUS (respondent) APPLICATION NO/S: BDL169-22 MATTER TYPE: Building matters DELIVERED ON: 6 May 2025 HEARING DATE: 15 November 2023 2 October 2024 3 October 2024 4 October 2024 30 October 2024 HEARD AT: Cairns DECISION OF: Member Taylor ORDERS: The applicant’s claim is dismissed. The respondent’s claim by counterapplication is dismissed. Subject to Order 4 herein, costs are reserved. Subject to Order 5 herein, should the parties not agree on the issue of costs within 21 days of the date of this order, the issue of costs will be determined by this Tribunal in accordance with the following directions: (a) Within 28 days of the date of this order, the parties are to each file their respective submissions on costs. (b) Within 14 days of being served with the other party’s submissions, each party is to file their submissions on costs including in reply (if any). (c) Unless either party requests a hearing on costs within their submissions filed as per (a) and (b) herein, the issue of costs will thereafter be determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). -- 1 of 38 -- 2 In the event that neither party makes any submission on costs in compliance with Order 4(a) herein, the order on costs will be that each party is to bear their own costs of this proceeding. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – OTHER MATTERS – where homeowner alleged defects or omissions in work required substantial remedial work – where the allegedly defective work was work said not to have complied with requirements of the relevant Australian Standards and/or manufacturer’s specification – where the homeowner also asserted there was consequential damages arising from the defective work – whether the homeowner’s evidence supported the claim as made – where there was an absence of relevant independent expert opinion evidence Queensland Building and Construction Commission Act 1991 (Qld), s 77, Schedule 1B s 4, s 20, s 21 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c) Bellgrove v Eldridge (1954) 90 CLR 369 Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114 Neil v Nott (1994) 68 ALJR 509 Penfold v Firkn & Balvius [2023] QCATA 11 Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114 State of New South Wales v Stevens (2012) 82 NSWLR 106 APPEARANCES & REPRESENTATION: Applicant: November 2023 - Self-represented October 2024 – Ms R.J. Saunders – Solicitor WGC Lawyers Respondent: Self-represented REASONS FOR DECISION [1] Ms Currow lives in her house in Yorkey’s Knob, a northern beaches suburb of Cairns in Far North Queensland. It is one of the older suburbs of the region. A significant feature of the style of many houses in that area is a very low pitched roof. [2] She wanted new roof sheeting put on the house. Mr Sophocleous was at the time a roofing contractor. Ms Currow contracted him to replace the roof sheeting, with him then installing the new roof sheeting in the form of what is known as a ‘sprung roof’, such being that the roof sheets span from one side of the house to the other effectively being ‘sprung’ over the ridge in a very shallow concave curve. During the course of -- 2 of 38 -- 3 the roof sheeting being replaced, a heavy rain event occurred. On her return home from work on that day, Ms Currow observed water penetrating to the interior of the house such which is said to have damaged parts of the internal ceiling. [3] Ultimately the work was completed after a complaint by Ms Currow to, and an investigation by, the Queensland Building and Construction Commission (the QBCC) about that leak. [4] In this proceeding Ms Currow asserted that: (a) the water penetration to the interior of her house and the resultant damage was caused by the manner in which Mr Sophocleous was performing his work; (b) seemingly reliant on the report by the QBCC Inspector who investigated her complaint, the roof sheeting as installed is defective because: (i) the wrong product has been used, that which was used not being suitable for use in construction of a sprung roof, and so is not ‘fit-for-purpose’; and (ii) there is what is known as ‘oil canning’ in the roof sheeting, such being indentation in the roof sheeting where it spans the ridge line, such which will cause premature deterioration of the roof sheeting; and (c) there are other defects in the roof as constructed. [5] Ms Currow sought compensation from Mr Sophocleous for these issues. Her claim as originally presented to this Tribunal was for $45,000. It was later amended to be $82,767.65. By the completion of the hearing, the claim was pressed as being $104,846.60 plus interest. Mr Sophocleous defended that claim him in its entirety. He also pressed a counterclaim in the amount of $12,000 said to be for a ‘loss of remuneration’ which, whilst vaguely expressed, appears to be for the period of time in which the QBCC investigation took place during which he asserts he was not entitled to continue with replacing the roof sheeting. Ms Currow defended that counterclaim in its entirety. [6] Neither party succeeded in their respective efforts to press their claims against the other. Mr Sophocleous’s claim was entirely without substance. I dismissed it. Ms Currow’s claim presented a number of challenges which she failed to surmount. Accordingly I also dismissed it. [7] Her claim for damages for what was said to be internal water damage failed because of the absence of any evidence to show that the water penetration and consequential damage to the internal finishes of the house was as a result of something Mr Sophocleous did or did not do. Whilst I was in no doubt that water penetrated the house and caused internal damage whilst Mr Sophocleous was replacing the old roof, there was nothing to show me the requisite causal connection to the performance of his work. Her case was effectively that because he was replacing the old sheeting at the time that must have been the cause of the leak. But the evidence did not support that. It left open the possibility that the water penetration was through the old existing roof sheeting and that it was co-incidental it only manifested at the time Mr Sophocleous was undertaking the work. -- 3 of 38 -- 4 [8] As to her claim for damages for what she says is defective roof sheeting, whilst there was some support to be found in her evidence to suggest, at least on first reading, the work was defective, ultimately her evidence was entirely inadequate to get to the point of a definitive finding in that regard. Thus, she failed on that claim. [9] However, even if her evidence did support the assertion that the work was defective, she would still have failed. In my opinion the argument presented by Mr Sophocleous was sufficient to show that replacement of the roof sheeting was not a reasonable course of action to take. Thus the burden would have shifted back to Ms Currow to show that as a result of the defective work she had still suffered a loss in terms of a diminished value. But Ms Currow had ran her case on an all or nothing basis, having not presented anything to support a claim for diminished value and so surmount the tension between cost-of-cure and diminished value as it arises under the test in Bellgrove v Eldridge.1 [10] Thus, in the absence of any evidence as to the roof not performing as it was required to and moreover the absence of any evidence of a diminished value of the house as a result of the product used and the manner of installation, at best all Ms Currow could have been entitled to was nominal damages reflecting the fact of her partial success in terms of me having found the roof was defective. [11] But that was not the ultimate outcome, it being that each party failed in their respective claims against the other. My decision in this proceeding reflects those conclusions. Background [12] On 19 March 2021, as a home owner Ms Currow entered into a contract with Mr Sophocleous. He was then a roofing contractor. It was for Mr Sophocleous to replace the roof sheeting to Ms Currow's house in which she resided.2 (the Contract) [13] In Item 3 of the Schedule to the contract document, the work to be performed was described in the following manner:3 (the Contract Work) • .48 BMT Zincalume Klip-Lok Roof Sheeting Sprung Curved. • Klip Lok Hidden Clips and Screws • Upgrade & Tie down of Frame to comply with current Cyclone rating • Includes Scaffolding, Guardrail & Crane Lifting of Sheeting to Roof • Includes replacing 2m of Rotten Fascia Board • Includes Lifting Solar Water Heater • Includes accessories & deliveries to full completion & Rubbish removal • DOES NOT INCLUDE Replacing Existing Battens/Beams if rotten • Replacing Existing Battens of Rotten @$9.50 per Lineal Metre • Support Beams to be assessed once Roof is lifted 1 (1954) 90 CLR 369. 2 Ex 5 pg 3. 3 Ex 5 pg 3. See also Ex 26. Capitalisation is as it appears in the original. -- 4 of 38 -- 5 [14] By virtue of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (the QBCC Act), on entering into the Contract Mr Sophocleous had given the following warranties to Ms Currow relevant to the Contract Work: 4 (the Warranties) (a) The roofing material would be suitable for the purpose for which it was used; (b) The work would be carried out (i) in accordance with all relevant law and legal requirements, including for example the Building Act 1975 (Qld); (ii) in an appropriate and skilful way; and (iii) with reasonable care and skill. [15] There is some debate about the date on which the Contract Work actually commenced, it being 15 April or either 20 or 21 April 2021, however that is not an issue on which anything turns. Ms Currow asserts that on the day of commencement Mr Sophocleous has replaced five (5) sheets and that on her return home after work at around 5:30 pm that day she observed:5 (i) water was leaking from the ceiling in the areas where I believed the new roof sheeting to have been installed; (ii) the barge capping had been removed leaving the end of the roof exposed; (iii) the roof had no tarp covering to stop rain from entering. [16] On 22 April 2021 Ms Currow contacted the Queensland Building and Construction Commission (the QBCC). She says she was informed by a Mr Steve Sargent that Mr Sophocleous had been in contact with the Commission, and that work should not resume on the roof until the QBCC had inspected it.6 [17] On 10 May 2021 Mr Sargent carried out that inspection. He identified work which he opined was defective.7 In the QBCC’s report of that inspection, provided to Ms Currow under cover of letter dated 17 May 2021, the following statements appear as part of Mr Sargent’s findings:8 • Water staining is evident to ceiling sheets in Bedroom 1, Master Bedroom, Bedroom 3 and hallway. • There is no roof void and roof pitch is flat (approximately 2 O ), therefore the QBCC are unable to assess the back of ceiling sheeting from tracking or recent moisture marks and possible saturation to roof insulation. • … • The QBCC considers it difficult to determine if the initial water leak from the hammer being placed under the roof contributed to water spreading into the Master Bedroom and Hallway from Bedroom 1. 4 QBCC Act Schedule 1B s 19 to s 22. 5 Ex 5 para 11 and 12. 6 Ex 5 para’s 18 and 19. 7 Ex 5 para 25. See also Ex 8. 8 Ex 8 – see pg 3 of the EDR Report therein. -- 5 of 38 -- 6 • … • Clip-lock roofing is being used on shallow pitch, however excessive creasing has occurred to sheet pan around the ridge area. Excessive oil- canning in trays of Clip-lock roof sheeting will permit water to pond in these areas. Standards Australia HB 39-2015 Paet 7.17 states that retainment of water from oil-canning in trays can lead to discolouration or deterioration of the roof sheet and contribute too (sic) thermally induced roof noise. … • It is difficult to ascertain if the initial leak from a hammer being left in- between [a] (sic) roof join has compromised the ceiling sheets in other rooms or barge-capping being left off has impacted on ceiling in Bedroom 3. To gauge if leaks have occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required. [18] On or about 11 May 2021, Mr Sophocleous resumed the Contract Work. [19] Ms Currow asserted that on 8 June 2021 Mr Sophocleous informed her he had completed the Contract Work.9 [20] On 19 July 2021, Mr Handley, a Building Certifier, issued a Form 21 Final Inspection Certificate for the Contract Work.10 [21] Ms Currow also asserted that up to 24 July 2021 she notified Mr Sophocleous of what she described as a variety of damage she believed had occurred whilst he was undertaking the works. This included not only the asserted initial leak and water staining, but what she asserts was:11 Incorrect sheeting iron, poor installation, rust damage, loose screws in sheeting, sheeting iron not cut straight, ridge capping installing (sic) incorrect, damage to sheeting, over tightened screws causing indentation and water pooling; Damages to timber beams and plaster not repaired correctly, and holes in plaster under eaves; Mould under eaves caused by rain damage to ceiling. [22] In addition, Ms Currow asserted that part of Contract Works was to remove and reinstall the solar water heater on the roof, and that following Mr Sophocleous having finished his work leaks were evident from the water heater such never having occurred prior to it being done; and that she raised this with him on or around the 24 July 2021.12 [23] It was not then until 29 December 2021 that it is reported a further event occurred, such being when Ms Currow returned to her house, having being away on holidays, to find what she described as water dripping from the ceiling into the lounge room.13 [24] On 7 January 2022 Ms Currow once again contacted the QBCC lodging a complaint listing eleven items of what is said to be concerns she held arising from the work undertaken by Mr Sophocleous. 9 Ex 5 – para 42. 10 Ex 5 – para 49. 11 Ex 5 para 33. See also Ex 5 para 47 for additional items said to have been reported by Ms Currow, 12 Ex 5 para’s 55 and 56. 13 Ex 5 para 73. -- 6 of 38 -- 7 [25] Following that complaint being made, on 23 February 2022 Mr Sargent from the QBCC once again carried out an inspection at the house, providing Ms Currow with a report. Of the eleven items the subject of the complaint, Mr Sargent found six of them to be defective work and stated that the QBCC would issue a Direction to Rectify to Mr Sophocleous.14 [26] In this proceeding, Ms Currow stated this as being that which then followed:15 Despite the direction to rectify, I did not grant further access to the Property due to the breakdown of the relationship, the conduct of the Respondent and previous unsatisfactory repairs. On 1 April 2022, the QBCC notified me that the QBCC will not be taking any further action. [27] Finally, Ms Currow made this statement in the presentation of her case:16 The roof has continued to leak in many areas since the QBCC Inspection Report which detailed the defective works and required rectification of the Work. [28] On 3 June 2022, Ms Currow commenced this proceeding. As she expressed her claim at that time it was for an award of damages and costs totalling $45,000, but also that she sought orders from this Tribunal for rectification or what was asserted to be defective work. Mr Sophocleous defended that claim in its entirety. What then followed was the filing of a voluminous amount of documentation from the parties and many interlocutory applications. [29] Ultimately on 15 November 2023, the contest between the parties came on for hearing before me over two days. As the hearing got underway it became readily apparent that there were challenges in going forward. Ms Currow, self-represented at the time, had not only not arranged for any witnesses to attend to give evidence, but when she opened her case the relief she informed me that she was seeking was payment to her by Mr Sophocleous of $65,000 in compensation for the costs she will incur in replacing the roof sheeting and repairing the ceilings inside her house, and she would not be seeking any orders for rectification. [30] But this was not the case that was the subject of her application filed in this Tribunal when she commenced this proceeding, and it was not the case that Mr Sophocleous had come to the Tribunal to meet. When I explained this to Ms Currow and what her options were in going forward, she applied for an adjournment to get her case in order. Mr Sophocleous consented to the adjournment. [31] I granted the adjournment and gave detailed directions for the filing of an amended Application and to the extent necessary an amended Response and any Counter- application; for the refiling of the parties’ respective material in a correctly formatted and structured manner given the extensive, confused, and confusing nature of what had already been filed; and for the requirement that all witnesses to be presented at the hearing to give evidence proving their statements and be made available for cross- examination. I also gave the parties leave to be legally represented. 14 Ex 5 para 82. A copy of the Report is Ex 9. Ms Currow stated that the Direction was issued on 22 March 2022 (see Ex 5 para’s 84 and 85, however a copy of the Direction to Rectify was not put into evidence during the hearing, only a copy of the covering letter to it. 15 Ex 5 para 86. 16 Ex 5 para’s 104 and 105. -- 7 of 38 -- 8 [32] What then followed was the filing of amended primary documents in January and February 2024, and the associated refiling of statements in March and April 2024. [33] At that time Ms Currow’s claim was expressed as one for payment of damages in the amount of $82,767.75 plus interest and costs. The premise for the claim was expressed as a breach by Mr Sophocleous of the Warranties. Mr Sophocleous once again defended the claim in its entirety, also raising a counterclaim in the amount of $12,000 for what he asserts was a loss of revenue when he was not permitted to continue with the work in the period 16 April 2021 to 9 June 2021 pending the QBCC’s investigation. [34] It was not until early October 2024 before the matter came back before me for hearing with a return late that month for the finalisation of the hearing by way of closing oral argument following the provision of written closing submissions. [35] Regrettably, since then a substantial number of issues have arisen for me severely restricting my time and thus my availability to attend to considering the issues as they arise in this proceeding and in turn make my decision and write these reasons. I offer my sincere apologies to the parties for that unfortunate and unexpected delay. The Issues [36] The contest between the parties in this proceeding can be put into two issues, namely: (a) Did Mr Sophocleous breach any one of the Warranties? This was to be answered by reference to two sub-issues, namely: (i) Was the roof sheeting material supplied by Mr Sophocleous under the Contract not suitable for the purpose for which it was to be used ? (ii) Did Mr Sophocleous not carry out the works: A. in accordance with all relevant law and legal requirements; or B. in an appropriate and skilful way, and with reasonable care and skill? (b) If the answer to any of the primary question was ‘Yes’, the subsequent question was then - what damages (if any) flow from it? The Evidence [37] A total of eight (8) witnesses gave evidence during the hearing, each presented for cross-examination. These included both Ms Currow and Mr Sophocleous. [38] The presentations of the respective cases via these witnesses was extensive. Much of that presented was in my opinion irrelevant or of limited probative value. It is not necessary for me to go into detail herein of that which I saw to be irrelevant. To do otherwise would make for an unnecessarily long set of reasons, these reasons already sufficiently long. To the extent I refer to specific evidence in these reasons it is those parts which I considered relevant to the determination of the issues. If I rejected a part of the evidence, albeit that which I saw as being relevant, I have explained why. -- 8 of 38 -- 9 The Applicant’s Evidence [39] The manner in which Ms Currow’s evidence was presented was somewhat disjointed given availability of her witnesses. Many of her witnesses were interposed during the giving of Ms Currow’s evidence. The order in which I have referred to the evidence herein follows generally the order of presentation save only to that interposing. • Mr Bradley Everett [40] Mr Everett is a plasterboard contractor. His company is Warramix Pty Ltd. He gave two quotes to Ms Currow to supply and install new plasterboard within Ms Currow’s house to the lounge, hall, main bedroom, bedroom 1, and bedroom 2. Whilst not stated in the quote, as the evidence was presented it showed that it was for work to the ceilings.17 [41] There was some debate as to the correct dates of these quotes, such being clarified by Mr Everett in his oral evidence under cross-examination, such being the first was 5 April 2021, the second was 5 October 2022. Both quotes described the work in identical terms, the only difference being the quoted amount, the latter quote being $440 higher. [42] He had also given Ms Currow a letter, it being dated the same as the second quote, stated therein to be given at her request “regarding the state of her property on my two visits.”18 The following appears in that letter: The first visit was while the old roof was still on. Joanne had some of the ceilings done already and wanted a quote to finish the work so all the ceilings matched. … There was no water damage to the ceiling. … On my second visit the water damage was quite visible. As it had been some time between quotes I wanted to reassess my figures, due to the rise in plasterboard and material prices, and sent a new quote. … As I stated before – there was no water damage the first time I visited and there was quite visible water damage the second time I visited. [43] Whilst Mr Everett was cross-examined by Mr Sophocleous, other than raising the second quote and addressing the issue of the date, it not being part of the evidence presented by Ms Currow, there was nothing of substance arising from it. [44] Mr Everett’s evidence concluded with me asking him to explain the difference between the two quotes. He said it was solely as a result of the passage of time, that there was no change in the work requested and quoted for, and that it had nothing to do with the water damage which he observed on the second occasion. • Ms Currow [45] Ms Currow provided an extensive written statement.19 It contained not only what she said was the history of her dealings with Mr Sophocleous, but also her details with what she described as ‘Third Party Inspections’ in August and September 2021. She included as part of her statement the ‘reports’ she had received from these inspections, 17 Ex 1 and Ex 3. 18 Ex 2. 19 Ex 5. -- 9 of 38 -- 10 with most of those becoming the statements tendered as evidence in chief of her other witnesses.20 [46] The relevant and critical parts of what Ms Currow had to say in that statement are those facts as I have extracted them under the heading ‘Background’ earlier in these reasons referencing them back to her statement.21 [47] In giving of her evidence confirming that statement, with my leave Ms Currow gave some further evidence concerning the solar hot water system unit on the roof, such to be read in part in replacement of what was at page 93 of her statement. It was an e- mail said to be from a representative at ‘Solahart Cairns’ and a bundle of photographs of what appeared to be the installation of a roof mounted solarhart hot water system. It was tendered without objection from Mr Sophocleous.22 The following statement appears therein: Our plumber attended the property of [Ms Currow’s address given] and assessed the Edwards 302L system. He found the Edwards 302L system was sitting on a side pitch frame, which is not fixed to roof battens, instead is resting on blocks of wood, with metal straps attaching the blocks of wood to the roof. This is not an approved method of attaching a cyclone frame to the roof. The system also has multiple leaks which we fixed by replacing seals. Roof penetration for the pipework is also very poor. [48] Mr Sophocleous engaged in an extensive cross-examination of Ms Currow. The majority of it was challenging Ms Currow on the accuracy of many irrelevant comments made in her statement. Only a small part of it was in my opinion relevant. It was these two short exchanges:23 Mr Sophocleous Since purchasing your house did you ever make an insurance claim for water damage. Ms Currow No. Mr Sophocleous You have no video evidence of water dripping inside the house. Ms Currow No, but I have had water dripping into the house at times since starting this proceeding, with continued staining and moisture. [49] Under re-examination, Ms Currow was asked about two quotes she had received from Waramix, those quotes being the evidence in chief of Mr Everett.24 She was asked 20 Ex 5 – para 63 onwards. 21 Such being done by way of a Footnote to Exhibit 5. 22 Ex 6. 23 The words stated here as attributed to individual persons is not taken from a transcript and so is not to be read as being verbatim. It is as per the notes I took during the hearing. Wherever similar references are made in these reasons the same applies. 24 This questioning arguably went beyond the ambit of issues raised in cross-examination and thus technically not permissible however it was not objected to and thus I allowed it. It also provided me with some clarity as to the meaning of Mr Everett’s evidence. -- 10 of 38 -- 11 why there were two quotes. Her response was that because the kitchen/dining areas had different sheeting, and she wanted uniformity, thus she had the first part installed about two years after she moved in, the latter still to be installed. [50] I then asked Ms Currow some questions, the following exchange being that which I considered to be the only relevant probative evidence arising therefrom. Me The replacement of the ceilings internally was always intended to be done. Ms Currow It was an option but I must now replace it. [51] In terms of that to which I referred at paragraph [26] herein, namely Ms Currow not granting Mr Sophocleous access to the property to attend to rectification as directed by the QBCC, I asked her why she refused him access. Her response was: I had a conversation with Steven Sargent [QBCC] about quality of work and responses from Ms Sophocleous at the time, and Steven said I could take it further to QCAT. • Mr John Eldred [52] Mr Eldred is a builder and building inspector. His company is All Building Inspections Pty Ltd. He provided a report to Ms Currow following his attendance at her house to conduct an inspection on 12 August 2021 at her request.25 He stated the following therein: Sections and areas of Klip-Lok have been screwed down, presumably because the sheets are continuous full length from front to back and appear to be under tension. They curve slightly over the ridge. … … Several screws are tensioned too tightly resulting in an obvious indent to the top flat surface of the corrugations. [53] In what may properly be described as the ‘summary’ to his report, Mr Eldred expressed this opinion: My findings concluded that this roof may not have been installed to the manufacturer’s recommendations for this particular type of cladding and roof frame. It also appeared that some of the roof screws were either screwed down too tightly or not enough, resulting in some indentations allowing water pooling, and loose screws potentially allowing water penetration into the roof void. In my opinion, this roof requires urgent attention to rectify. [54] With my leave, Ms Currow’s advocate sought clarification from Mr Eldred as to what he meant by ‘urgent attention’. His response was as follows: Ms Currow informed me the roof was leaking. The fall was Nil in some locations. The roof sheeting was tension screwed in some locations. Pressure was such that it caused indent and low spots. 25 Ex 4. -- 11 of 38 -- 12 [55] He was then asked what his opinion was should the roof not be rectified, to which he stated in response: It would leak and get further damage. [56] Mr Eldred was cross-examined by Mr Sophocleous. In my opinion the only relevant exchange therein was as follows: Mr Sophocleous Have you experience in replacing rooves? Mr Eldred I have some experience in roofing, but my experience is in building inspection. [57] This prompted me, after the cross-examination and re-examination was finished, to ask Mr Eldred as to the extent of his experience in use of the roof sheet profile used by Mr Sophocleous in performing the Contract Works. His answer was that he did not have any experience in the use of the profile, which he noted was Klip-lock whilst also saying that the use of that profile was not ‘seemingly’ (his word) suitable for springing. When I then asked him what his experience was in the construction of a ‘sprung roof’, his answer was that he had only used ‘custom orb curved’. • Mr Steven Sargent [58] Mr Sargent was at the relevant time the QBCC Cairns Regional Office Building Inspector. He had carried out two inspections of Ms Currow’s house and provided two reports.26 On my reading of those reports, the relevant parts are as follows: (a) The First Report – inspection date 10 May 202:27 The licensee has reroofed part of the dwelling when a rain event transpired and stopped work. The licensee secured the new roof cladding down to existing roof sheets during ( sic) prior to the event. However the roof leaked into Bedroom 1 and possibly other areas of the dwelling. The licensee admitted responsibility for the leak in Bedroom 1, however believes they are not responsible for the other leak stains in the Master Bedroom, Hallway or Bedroom 3. … The QBCC considers it difficult to determine if the initial water leak from the hammer being placed under the roof contributed to water spreading into the Master Bedroom and Hallway from Bedroom 1. The licensee had returned prior to QBCC inspection to fix-down barge capping, as apparently it was not in place when rain event occurred. Clip-lock ( sic) roofing is being used on shallow pitch, however excessive creasing has occurred to sheet pan around the ridge area. Excessive oil- canning in trays of Clip-lock roof sheeting will permit water to pond in these areas. Standards Australia HB 39-2015 Part 7.17 states that retainment of water from oil-canning in trays can lead to discolouration or deterioration of the roof sheet and contribute too ( sic) thermally induced roof noise. … 26 Ex 8 and Ex 9. Whilst within the second report which is Ex 9 it is state that a copy of a Direction to Rectify as issued to Mr Sophocleous was enclosed therewith, a copy of that Direction did not appear in the bundle tendered as the report of Mr Sargent. 27 Ex 8 - pg 3 of 5. -- 12 of 38 -- 13 It is difficult to ascertain if the initial leak from a hammer being left in- between roof join has compromised the ceiling sheets in other rooms or barge-capping being left off has impacted on ceiling in Bedroom 3. To gauge if leaks have occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required. (b) The Second Report – inspection date 23 February 2022: (i) In terms of the ‘Living Room’:28 There was evidence of water staining to Living Room ceiling, which was not evident when EDR inspection was undertaken in May 2021. It appears water entry has occurred in the Living Room, whether the consequential damage has occurred prior to roof being completed when leak occurred between sheets (hammer left under sheet) or the new roof is leaking in ( sic) this case. Furthermore, the Met-lok roof cladding installed to the subject roof frame does not comply with manufacturer’s specifications and therefore may be allowing water ingress to occur. … The QBCC has found that no consequential damage (moisture staining) to the Living Room ceiling was evident when an inspection occurred in May 2021. The ceiling surface has a large moisture stain present between the front door entry and kitchen that was not evident during the previous site inspection. Therefore, the QBCC considers there is sufficient evidence that the licensee is responsible for the consequential damage caused to the Living Room ceiling. Furthermore, the licensee has installed a roof cladding that is not fit for purpose or is suitable for a sprung curve ridge roof as per manufacturer’s specifications. QBCC Decision: … the Queensland Building and Construction Commission finds licensee [Michael John Sophocleous] responsible for consequential damage to the Living Room ceiling, as the Metlok Cyclonic roof cladding installed to the existing sprung curve ridge roof frame does not comply with manufacturers ( sic) specification. … (ii) In terms of the ‘Hallway’:29 It is difficult to determine if water ingress has occurred recently in the hallway since the previous inspection was undertaken. … There is a possibility that water ingress may occur internally, due to new roof cladding not being fit for purpose. Torrential rain event 28 Ex 9 – pg 3 of 15. 29 Ex 9 – pg 4 of 15. Similar comments are made in terms of the ‘Main Bedroom’ (pg 5), ‘Bedroom 3’(pg 7). -- 13 of 38 -- 14 may be required to ascertain if the new roof is leaking above the hallway area. (iii) In terms of the solar hot water unit in the roof:30 The licensee has used a painted timber block to help support the solar hot water system on the roof cladding. Timber products are not deemed suitable or considered compatible to be fitted on top of sheet metal roofs, as per HB 39:2015 Installation Code for Metal Roof & Wall Cladding. Timber does not meet the same durability performance as sheet metal roofing, which may affect drainage from roof pans or allow moisture to be present on roof surface for prolong (sic) periods. …. [59] With my leave, Ms Currow’s advocate sought some clarification from Mr Sargent as to certain aspects of his written reports. This was as follows:31 (a) In terms of the reference to a hammer left under the roof, at the time of his first inspection he observed 2 to 3 new sheets laid but there was a hammer that had been left between sheets which had later been removed; (b) When he inspected the inside of the house at that time, he noted sporadic water staining to ceilings in various rooms but he was not able to determine if it was due to the hammer having been left between the sheets; (c) He explained his references to the roof cladding being ‘not fit for purpose’ as being reliant on the following construction methods he observed: (i) A ridge capping was installed but was not required unless the roof sheeting was broken into two parts; (ii) Penetrations to the roof sheeting have been silicone sealed only instead of a Dek-tight seal being used; (iii) The roof sheeting will not last its full expected life – it will deteriorate rapidly because the sheeting is not designed to hold ponded water. [60] Mr Sophocleous engaged with Mr Sargent in some cross-examination. In my opinion there were two aspects of it relevant, namely these exchanges: Mr Sophocleous It was your suggestion to break to put the ridge capping on the roof to conceal the oil canning. Mr Sargent No – I said to break the ridge but also contact Metroll. It was not intended to be continuous. You cannot put a ridge cap on Klip-Lok. Oil canning is at the top of the roof under the ridge cap – it will hold water. Mr Sophocleous Did you assess the pitch of the roof by putting a level on it? Mr Sargent Yes – 2.2 degrees 30 Ex 9 pg 8. 31 Oral evidence-in-chief of Mr Sargent. -- 14 of 38 -- 15 Mr Sophocleous Given the distance between the beams and the pitch, only Klip-lok is suitable. Mr Sargent No – Trimdeck could be used. • Mr Glen Macconnell [61] Mr Macconnell is the Manager of Metroll Queensland in Cairns. He provided a statement in this proceeding wherein he states he attended an inspection of the roof on Ms Currow’s house on 22 September 2023.32 That statement is short and succinct in which the following statement appears: During the inspection, I identified the following: (a) The Metlok 680 roof sheeting was not installed as per manufacturers (sic) specifications and will not meet region C requirements as currently installed; (b) The Roll Top Ridge Cap used is not designed for this use with Metlok 680; (c) Swarfing (corrosion) is evident on the roof and in the gutter which in my experience will void any Bluescope warranty on the materials which may otherwise apply; and (d) Sawtoothing into the gutters is evident. My opinion is that, at the date of my inspection on 22 September 2022 the roof: (a) Does not comply with Australian Standards AS 1562 and AS4040 for cyclonic regions; (b) is most likely not eligible for any kind of BlueScope warranty. [62] Prior to noting these comments, he states his ‘technical expertise’ as being that gained from his experience working as a production manager and then account manager for Stramit Building Products over a 9 year period, and then subsequently 3 years as Cairns Branch Manager for Metroll, describing it as follows: (a) ensuring the manufacture of rolled formed products to strict tolerances; (b) supplying technical information and advice to architects, building designers, and roofing contractors in relation to steel building products; (c) selling and supplying high quality steel building products; and (d) managing all facets of two of Australia’s leading local manufacturers and suppliers of steel building products including roofing, cladding, rainwater, structural and fencing products. [63] He provided some further information by way of oral evidence-in-chief, namely: (a) Identifying and providing a copy of the manufacturer’s specification to which he referred;33 (b) Explaining that in his opinion the consequences of it not being installed as per manufacturer's specification is that: 32 Ex 10. 33 Ex 11. -- 15 of 38 -- 16 It will not hold up. It is at risk of failure during a cyclone. [64] Similar to other witnesses presented by Ms Currow, Mr Sophocleous engaged in a reasonably extensive cross-examination of Mr Macconnell. The following is the only part of the exchange between the two which I considered to be relevant: Mr Sophocleous Do you hold a QBCC licence for roofing? Mr Macconnell No – I am a manufacturer. Mr Sophocleous Have you installed a roof? Mr Macconnell No. Mr Sophocleous Why is it not in the M 680 specification that it is not to be used for curving? Mr Macconnell You do not put everything in a standard as to what it is not designed for. Mr Sophocleous Stramit Speed Deck Ultra can be curved. Mr Macconnell Yes. Mr Sophocleous Stramit Speed Deck Ultra is the same as Metroll680. Mr Macconnell No – similar but different. Mr Sophocleous The M680 and M700 product brochures are similar. Are they the same product or different? Mr Macconnell They are a different profile. M680 is a higher profile not tested for spring curving. The M700 installation guide can be used as a reference for the installation of M680 in terms of stamping down in clips. [65] Mr Macconnell’s evidence was concluded with me asking one question, namely whether the roof sheeting needs to be replaced or whether the reported defects in it can be rectified, with his response being that he is merely the supplier of the material and so is not in a position to answer the question. • Mr Glen Eden [66] Mr Eden is a Director of Eden by Design Builders Pty Ltd. He described his qualifications by reference to the classes of licence he holds under the QBCC Act, namely carpenter/joiner and a builder-low-rise. He said he has a trade background. [67] Ms Currow had not filed a statement or any other documentation from Mr Eden prior to the hearing, and sought leave to present evidence from him during it. There was no objection from Mr Sophocleous. [68] Mr Eden had provided Ms Currow with a quote dated 8 December 2023 following an inspection of her roof. It was to remove and replace the roof sheeting including installing new roof battens where required, and also to repair the ceiling sheeting internally. The quoted price was all up $82,767.65.34 By way of a revised quote dated 34 Ex 20. -- 16 of 38 -- 17 2 October 2024 he increased this price to $104,846.60.35 Save only for the price, both quotes were identical, each containing the following notations: After inspection of the roof … it is event (sic) that the roof has multiple issues regarding installation and material used on site. 1. Lots of swarfing is evident on the roof meaning the roof was not washed off after installation. 2. Swarfing avoids (sic) the warranty. 3. The product used was Metlok 680 is (sic) not designed for a curved roofs (sic) and should not be wrapped over the roof. The roll top used is not suited for the application on site. 4. The fixing of type 17 screws is (sic) on the metlok (sic) with a high rib must comply with cyclone testing data. 5. Metlok roof sheeting was not installed as per manufacturer’s specifications. All five point (sic) above are non-complianant (sic). The entire roof need s (sic) be replaced to be made complaint (sic). The water ingress during installation is also evident throughout the home. The roof frame is exposed rafters. This needs to be repaired as well. This can only be repaired during the roof removal to be done property. … Whilst removing the roof the battens must be removed to repair the ceiling sheets and re-instated, also new battens will need to be installed to meet current building codes. This also will require building approval. This quotation includes all of these costs. [69] Further oral evidence-in-chief was drawn from Mr Eden, appropriately so given the absence of a written statement in advance of the hearing. The only aspect of that evidence which I considered relevant was that Mr Eden clarified the comment in his quotes as to ‘water ingress during installation’ as being what Ms Currow had told him, and that which was ‘evident’ to him of such ingress was staining on the ceilings which he considered to be from the hardwood in the roof frame. [70] The cross-examination of Mr Eden by Mr Sophocleous was short. The following is part of that exchange: Mr Sophocleous How are you going to replace the roof, what type of roof will you use? Mr Eden Trimdeck – split the ridge – if new battens are required these will be installed – I do not know what is required because I could not see any screws on the roof. [71] Mr Sophocleous also challenged Mr Eden on the cost of carrying out the work as he quoted it. Mr Eden’s agreed it was high but said that this is because of the cost to remove the existing sheeting is high given they are full length sheets. 35 Ex 21. -- 17 of 38 -- 18 [72] This challenge also brought about a short re-examination of Mr Eden by Ms Currow’s advocate. There were two answers given by Mr Eden in that short exchange which I considered probative, namely: (a) His quote could be more or less dependant on the amount of water damage and the extent of battening required; (b) He has based his quote on wind classification of C 3. The Respondent’s Evidence • Mr Sophocleous [73] Mr Sophocleous gave evidence in terms of what he described as a ‘Statement of Evidence’ but not one being drafted in narrative form, but rather as a chronological record of events and attendances with reference to photographs of the Contract Work in progress and other documentation.36 It was prolix in its detail and accordingly challenging to comprehend. One aspect of it that was probative was his statement therein that, following his resumption of work on 10 June 2021 and up to completion on 21 June 2021, when lifting sheets of the old roof he found water damaged insulation and wet ceilings below the old sheeting.37 [74] Given the absence of a narrative statement, I permitted Mr Sophocleous the opportunity to explain his statement in somewhat of a narrative form via oral evidence-in-chief in order to assist me in obtaining an understanding of what his statement and the extensive number of photographs was to have conveyed. Whilst much of it went beyond that which I had first identified from my reading of the document, he did identify and seek to explain what he had found as he progressively lifted the old sheeting. Put simply, he explained it in this way: There was extensive damage to the insulation under the old sheeting. In my opinion it was water damage caused by penetration through the old sheeting. [75] He also identified some other photographs he had taken which went to addressing issues raised by Ms Currow, namely: (a) Evidence of leaks from the solar hot water unit manifesting as rusting and staining on the old sheeting before he lifted it;38 and (b) The use of a Dek-Tight seal to the vent pipe penetrating the roof sheet near the hot-water unit;39 [76] There was extensive cross-examination of Mr Sophocleous by Ms Currow’s advocate. The following exchanges are those I considered probative, in various parts where I interjected for clarity:40 36 Ex 18. 37 Ex 18 at Pg 4 - see photographs referenced as Document ID 2 to 7; at Pg 5 – see photographs references as Document ID 1 to 4. 38 Ex 18 pg 71 39 Ex 18 pg 73. 40 This exchange is not a single series of questions and answers but taken from my notes of such at various times during his cross-examination, all of which I have put together in this way as it dealt with a consistent aspect of the issues to be determined in this proceeding. -- 18 of 38 -- 19 Ms Saunders You decided (when giving your quote on 10 February 2021) that the roof was a sprung curve roof and that 0.48 KlipLok material was appropriate. Mr Sophocleous The existing sheeting was Trimdeck and installed as a sprung roof. Doing it again in that way alleviated the need for re-organising the frame. I was satisfied from my observations and experience that it was an acceptable method of construction. Ms Saunders The description ‘KlipLok’ can be any product from any supplier. Mr Sophocleous Yes. Me Is KlipLok specific to Metroll. Mr Sophocleous No. It is a Lysaght term but used across the board in the industry as a clip down system. Metroll’s product is known as Metlok. Ms Saunders Did you consult with Metroll before you quoted the work? Mr Sophocleous No. Ms Saunders You ascertained Metlok680 was a correct product? Mr Sophocleous Yes – I always intended to use Metlok680. Ms Saunders Did you tell anybody at Metroll it was to be sprung curve? Mr Sophocleous No. Ms Saunders Did you have specs for 680? Mr Sophocleous No – I had Metroll700. Me Why did you select Metroll680 and not Metroll700? Mr Sophocleous Metroll680 provides for more fixings per m 2 and allows for screw fixings which Ms Currow asked me to do. Also it has better cyclone rating. Me What is the radius of the curve of the roof? Mr Sophocleous I worked it out to be a radius of 88m – height of 125 mm at ridge with a fall of 1.5 O over a width of 10 m up to 13 m. Me When did you work this out? Mr Sophocleous At the time I did the quote for the job. [77] I also asked Mr Sophocleous about his counter-claim raised against Ms Currow, it not being the subject of any evidence-in-chief nor cross-examination. When he opened his case he said his claim was for the loss he suffered in the period the Contract Work was suspended until the QBCC allowed him to continue. My question was the manner in which he calculated his loss of income, which he stated was his average of around $6,000 per month. -- 19 of 38 -- 20 • Mr Ian Grambower [78] Mr Grambower is the General Manager of Metroll Queensland. He provided a single page letter to Mr Sophocleous in response to a request of him for what is described therein as being ‘Engineering Verification for Metlok 680-700’. The following statement appears therein: 41 Metlok680 is the correct reference document as this is the product manufactured and supplied by our Cairns branch. The correct and current product guide, ‘Metlok680 Cyclonic Roofing Brochure’ is following this letter. This product guide should be used when referring to Metlok produced and supplied from Metroll Cairns. Additionally attached is the Metlok 700 Cyclonic Brochure. Whilst this is a slightly different system, with different sheet cover, clip system and load/span tables, it may be useful as it includes more installation information which is generally consistent with the Metlok680 installation. Please note if there are any differences between the Metlok680 and Metlok700 product guides the Metlok680 guide will prevail for the Cairns made product. [79] In my reading of the two ‘guides’ attached to Mr Grambower’s letter, I note the following: (a) A Metlok680 sheet has a cover of 684 mm and a rib height of 41.5 mm; (b) A Metlok700 sheet has a cover of 700 mm and a rib height of 40 mm; (c) The minimum pitch for both is 1 degree; (d) Both are stated to be designed for long run roofing applications, and both stated as being suitable for use in cyclonic areas. (e) It is only the Metlok700 guide that contains a reference to ‘spring curving’. [80] There was no cross-examination of Mr Grambower, however I asked him two questions, namely: Me Is Metlok 680 and Metlok 700 the same product? Mr Grambower No. Me Can Metlok 680 be used as a spring curved roof sheet? Mr Grambower Possibly, but not recommended because it has never been tested – not common to use. [81] In a short follow up question from Mr Sophocleous, Mr Grambower explained that the Metlok680 product has been developed for local use in Cairns and other north Queensland areas, and that as yet no research has been done for use as a sprung curved roof. • Mr Allen Ashby [82] Mr Ashby is a roofing contractor. His company is A&J Roofing Solutions Pty Ltd. [83] He conducted one of the ‘Third Party Inspections’ Ms Currow had arranged, and he provided her with a quote to carry out what was said to be the necessary rectification 41 Ex 17. Emphasis as is in the original. -- 20 of 38 -- 21 work. That quote was dated 15 February 2022. In essence it was to remove the roof sheeting as installed by Mr Sophocleous and replace it.42 [84] Ms Currow also stated in her statement that Mr Ashby had additionally provided her with a letter explaining what he had observed during his inspection and the details of that quote, plus providing an updated quote.43 [85] But Ms Currow did not call Mr Ashby as a witness, nor otherwise rely on the original quote, his letter, or his updated quote. Instead, Mr Sophocleous called Mr Ashby to give evidence. In doing so, two documents were tendered as Mr Ashby’s evidence-in- chief, being that which appeared as annexures to Ms Currow’s statement, namely: (a) The letter dated 13 October 2022;44 and (b) Quote 3698R dated 15 October 2022.45 [86] The letter contained the following statement: On inspection of the property I ascertained that the following issues were present: - Possible 0.42 gauge material was used, causing “oil canning” of sheets between roof battens, which will create water ponding in the pan of the sheets - We advise using 0.48 gauge to address the above issue - Incorrect penetration of hot water service pipes through new roof cladding - … - Multiple steps in roof end sheets at gutter line which is indicative of poor installation method - Screws used sporadically to fix down an otherwise ‘clip fixed’ roof profile - Ridge cap installed on a sprung curved roof, which was not required - Solar hot water service incorrectly mounted on blocks of timber on new roof sheets. - … [87] The revised quote was expressed to include the following: - Remove existing roof and install .48 Stramit Speed Deck Ultra … [88] Mr Sophocleous engaged in some questioning of Mr Ashby as furtherance of his evidence-in-chief in the style of leading questions without objection from Ms Currow’s advocate. The relevant exchange was as follows: Mr Sophocleous You are proposing to use Stramit Speed Deck sprung curve. Mr Ashby Yes. Mr Sophocleous It is standard practice in Cairns. 42 Ex 5 para’s 79 to 81. See also Anx JC-22 to Ms Currow’s statement. 43 Ex 5 para’s 94 and 95. See also Anx JC-28 to Ms Currow’s statement. 44 Ex 24. 45 Ex 25. -- 21 of 38 -- 22 Mr Ashby Yes. Mr Sophocleous You will use 0.48. Mr Ashby Yes. Mr Sophocleous How long have you been a roofer? Mr Ashby Since 1995. Mr Sophocleous How long have you been in Cairns? Mr Ashby 18 years. Mr Sophocleous You feel this is the best solutions in roof replacement. Mr Ashby Yes due to roof structure being the old style. Mr Sophocleous You use a Klip-Lok style of roof sheeting. Mr Ashby Yes – best solution for foot traffic – Trimdeck is not suitable due to minimum fall of 2 0 Mr Sophocleous What about the use of a ridge capping although a sprung roof. Mr Ashby It’s not common but not a bad idea. In sprung curve you do get a flat point and you can get ponding. Mr Sophocleous What would you say in general about the roof itself? Mr Ashby I do not know if it was clipped – I can see it is sporadically screwed. Metlok can be screwed if you use the right screw. Workmanship in some areas was poor – not the best. [89] The cross-examination of Mr Ashby was very short. He was asked whether the roof sheeting had to be replaced. His answer was simply: Need to check with an engineer. Other Evidence Tendered by Consent [90] At the conclusion of the oral evidence, some further documentary evidence was tendered by consent, namely copies of what was said to be the relevant Australian Standards – AS 1562.1:2018; AS 4040.3:2018; HB39:2015; plus the QBCC Tolerance Guide : Dec 2023 and the QBCC General Conditions of Contract : July 2018 (relevant to the Contract).46 The Closing Submissions [91] Consistent with my Directions given at the conclusion of the hearing, the parties provided written closing submissions.47 In my opinion it is not necessary for me to set out in detail here all of that contained therein. Given the conclusions I reached in this proceeding, it suffices for me to merely summarise them in short detail, most of which has been drawn from the oral presentation of the closing argument. 46 These were received as Exhibits 27 to 31 respectively. 47 Ms Currow’s filed 16 October 2024 – Ex 36. Mr Sophocleous’s filed 23 October 2024 – Ex 37. Ms Currow’s in reply filed 28 October 2024. – Ex 38. -- 22 of 38 -- 23 For the Applicant [92] The written submission for Ms Currow were extensive. They were at times repetitive and thus confusing to follow and comprehend. But as I read and understood them, the essence of Ms Currow’s closing argument was that if her house has roof sheeting installed on it by Mr Sophocleous that is not compliant with the Building Code of Australia, then he has breached the Warranties and so she is entitled to the cost of rectification as damages. [93] She also says that as a consequence of the manner of his performance of the Contract Work the roof leaked and so damaged the internal ceilings, and accordingly she is entitled to the cost of rectification of such as damages. [94] Ms Currow’s primary argument was that Mr Sophocleous has breached the warranty: (a) Under Clause 4.1(b) of the terms of the Contract, being the warranty imposed under the QBCC Act Schedule 1B s 20, namely that all materials supplied in performance of the Contract Work would be, having regard to the relevant criteria, suitable for the purpose for which they are used, with the ‘relevant criteria’ referred to therein being either: (i) Generally accepted practices or standards in the building industry for the materials; or (ii) Specifications, instructions or recommendations of manufacturers or suppliers of the materials. (b) under Clause 4.1(d) of the terms of the Contract, being the warranty imposed under the QBCC Act Schedule 1B s 21, namely that the Contract Work would be carried out in accordance with all relevant laws and legal requirements, including for example, the Building Act 1975. In turn she argued that for building work to be compliant with the Building Act it must be compliant with the relevant standards as referred to in the Building Code of Australia,48 asserting that the relevant standard is AS 1562 Part 3.5.1 therein.49 [95] She also submitted that the breaches arise because Mr Sophocleous: (a) used Metrol680 roof sheeting as a sprung curve roof, albeit that such product is not “designed for spring curved roofs and does not meet the requirements of Table 7.17.1(A) in HB 39:2015 and is therefore not fit for purpose.”50, and (b) included a “ridge cap which impacted the integrity of the sheets rendering the installation method non-compliant with AS 1562/HB39:2015”.51 [96] She also argued that “due to defective roofing works, water leaks and damage has occurred in [various internal rooms].”52 It is said that the remedial works to repair the internal ceilings is “ a consequence of the respondent’s failure to comply with the statutory warranties.”,53 48 Ex 36 para 20. 49 Ibid para 21. 50 Ex 36 para 30. 51 Ibid. 52 Ibid para 57. 53 Ibid – para 89. -- 23 of 38 -- 24 [97] In turn the following submissions were made:54 The applicant submits that: … (c) There is a clear causal link between: (i) the respondent’s breach of warranties by failing to use good and proper materials, and to install such materials in accordance with the BCA, Australian Standards and manufacturers specifications; and, (ii) the defective roof permitting water penetration resulting in internal damage to the property. … The type of roof sheeting and method of installation of the roof sheeting has caused the works to be noncompliant with the Building Act. Having regard to: (a) the damage to the existing sheets, and (b) the non-compliant installation method of the roofing sheets, the reasonable and necessary course to achieve the works promised under the contract is the removal and replacement of the roof in its entirety. [98] As to Ms Currow’s claim for the cost of repair to the internal ceilings, her advocate made this submission:55 The applicant claims against the respondent the cost of replacing the ceiling sheeting which is damaged. That work (the replacement of ceiling sheeting) does not go beyond the work that the applicant had intended to be completed prior to the respondent undertaking the roofing work. However, the replacement of ceiling sheeting is now required because the existing ceiling sheets are damaged (and became damaged following the respondent’s roofing works), as opposed to being an option that could have been taken up by the applicant (to replace ceiling sheeting that was in good condition with no visible damage, for aesthetic purposes only): … The applicant submits that: (a) the evidence supplied by the applicant reasonably demonstrates that the water staining to the property is a result of the defective roof; and, (b) the Respondent is responsible for the water ingress due to the non- compliant installation of the roof in contravention of the BCA and, pursuant to section 72(2) of the QBCC Act, is liable for the consequential damage. 54 Ibid – para 98, 129, and 130. 55 Ibid – para’s 117, 118, and 120. -- 24 of 38 -- 25 [99] Finally, in addressing my question for submissions on the relevance of the test in Bellgrove v Eldridge, Ms Currow’s advocate made this submission:56 Here, the issue is not that the work is, for example: (a) aesthetically damaged which may reduce the value of the property, but that the work is not compliant with the relevant laws and is structurally defective; or (b) defective in the sense that the contractor performed work that was different to what they were contracted to perform, but otherwise compliant with the Building Act (in which event the sensible approach would be to determine damages based on the reduction in value of the property).85 The issue at the heart of this dispute is that the product used by the respondent is not suitable for the applicant’s roof; it is not fit for purpose. The evidence supports a finding that the roof is non-compliant with the Building Act as a result of being non-compliant with the BCA. This may only be remedied by removing the product and replacing it with a product that is suitable for the applicant’s proof and necessarily compliant with the BCA, applicable Australian Standards, and Manufacturers Specifications. Such a course is reasonable and justified, and proportionate to the particular defect about which is complained. [100] In oral argument Ms Currow’s advocate developed her submissions on this issue arguing that the thread in the cases regarding diminution in value is where the means of rectification far outweigh the benefit to be obtained, however in the present circumstances it is not an issue of merely aesthetic remediation but that an issue of non-compliance with the Code. She submitted that such non-compliance imposed a risk of safety to occupants and thus required full remediation. For the Respondent [101] Whilst the written submissions from Mr Sophocleous were relatively short, they went beyond merely closing submissions and sought to present argument on matters not raised in the material filed by either party nor addressed during the presentation of evidence, eg the application of the Australian Consumer Law. He also sought to address some issues by effectively presenting argument without evidence, such being based on what he said was his own experience and consultations with others. The time for him to have presented such information was when he was giving evidence. His written closing submissions were of little to no assistance to me, and it was his oral closing that I had regard to as a summing up of his case. [102] He opened that closing argument submitting the issue here was one of ‘responsibility’, such being the responsibility of the contractor to be able to use a method / style of roofing as done over several years, such being in this case a clip-lock system. He submits that this is what he has done, and it has worked, there being no evidence of leaks after Cyclone Jasper.57 56 Ibid – para’s 140 to 143. 57 It is public knowledge that Cyclone Jasper was a severe weather event which hit the Cairns Region in December 2023 causing substantial torrential rain to fall on Yorkey’s Knob, being the suburb of Cairns where Ms Currow’s house is situated. -- 25 of 38 -- 26 [103] He says that AS 1562.1 should not be read as the ‘be all / end all’ as it contains some basic errors and is not of best practice, and such must be read and compared to his own long standing experience in making the best decision. In summary he says that the roof he installed has served, and is continuing to serve, its purpose. [104] As to his counterclaim, when I asked him about it he said that he still pressed it but accepted that he had not presented any evidence to support it. My Questions to the parties [105] There was no evidence or argument from Ms Currow to support a claim for diminished value in the alternative to her claim for damages for replacement of the roof sheeting. [106] Related to this is that neither party addressed me on the issue of nominal damages. Thus, I asked them each as to what their respective positions were should I find the roof sheeting work defective but be against Ms Currow in terms of replacement of the roof sheeting and so it became an issue of diminished value. The responses were as follows: (a) For Ms Currow – it was left up to me to determine a relevant quantum. (b) For Mr Sophocleous – it was at most $500 being the cost of a box of screws and around 2 hours of labour. Discussion on the Contest This Tribunal’s Jurisdiction [107] Whilst there is no challenge raised in this proceeding to this Tribunal’s jurisdiction to determine the matters as they arise herein, there is a fundamental obligation on any court or tribunal to satisfy itself as to jurisdiction when being asked to quell controversies before it.58 Accordingly, for completeness I make these few brief observations as to the jurisdictional basis upon which I proceeded. [108] The work the subject of this proceeding falls within the definition of ‘domestic building work’ under Schedule 1B s 4 of the QBCC Act, and in turn is ‘reviewable domestic work’ as that term is defined in Schedule 2 of that Act. The proceeding concerns a claim or dispute arising between a building owner and a building contractor relating to the performance of reviewable domestic work, and accordingly it is a ‘domestic building dispute’, which in turn is a ‘building dispute’, as those terms are defined in Schedule 2 of that Act. This Tribunal is given jurisdiction to hear and decide a domestic building dispute under s 77 of that Act. Mr Sophocleous’s Counterclaim [109] It is convenient to deal with and dispose of the counterclaim before embarking on a detailed discussion of the substantive contest between the parties. [110] As Mr Sophocleous accepted in closing argument, he did not present any evidence to support it other than his own evidence that it is said to be based on his average earnings. But moreover, he did not identify any premise for the claim by way of the cause of action in which it was based. He simply asserted a bare entitlement to damages for the period of time he was not permitted to work pending the QBCC’s investigation. Whilst it might be correct to say that such a prohibition was without any 58 Penfold v Firkn & Balvius [2023] QCATA 11 at [37] per Judicial Member Forrest SC. -- 26 of 38 -- 27 lawful basis, he did not present his claim in a way which informed me why this must be so. [111] In Neil v Nott¸ the High Court observed:59 A frequent consequence of self-representation is that the Court must assume the burden of endeavouring to ascertain the rights of the parties which are obfuscated by their own advocacy. [112] That observation, whilst expressed in reference to a Court, equally applies to this Tribunal. [113] Mr Sophocleous’s counterclaim is one of these sorts of matters. But notwithstanding the burden being assumed that the High Court spoke of therein, it was not for this Tribunal to enter the fray and make Mr Sophocleous’s case for him. He chose to embark on the course of pressing a claim against Ms Currow and accordingly held the responsibility of demonstrating at the very least a basic premise for such a claim, upon which the Tribunal may have then embarked on a process of working out the parties’ respective right in connection therewith. However Mr Sophocleous did not do that. Rather, his counterclaim was expressed as a bare claim devoid of any substance. The only possible outcome was that it must be dismissed. An order was made to that effect. Ms Currow’s Claim [114] It seemed to me appropriate that explain my consideration of Ms Currow’s claim and thus the substantive contest by reference to the witnesses as they were presented in the hearing because it was the absence of relevant evidence from the witnesses that gave rise to the result ultimately reached. As I noted it earlier herein, in most if not all cases much of their evidence was irrelevant to the issues, with only a limited amount having any probative value. But more importantly and critically there was an absence of evidence to support Ms Currow’s case. [115] But before doing so I make this observation here on an issue which pervaded the case before me. It was the reference to a ‘sprung roof’. As I understood this term, it is a roof constructed by placing a single length roof sheet from one side of the roof to the other bent / rolled over the ridge but with the roof being very flat with the resulting fall to each side of the ridge being very low. This is the method of construction engaged by Mr Sophocleous. • Mr Bradley Everett [116] Mr Everett presented as a good witness. He was quick to respond to answers posed of him, doing so with clarity. But his evidence was limited solely to the cost of replacing the internal ceilings, such determined prior to any of the water damage said to have been suffered as a result of the roofing works performed by Mr Sophocleous. [117] Whilst his evidence is that he observed what appeared to be water damage to the ceiling on his second visit, it is not evidence that the water damage occurred as a result of the roofing works having been performed. Moreover, his evidence was that the cost which he quoted to replace the ceilings had nothing at all to do with the said water damage. 59 (1994) 68 ALJR 509, 510. -- 27 of 38 -- 28 • Ms Currow [118] As I read the extensive written statement given by Ms Currow, and then listened to her and observed her during the hearing, as well as on the occasion of the first day of the hearing before it was adjourned for the purposes of her amending her claim, I perceived her to be not just charged with emotion as to her complaints about Mr Sophocleous’s work but somewhat confused about it all. I concluded that she had not fully understood the ramifications of what she was asserting and thus the need for the provision of adequate evidence to support her case. I was left with the impression she accepted at face value what others had told her about the roof without understanding that they were not necessarily qualified to offer such comments. [119] I also observed her giving what I could only described as bare assertions of fact. This was primarily in terms of what she asserted was leaks into the house after the roofing work was completed by Mr Sophocleous. As I noted it in paragraph [48] herein, whilst she stated there was further leaks she did not in any way provide any detail to support it, either by way of a statement as to when and where, or with any photographic or other evidence to show it. Given the issues the subject of her claim and the severity of that claim being one which was effectively to replace the entirety of the new roof sheeting, she could readily have, and should have, taken photos of this asserted water dripping and continued staining and moisture. Yet she did not do this. It left me with the thought that such a comment was contrived as one of convenience. [120] On the issue of the ceiling replacement, and in particular that which I noted in paragraphs [49] and [50] herein, I did not accept Ms Currow’s evidence that it was merely an ‘option’ to replace the ceilings. It was very evidently always her intention to do so in order to have uniformity of ceilings throughout her house. I considered her statement, and the submissions made by her advocate in closing to support it, that it was an optional issue to be opportunistic given the water penetration that she says occurred and so caused the leaks. [121] In all respects, whilst I appreciated the emotional pressures this litigation brought with it for Ms Currow, and thus the impact such could readily have on her presentation, I did not find her to be a good witness. Her evidence lacked probative value. • Mr John Eldred [122] Mr Eldred was presented as the first of the apparent expert witnesses. What he had to say was premised on many occasions with assumptions and what he understood generally of the circumstances. As I noted it in paragraph [53] herein, at best his evidence was that something might or potentially be the case, not ‘is’ the case. He also asserted that his conclusion was that the roof sheeting installed may not have been suitable for the particular type of ‘roof frame’ without identifying what that roof frame was, nor showing that he had undertaken any investigations to identify it. This is to be compared to two comments made by Mr Sargent of the QBCC, whose evidence I turn to shortly herein, as I noted it in paragraph [58] herein, namely: (a) The Metlok cladding has been installed to the “existing sprung curve ridge roof frame”; and (b) “To gauge if leaks have occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required”. -- 28 of 38 -- 29 [123] There is nothing contained in Mr Eldred’s evidence to show the premise for any such conclusion in the absence of that invasive investigation nor identification by other means as to whether or not the existing frame is for a sprung curved roof. [124] Whilst he was presented as a builder and building inspector, on his own admission he did not have any experience in the use of the profile the subject of this dispute and was vague and apparently uncertain of facts concerning a sprung roof. As I noted it in paragraph [57] herein, his opinion on the absence of suitability of the profile used was at best a guess. He did not demonstrate any manner of research or otherwise first-hand knowledge upon which his opinion was framed. Moreover, whilst he expressed an opinion that the roof would leak and get further damage if not rectified, he did not explain why that would be so. It was a bare assertion of an unfounded opinion. [125] He did not impress me as a witness. His report lacked any probative value. I gave his evidence no weight. • Mr Steven Sargent [126] Whilst Mr Sargent’s evidence given as a QBCC Building Inspector is such that a layperson may consider it to carry substantive weight, the mere fact that he is such an inspector does not of itself give it that weight. The probative value, and thus weight, any evidence is to be given can only be determined by reference to its content. [127] Here, Mr Sargent’s evidence lacked an essential component to give it that value. It was absent any evidence of how he concluded that the roof leaked and caused the internal damage. As I noted it earlier in terms of Mr Eldred, on Mr Sargent’s own report he opined that to gauge if leaks had occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required. But there was no evidence of that invasive investigation before or during his second inspection wherein his, quite surprisingly, made the leap to the conclusion that there was ‘sufficient evidence’ that Mr Sophocleous was requirement for what was said to be the consequential damage. He did not in any way identified what that ‘sufficient evidence’ was. He did not explain what that sufficient evidence was in any meaningful way which demonstrated the requisite causal connection, such being a manner of expression used by Ms Currow’s advocate in her closing submissions. [128] Nor did his evidence explain the basis upon which he concluded that the roof sheeting used by Mr Sophocleous was not fit for purpose or suitable for a sprung form roof. The mere statement of such by a QBCC Inspector does not make it so. Critically, he did not explain in any way how, on a reading of the relevant Australian Standard, could it be said that the roof sheeting was non-compliant and so not fit for purpose. At best all he could do was refer to the Standards Australia HB 39-2015 Part 7.17 wherein the reference is said to be that retainment of water from oil-canning in trays can lead to discolouration or deterioration of the roof sheet, and then he jumped to the unsubstantiated conclusion that the roof sheeting will not last its full expected life because it would deteriorate rapidly. [129] Finally, as to the short exchange had between Mr Sophocleous and Mr Sargent under cross-examination I referred to in paragraph [60] herein, it showed up another deficiency in Mr Sargent’s evidence. When it was put to him by Mr Sophocleous that a Klip-lok product was the only suitable method given the distance between the beams and also the pitch, his response was in the negative asserting that Trimdeck could be used. However as I noted it earlier, there is an absence of any evidence from Mr Sargent that he carried out any form of investigation to determine the manner of -- 29 of 38 -- 30 construction of the roof frame. To the contrary, he asserted that an invasive investigation would be required. In the absence of that it is questionable as to the basis he could have responded negatively to Mr Sophocleous’s proposition to him. [130] Whilst it had some probative value, I gave his evidence very little weight. • Mr Glen Macconnell [131] I accepted that Mr Macconnell was knowledgeable on the manufacture of metal roof sheeting. However his evidence went beyond that level of knowledge and in turn his expertise. [132] It was that the Metlok680 roof sheeting was not installed as per manufacturer’s specification and it does not meet region C requirements as currently installed, that it does not comply with AS 1562 of AS 4040, and that the roof was at risk of failure during a cyclone, but without any detailed explanation as to why any of this was so. But moreover and critically, save only to the extent he could readily make comment on compliance with the manufacturer’s specification, he did not present as a witness holding the relevant qualifications to express the opinion of not meeting the requisite Australian Standards nor the ‘region C requirements’ which I understood to be a reference to the relevant wind-classification. [133] As to his comments about the alleged non-compliance with manufacturer’s specification, he did not explain what it was that Mr Sophocleous had done which was non-compliant. At its highest, his evidence was that the Metlok680 product had been installed as a sprung roof, and that Metlok680 had not been tested for such an installation. It was not that the specification stated the product must not be used for such an installation, and he did not explain in any way how the use of the product as a sprung form roof was otherwise non-compliant with manufacturer’s specification. [134] I gave Mr McConnell’s evidence no weight to the extent it was presented to me as expert evidence for the purposes of endeavouring to persuade me to reach the conclusion the roof sheeting as installed was not fit-for-purpose. • Mr Glen Eden [135] At best, Mr Eden’s evidence was that of a person who had given a quote to do work which was requested to be done. To the extent he expressed an opinion that the roof sheeting as installed was not to manufacturer’s specification, and accordingly it was not compliant and so needed to be replaced, it was a bare assertion devoid of the requisite expertise being held by Mr Eden, or at the very least the demonstration of him holding that expertise, to support it. [136] Similar to Mr Macconnell, he did not identify in any way how it was so that there had been non-compliance with the specification. It was at best a statement of work having been done that the specification is silent about. I also noted that Mr Eden stated he based his quotation on wind classification C3 but without explaining the basis for same or what qualifications he held to know that this was the correct classification, and in turn why it was that what was installed did not already meet that level of classification. [137] Also similar to Mr Eldred, it was questionable how Mr Eden could have made many of the statements he made as to what was required to remedy the roof in the absence of any invasive investigation to ascertain with certainty the nature of the existing roof -- 30 of 38 -- 31 frame. Moreover, his evidence was, as I noted it in paragraph [70], he did not know what was required. [138] Whilst Mr Eden was presented as a person who has experience in construction as a trade contractor and low rise builder, that of itself was insufficient for his evidence to carry any weight other than to the extent of a quoted price for a scope and extent of work he asserted was required to be performed without any evidence having been given to support the assertion of that scope and extent being necessary. [139] I gave his evidence no weight. It did not assist me in any way. • Mr Sophocleous [140] In contrast to the witnesses presented for Ms Currow, I found Mr Sophocleous to be a good witness, albeit one which presented his evidence from a slightly skewed basis to the extent it was based on his own personal experience as distinct to being with reference to relevant Australian Standards. He demonstrated to me that he lacked an understanding of the need for compliance with the Standards to the extent he had given a warranty when entering into the Contract, seemingly holding the opinion that his own personal knowledge and experience was the correct basis upon which he could make the decisions he did. [141] Other than that skewed aspect, the presentation of his evidence was helpful to me in understanding the circumstances that existed at the time he was undertaking the Contract Work. In particular, I found his evidence, given by way of photographs, of what he found when he lifted various sheets of the old roof to be compelling. I was readily able to find on the strength of this material alone, and in the absence of anything to challenge it being presented by or for Ms Currow, as a fact that there was water damage to the insulation below thus clearly indicating that the existing roof sheeting was leaking to some degree over time. [142] I also accepted his evidence of pre-existing leaks to the solar hot water system and the use of Dek-tight seals to at least one of the penetrations to the roof sheeting, such being contrary to the argument and evidence presented by or for Ms Currow. [143] I also accepted he had decided to use Metlok680 product based on his own experience and observations to meet the needs of that which he was contracted to do. I was also satisfied on his evidence, again in the absence of anything being presented to the contrary for Ms Currow, that such was based on his knowledge of the existing roof structure which I inferred was sourced from the fact that the roof sheeting he was removing was installed as a sprung curved roof, and his knowledge and experience in replacing roofs to houses in the area for some time in terms of that style of house. As I noted it in paragraph [76] herein, his decision to construct the roof in that way, given the existing roof he was removing was installed in that way “alleviated the need for re-organising the frame”, an aspect that seemingly had been overlooked by Mr Eldred and Mr Macconnell, and whilst possibly considered by Mr Eden it was not a detailed consideration but rather more of an assumption leading to a guess as to what might be required. [144] But this is where he went awry based on his skewed view of what was appropriate. He selected a product that had not been tested for use in construction of a sprung roof, albeit as he explained the Metlok700 which he asserts is a similar product is permissibly used for such. In my opinion, it would have been prudent for Mr Sophocleous to have addressed this issue with Metroll prior to selecting the product. -- 31 of 38 -- 32 Had he done so, I expect that this proceeding would never have arisen. But the question that then of course arises is this - Just because he did not do so, does it lead to the conclusion that: (a) he should not have installed the roof sheeting as a sprung roof ?; and/or (b) Metlok680 is a product that could not have been used for a sprung roof ? [145] The answer to that question was, in my opinion, found in part within the evidence from Mr Grambower, and in part from Mr Ashby. • Mr Ian Grambower [146] Mr Grambower was in my opinion a good witness. He was succinct and direct in his answers. Whilst both he and Mr Macconnell were representatives of Metroll, to the extent that which they had to say differed on any point I preferred the evidence of Mr Grambower. It seemed to me to come from a point of complete independence without in any way having been influenced by having engaged with Ms Currow and having seen the as-constructed roof. [147] His explanation and provision of information concerning Metlok680 and Metlok700 assisted me greatly in understanding what Mr Sophocleous was saying in terms of how he reached his conclusion that Metlok680 was an appropriate product to use, particular that which I noted in paragraph [79] herein. In my opinion the telling point of Mr Grambower’s evidence was his answer to my question as I noted it in paragraph [80] herein, such being whether Metlok680 could be used in the construction of a sprung curved roof. He did not say it could not be used in such. Rather he said it was possible but merely had not been tested for same and so was not common to use in such a way. From his answer I inferred that it could be used. Thus I concluded that it could not be properly said that its use was contrary to the manufacturer’s specification. • Mr Allen Ashby [148] In my opinion allot turned on Mr Ashby’s evidence. As I noted it in paragraph [83] herein he was a roofing contractor originally contacted by Ms Currow to inspect and provide a report / quotation in terms of the roofing works performed by Mr Sophocleous. That report and quotation formed part of her statement of evidence filed in this proceeding. Yet, she did not call him as a witness. [149] Those circumstances raise the question – why was he not called as a witness for Ms Currow? Ms Currow’s advocate sought to explain that as being it was simply a choice to call Mr Eden as he had given a more up to date and comprehensive quote for the work said to be required, thus effectively asserting that Mr Ashby’s quote was redundant. [150] I do not accept this as a meaningful reason. It does not explain why Mr Ashby’s evidence of what he observed, and what he asserts was required to be done to remedy the allegedly defective work, was not probative in terms of the case Ms Currow was running. A comparison to the fact Mr Everett having been called must then be made. Mr Eden’s quote was more up to date than Mr Everett’s, yet Mr Everett was called to give evidence of what he observed on his second visit, such pertaining to what was said to be water leaks. The absence of Ms Currow having called Mr Ashby leaves open the possibility of an adverse inference being drawn that his evidence might somehow harm her case. -- 32 of 38 -- 33 [151] As it unfolded in the hearing with Mr Sophocleous having called him, Mr Ashby only appearing in response to a Notice to Appear being issued by me during the course of the hearing, was that his evidence was to some degree adverse to Ms Currow. As I noted it in paragraph [88] herein, he explained that he would replace the roof with Stramit Speed Deck as a sprung curve roof, such being standard practice in Cairns, that it would be the best solution in roof replacement, and that Trimdeck was not suitable. As I had earlier noted it in paragraph [86] herein, he would use 0.48 gauge material to alleviate issues with oil-canning, from which I infer that such is in his experience an aspect of installing a sprung roof but minimised with the use of the higher gauge material. [152] I was also conscious of what Mr Ashby had to say about the use of a ridge capping, asserting it was ‘not a bad idea’ noting that in a sprung curve roof “you can get ponding". In that regard I note that what Mr Sophocleous had installed was 0.48 gauge material, and accordingly I infer that on Mr Ashby’s evidence the end result may not be too much different. [153] This is directly at odds with the evidence of Mr Sargent, Mr Macconnell, and Mr Eden, and to some degree Mr Eldred. To the extent it is at odds, I prefer the evidence of Mr Ashby given his stated experience as a roofing contractor in the Cairns Region. [154] It is also directly at odds with the closing submission for Ms Currow which I noted at paragraph [95](b) that the “integrity of the sheets” had been impacted on by the installation of a ridge cap. There was no evidence of such presented. [155] What however Mr Ashby did say is that in his opinion the workmanship of that which Mr Sophocleous installed was “in some areas poor – not the best”. But this does not make it defective such that it was required to be replaced in its entirety. [156] Also telling was Mr Ashby’s response under cross-examination to the question posed of him by Ms Currow’s advocate, such being as to whether the roof needed to be replaced. As I noted it in paragraph [89] herein, his response was – need to check with an engineer. I agreed entirely with that comment as being correct and appropriately stated. It is this comment that leads to what I say next about the presentation of Ms Currow’s case. A Fundamental Flaw in the presentation of Ms Currow’s case [157] Ms Currow’s case as it was presented to me suffered from a fundamental flaw. [158] She did not in any way demonstrate to the relevant standard of proof that the Contract Work was defective such that it required complete replacement. There was an entire absence of independent expert opinion evidence to demonstrate why the Contract Work was not: (a) having regard to the relevant criteria, suitable for the purpose for which they are used, so as to show a breach of the warranty under Clause 4.1(b) of the Contract, it being s 20 of Schedule 1 B of the QBCC Act, namely was it in accordance with the following: (i) generally accepted practices or standards applied in the building industry for the materials; or (ii) specifications, instructions or recommendations of manufacturers or suppliers of the materials. -- 33 of 38 -- 34 (b) carried out in accordance with all relevant laws and legal requirements, including, for example, the Building Act 1975, so as to show a breach of the warranty under Clause 4.1(d) of the Contract, being the warranty imposed under the QBCC Act Schedule 1 B s 21. [159] Moreover, contrary to the submission her advocate made as I noted it in paragraph [100] herein, there was no evidence upon which it could be said that “non-compliance imposed a risk of safety to occupants”. [160] Ms Currow’s efforts to meet the requisite standard of proof reliant on Mr Eldred, Mr Sargent, Mr Macconnell, and/or Mr Eden was either misguided or misconceived. As I have noted it earlier discussing the evidence of other witnesses, Mr Sargent noted in his first report, such which I noted in paragraph [17] herein, that to gauge if leaks have occurred then a more thorough examination (invasive) is required. But no such examination was carried out, or at the very least there was no evidence of any such examination having occurred. Ms Currow was squarely on notice of the need for it having received the first report from the QBCC, yet she chose to press her claim in this Tribunal in the absence of such. [161] Whilst each of her witnesses expressed an opinion effectively that either or both of these circumstances had been satisfied, such opinions were hollow. Not one of them explained how they formed that opinion by reference to, and with an explanation of, the relevant provisions of an Australian Standard and as to how such was to be read and applied to the facts as established either by them independently based on their own inspections and evaluations of the work performed, or based on assumptions they were told to adopt and that had been independently verified by other evidence presented to this Tribunal. [162] Ms Saunders engaged in an admirable effort within her written closing submissions to explain the workings of the Standards, albeit relatively briefly.60 But that was not enough. It is not for an advocate to explain the meaning of technical data in closing submissions to explain a point in an effort to persuade the Tribunal to make a finding favourable to the advocate’s client. [163] It also seemed to me that in the presentation of Ms Currow’s case it was the expectation that I would consider the relevant material handed up, namely the Standards,61 and interpret them so as to work out that there had been non-compliance. [164] Either way, such is a flawed approach to presentation of a case to this Tribunal, particularly when it comes to technical evidence. Such should be presented by way of an independent expert properly qualified to give such evidence and express an opinion as to the application of that technical information to the facts as otherwise proven. The Tribunal’s role is to determine the dispute before it based on the evidence presented and the application of the law. Whilst the Tribunal may inform itself in any way it considers appropriate,62 unlike a privately appointed Arbitrator or Expert Determiner it is not for the Tribunal to use its own independent expertise, which its Members may hold, to determine an issue of fact. [165] The presentation of Ms Currow’s case was also flawed in terms of the issue of damage to the internal ceiling panels. At its highest, her evidence was that water damage 60 See for example Ex 38 para 30. 61 See Ex’s 27 to 29. 62 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c). -- 34 of 38 -- 35 occurred to the panels during the installation of the roof sheeting. She did not however present any evidence to show that the water damage arose as a consequence of the performance of the Contract Work by Mr Sophocleous. Contrary to the submissions made for Ms Currow as I noted it in paragraphs [96] and [97] herein, the evidence as it was presented did not support the argument that due to defective roofing works water leaks and damage had occurred internally, and that the need for internal remedial works was a consequence of Mr Sophocleous’s failure to comply with the statutory warranties. There was no ‘clear causal link’ between the alleged breaches, even if made out, and the water penetration resulting in internal damage. [166] At best, Ms Currow’s case was one reliant on the maxim ‘res ipsa loquitur’, that is because there were water leaks during the roof installation work it must have been as a result of those work being performed. Such is a leap not open to be taken. As I noted it earlier, I accepted on the evidence of Mr Sophocleous that leaks through the old roof sheeting had occurred resulting in damage to the insulation below. It is open to be inferred that such leaks continued at the time Mr Sophocleous was working on other areas of the roof, those leaks manifesting as damage to the ceilings below. This was not discounted by Ms Currow’s evidence in any way, rather it was that leap straight to being it must have been something Mr Sophocleous did or did not do. That seems to have been the leap Mr Sargent made as I noted it earlier. In my opinion it was a leap inappropriately made in each instance. [167] Finally, whilst I have not specifically discussed it earlier within these reasons when discussing the evidence from her witnesses, for completeness I should also make these two short observations in terms of her allegations regarding defective work concerning the solar hot water system.63 [168] Her evidence does not support a finding that Mr Sophocleous breached the Contract in terms of his work in this regard. To the extent she argued the hot water system developed leaks after he dealt with it in carrying out the reroofing work, I accept Mr Sophocleous’s evidence that leaks were evident in the system before he touched it. Such is also consistent with the statement given by a representative of Solarhart Cairns as I noted it in paragraph [47] herein, the system had multiple leaks fixed by replacing seals. I failed to see nor accept how it might be said that somehow Mr Sophocleous should be held responsible for failed seals simply because he lifted the system to install new roof sheeting. [169] As to the allegations concerning the manner in which he placed the system back on to the new roof sheeting using timber blocks, I accept that this is not good workmanship practice. It was the subject of a finding by the QBCC as to it being defective work that should be rectified by Mr Sophocleous.64 However, as Ms Currow’s evidence showed me, as I noted it in paragraph [26] herein she refused him access to rectify the said defects. I do not see any reason why in such circumstances Mr Sophocleous should thus be held accountable to her for damages for failure to have rectified this work. [170] For these reasons, these parts of her claims must also fail. 63 Similar observations may be made about Ms Currow’s allegations that were interspersed in her statement and closing submissions about a television antenna, even though no evidence was led dealing with that issue. 64 Ex 9 pg 8 of 15. Whilst the Direction to Rectify did not form part of the documentary material before the Tribunal, I infer it was an item contained therein requiring rectification. -- 35 of 38 -- 36 [171] All this being said, Ms Currow’s claim must fail, the substantive reason being on the basis that her evidence does not support a finding that Mr Sophocleous breached the relevant warranties. [172] If however I am wrong on any of that, there was one other aspect of the presentation of Ms Currow’s case that was flawed, or at the very least risky to her. She effectively put all her proverbial eggs in the one basket, running a case of defective work only without any regard to the possible alternative of diminished value. Her case was entirely devoid of any evidence of the value of her house having been diminished as a consequence of the work having been performed by Mr Sophocleous defectively but in circumstances were the rectification of that work by replacement of the roof was found to be unreasonable. [173] There is an overriding legal principle that applies in cases such as these, namely the question of cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons – Building and Engineering Contracts: 65 Where a builder has carried out work to a building which requires remediation, the issue that arises is whether the building Owner is entitled to the cost of repairing that defective work – the cost of cure – or is limited to the diminution in the value of their building as a consequence of the defective quality of the work undertaken. [174] This is often referred to as the test in Bellgrove v Eldridge (1954) 90 CLR 369 wherein the Court adopted the following statement made in an earlier version of Hudsons, expressing it as a correct statement of the law:66 … the measure of damages recoverable by the building owner for the breach of a building contract is … the difference between the contract price of the work or building contracted for and the cost of making the work or the building conform to the contract, with the addition, in most cases, of amount of profits or earnings lost by the breach. [175] Dixon CJ, Webb and Taylor JJ, expressed a qualification to that rule, it being:67 The qualification, however, as to which this rule is subject is that, not only must the work undertaken by necessary to produce conformity, but it must be a reasonable course to adopt. ... Many examples may, of course, be given of remedial work, which though necessary to produce conformity would not constitute a reasonable method of deal with the situation and in such cases the true measure of the building owner’s loss will be the diminution in value, if any, produced by the departure from the plans and specifications or by the defective workmanship or material. As to what remedial work is both “necessary” and “reasonable” in any particular case is a question of fact. … [176] It should also be observed that when damages are assessed for breach of contract, it is the damages that would flow had the breach not occurred and the contract had been performed to completion, and so must be calculated relevant to the contract. This then of course gives rise to the question of what is necessary and reasonable to remedy the 65 N. Dennys and R. Clay, Hudsons – Building and Engineering Contracts 13 th Ed (London: Sweet & Maxwell, Thomson Reuters (Professional) UK, 20150, at 7-006, p.828. 66 Ibid, p.829, see Bellgrove v Eldridge (1954) 90 CLR 369, 617. 67 Bellgrove v Eldridge (1954) 90 CLR 369, 618 and 619. -- 36 of 38 -- 37 breach? If the cost of remedying the breach far exceeds the benefit obtained, then it is an unreasonable step to take and so the aggrieved party is left with an entitlement only of diminution in value. [177] But as I noted it, Ms Currow’s case was run on an all or nothing basis. Whilst it was Mr Sophocleous to show that replacement of the roof sheeting was not a reasonable course of action to take, he holding the evidentiary burden in that regard,68 an aspect that he seemed to me to be arguing although not expressed in any eloquent way, in the absence of that alternative case being run by Ms Currow at best all she could hope for in the event I made a finding that the Contract Work was defective was that she be entitled to nominal damages. As I noted it earlier, he advocate left it with me to decide what that amount might be, whereas Mr Sophocleous said at best it would be $500. [178] On the evidence as it was presented, had Ms Currow’s evidence been such to have persuaded me that the work was defective in terms of the material used not being adequate to comply with the relevant Australian Standards, it was not sufficient to satisfy me that replacement of the roof was necessary. On the defence run by Mr Sophocleous, at best it would have been an issue of diminished value but in the absence of any evidence as to what that was all Ms Currow would have been entitled to was nominal damages which I would have set at $100 in exercise of the discretion afforded me in that regard.69 Conclusion [179] It may readily be accepted on the strength of the evidence that was before me that the performance of the Contract Works by Mr Sophocleous was not the best. It was poor in terms of his choice of material and general workmanship. But that does not make it defective to the extent it was necessary to replace it in its entirety. [180] Whilst the material selected for use in the construction of a sprung formed roof had not been tested, nor was expressly recommended, by its manufacturer for such use, importantly and critically the evidence was not that the manufacturer’s specification was that it must not be used in the construction of a such a roof. Yet, that was the case as presented by Ms Currow. Once again, that aspect of the manufacturer’s specification does not make it defective requiring entire replacement. [181] Nor did Ms Currow’s evidence support a finding that the material used and the method of construction engaged in by Mr Sophocleous was not consistent with the requirements of the relevant Australian Standards. The presentation of her case was framed in that way but the evidence did not show it to be so, nor was their evidence from Mr Sophocleous to show it was compliant. Overall the evidence presented did not go sufficiently far enough to show me one way or the other. [182] Having asserted that the work was defective, Ms Currow bore the onus of proving it to be so.70 She failed in that regard and accordingly she failed in the presentation of her case. Equally, Mr Sophocleous failed in pursuit of his counterclaim in the absence of any evidence to support it. 68 See Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114;[71] and the earlier authorities cited therein. 69 As noted in State of New South Wales v Stevens (2012) 82 NSWLR 106 at [36], the quantification of nominal damages is discretionary. 70 See again Owners SP 92450 v JKN Para 1 Pty Limited [2023] NSWCA 114;[71]. -- 37 of 38 -- 38 [183] For all of these reasons, the appropriate outcome in this proceeding is that each claim be dismissed. My orders reflect this. [184] Subject any submissions the parties wish to make to the contrary, in my opinion it should follow that an order be made that each party bear their own costs of the proceeding, however I will give the parties the opportunity to make any contrary submissions should they consider it appropriate within a specified period of time, failing which it will follow that an order is triggered that each party bears their own costs. -- 38 of 38 --