Field v Carey [2023] QCAT 196

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Field v Carey [2023] QCAT 196 PARTIES: KEITH JOHN FIELD AND MARIA FIELD (applicant) v ADAM BRIAN CAREY (respondent) APPLICATION NO/S: BDL185-20 MATTER TYPE: Building Matters DELIVERED ON: 28 April 2023 HEARING DATE: 20 October 2022 HEARD AT: Brisbane DECISION OF: Member Richard Oliver ORDERS: The Respondent must pay the Applicants the sum of $48,667.74 by 31 August 2023 CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – DEFECTIVE WORK – where parties entered into a contract for the construction of a paved concourse around an inground swimming pool – where concrete slab supporting the pavers moved causing cracking of pavers – where no engineering design – where movement due to moisture in the subsoil – whether movement caused by lack of design of reinforcing steel – whether dowels from slab to pool coping sufficient – whether rectification will result in a betterment for the applicants – whether method and cost of rectification reasonable Fankhauser v Mission Beach Property Management [2017] QCATA 65 Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd & Anor [2001] NSWCA 313 Hoad v Scone Motors Pty Ltd [1977] NSWLA 88 Jones v Dunkel (1959)101 CLR 298 APPEARANCES & REPRESENTATION: Applicant: Mr Hick of counsel instructed by Robinson Locke Litigation Lawyers -- 1 of 13 -- 2 Respondent: Irish Bentley Lawyers REASONS FOR DECISION [0] In February 2012 the applicants purchased an acreage property at Priors Pocket Road, Moggill with the intention of renovating the property to use for their retirement. The house and grounds needed substantial work. The applicants engaged an architect in mid 2013 drawings were prepared for the renovation work to be undertaken. The work commenced after this and took some years to complete. Part of the renovation and re- modelling work included refurbishment of the swimming pool at the rear of the house. [1] The swimming pool is rectangular with a U shaped design in the middle of the long side between the pool and the house. The U shape has steps to allow ingress and egress to and from the pool. There is a bond beam coping on the perimeter of the pool with tiles on top of the coping. The pool is separated from the house by lawn and enclosed with typical pool fencing.1 [2] As part of the overall redesign of the grounds the applicants decided to integrate the pool area into the new extended tiled back deck of the house so there was a seamless transition from the deck area to the pool. This involved the construction of a concourse around the pool, beyond the coping, with the tiled paving then going across the existing grassed area to the back deck of the house.2 [3] The applicants contacted Mr Carey to inspect the works and provide a quotation to undertake the pool work, as described to him by Mr Field. The quote, dated 29 August 2015, set out the work to be undertaken and generally included: • sub grade around the pool, box and steel around pool; lay and broom finish 60m2 of concrete; • Remove old coping; prep re-bed and lay new coping grout and add expansion joints; • Remove old water line tiles; clean, prep and lay-up level render bed to water line; lay new ceramic tile band and grout; • Cut and lay new surrounding pavers; grout new paver stone adding expansion joints. [4] The total cost of the work specified in the quote was $24,682 including GST. The applicants were to supply the tiles/pavers. The quote was generated from the discussions between Mr Field and Mr Carey as to the work to be carried out. There was no other specification, for example, from the architect who had prepared the drawings for the renovation. After receiving the quote some queries were raised by the applicants, but they did not concern the matters in dispute here. [5] The work was completed by 21 March 2016 and the applicants paid the full quoted price. Some months later the applicants noticed cracks in the paving on the western side of the pool. Mr Field contacted the applicant in February 2017 to discuss the problem with the cracking. Mr Carey agreed to replace the cracked tiles and an arrangement was made for him to do that in early April 2017. However, Mr Field thought it better to wait another year before replacing the tiles, in case there was further movement. Despite that arrangement, by March 2017 there was more cracking and subsidence on the southern 1 To better understand the configuration a photo of the original pool is attachment “A” to these reasons. 2 Attachment “B” is a photo of the pool after the renovation. -- 2 of 13 -- 3 side to the point where the glass pool fencing panels, that replaced the old pool fence, became misaligned. [6] Arrangements were made to meet earlier and after inspecting the work in June 2017 Mr Carey agreed to replace the cracked tiles. The applicants raised the question of subsidence and Mr Carey firmly rejected any responsibility for ground movement. He asserted that all “sub-grading, box up, steel and concrete slab (work) was done correctly and was also inspected by Mary’s (Mrs Field) brother (Mr Einsenreich) a licensed builder before the pour”.3 This assertion about Mr Eisenreich’s involvement is contested but at this point, it was apparent that a dispute was looming. [7] Given the position taken by Mr Carey, Mr Field engage professional engineers to inspect the site. On 31 May 2017 Mr Peter Wright, of Hughes Beal and Wright, inspected the pool surrounds. After a further visit he provided a report on 6 October 2017. In summary he found that the construction joint in the substrate had not been carried through to the tiles, in other words the tiles straddled the joint between the existing coping and the new concrete slab. Also the steel dowel bars from the pool bond beam (or coping) to the new slab were rusting. He suggested that stainless steel dowels ought to have been used or the joints be sealed to prevent moisture accessing the dowels. [8] All of this was put to Mr Carey in an email from Mr Field on 9 October 2017 with the intention of having him carry out some rectification work. In his response, Mr Carey denied any responsibility saying that there was no warranty with the job, tiles were laid over the expansion joints at the specific request of Mr Field and the differential in height of the tiles was because of the tiles the applicants supplied. He says that he did just what the applicants wanted him to do. In other words, he did what was required under the contract. Mr Carey says he told Mr Field the tiles should not be laid over the expansion joint but for aesthetic reasons, he says, Mr Field did not want a joint line where the coping and the slab met. It would seem that irrespective of Mr Field’s request, if Mr Carey knew that the movement of the slab would cause cracking on the joint line, he should not have agreed to Mr Field’s instruction. [9] As a result of this stand-off Mr Field then made a complaint to the Queensland Building and Construction Commission (“QBCC”). An inspection was carried out by Mr Rendell from the QBCC on 17 January 2018 and a report prepared. He found that: • The contractor had as part of his works added a concrete surround to the pool. • The pool is salt treated. • The dowel bars used in the concrete surround to the pool copping have corroded. • NCC part P2-1(a) & (b) list the performance criteria for a structure and in particular, section (b) the structure must be designed to resist action by water. • The construction joint has not been constructed or had subsequent treatment to the joint to prevent moisture entering the joint and corroding the reinforcement. • AS3958 part 5-4-5-2 states in part “Movement joints should be carried through the bed and tiles/paving. • Figure 5-1 of AS3958 details various treatments for movement joints, none of which could be identified as having been used in this instance • No evidence of control joints to be paving could be seen. • A number of tiles/paving were drummy and caused lippage issues when walked on. 3 Exhibit 9 Statement of Keith Field [50]. -- 3 of 13 -- 4 • the cracking of the tiles/paving over the construction joint has caused sharp edges to the paving which is a health and safety issue. [10] As a consequence, the QBCC issued a Direction to Rectify to Mr Carey on 19 January 2018. It said that the QBCC found Mr Carey responsible for: The failure to instal reinforcement dowel bars to comply with NCC P2-1 concrete sub-grade to the pool surround causing premature rusting; and the installation of the pool surround paving which has not been installed to allow for movement in the construction joint causing the paving to crack and present a safety issue. [11] Mr Carey carried out the rectification work within the time required by the Direction. In a follow up email, the applicants confirmed with the QBCC that “the rectification work required has been completed and that the pool and surrounds have been left in an immaculate state”. [12] Despite making this statement, the Mr Field says he remained concerned about the integrity of the new slab and effects of further subsidence. As it transpired, by August 2019 the paving on the far western side of the pool had again subsided to about 8mm. In a text message to the respondent, Mr Field said that “the four corner tiles to the new expansion joint are real loose and or cracked or both”. Mr Carey was invited to further inspect the work and discuss rectification. [13] The further inspection was carried out on 8 November 2019. Mr Carey attended with a representative from the Master Builders Association, Karen Hayworth. Mr Field’s evidence is that Karen Hayworth advised Mr Carey that he should engage with Mr. Field’s engineer, Mr Wright, and carry out rectification work in accordance with his direction. However, Mr Carey indicated he wanted to have an independent engineer look at the job. He engaged Matthew Tompkins of Structerre Consulting Engineers to inspect the works and provide a report. According to Mr. Field, a report was prepared but he was never given a copy due to client confidentiality reasons. [14] No report was produced at the hearing of the application. Mr Carey's response to this assertion is contained in his statement in that he contends that the applicants would not allow Mr Tompkins to remove tiles for an invasive inspection and therefore the consultation with Mr Tompkins did not provide any meaningful results. Mr Tompkins was not called at the hearing to give any evidence about the inspection and provide any opinion as to the cause of the damage even though he was not able to remove tiles. The only evidence is that attached to Mr Carey’s affidavit which is a letter of engagement and terms and conditions. There is a handwritten note of that document, by Mr Carey, which states “they would not let the inspector remove any tiles so he had to go back”. [15] When Mr Tompkins inspected the works on two occasions it would seem, if the evidence of Mr. Field is accepted, a report was prepared but not produced to the Tribunal or to the applicants. That evidence is contrary to what Mr Carey says about Mr Tomkins inspection. After consultation with Mr Tomkins did not provide any meaningful results, I decided not to go forward with a formal engineering report given the QBCC and the Applicants were satisfied with the renovations and the rectification works and especially given the significant time that had elapsed since completion of these. -- 4 of 13 -- 5 [16] Although I accept that a formal report may not have been prepared, the only inference that can be drawn from the failure to provide any evidence from Mr Tompkins is that his conclusions are adverse too the respondent’s case.4 [17] When Mr. Field inquired after the Tompkins report, Mr Carey advised him by text message that: I do not feel responsible for further movement after being ordered to repair and doing as told. Then after rectification work as ordered being completed and then it being approved by yourself and Master Builders I feel I have for filed (sic) my responsibility in this matter. [18] There was no further communication between the applicants and Mr Carey. A further report was obtained from Mr. Wright on 13 March 2020 which again reported that the ongoing problems with the concourse around the pool is as a result of soil movement and that the foundations had not been securely tied into the bond beam with dowels at appropriate centres. [19] Because all negotiations had broken down, the applicants commenced the proceeding in the Tribunal. [20] Given that background the parties have agreed a list of issues for consideration by the Tribunal. They are: 1. Whether, prior to accepting the respondents quote an engineer should have been engaged to provide drawings and specifications suitable to the site conditions as stated in the Australian standard. 2. Determination of the cause of damage to the tiles, including if that damage is caused:; a) Solely by movement in the soil; b) Solely by defective building work; or c) Partially by movement in the soil and partially by detective defective building work. 3. Whether the damage to tiles constitutes or arises from defective building work performed by the respondent. 4. Whether the damage to the tiles is due to the respondent’s breach of implied contractual terms to carry out the renovation works in a proper and workmanlike manner and with reasonable care and skill. 5. Whether the damage to the tiles is due to the respondents breach of a duty of care owed to the applicants to carry out the renovation with reasonable care and skill of an experienced licenced pool contractor. 6. What work is required to remedy the defects to the tiling? 7. Whether the Wright proposal will address ground movement? 8. Whether the Darestani proposal will prevent further damaged? 9. What are the further cost to the Darestani proposal to remedy the concourse and/or tiles? 4 Jones v Dunkel (1959)101 CLR 298. -- 5 of 13 -- 6 10. Quantum of rectification costs [21] In hindsight, it would have been prudent for the Fields, or their architect, based on the soil test they already had to have engaged an engineer to design the slab similar to what occurs for a new house built on a slab. However, there are a few things that can be said about this job. Firstly, the existing pool had been in place for many years. Mr Carey acknowledged this by saying the pool was ‘well settled and stable”.5 This was obviously correct because there have been no issues with the pool itself. Although there was no specific discussion about the pool surrounds, it is reasonable to assume in those circumstances that the surrounding ground would be well compacted and stable as well. This is borne out by the site classification of “S”. Secondly, the new surround slab was not structural in the sense that it was to support a structure or a significant load. Thirdly, the purpose of the new concourse slab was to support the extended paved area from the pool coping. [22] The Fields wanted a contractor to refurbish the pool and the pool surrounds and sought advice from the technical services manager at one of the local pool shops, Pool Mart Kenmore. The particular expertise sought by them was primarily with respect to the pool itself but in discussions with Mr Carey the further work was discussed. [23] Mr Field now says that in discussions with Mr Wright that an engineering specification should have been prepared prior to the work commencing. That is not surprising, given the current problems, but that would have been Mr Field’s responsibility to obtain and provide to Mr Carey for the purposes of quoting the job. However, there was no discussion about an engineered design, just the soil test. [24] Given the nature of the work to be undertaken being a paved pathway around the pool, and for the reasons above, I conclude that at the time of giving the quote it was not anticipated that a detailed engineered design the slab was necessary. [25] It is now apparent from Mr Wright’s reports that the slab has failed for two reasons, firstly not sufficient dowels were used to tie the new slab into the pool coping and secondly, the soil conditions under the new slab, when wet is causing heave and movement. There really is no dispute about this being the cause of the movement. [26] It is also apparent from Mr Carey’s evidence that he did not construct the slab to take into account soil movement to the extent now experienced. In the absence of engineering drawings/specification he placed dowels at about 3 metre centres to secure the new slab to the existing coping of the pool obviously to prevent lateral movement, or the slab pulling away from the coping. I find that the dowels he used were never intended to be structural in the sense of preventing vertical movement because this was never part of the contract given the assumptions that the ground around the pool was stable. Had an engineered design slab specification been given to Mr Carey, he would have, no doubt, priced the slab accordingly and constructed it to the design. [27] Insofar as it is argued that there was an implied term that Mr Carey would construct the slab in accordance with an engineered design, I reject that proposition. I do so for the reasons referred to above and Mr Carey certainly does not have the professional qualifications to do so. The contract works are those described in the quote, accepted by Mr Field, which Mr Carey carried out. 5 Mr Field’s statement paragraph 21. -- 6 of 13 -- 7 [28] In the absence of an engineered specification, can it be said that the works constituted defective building work. It was left to Mr Carey to prepare the slab and use the dowels to secure it to the coping of the existing pool. Mr Wright is of the opinion that there were insufficient dowels to prevent vertical movement and this is borne out by the consequential damage to the surrounds of the pool. The difficulty for Mr Carey is that he took it upon himself to effectively decide the placement of the dowels and the reinforcing steel which was ultimately inadequate. I find that to be the case on the basis of Mr Wright’s evidence. [29] This of course was all done with the concurrence of Mr Field in the sense that despite engaging an architect for the renovation work, he chose not to engage an engineer for the outside pool area. I am not suggesting he is at fault but when the project was discussed with Mr Carey, he was content to go along with and accept the works set out in the quote. Had an engineer been engaged and a more detailed specification been prepared to include the work recommended by Mr Wright, the cost of the job would no doubt have increased. [30] In respect of a negligence claim, had there been any inkling that there would be soil movement to the extent that there was, then it was foreseeable that damage to the slab was likely to occur. [31] A report from Strusol Pty Ltd, its author being Mr Ario Darestani a civil engineer with extensive experience in the building industry, has been tendered on behalf of the Mr Carey.6 The report largely agrees with the reports of Hughes Beale and Wright as to the extent and cause of the pavers moving because of movement in the soil below the slab. He provides a summary of the Wright proposal for rectification as follows: Finally, they recommend to remove the concrete slab, provide 12mm stainless steel dowels at 900mm centres, saturate the ground surface for a week prior to casting concrete, cast a new concrete 100mm thick slab with a layer of SL82 mesh at mid height, with lay new tiles with a movement joint strictly above the joint. [32] Mr Darestani describes the state of the movement and tile cracking he observed and attributed the cause to increase and decrease of moisture under the slab. He also attributed other causes to the disruption of the slab being: Other factors such as drying shrinkage, thermal movement, movement associated with soluble salts, and trees’ roots may also be considered as possible causes of tile cracking. [33] He referred to the Australian Standard 3958-2–1992 which describes when concrete jobs, no matter how small should have a specification. However, it also recognises that where repetitive jobs are being performed it may not be necessary when certain items are specified7 in the contract. Having considered all of that Mr Darestani provided the following opinion with respect to this job: Based on the abovementioned information I believe that the project lacks proper design drawings and specifications. Unless the contractor signed a design and construct contract to AS 4902-2000 [general conditions of contract for design and construct] with the owner, it is unlikely that any of the above mentioned activities becomes part of the contractors responsibilities. The contractor’s is original quote also did not include or allow for any engineering work. 6 Exhibit 10 7 Ibid page 10 - 11 -- 7 of 13 -- 8 [34] There was also discussion about the function of the dowel system and how it worked. He expressed the view that even when creating a free movement dowelled joint this cannot eliminate the cracking of tiles cast over problematic soil.8 This was mainly because of the problematic supporting soil properties causing the differential vertical and horizontal movement of the slab and the coping. I would say in passing that there is no evidence of the coping having moved prior to the work undertaken by Mr Carey. Mr Darestani went on to say: By provision of a dowelled joint, the future design must also tackle rotational movements of the slab about the centre of the joint. The use of an isolation joint together with my recommendations provided in item 8.111.b result in a better long- term performance. [35] His recommendation for rectification was to engage a geotechnical engineer to assess the soil condition under or in the vicinity of the slab. Engage a qualified engineer to prepare drawings and specifications for this project. For cost-effective outcome, the engineer should have experience in developing a rectification plan. He then went on to set out what he described as “temporary work” to address the drainage issues in and around the pool with further soil tests, root barriers, drainage trenches with gravel and drainpipe (as described with a detailed plan and section.9 [36] This rectification approach differs from the Wright approach. It contends that if the slab can be stabilised the tiles will have to be relaid or repaired. In my view there is much uncertainty about this approach. However, it is much cheaper that the Wright option. [37] The joint experts report of 14 March 2022 prepared by Donald Dixon from D & D Dixon Pty Ltd and Damien Moloney from Capital Building Consultants put the cost of the Darestani rectification work at between $16,299.79 and $17,419.46. Obviously, if the drainage system does not work then the whole thing will have to be removed, including the slab and the Fields will have to start again. I also accept what Mr Wright had to say about the drainage of moisture from this type of soil and just how difficult that would be to achieve. [38] Although I found the Darestani report very helpful in setting out the problems and issues with this job, I am of the view that the only way rectification work can be achieved with certainty on the evidence, is for the slab to be removed and replaced with a proper engineered designed structure to be able to cope with the movement in the underlying soil. Even Mr Darestani says that this project should have had an engineered specification to start with. [39] The cost of this method of rectification is substantially more than the Darestani method. Messers Dixon and Moloney estimate the rectification works as recommended by Mr Wright would cost between $61,753.94 and $57,322.41.10 [40] The difficulty with this approach as I see it is that in the end the Fields will be getting more than what they contracted to get from Mr Carey or be unjustly enriched at Mr Carey’s expense. They will ultimately have a fully engineer designed slab. That is not what Mr Carey contracted to build nor is that what the Fields expected to get in the absence of an engineered design slab. However, what Mr Carey did build has failed. and the consideration for that work failed. There is no complaint about the work associated 8 Ibid page 8. 9 Ibid page 13-14. 10 Exhibit 17. -- 8 of 13 -- 9 with the pool renovation work it is only the contract for the slab, both jobs on the quote provided were priced individually. [41] The question then arises as to how the Fields’ damages should be assessed. If the assessment was approached on a restitutionary basis because of the failure of the slab, or the consideration for the slab, the Fields should be put back into the position they would be in if the work was not carried out at all. That can be achieved by refunding the Fields for the money paid for the concourse slab and compensating them for returning the site to its original state. [42] Restitution for failure of consideration has not been specifically raised by the parties. As there are no pleadings in the tribunal, one has to work out the various causes of action by reference to the evidence put forward by the parties and the arguments and submissions by their respective legal representatives. The Fields say that there has been a breach of contract because they did not get what they bargained for. There is no real dispute from Mr Carey that this is the case and the hearing proceeded on that basis but the real contentious issue is the assessment of damages. Even with the negligence claim the damages are to put the injured party in the position it would have been had the breach of the duty of care not occurred. If pleadings, were relied on one could envisage a plea of contributory negligence in that the Fields did not engage an engineer. Similarly, in respect of the contract claim a defence could be mounted that the Fields would be unjustly enriched, or better off, if by the means of rectification, they were to get something substantially more than they bargained for. In other words should there be an offset from the assessed damages by reason of the betterment. [43] In Fankhauser v Mission Beach Property Management [2017] QCATA 65 the then President, Justice Carmody considered the question of betterment. The argument in that case revolved around the damages assessed for the replacement of carpet in a rental property, being new for old and whether the respondent obtained a benefit. He found there was betterment and provided a useful summary of cases where the issue of benefit was considered as follows:11 [24] In the early 19th century case of Yates v Dunster, for example, the cost of repairing damaged premises was reduced for the value that was added. [25] Lord Kenyon applied the standard one third deduction historically used in marine insurance policies to assess compensation for tortious land damage in Lukin v Godsall but an award for loss was not decreased in The Gazelle for betterment on the basis that any enhanced value or collateral benefit “derives incidentally” from the absence of alternative methods of indemnification. [26] Widgery LJ refused to decrease damages for a contract breach to reflect betterment in Harbutt’s “Plasticine” Ltd v Wayne Tank and Pump Co on the ground that “to do so would be the equivalent of forcing the plaintiffs to invest their money in the modernising of their (destroyed factory) which might be highly inconvenient for them”. As Lord Denning MR pointed out in the same case the owners really had no choice but to replace the building as quickly as possible to mitigate profit losses and therefore acted out of necessity. [27] A compromise option was approved by the House of Lords in Ruxley Electronics & Construction Pty Ltd v Forsyth Laddingford Enclosures Ltd where an intermediate figure between full replacement and the reduced market value of the premises representing the 11 At [24] footnotes omitted -- 9 of 13 -- 10 loss of the enjoyment of a swimming pool constructed to six (6’) feet instead of 7 feet 6 inches (7’6”) but otherwise perfectly safe and serviceable. [28] In Bellgrove v Eldridge, however, the trial judge awarded a building owner £4,950 for the cost of demolishing a house constructed on dangerous faulty foundations and replacing it with the one she paid £3,100 to have built according to plans and specifications. The builder contended on appeal that the proper measure of damage was the difference between the value of the house as it stood and what it would have been worth if the contract had been properly performed. [29] The High Court disagreed and said: “... the respondent was entitled to have a building erected upon her land in accordance with the contract ... her damage is the loss which she has sustained by the failure of the appellant to perform his obligation to her. ... cannot be measured by comparing the value of the building which has been erected with the value it would have borne if erected in accordance with the contract; her loss can, prima facie, be measured only by ascertaining the amount required to rectify the defects complained of and so give to her the equivalent of a building on her land which is substantially in accordance with the contract.” [30] Farmers replaced an old tractor destroyed by fire with a new one in Hoad v Scone Motors Pty Ltd because they could not find a comparable second hand vehicle and had to act quickly to avoid crop losses. They were clearly better off after the purchase than they were before the fire and were going to sell the old tractor when their non-renewable lease ran out in a couple of years’ time anyway. [31] The majority (Moffit P and Hutley JA) held that betterment should be taken account of in measuring damages. [32] Samuels JA (dissenting) thought the duty to mitigate and the unavailability of a suitable replacement of the same age and condition made it reasonable for the farmers to buy the new one and, therefore, they were entitled to recover the full replacement cost as damages without any deduction for depreciation even though they were “left with the price of equipment...substantially more valuable than that which he lost, and will have lost no profits.” [33] In Hyder Consulting (Australia) Pty Ltd v Wilh Wilhelmsen Agency Pty Ltd & Anor, Sheller JA held it was inappropriate to reduce damages for betterment if there was no evidence that the plaintiff had any reasonable alternative remedy other than to replace property damaged by the defendant’s negligence. [34] Meagher JA, by contrast, would have reduced the amount of damages by (an arbitrary) 20 per cent as reasonable allowance for the replacement of a defective pavement about halfway through its 20-year designated life on the basis that the owner had obtained a windfall gain. [44] Hyder Consulting has a somewhat similar factual basis as the circumstances here. The constructed pavement referred to above had been in use for about 5 years before proceedings were commenced by the owner of industrial premises, Wilh Wilhelmsen Agency Pty Ltd. against Hydra Consulting Australia Pty Ltd, the engineers, and James Thiessen & Associates Pty Ltd, the architect. At first instance the court ordered that the owner recover the full cost of replacing the pavement but on appeal, per Meagher JA -- 10 of 13 -- 11 reduced the damages by 20% to take into account the betterment, or windfall to the owner of getting a new pavement. Sheller JA and Giles JA disagreed with this approach on the basis that if the plaintiff had no choice but to replace the defective pavement with a new pavement it could not do so by paying less to take into account the use of pavement over a 5-year period. To adopt an arbitrary percentage discount was not appropriate in that case. However, it should be noted in Hyder Consulting, the design and specification of the pavement in question was undertaken by professional engineers and architects with full design plans drawn up for the work. That did not happen in this case, but rectification will include that work. [45] Other cases referred to by the President in Frankhauser where betterment was allowed such as Hoad, did take into account the use of the particular product and a new replacement would be a windfall. [46] I remain of the view, that what the Fields will get by the expenditure of the full rectification costs allowed in the Dixon/Maloney report will be something more superior than what they intended to get under the contract with Mr Carey being a fully engineered designed slab, keyed into the existing coping. How the difference in the ultimate product is measured is difficult. To adopt an arbitrary percentage allowance would be inconsistent with what the Court of Appeal said in Hyder Consulting. [47] With respect to the actual cost of rectification, fortunately Mr Dixon and Mr Maloney generally agreed on most rectification costs, except for temporary fencing. There was some argument about the type of temporary fencing that should be used during the work. Mr Moloney argued that normal security fencing could be used but because this work involved a swimming pool, Mr Dixon said compliant temporary pool fencing should be used. Once work starts the site will effectively be a construction site, with demolition works, machines on site and then concreting with tiling. As a construction site, there will be workers on site and also the Fields will be living there. Therefore, normal construction security fencing would be sufficient to carry out the necessary work. I therefor prefer Mr Moloney’s costings on this point. I find that the cost of rectification is in the sum of $57,322.41. [48] Included in the rectification costs are the costs to remove the existing slab and make good the surrounds for the new work. The total cost of that is $30,230.74.00 including GST and builder’s margin as particularised in the joint expert report of Dixon and Moloney: Item No Work Amount 4 Private certifier fee to submit application for demo and reconstruct plus site inspection/ form 17 certificates for installation of salvage glass pool barrier [layout 50% cost of new] $1,092.73 5 Service call to decommission pool pump equipment disconnect power supply cool to make safe for demolition works $180.00 6 Labour to dismantle existing glass pool barrier and spigots set aside for later re-instalment $564.64 8 Hire of 22.6 metres of temporary pool fencing $814.00 10 Installation of compliant temporary pool fencing with gate to full perimeter to comply with QDC MP3.4 $310.30 -- 11 of 13 -- 12 11 Temporary pool blanket for debris $65.33 12 Carefully remove tiles over the original 700 mm wide perimeter concrete apron two depth of cement bed only includes coping tiles $1,454.00 13 Break up tiles, including cut concrete on concourse up to original edge of pool concrete apron $3,237.17 14 Carefully break up and remove concrete concourse up to original edge of concrete apron $4,433.25 15 Labour to cut original steel doused flush with face edge $125.96 16 Labour to apply engineer specified brushable bituminous product to raw steel cut end of original dowels $82.95 17 Supply tiles for 66 m2 of tiles (including 6m2 wastage) x $120/m $7,920.00 Sub Total $22,826.33 Add builder’s margin 20% $4565.26 Sub Total 27391.59 Add GST $2,739.15 Sub Total $27,584.74 [49] Because the Fields supplied the tiles and there was no direct evidence as to the cost of the tiles/pavers I have allowed $120/m2 on the following basis. Mr Carey’s quote for the slab was $5,900.00 for 60m2 of concrete. The joint report, at Item 28, allowed $12,184.00 to supply and lay “tiles – floor – ceramic/porcelain – prestige”. Allowing for price increases, in the intervening period, and general knowledge the price adopted for the tiles seems reasonable.12 [50] Mr Carey is liable for this part of the rectification cost as it flows directly from the defective work. [51] The balance of the work will cost about $31,623.00 when adjusted for the fencing. The original contract price for the concrete work was $10,770.00 Remove fence, subgrade around pool; box and steel around pool; lay and broom finish approx. 60m2 concrete: $5,900.00 Clean and prep surrounds, cut and lay new surrounding pavers grout new paver stone adding expansion joints: $4,870.00 Total $10,770.00 [52] It is evident on this differential, even allowing for inflation and the time difference that the Fields are getting a better product in the end. Also, they have had the advantage of use of the concourse now for over 8 years. The other point to make is that the whole of the concourse has not failed even though it all has to be demolished for rectification to 12 QCAT Act s 28(3). -- 12 of 13 -- 13 be carried out. When combining all of these factors together and having regard to the costs differential for the new actual slab works an allowance of one third or $10,540.00 would be an appropriate adjustment for betterment. That then reduces the costs of rectification to $21,083.00. [53] That sum in addition to the re-instatement costs of $27,584.74 results in damages of $48,667.74. In the end Mr Carey must pay to the Fields the sum of $48,667.74. [54] There is an application for costs by the Fields, legal representatives. I have been asked to make directions for the filing of submissions on costs. This will result in the parties incurring further legal costs which, ideally, should be avoided if possible. [55] Under s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld), the Tribunal can award costs, and the restrictions on allowing costs under s 100 of the QCAT Act do not apply. Clearly the Fields have been successful in the application, and without actually deciding the point there are strong arguments as to why they should get their costs. If costs were to be awarded, and there being no mechanism of assessing costs under the QCAT Act as such, I am guided by Rule 86 (of the QCAT Rules) which provides for “reasonable costs” with respect to offers of settlement. Given the amount of damages, reasonable costs would be assessed under the Magistrates Court scale of costs where the amount recovered is less than $50,000. [56] I make these observations in the hope that the parties can come to some agreement about costs. If not, on the application (Form 40) of either party I will make directions as to the filing of submissions on costs. [57] There will be orders accordingly. -- 13 of 13 --