Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Edwards v Sovereign Homes (QLD) Pty Ltd [2020] QCATA 146 PARTIES: DONALD BRUCE EDWARDS (appellant) v SOVEREIGN HOMES (QLD) PTY LTD (respondent) APPLICATION NO/S: APL244-18; APL356-18 ORIGINATING APPLICATION NO/S: BDL253-15 MATTER TYPE: Appeals DELIVERED ON: 23 October 2020 HEARING DATE: 10 June 2019; On the papers HEARD AT: Brisbane DECISION OF: Senior Member Brown Member Burke ORDERS: In APL244-18: 1. Applications for leave to adduce fresh evidence refused. 2. Leave to appeal refused. 3. Appeal dismissed. In APL356-18: Leave to appeal refused. In APL244-18 and APL356-18: 1. The parties are to file and exchange submissions on the question of the costs of the appeals within fourteen (14) days of the date of this decision. 2. The parties are to file and exchange submissions in reply within seven (7) days thereafter. 3. A submission must not exceed five (5) pages in length, in 12 pitch font and 1.5 line spacing. 4. The Appeal Tribunal will thereafter determine the costs of the appeals, on the papers. -- 1 of 66 -- 2 CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – STRONG REASONS FOR INTERFERENCE – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – ADMISSION OF FURTHER EVIDENCE – where appellant sought to appeal on questions of law, questions of fact and questions of mixed law and fact – where appellant sought to adduce fresh evidence – where appellant contended that decision of Development Tribunal was fresh evidence – where the appeal tribunal can receive fresh evidence in relation to a ground of appeal relating to an error of law only DAMAGES – GENERAL PRINCIPLES – GENERAL AND SPECIAL DAMAGES - where appellant claimed damages for solatium – where appellant claimed damages for loss of amenity – where appellant claimed damages for inconvenience and distress – where held that damages for loss of amenity not recoverable – where held that damages for non-physical inconvenience and distress only recoverable consequent upon real and substantial physical inconvenience – where appellant failed to discharge requisite onus of proof CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – OTHER MATTERS – where appellant asserted error in finding below regarding practical completion - where appellant claimed building work did not comply with contract – where the finding was open on the evidence Domestic Building Contracts Act 2000 (Qld) repealed Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 143(2)(b), s 146, s 147 Addis v Gramophone Co Ltd [1909] AC 408 Archibald v Powlett [2017] VSCA 259 Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33 Baltic Shipping Co v Dillon (1993) 111 ALR 289 Bawden v ACI Operations Pty Ltd [2003] QCA 293 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 Bellgrove v Eldridge (1954) 90 CLR 613 Benham v Gambling [1941] AC 157 Boncristiano v Lohmann [1998] 4 VR 82 Camden v McKenzie [2008] 1 Qd R 39 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 -- 2 of 66 -- 3 Chambers v Jobling (1986) 7 NSWLR 1 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1 Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202 Commissioner of Police v Stehbens [2013] QCA 81 Coshott v Fewings Joinery Pty Ltd [1996] NSWCA 122 Crosthwaite v Dewit [2017] QCATA 91 Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373 Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462 Dearman v Dearman (1908) 7 CLR 549 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Ericson v Queensland Building and Construction Commission [2014] QCA 297 Ericson v Queensland Building Services Authority [2013] QCA 391 Flannery v Halifax Estate Agencies [2000] 1 WLR 377 Fox v Percy (2003) 214 CLR 118 G v H [1994] HCA 48 Hadley v Baxendale (1854) 156 ER 145 Hamlin v Great Northern Railway Co (1856) 156 ER 1261 Hobbs v London and South Western Railway Co (1875) LR 10 QB 111 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 Lida Build Pty Ltd v Miller and Anor [2011] QCATA 219 Macquarie Homes Queensland Pty Ltd v Edge [1996] QBT 66 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 Partington v Urquhart (No 2) [2018] QCATA 120 Pickering v McArthur [2005] QCA 294 Pivovarova v Michelsen [2019] QCA 256 Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 Repatriation Commission v Hill (2002) 69 ALD 581 Rintoul v The Queen [2018] QCA 20 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344 -- 3 of 66 -- 4 Silastone Trading Pty Ltd v Body Corporate for Q1 and Anor [2017] QCAT 349 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276 Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 253 ALR 1 Terera v Clifford [2017] QCA 181 Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132 Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816 Watts v Morrow [1991] 1 WLR 1421 William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260 APPEARANCES & REPRESENTATION: Applicant: S B Whitten, instructed by Saal and Associates Lawyers Respondent: P W Evans, solicitor of Cornwalls REASONS FOR DECISION [1] This is an application pursuant to s 142(1) and s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) for leave to appeal, and if given, appeal against the decision of the tribunal in a domestic building dispute. [2] There are two decisions the subject of this appeal. [3] The first decision dated 21 August 2018 relates to the substantive matters the subject of the hearing (‘the substantive decision’).1 [4] The second decision dated 3 December 2018 relates to the issue of costs and interest (‘the costs decision’).2 [5] The appellant seeks the following orders: (a) leave to appeal the substantive decision; (b) if leave is granted, appeal of the substantive decision be allowed; (c) award of the sum of $46,155.20 plus interest awarded to Sovereign be set aside; (d) leave to appeal the costs decision; (e) by way of application filed 14 Decembers 2018, a direction that leave be granted to adduce evidence and documents not before the tribunal at first instance (‘the 1 Sovereign Homes Qld Pty Ltd v Edwards [2018] QCAT 276. 2 Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410. -- 4 of 66 -- 5 further evidence application’) or alternatively fresh evidence being a decision of the Development Tribunal dated 4 September 2018 setting aside the certifier’s approval of the alternative solution. Appeal APL244-18 – the substantive decision Background [6] The appellant, Donald Edwards (‘Edwards’), is the owner of a residential home located at 35 Cameron Street, Fairfield, Brisbane (‘the property’). [7] The respondent, Sovereign Homes Qld Pty Ltd (‘Sovereign’), as builder, entered into a written contract dated 30 June 2014 with Edwards to carry out alterations and additions to the property. The contract was in the standard form of an HIA Queensland Plain Language Alteration, Addition and Renovation contract. [8] Work commenced on 25 July 2014 and involved the construction of an extension to the existing house adding a fourth level with three bedrooms, a bathroom, separate toilet and a retreat. Work was carried out satisfactorily until the relationship between Edwards and representatives of Sovereign began to deteriorate in November 2014. [9] The dispute arose after the issue of Sovereign’s final claim for the sum of $46,155.20. [10] Edwards denied that practical completion had been reached and made a cross-claim in the sum of $133,379.30, primarily relating to alleged defects in the works in addition to a claim for consolation damages and moneys alleged to be owing arising out of an insurance payment made to Sovereign as a result of two storm events during the construction period. [11] The tribunal delivered its decision on 21 August 2018 and an application seeking leave to appeal and appeal that decision was filed by Edwards on 18 September 2018. On 14 December 2018, Edwards delivered extensive submissions in support of the application for leave to appeal and filed an application seeking leave to adduce further evidence on the appeal. [12] The tribunal delivered its decision in relation to costs and interest on 3 December 2018. An application seeking leave to appeal the costs decision was filed on 21 December 2018. Submissions regarding the appeal of the costs decision were delivered by Edwards on 8 February 2019. [13] On 1 March 2019, Sovereign filed submissions responding to Edwards’ submissions in relation to the appeal of the substantive decision and in relation to Edwards’ application seeking leave to adduce further evidence. [14] Edwards delivered extensive submissions in reply to Sovereign’s submission on 22 March 2019. Objections to the nature of the reply submissions delivered by Edwards were filed by Sovereign on 11 June 2019. Further submissions were delivered by Edwards and Sovereign respectively on 14 June 2019 and 18 June 2019 in relation to the material included in the lengthy submissions. [15] The grounds of appeal relied upon by Edwards are set out in an attachment to Edwards’ application and identified as Annexure “A”. -- 5 of 66 -- 6 [16] For completeness, the grounds are set out below: 1. The learned Member erred in law in finding, at [23] of the Reasons, that the document described as a “Certificate on Practical Completion” fulfilled the requirements of clause 24 of the Contract including the requirement for the Respondent to provide the Applicant/Appellant with a Notice of Practical Completion, and at [39] of the Reasons, that the document established the date for practical completion. 2. The learned Member erred in law and in fact in finding, at [36] of the Reasons, that the Applicant/Appellant was satisfied that practical completion had then been reached. 3. The learned Member erred in law and in fact in finding, at [36] of the Reasons, that the Applicant/Appellant signed the form (the “Certificate on Practical Completion”) on 11 December 2014 and in doing so he accepted the box gutter design change issue. 4. The learned Member erred in law in finding, at [37] of the Reasons, that a Builder who has not complied with the plans or specifications of a contract, and who is in breach of the Contract, as was found at [147] of the Reasons, may nevertheless have reached practical completion. 5. The learned Member erred in law and in fact in finding, at [43] of the Reasons, that practical completion had been reached on 11 December 2014 pursuant to clause 24.9 of the Contract. 6. The learned Member erred in law and in fact in finding, at [44] of the Reasons, that clause 25 of the Contract had not been complied with and in failing to find that the Respondent permitted the Applicant/Appellant to take possession of the Works prior to practical completion having in fact occurred. 7. The learned Member erred in law and in fact in disposing, at [43] of the Reasons, of the Applicant/Appellant’s claim for delay damages, and in failing to assess those damages in the event the learned Member’s conclusion on practical completion was wrong. 8. The learned Member erred in law and in fact in finding, at [45] of the Reasons, that the Applicant/Appellant owed the Respondent $46,155.20 plus any interest under the Contract. 9. The learned Member erred in law and in fact in failing to find that clause 16.1 of the Contract enabled the Respondent to seek a reasonable extension of time for any claimable delay described in clause 16.2 and that the respondent could have but failed to make any such claim. 10. The learned Member erred in law in finding, at [65] to [67] of the Reasons, that a separate contract or scope of works was required for the damaged works and that practical completion was achieved before the damaged works were rectified. 11. The learned Member erred in law and in fact in finding, at [132] of the Reasons, that the gutter to be installed was not intended to fit the description “box gutter”. -- 6 of 66 -- 7 12. The learned Member erred in law and in fact in finding, at [133] of the Reasons, that the Applicant/Appellant “acquiesced” in the “alternative arrangement’ and accepted the changes to the box gutter. 13. The learned Member erred in law and in fact in finding, at [149] of the Reasons, that the gutter as installed met a Q100 weather event, or implicitly that it met the contract specifications. 14. Subject to leave being granted to adduce fresh evidence in the form of a finding of the Development Tribunal dated 4 September 2018 setting aside the alternative solution approval and certification relied upon by the learned Member at [142] to [144] of the Reasons such that it was an error of law to rely on that evidence. 15. The learned Member erred in law in failing to consider or alternatively rejecting the Applicant/Appellant’s claims for false or misleading conduct and unconscionable conduct. 16. The learned Member erred in law in failing to determine that the Respondent engaged in misleading and deceptive conduct in: a . Claiming to have reached the Practical Stage of the works under the contract when it knew:- i . It had not constructed the box gutter according to law or the Contract and the specifications; ii . There were defects in the Works that were not minor defects caused by the Rain Event and the Hail Event that it had not rectified; b. Failing to inform the Respondent in the original proceedings (the Applicant in the appeal) of the details of the insurance claim and result of the claim it had made on its insurance policy in respect of the Rain Event and the Hail event; or c. In offering to settle the dispute for a small amount of money without revealing the money it had received from the Insurance Company in relation to the Rain Event and the Hail Event. 17. The Tribunal erred in law in failing to determine that the respondent engaged in unconscionable conduct in:- a . Claiming to have reached the Practical Stage of the works under the contract when it knew:- i . It had not constructed the box gutter according to law or the Contract and the specifications; ii . There were defects in the Works that were not minor defects caused by the Rain Event and the Hail Event that it had not rectified; b. Failing to inform the Respondent in the original proceeding (the Applicant in the appeal) of the details of the insurance claim and result of the claim it had made on its insurance policy in respect of the Rain Event and the Hail Event; or -- 7 of 66 -- 8 c. In offering to settle the dispute for a small amount of money without revealing the money it had received from the Insurance Company in relation to the Rain Event and the Hail Event. 18. The learned Member erred in law and in fact in failing to award the Applicant/Appellant damages for:- a . Removal of the solar panel brackets; b. Labour to pack the walls; c. Removal and reinstallation of palings installed over the Overflow Relief Gully; d. Installation of a smoke alarm; e. Incorrectly installed balustrades; f. New shower shelf; g. Incorrectly installed Towel ring; h. Replacement of boards to rear deck; i. Plumbing work to unblock sewer line; j. Incorrectly installed skirting palings; k. Knots in weatherboards; l. Solatium; m. Interest on money in his joint bank account; and n. Items or services not provided by the Respondent. [17] Edwards seeks the following orders, as set out in Annexure “A”: 1. To the extent necessary given the grounds of appeal, leave be granted to appeal the Tribunal’s decision. 2. Leave be granted to adduce new evidence or alternatively fresh evidence being a decision of the Development Tribunal dated 4 September 2018 setting aside the certifier’s approval of the alternative solution. 3. The appeal be allowed. 4. The award of the sum of $46,155.20 plus interest (if any) awarded to the Respondent be set aside. 5. That the Respondent pay the Applicant/Appellant such further damages according to the findings made on appeal and at law. 6. Pursuant to s 237(1) and s 243(c) of the Competition and Consumer Act 2010 (Cth), a declaration that the Respondent had not completed the Practical Completion stage of the Contract or an order refusing to enforce clause 24.5 and, to any extent necessary, clause 24.9 of the Contract. -- 8 of 66 -- 9 7. Alternatively, pursuant to s 236(1) of the Competition and Consumer Act 2010 (Cth), an order requiring the Respondent to pay compensation to the Applicant/Appellant by way of the loss and damage he has suffered. 8. The Respondent pay the Applicant/Appellant’s costs of the appeal and of the proceedings at first instance. Submissions on behalf of Edwards [18] Extensive written submissions3 have been provided by Edwards to supplement the oral submissions provided at the hearing of the appeal. Those submissions relate to both the application for leave to appeal the substantive decision, the application for leave to adduce fresh evidence and the application for leave to appeal the costs decision. [19] Errors of fact in the decision have been set out in detail at paragraphs 6.1, 6.2, 6.3, 6.4, 6.5, 6.6, 6.7, 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16 and 6.17 of Edwards’s submissions dated 14 December 2018. None of these alleged errors of fact pertain to the grounds relied upon by Edwards in this appeal. Accordingly, there is no need for this appeal tribunal to further consider those facts. Submissions on behalf of Sovereign [20] In addition to oral submissions at the hearing of the appeal, Sovereign relies upon written submissions dated 1 March 2019, 11 June 2019, 18 June 2019 and 28 August 2019 and a letter dated 1 October 2019 in response to the Appellant’s submissions dated 19 September 2019 in relation to the application to adduce further evidence. Legal Considerations for Leave to Appeal [21] A party may appeal on a question of law without the appeal tribunal’s leave, unless the decision falls into one of the limited categories set out in s 142 of the QCAT Act. [22] A party may generally appeal to the appeal tribunal on a question of fact, or a question of mixed law and fact, once leave has been granted.4 The application for leave to appeal must state the grounds upon which leave to appeal is sought.5 [23] The distinction between questions of law and fact is not always clear and courts have not found it easy to formulate a satisfactory test of universal application.6 [24] The Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc7 has provided the following concise formula: Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took place between the 3 Written submissions on behalf of the Appellant dated 14 December 2018, 6 February 2019, 21 March 2019, 14 June 2019, 16 July 2019, 23 August 2019, 19 September 2019 and by letter dated 11 October 2019. 4 QCAT Act s 142(3)(b). 5 Ibid s 143(2)(b). 6 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394. 7 [1997] 1 SCR 748, [35] per Iacobucci J. -- 9 of 66 -- 10 parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests. [25] The basis upon which leave to appeal is granted has been considered in many decisions and succinctly summarised in Lida Build Pty Ltd v Miller and Anor:8 [7] Finality in litigation is highly desirable because any further action beyond the hearing can be costly, and unnecessarily burdensome on the parties. [Fox v Percy (2003) 214 CLR 18, 128 per Gleeson CJ, Gummow and Kirby JJ.] A finding of fact will generally not be disturbed on appeal if the evidence before the tribunal supports the inferences drawn and the facts found. [Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355 per Mason CJ.] It is not the Appeal Tribunal’s task to decide where the truth lay as between the competing versions given by parties. [Fox v Percy (2003) 214 CLR 118 at 129 per Gleeson CJ, Gummow and Kirby JJ.] [8] Whether a decision is based on findings of fact which are open on the available evidence is a question of law. [Kostas v HIA Insurance Services Pty Ltd t/a Home Owners Warranty (2010) 241 CLR 390.] [9] Leave to appeal will ordinarily only be granted when a question of general importance upon which further argument and a decision of the Appeal Tribunal is to public advantage [Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578 and 580.]; there is a reasonably arguable case that the primary decision-maker made an error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.] and there are reasonable prospects that the applicant would be granted orders in its favour [Cachia v Grech [2009] NSWCA 232, [13].]; or to correct a substantial injustice to the applicant caused by error [QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 QD R 41]. [26] The principles the appeal tribunal applies when considering an application for leave to appeal are summarized by Keane JA (as His Honour then was) in Pickering v McArthur: 9 [3] Leave will usually be granted only where an appeal is necessary to correct a substantial injustice to the applicant, and there is a reasonable argument that there is an error to be corrected. [27] The general discretion to grant leave must be exercised in accordance with this orthodox principle and further, there must be reasonable prospects of success to warrant a grant of leave. Therefore, in deciding whether to grant leave to appeal the court will usually make some preliminary assessment of the prospects of the proposed appeal.10 [28] An appeal to the appeal tribunal on a question of fact or mixed law and fact is by way of rehearing.11 The appeal tribunal must consider whether it is demonstrated by an appellant that there has been some legal, factual, or discretionary error obvious on the record. The appeal tribunal will not usually disturb findings of fact on appeal if the 8 [2011] QCATA 219, [7]-[9]. 9 [2005] QCA 294, [3]. 10 Terera v Clifford [2017] QCA 181, [10]; Rintoul v The Queen [2018] QCA 20, [10]. 11 QCAT Act s 147(2). -- 10 of 66 -- 11 evidence is capable of supporting the conclusions.12 An appeal tribunal may interfere if the conclusion is contrary to compelling inferences in the case.13 [29] The grounds of appeal involve both alleged errors of law and errors of mixed law and fact. We will address firstly those grounds in which an error of law is asserted taking into account the principles set out above. Errors of Law [30] The errors of law relied upon by Edwards are contained in grounds 1, 4, 10 and 14 of the grounds of appeal14 and are set out for ease of reference below:- (a) Ground 1 - The learned member erred in law in finding that the document described as a Certificate on Practical Completion fulfils the requirements of a Notice of Practical Completion as referred to in clause 24 of the contract.15 (b) Ground 1 - The learned member erred in law in finding that the document described as a Certificate on Practical Completion established the date for practical completion.16 (c) Ground 4 - The learned member erred in law in finding that a builder who has not complied with the plans or specifications of a contract, and who is in breach of contract may nevertheless have reached practical completion.17 (d) Ground 10 - The learned member erred in law in finding that a separate contract or scope of works was required for the damaged works and that practical completion was achieved before the damaged works were rectified.18 (e) Ground 14 – Subject to leave being granted to adduce fresh evidence in the form of a finding of the Development Tribunal dated 4 September 2018 setting aside the alternative solution approval and certification relied upon by the learned member, it was an error of law by the tribunal member to rely on that evidence.19 [31] As a preliminary matter, it is necessary to determine whether the grounds relied upon do relate to questions of law only, and therefore leave is not required, or whether the grounds relied upon relate to issues of mixed law and fact. [32] In addressing an error of law there are well established principles which this appeal tribunal must take into account. [33] The most fundamental issue to determine is whether the tribunal has acted otherwise than in accordance with the law. It is well established that if a tribunal falls into an error of law ‘which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and 12 Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126. 13 Chambers v Jobling (1986) 7 NSWLR 1, 10. 14 Annexure “A” to Application for leave to appeal or appeal filed 18 September 2018. 15 Reasons for the substantive decision [23]. 16 Ibid [39]. 17 Ibid [37], [147]. 18 Ibid [65], [67]. 19 Ibid [142]-[144]. -- 11 of 66 -- 12 the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. An error of law of this kind may support an appeal on a question of law.’20 [34] An appeal court will not be concerned with looseness in the language of a tribunal nor with unsatisfactory phrasing of a tribunal’s thoughts. Nor will the court construe the reasons for the decision under review ‘minutely and finely with an eye keenly attuned to the perception of error’.21 [35] This appeal tribunal proceeds on the basis of those fundamental principles. Error of Law - Ground 1 [36] The first part of ground 1 relates to the finding of the learned member in paragraph [23] of the reasons for the substantive decision. [37] At paragraph [23] the learned member states: [23] I am satisfied that though described as a Certificate on Practical Completion the document, for all intents and purposes, fulfils the requirements of a Notice of Practical Completions (sic) as referred to in Clause 24 of the Contract. [38] To the extent that there is an error of law asserted in respect of the member’s finding, no basis is provided in ground 1 other than a statement that the conclusion reached by the member is an error of law. [39] In written submissions however, Edwards submits that the Certificate on Practical Completion dated 11 December 2014 (‘the Certificate’) cannot be classed as a Notice of Practical Completion for the following reasons: (a) the Certificate does not certify anything (as stated by the learned member in paragraph [17] of the reasons); (b) the Certificate does not state the Date of Practical Completion; (c) the Certificate does not state Sovereign’s opinion of the date on which practical completion had been reached. [40] Edwards relies upon the decision of McGill DCJ in Thompson Residential Pty Ltd v Hart & Anor where His Honour states:22 [37] In my opinion the contract means what it says, what matters is whether the enclosed stage has been reached, and the plaintiff has not satisfied this element of the definition of enclosed stage: the reference to windows and doors means the windows and doors required to be installed under the contract, and the plaintiff has not installed those, even if only temporarily. In my opinion there is nothing in the wording of the contract to justify giving the document the interpretation contended for by the plaintiff. Accepting that the court should 20 Commissioner for Liquor and Gaming v Farquhar Corporation Pty Ltd [2018] QCA 202, [15]-[18]; Repatriation Commission v Hill (2002) 69 ALD 581 per Black CJ, Drummond and Kenny JJ. 21 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, 9; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481. 22 [2014] QDC 132, [37]. -- 12 of 66 -- 13 strive to give a practical commercial interpretation to a document of this nature, it seems to be that the interpretation for which the plaintiff contends really amounts to changing the terms of the contract. In circumstances where the term ‘enclosed stage’ is defined, it is not a question of whether the building is enclosed in a practical sense by a process which does not meet the definition, or whether that process would in practice serve the function or requirement of enabling the fitting of gyprock internal wall sheeting to proceed. The function of the progress payment schedule is to provide for certain amounts to be payable when certain stages in the building work are achieved, and the definition of the enclosed stage us expressed in terms such that the supply and least temporary installation of the windows and doors is to be achieved as part of the enclosed stage. The windows and doors for this building had not been supplied, and therefore that element of the works required for the enclosed stage had not been satisfied. The plaintiff’s argument to the contrary is rejected. [41] Sovereign submits that an objective approach should be taken in interpreting the Certificate and that in doing so a common-sense approach should be taken to give the contract an interpretation that avoids absurdity. Evidence of surrounding circumstances in the form of ‘mutually known facts’ may be admitted to identify the meaning of a descriptive term.23 In this context, in its written submissions, Sovereign sets out the discussions between the parties in relation to the completion of the works. [42] As a preliminary observation, Edwards’ reliance upon the decision in Thompson Residential must relate to issues in the present case regarding the stage of works referred to as practical completion. A determination of whether the works have reached that particular stage must of necessity require consideration of issues of fact or mixed law and fact. [43] Based on the ground relied upon by Edwards, being a pure question of law, for the purpose of considering ground 1 the decision of McGill DCJ in Thompson Residential is not relevant as it relates to a factual interpretation of the stage of works in a contract. [44] To assess whether there has been an error of law in interpreting clause 24 it is necessary for this appeal tribunal to set out the proper interpretation of the relevant clause. [45] Before embarking on an exercise of determining the proper interpretation of clause 24 of the contract, it is necessary to establish the meaning of the term ‘practical completion’. [46] Schedule 2 of the contract provides a definition of practical completion as follows: (a) where the works are for the erection or construction of a detached dwelling or the renovation, alteration, extension, improvement or repair of a home to a stage suitable for occupation – the stage when the works: (i) have been completed in accordance with this contract and all relevant statutory requirements apart from minor defects or minor omissions; and (ii) are reasonably suitable for habitation; 23 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423, 429 per Mason J (as he then was). -- 13 of 66 -- 14 (b) in all other cases – when the works have been completed in accordance with this contract apart from minor defects or minor omissions.24 [47] Clause 24 of the contract relevantly provides: 24.1 The contractor must, at the owners request from time to time, give a non- binding estimate of when practical completion will be reached. 24.2 On reaching practical completion the contractor must give the owner: (a) a notice of practical completion stating the contractor’s opinion of the date of practical completion; and (b) the final claim. 24.3 Subject to subclause 24.4, the owner must, within 5 working days of receiving the final claim, pay the amount of the final claim to the contractor. 24.4 The final claim is not due until the contractor: (a) gives the owner a defects document signed by the contractor listing minor defects and minor omissions; (i) that are agreed to exist and the time for when those items will be completed or rectified; and (ii) that the owner claims to exist but the contractor does not agree with; and (b) makes all reasonable efforts to have the owner sign the document to acknowledge its contents. 24.5 If the owner believes that practical completion has not been reached the owner must, within 5 working days of receiving the notice of practical completion, give the contractor a written notice stating: (a) the owner’s requirements for the works to reach practical completion; and (b) the provisions of this contract that relate to each requirement. … 24.7 On completion of those requirements the contractor must give a further notice of practical completion stating the new date of practical completion and subclause 24.3 applies. 24.9 The date stated in the last notice of practical completion is deemed to be the last date of practical completion unless within 5 working days of receiving the last notice of practical completion the owner gives the contractor written notice: (a) disputing the date; and 24 See also Domestic Building Contracts Act 2000 (Qld) repealed. -- 14 of 66 -- 15 (b) detailing the reasons why the date is disputed. [48] Clause 24 does not purport to address the meaning of ‘practical completion’ but rather sets out the process for the contractor notifying the owner of the Date of Practical Completion. [49] Clause 37.1 provides the meaning of terms used in the contract: “date of practical completion” has the meaning in clause 24; “practical completion” is defined as having the same meaning as in Schedule 2; “notice of practical completion” has the meaning in clause 24; and “works” means the works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract. [50] The purpose of clause 24 is three-fold: (a) to impose on the contractor/builder an obligation to: (i) give a notice ‘on reaching practical completion’; (ii) identify the Date of Practical Completion; (iii) issue a final claim; (b) to impose on the contractor/builder an obligation to identify minor defects and omissions to be completed or rectified; (c) to re-assess the Date of Practical Completion upon any dispute regarding the Date of Practical Completion in any Notice of Practical Completion provided by the contractor/builder. [51] The document, purported to satisfy clause 24.2 of the contract, provided by Sovereign to Edwards is entitled ‘Certificate on Practical Completion’. It is an HIA standard form document used for the following purpose as stated in the document: This document is to be completed after the works have reached practical completion. The date of practical completion may be stated on the builder’s/contractor’s final progress claim. [52] The document identifies the owner, the builder/contractor, the site and the contract date. [53] The document further provides: Completion of works The owner has inspected the works and: Acknowledges that the builder/contractor has duly performed the contract to the owner’s satisfaction; and agrees that the works have reached practical completion and are in good order except for the following: … -- 15 of 66 -- 16 [54] The document then provides two parts which relate to the following:- (a) Part 1 lists any minor defects or minor omissions which the owner and builder agree exist and the time in which the builder will attend to these items. (b) Part 2 makes provision for the list of any minor defects or minor omissions which the owner claims exist but which are not agreed by the builder to exist. [55] Edwards’ name is inserted in the document and it is further signed by a representative of Sovereign and dated by both as 11 December 2014. [56] Further, the document provides that the owner authorises and directs the owner’s lending body to pay the balance of the money payable under the contract immediately to the builder. This section is signed and dated by Edwards. [57] The final account, which is undated, indicates the balance due at handover being $46,155.20. [58] The member accepted that: (a) the Certificate relied upon did not expressly state the Date of Practical Completion;25 (b) the Certificate listed the minor defects but did not specify a time by which those defects were to be attended to by the builder;26 (c) the Certificate, which does not actually certify anything, is a notice to the owner acknowledging that the owner has inspected the works and that the builder has duly performed the contract to the satisfaction of the owner and that the works have reached practical completion and are in good order except for the listed minor defects;27 (d) the Certificate provided the payment authority directed to the owner’s lending body to pay the balance of the money under the contract immediately. [59] The main issue for determination is whether the Certificate satisfies the requirements of clause 24.2. On a proper interpretation of the contract, does the Certificate satisfy the requirement of a ‘Notice of Practical Completion’? [60] The requirements of clause 24.2 are that, on reaching practical completion: (a) the contractor must give to the owner a notice stating the contractor’s opinion of the Date of Practical Completion; and (b) the contractor must give to the owner a final claim. 25 Reasons for the substantive decision [16]. 26 Ibid. 27 Ibid [17]. -- 16 of 66 -- 17 [61] There is no dispute that Sovereign gave to Edwards a final claim. There is no form of final claim required by clause 24. The only stipulation is that practical completion has been reached. [62] Edwards disputes the proper form of the Notice of Practical Completion provided by Sovereign to Edwards and the timing of that notice given Edwards’ argument that practical completion had not been reached. [63] The notice provided by Sovereign, in the form of a Certificate, does not state expressly Sovereign’s opinion of the Date of Practical Completion. The Certificate does state that the Date of Practical Completion may be stated on the final progress claim. It is undisputed that the final progress claim did not identify the Date of Practical Completion. The Certificate expressly states that practical completion has been reached. [64] In strict terms, it may be arguable that the Certificate does not satisfy the requirements of clause 24.2 in that it does not state that it is ‘Sovereign’s opinion’ that the Date of Practical Completion is a specified date. On the other hand, it may be the case that the date inserted by Sovereign may be interpreted as the Date of Practical Completion relied upon by Sovereign and may be interpreted as Sovereign’s opinion of the Date of Practical Completion. [65] The document certainly identifies that practical completion has been reached. As to the actual date of completion, it is open to interpretation that the date inserted by Sovereign is the date relied upon by Sovereign as the Date of Practical Completion. [66] The purpose of the Certificate is to notify the owner that the works have reached practical completion and for the owner to agree to that stage of completion of the works. [67] That being the case, it is open to interpretation that the date provided in the notification identifies not only the date Sovereign proposes as the Date of Practical Completion but the date which the parties have agreed is the Date of Practical Completion. It may be the case that the works have reached practical completion before the date nominated in the notice but in the absence of an express statement of the Date of Practical Completion, the date nominated by the builder, and agreed by the owner, may be accepted as the last Date of Practical Completion. [68] We think it was open to the learned member to interpret the Certificate on Practical Completion provided by the builder as identifying Sovereign’s opinion of the Date of Practical Completion. The Certificate satisfies the requirements of clause 24.2 of the contract and satisfies the requirements of being a Notice of Practical Completion pursuant to the contract. [69] The interpretation of clause 24 and whether the Certificate provided equated to the requisite notice is a separate issue from the question of fact as to whether practical completion has been reached. Accordingly, Edwards’ reliance upon Thompson Residential for the purpose of ground 1 is not regarded as relevant as its relevance lies in a determination relating to the factual circumstances of achieving the stage of practical completion. [70] In relation to the first part of ground 1, we have formed the opinion that no error of law by the learned member has been established. -- 17 of 66 -- 18 [71] The second part of the error of law alleged by Edwards relates to the learned member’s finding in paragraph [39] of the reasons where the member states: [39] The Notice, or in this case, the Certificate establishes the date of practical completion and sets in motion the events described above. Clause 24 provides a formula to that effect. Until those requirements are satisfied the final payment is not due. [72] The events to which the member refers are set out in paragraph [38] as follows: [38] The function of establishing the date for (sic) practical completion is, inter alia, to provide evidence of the point in time for a number of events to take place. Under the Contract it: (a) sets a time for the payment of the final claim; (b) allows the owner to dispute whether practical completion has been reached and identify what works if required to reach practical completion; (c) identifies minor defects and omissions to be attended to; (d) triggers the defects period; (e) transfers the risk of the property to the owner; and (f) sets a date for calculation of liquidated damages. [73] Edwards submits that the learned member erred in finding that the Certificate established the Date of Practical Completion. [74] A Notice of Practical Completion, or Certificate in this context, is intended to have a clear contractual operation. The purpose of the Certificate is to provide certainty of the Date of Practical Completion for the purpose of establishing further rights and obligations of the parties under the contract. [75] The alleged error of the member in paragraph [39] of the reasons for the substantive decision concentrates on the member’s failure to determine himself whether the works had reached practical completion in fact as opposed to relying solely on the Certificate as the evidence that practical completion had been reached. [76] The definition of ‘Date of Practical Completion’ in clause 37 states that the term has the meaning in clause 24. [77] The conclusion must therefore be that the last Notice of Practical Completion establishes the Date of Practical Completion. In the absence of a dispute regarding the Date of Practical Completion, a proper notice is deemed to identify the Date of Practical Completion. [78] The complaint by Edwards seems to be that the member did not address the factual issue of ‘reaching practical completion of the works’ but rather merely accepted the Date of Practical Completion as purportedly stated in the Certificate. [79] Whilst the wording of paragraph [39] of the reasons may be interpreted as the member relying solely on the Certificate as establishing the Date of Practical Completion, if -- 18 of 66 -- 19 read in the context of the foregoing paragraphs and the other findings made by the learned member, this is not the effect of paragraph [39]. [80] The learned member specifically stated that he preferred the evidence of Mr Marshall, Sovereign’s project manager, in preference to Edwards and/or Ms Ogilvie (Edwards’ partner).28 In this respect, the member was addressing the state of the works at the time of execution of the Certificate and his acceptance of Mr Marshall’s evidence that the works had achieved the practical completion stage. [81] Whereas it might be suggested that the learned member’s analysis of the evidence and his conclusion regarding preferring one witness over another was brief, the adequacy of the reasons is not relied upon by Edwards in relation to ground 1 of the appeal. In any event, this issue will be considered later in these reasons. As these reasons will later set out, even if the finding in favour of Mr Marshall’s credibility were set aside, the ultimate outcome of the proceeding would not have been different. [82] The member specifically queried whether the Certificate had the evidentiary effect of establishing the Date of Practical Completion. In so doing, the member concluded that Edwards’ signing of the document suggested that Edwards, at the time, was satisfied that practical completion had been reached. [83] The member did not conclude that the Certificate alone established the Date of Practical Completion but rather its execution supported the conclusion that Edwards accepted that practical completion had been reached. [84] Whilst the wording of paragraph [39] of the reasons loosely states that the Certificate establishes the Date of Practical Completion, we do not accept in the context of the discussion by the learned member that the member intended to rely solely on the Certificate as establishing the Date of Practical Completion in the event that the works had not in fact reached the practical completion stage. [85] In this respect, we do not accept that the member fell into an error of legal interpretation of the Certificate and that the member relied purely on the Certificate to establish the Date of Practical Completion. [86] The definition of ‘practical completion’ is the starting point for determining whether practical completion has been reached. It is necessary to assess whether the requirements of the definition of that term in Schedule 2 of the contract has been reached to assess whether the Date of Practical Completion has been established. [87] The Notice of Practical Completion does not establish that practical completion has been reached but rather records the Date of Practical Completion as required by clause 24 of the contract and provides the mechanism by which the Date of Practical Completion is deemed to have been achieved. [88] We have formed the view that Edwards has not established an error of law by the learned member and that ground 1 has not been made out. 28 Reasons for the substantive decision [32]. -- 19 of 66 -- 20 Error of Law – Ground 4 [89] Edwards submits that the learned member erred in law in finding that a builder who has not complied with the plans or specifications of a contract, and who is in breach of the contract, may nevertheless have reached practical completion. [90] Edwards refers to the learned member’s finding at paragraph [37] of the reasons for the substantive decision which states: [37] Mr Edwards argues that as Sovereign had not complied with the plans and specification in respect to a number of issues, which are dealt with hereafter, that practical completion has not been reached. Such a proposition is fundamentally wrong in that it is not uncommon for a builder not to follow the plans and/or specifications, either inadvertently or deliberately, and that the omission might not be apparent at the time of practical completion. If, subsequently, a major latent defect is discovered it could not then be argued that, the (sic) on finding such a defect, the date of practical completion would be set aside, the completion date delayed and a claim for liquidated damages triggered. [91] It is difficult to understand the error of law upon which Edwards relies to support the alleged ground as no basis is given to support the error nor does Edwards outline the effect of the alleged error. [92] At paragraph [54] of the written submissions, Edwards outlines the respects in which there has been an error of law: 54.1 It (the Tribunal) has failed to provide any or adequate reasons for the proposition advanced by Mr Edwards as being ‘fundamentally wrong’. It has simply asserted that it is wrong without providing any reasoning to justify the assertion. 54.2 Based on the decision in Thompson Residential, a stage of construction, including Practical Completion, has either been completed or it hasn’t. The doctrine of substantial completion does not apply. Necessarily, this means that if the contract works have a defect or omission that is not minor (which is not necessarily be the same as a “major” defect or omission), then it is simply the case that the Practical Completion stage has not been completed. That being the case, there is no basis in law for the owner to not have a purported date of Practical Completion set aside. Being entitled to have it set aside follows logically from the fact that there would be, in fact, no Date of Practical Completion because the stage had never been completed. In such a scenario, the builder can hardly complain because it is his failure to complete the works except for minor defects or omissions and he would be aware of any defects in his own work. 54.3 Insofar as this reasoning applies to the current matter, it is irrelevant because the defects were not latent. The defects caused by the weather events were well known to Sovereign as early as 28 November 2014, although the nature and extent of them was not known to Mr Edwards at that time, i.e. 3 December 2014 or 11 December 2014 and immediately thereafter. Insofar as Sovereign genuinely considered that such work required a separate contract to be entered into (which is not admitted) and it is found that was not the case, then it is simply the case that Sovereign (in McGill SC DCJ’s words in Thompson Residential) “nailed its colours to the wrong mast”. It could have protected itself by including the damage caused by the weather events in the space provided for -- 20 of 66 -- 21 defective works alleged by the owner and not accepted by the builder and by claiming an extension of time to the date for practical completion. 55. It is also clear that the defects document prepared by Sovereign (i.e. the Certificate on Practical Completion) listed the replacement of glass in certain areas. It has been held that where work has to be removed and replaced, it is as if the work to be replaced was not there at all. The need to remove and replace this glass was not a minor defect, as it is as if the glass had not been there at all. Therefore, Sovereign has not reached Practical Completion in fact due to these defects. [93] The submission by Edwards clearly indicates that the error alleged by Edwards is a question of mixed law and fact. Accordingly, leave is required to be given in this appeal. No application for leave to appeal has been made nor have any grounds for granting leave been submitted. [94] Accordingly, in the absence of an application for leave to appeal, ground 4 should be dismissed. [95] For completeness, however, we will address the error alleged as an error of law only on the ground of the inadequacy of the reasons provided by the member. [96] It is uncontroversial that a failure to give adequate reasons constitutes an error of law. Crow J in Pivovarova v Michelsen [2019] QCA 256 at [46] to [47] made this clear in referring to the observations of the court in In Vitro Technologies Pty Ltd v Taylor29 where Fraser JA stated: [19] This Court has held in many decisions that the failure of a trial court from which an appeal lies to give adequate reasons amounts to an error of law. What is adequate must depend upon the circumstances of the particular case, including the nature and significance of the issues in question. In a passage to which Muir JA referred in Drew v Makita (Australia) Pty Ltd, Meagher JA observed in Beale v Government Insurance Office of New South Wales that whilst the trial judge should set out findings as to how the judge came to accept one set of evidence over a conflicting set of significant evidence, ‘that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially it the inference as to what is found is appropriately clear’. [97] In Drew v Makita (Australia) Pty Ltd,30 Muir JA set out the principles relating to the extent to which a trial judge was required to expose his or her reasoning for the conclusions reached and observed that it depended upon the nature of the issues for determination and the function to be served by the giving of reasons: [58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving a losing party with a ‘justifiable sense of grievance’ through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or 29 [2011] QCA 44, [19]; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 257-259 per Kirby P (as he then was); Commissioner of Police v Stehbens [2013] QCA 81, [6]; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 441, 444 per Meagher JA; Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219, [59]–[66] per Muir J. 30 [2009] 2 Qd R 219, [58]-[63]. -- 21 of 66 -- 22 procedural fairness; to provide ‘the foundation for acceptability of the decision by the parties and the public’ and to further ‘judicial accountability’.31 [59] The extent to which a trial judge must expose his or her reasoning or the conclusions reached will depend on the nature of the issues for determination and ‘the function to be served by the giving of reasons. For that reasons, what has been required has been expressed in a variety of ways. For example, in Soulemezis v Dudley (Holdings) Pty Ltd, Mahoney JA said:32 ‘... And, in my opinion, it will ordinarily be sufficient if - to adapt the formula used in a different part of the law…..by his reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he has acted.’ [60] McHugh JA’s view was that reasons sufficient to meet the above requirements do not need to be lengthy or elaborate but ‘…it is necessary that the essential ground or grounds upon which the decision rests should be articulated’. [61] In Strbak v Newton (unreported, New South Wales Court of Appeal, Gleeson CJ, Samuels and Priestley JJA, 18 July 1989) Samuels JA said: ‘…What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgement which is given.’ [62] Woodward J, in Ansett Transport Industries (Operations) Pty Ltd v Wraith, said that the decision maker: ‘…should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.’ [63] Meagher JA in Beale v Government Insurance Office of NSW stated these propositions: ‘…there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature it given, the existence of both sets of evidence should be referred to. 31 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 431, 442; Soulemezis v Dudey (Holdings) Pty Ltd (1987) 10 NSWLR 247, 257, 259, 269, 271, 273, 279; Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666-667; Waterways Authority v Fitzgibbon (2005) 79 ALJR 1816, 1835, [129]; Flannery v Halifax Estate Agencies [2000] 1 WLR 377, 381- 392; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462, 475, 476. 32 (1987) 10 NSWLR 247, 273; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386. -- 22 of 66 -- 23 Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. The obvious extension of the principle in North Sydney Council is that, where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputes piece of evidence, especially if the inference as to what is found is appropriately clear: Selvanayagam v university of West Indies [1983] 1 WLR 585. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance: Rajski v Bainton (Court of Appeal, 6 September 1991, unreported). Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well.” [98] Muir JA observed that the fundamental elements need not be applied rigidly but they provide a useful guidance for a determination of sufficiency of reasons in the general run of cases. [99] In Camden v McKenzie,33 the court relied on the well-established principle set out in Bawden v ACI Operations Pty Ltd34 and Crystal Dawn Pty Ltd v Redruth Pty Ltd35 that ‘a failure to give reasons which ought to be given amounts to appealable error’. [100] In Camden v McKenzie,36 the court highlighted the requirements of a judge’s reasons for a decision where an issue involved the credibility of witnesses. Keane JA (as he then was) observed: [30] The appellants contend … that adequate reasons for judgement will refer to the evidence which was important to the determination of the matter, and will set out material findings of fact, giving the judge’s reasons for his or her findings of fact, and stating the basis on which the judge has come to prefer one body of evidence over a competing body of evidence. [31] As a general rule, observance of these requirements is necessary to demonstrate that litigation has been determined fairly and rationally. Adherence to these requirements ensures that rights of appeal are not rendered meaningless, and that a party affected by a decision adverse to his or her interests is not left with a justified sense of grievance that the case has not been properly considered. In short, these standards promote the conscientious public discharge of the responsibilities of a judge to litigants, as well as to the community, which has a vital interest in the integrity of the judicial process. … [34] Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, an analysis of, any evidence independent of 33 [2008] 1 Qd R 39, [29]. 34 [2003] QCA 293, [29]. 35 [1998] QCA 373. 36 [2008] 1 Qd R 39, [30]-[31], [34]-[35]. -- 23 of 66 -- 24 the parties which is apt to cast light on the probabilities of the situation. In Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186 at 191 to 192, Ipp JA, with whom Mason P and Tobias JA agreed, explained: ‘It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and hear the witnesses, he or she prefers or believes the evidence of one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mt X but not Mr Y and judgement follows accordingly’. That is not the way in which our legal system operates … Often important issues of credibility involve sub-issues. Often. Objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done , they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted the in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.’ [35] Similarly, in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No.2) (2002) 6 VR 1 43 at [157], the Victorian Court of Appeal said: ‘The duty to deal with facts or evidence is not absolute. The evidence must be significant in the sense that, unless disposed of, it stands in the way of the court’s conclusions. The court need not deal in terms with evidence when its importance falls away because of the manner in which the court disposes of the case. Nevertheless, if evidence is significant, it is not to be peremptorily shunted aside of ignored’. [101] At reasons [37] and following the learned member provided substantiation for the proposition that Edwards was fundamentally wrong in relation to works which may be determined to contain latent defects. The learned member observed that it was not uncommon for a builder to fail to undertake building works other than in accordance with the plans and/or specifications (either inadvertently or otherwise) and that this may result in a latent defect. The learned member observed that it could not be correct that the discovery of a latent defect after the Date of Practical Completion rendered the Date of Practical Completion liable to be set aside with the consequences referred to by the learned member including a claim for liquidated damages. The learned member went on to consider the purpose and function of a Notice of Practical Completion and the specific contractual provisions. The learned member’s reasons were adequate. [102] In relation to the argument that the learned member’s statement was incorrect, the member set out the general principle in relation to defects which are regarded as latent conditions. Nothing flows from the statement made by the member as there was no issue in dispute regarding latent defects. The member’s statement was merely a generalized observation in which the member provided an example where practical completion may have been achieved despite non-compliance with the plans and specifications. In any event, questions of fact necessarily flow from the statement and -- 24 of 66 -- 25 therefore, without leave, this aspect of ground 4 cannot be the subject of the consideration of this appeal tribunal. [103] Accordingly, we have formed the view that no error of law has been substantiated. Error of Law – Ground 10 [104] Ground 10 relates to an alleged error of law by the member in paragraphs [65] to [67] of the reasons for the substantive decision: [65] The Contract does not provide for the situation where work, already completed under the contract, is damaged or destroyed by events not within control of the builder. In some construction and engineering contracts there are standard clauses which qualify the liability of the builder in such circumstances. It is not uncommon for insurance clauses to provide that it is the builder’s responsibility to reinstate the works, but not until the insurance claim has been settled. In those circumstances, unless the settlement is delayed by an act or omission of the builder, the builder would be entitled to an extension of time for any delay. Provision can be made for the insurance monies to be paid into a joint account pending the reinstatement of the works. It is also the case, that the builder can only recover the monies received from the settlement of the claim for those works, exclusive of fees and costs. [66] The construction favoured by Mr Edwards that Sovereign should have proceeded in reinstating the works prior to the settlement of the insurance claim, in my opinion, is unreasonable. Such a requirement, hypothetically, could place an unreasonable financial burden on a builder. [67] It seems sensible that the reinstatement of the works should be the subject of separate scopes of works. It is submitted, on behalf of Mr Edwards, that the insurance work should have been completed before Practical Completion had been achieved. The fact is, that Practical Completion has occurred as I have already found. Mr Edwards and his family had moved into possession. He was aware that there was an insurance claim by Sovereign relating to damage to the works and that work would be attended to when the claim had been settled. [105] Edwards submits on appeal that the learned member was in error in finding that a separate contract or scope of works was required for the damaged works and that practical completion was achieved before the damaged works were rectified. [106] It is obvious to first note that the ground relied upon by Edwards is one of mixed law and fact and that leave to appeal is required. Leave has not been sought and no basis is submitted by Edwards in support of leave being granted. [107] At paragraphs [26] to [36] of his written submissions, Edwards sets out the basis for the alleged errors of fact or law or both. [108] Edwards submits that: (a) the learned member erred in finding that the contract did not provide for circumstances where already completed works were damaged by events outside Sovereign’s control; (b) the learned member failed to take into account clause 16 of the contract which entitled Sovereign to apply for an extension of time in circumstances where -- 25 of 66 -- 26 there was a delay arising from an insurance claim and the undertaking of rectification work; (c) the learned member erred in fact in finding that the construction of the contract propounded by Edwards was that Sovereign had to reinstate the insurance work prior to the settlement of the insurance claim; (d) the insurance work had to be completed before Sovereign completed the Practical Completion stage of the construction; (e) the learned member failed to make any finding as to whether a new contract was required or not; (f) the learned member erred in making a finding that it was ‘sensible’ that the reinstatement of the damaged works be the subject of a new ‘scope of works’; (g) the learned member erred in law in not providing any or any adequate reasons for the conclusions reached in (f); (h) the learned member denied both parties natural justice in making a finding based on a premise which neither party had argued, namely that the insurance works were a variation to the contract and that a new scope of works was required for the rectification works. [109] We will address the issue of clause 16 of the contract later in these reasons and confine this ground of appeal to the errors of law asserted by Edwards being the failure to provide adequate reasons and the denial of natural justice. [110] Having referred to the principles relating to what is regarded as proper reasons for a decision above, it is for this appeal tribunal to assess the reasons given by the learned member in paragraphs [65] to [67]. [111] The complaint by Edwards regarding the adequacy of reasons is confined to the findings by the learned member that it was ‘sensible’ that the reinstatement of the damaged works be the subject of a new ‘scope of works’. The relevant issue is whether the reasons adequately set out the basis for the learned member’s reasons. [112] The learned member’s reasons at [67] cannot be read separately and apart from the other relevant passages from the reasons relating to the weather events. The learned member found that Edwards was satisfied that practical completion had been reached and that the damage from the weather events was a ‘separate issue’.37 The ‘separate issue’ is clearly a reference to the scope of works required to be performed under the contract. The learned member observed that Sovereign was required to insure the works and to maintain the insurance until practical completion. The learned member found that the contract did not provide for a situation where completed work was damaged or destroyed. He observed that it was not uncommon for construction contracts to provide for the liability of a builder to reinstate works after the settlement of an insurance claim. The learned member observed that in those circumstances the builder would be entitled to claim an extension of time. He noted that provision could be made in the contract for the insurance monies to be paid into a joint account pending reinstatement of the works. The learned member noted that in those 37 Reasons for the substantive decision [36]. -- 26 of 66 -- 27 circumstances the builder would only be entitled to recover the monies received from the settlement. [113] The reasons make tolerably clear that, in the absence of those types of provisions to which he referred, the learned member favoured a construction of the contract that did not oblige the builder to undertake the reinstatement works at least absent a ‘separate scope of works’. We will come shortly to what the learned member was referring to by a ‘separate scope of works’. At reasons [67] the learned member observed he had found that practical completion had occurred. The learned member found that Edwards had taken possession of the works and was aware of the insurance claim by Sovereign relating to the works and that the works would be attended to when the insurance claim was settled. We note that these latter findings are not appealed. [114] The reference by the learned member to ‘separate scopes of works’ must be read and understood in the context of his finding that practical completion had occurred. In these circumstances it is reasonably readily apparent that the learned member did not consider the works required to be undertaken as a result of the weather events were variation works under the subject contract. Such a finding would be inconsistent with the finding that practical completion had occurred. Seen this way, it is also reasonably readily apparent that the learned member’s reference to ‘separate scopes of works’ is a reference to the need for a separate contract to be entered into between the parties in respect of the building works relating to the weather events. It follows from the above analysis that in circumstances where the learned member found practical completion had been reached and that, on a proper construction of the contract, the works relating to the weather events were not within the contractual scope of works, a separate contract would be required to be entered into between the parties in respect of the weather event related works. We will address these issues further in considering ground of appeal 9. [115] Accordingly, we are satisfied that the learned member’s reasons are adequate in relation to his finding at reasons [67]. [116] Edwards submits that the learned member failed to provide procedural fairness to the parties by making a finding for which neither party contended. Edwards is referring here to the finding by the learned member that a new scope of works was required in respect of the weather related events. We do not accept this submission. Whether the works required to be carried out as a result of the weather events were within the scope of works under the contract was an issue well and truly alive in the proceedings below. It was an issue in relation to which both parties expected the learned member to make findings and a determination. Edwards cannot now complain that the learned member did so. [117] This ground of appeal has not been established. Error of Law – Ground 14 [118] By way of a preliminary matter in determining whether ground 14 of the appeal is sustainable, it is necessary to address Edwards’ application for leave to adduce new evidence. -- 27 of 66 -- 28 [119] Ground 14 of the ground of appeal provides: Subject to leave being granted to adduce fresh evidence in the form of a finding of the Development Tribunal dated 4 September 2018 setting aside the alternative solution approval and certification relied upon by the Member at [142] to [144] of the reasons such that there was an error of law to rely on that evidence. [120] The paragraphs relied upon in the member’s reasons for the substantive decision state: [142] Mr Blair believed AS3500.3 is irrelevant due to the National Construction Code (Alternative Solution) provision. [143] Finally in their point report, Mr Blair and Mr Kwan were asked whether the box gutter specifications had to be designed by a suitably qualified person (hydraulic engineer), whether a Form 15 was required to be provided before certifying the plans and/or whether a Form 16 ought to have been provided before certifying the building, as constructed. Mr Blair did not believe it was a box gutter and he understood that a certifier had issued a building approval and had provided an ‘Alternative Solution’. Mr Kwan believed the Code required the box gutter to be designed by a suitably qualified person, who would have provided a Form 15 certification that the design complied with AS3500 and, at completion, the installer would then have provided a Form 16 certifying installation in accordance with the certified design drawing. [144] In fact, a Form 15 – Compliance certificate for building design or specification dated 18 October 2017 has been provided by the Building Certification Group, based on an alternative solution for the gutter design, based on the hydraulic calculations of Neil Blair and Associates Pty Ltd. Mr Blair, in the course of cross-examination, stated that although the National Construction Code contemplated ‘alternative solutions’ should be approved prior to the event, in application, he said that it is very common for them to be approved, subsequently, as was the case here. [121] The evidence relied upon by the member therefore was the approval dated 19 October 2017. The purpose of the evidence was to assist the member in determining whether the box gutter had been constructed in accordance with an ‘approved alternative solution’. [122] Edwards has made two applications to the appeal tribunal for the consideration of fresh evidence.38 [123] The first application dated 14 December 2018 relates to material which came into existence on 4 September 2018,39 as a result of Edwards’ appeal to the Development Tribunal regarding the approval dated 19 October 2017. The material relied upon by Edwards is a determination by the Development Tribunal that the decision approving the alternate building solution for roof water drainage dated 19 October 2017 be set aside and that the Building Certification Group (‘BCG’) make a fresh decision based on the reasons provided by the Development Tribunal. 38 Application for miscellaneous matters dated 14 December 2018; Application for miscellaneous matters dated 12 July 2019. 39 Affidavit of Donald Edwards dated 12 December 2018, Attachment 10. -- 28 of 66 -- 29 [124] Edwards submits that the fresh evidence is relevant to determine whether the box gutter had been constructed by Sovereign in accordance with the contract and all legislative requirements and therefore impacted on the decision of the learned member as to whether the stage of Practical Completion had been met. [125] Edwards relies upon his affidavit dated 12 December 2018 which sets out the following salient facts: (a) A decision notice for the works comprising the gutters under the contract was first provided by BCG on 17 July 2014. The decision notice required that the gutters be fitted to comply with BCA Part 3.5.2 and AS3500. (b) The first development application decision notice for an ‘alternative building solution’ was provided by BCG (‘BCG first alternative solution decision’) on 19 October 2017. This decision approved the gutter system installed by Sovereign in September 2014. This notice was provided to Edwards by Sovereign two days before the hearing of the dispute between the parties. (c) On 8 November 2017, Edwards appealed the BCG first alternative solution decision to the Development Tribunal.40 (d) On 4 September 2018, the Development Tribunal allowed the appeal, set aside the decision approving the alternate building solution for roof water drainage dated 19 October 2017 and ordered that BCG remake the decision having regard to the reasons provided by the Development Tribunal no later than 2 October 2018.41 (e) On 2 October 2018, Mr Retell, on behalf of BCG, provided another development approval decision notice (‘the second alternative solution decision) which included the following: (i) a Form 15 prepared by Neil Blair, Sovereign’s hydraulic design expert; (ii) a rudimentary sketch of the gutter profile at one section of the gutters to support calculations; (iii) a plan from Sovereign identical to the one attached to the Decision with no dimensions or scale; (iv) a Statement of Reasons which addresses capacity and calculations of the gutter.42 (f) On 22 October 2018, Edwards appealed the decision notice dated 2 October 2018 being the second alternative solution decision.43 [126] On 10 July 2019, the Development Tribunal set aside the second alternative solution decision dated 2 October 2018. This fresh evidence, being the decision of the 40 Affidavit of Donald Edwards dated 12 December 2018 [7]-[21]. 41 Ibid [22]-[23]. 42 Ibid [24]. 43 Ibid [29]. -- 29 of 66 -- 30 Development tribunal dated 10 July 2019, is the subject of Edwards’ second application to introduce fresh evidence. [127] Edwards submits that the introduction of the fresh evidence is related to the determination of whether Sovereign had reached practical completion and whether Sovereign was entitled to issue a Notice of Practical Completion and a final claim for the practical completion stage as at 11 December 2014. [128] Edwards submits that as at 11 December 2014: (a) the box gutter had not been constructed according to the contract including the plans and specifications; (b) there was no alternative solution in existence; (c) the doctrine of substantial performance did not apply; (d) accordingly, the practical completion stage of the works had not been met. [129] It is Edwards’ case that as at the date of the second application to adduce fresh evidence, namely 12 July 2019, no valid alternative solution existed for the construction of the box gutter and accordingly the same applies as at the Date of Practical Completion determined by the learned member. [130] It follows, according to Edwards, that had the learned member had notice of the fresh evidence, which was not available at the time of the hearing, the member would not have reached the conclusions reached in regard to the Date of Practical Completion. [131] Sovereign submits: (a) as at the date of Sovereign’s written submissions dated 12 September 2019, provided in accordance with directions of this appeal tribunal dated 5 August 2019, the box gutter is approved;44 (b) a new approval dated 22 August 2019 was provided to Edwards on 22 August 2019;45 (c) the facts remain, the alternative solution for the box gutter has been approved; (d) Edwards’ conduct between the date of the hearing before the learned member and the date of the hearing of the appeal and subsequently has consisted of applications to the Development Tribunal to challenge an uncontested fact which Edwards did not like at trial in order to support an argument that Practical Completion was not reached (and has not been reached); (e) Edwards has been compensated in the member’s reasons for the substantive decision for any damage arising from the construction of the box gutter. These damages are not the subject of the appeal; 44 Affidavit of Paul Evans dated 28 August 2019. 45 Ibid annx “PWE1”. -- 30 of 66 -- 31 (f) Edwards has acted in a manner aimed at defeating the performance of the contract by Sovereign, post hearing, in seeking to have an approved structure unapproved; (g) no challenge to the approval in evidence at the hearing before the learned member was made at the hearing; (h) the evidence submitted by Edwards to be ‘fresh evidence’ is not in fact ‘new evidence’ or ‘fresh evidence’ but evidence which has come about by the calculated and deliberate actions of Edwards designed to overcome a fact that existed at the hearing which was adverse to Edwards; (i) to allow evidence of the kind proposed by Edwards would encourage litigants to sit back and not challenge certain evidence on the basis that the evidence could be challenged at a later stage in another forum and then re-introduced into the hearing of the dispute between the parties; (j) the existence or otherwise of approval of the box gutter does not alter the finding of the learned member that practical completion had been reached; (k) both applications for fresh evidence relate to a ground relied upon by Edwards in relation to an error of law. Thus no fresh evidence can be admitted in support of an appeal on a question of law only. [132] Section 146 of the QCAT Act governs an appeal on a question of law only and confers on an appeal tribunal its powers in an appeal on a question of law: 146 Deciding appeal on question of law only In deciding an appeal against a decision on a question of law only, the appeal tribunal may – (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration – (i) with or without the hearing of additional evidence as directed by the appeal tribunal; and (ii)with the other directions the appeal tribunal considers appropriate; or (d) make any other order it considers appropriate, whether or not in combination with an order made under paragraphs (a), (b) or (c). [133] Section 147 deals with appeals on questions of fact or mixed law and fact: 147 Deciding appeal on question of fact or mixed law and fact (1) This section applies to an appeal before the appeal tribunal against a decision on a question of fact only or a question of mixed law and fact. -- 31 of 66 -- 32 (2) The appeal must be decided by way of rehearing, with or without the hearing of additional evidence as decided by the appeal tribunal. (3) In deciding the appeal, the appeal tribunal may - (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter to the tribunal or other entity who made the decision for reconsideration. [134] An appeal on a question of law must relate to an error of the tribunal member in the application or interpretation of a legal principle. [135] In contrast to section 147, section 146 does not suggest any element of rehearing or power to receive additional evidence. This has been stated by the Court of Appeal in Ericson v Queensland Building Services Authority.46 [136] Holmes JA sets out the powers of the appeal tribunal in determining a question of law only:47 [25] As has already been pointed out, the appeal tribunal purported to proceed with the appeal as one limited to questions of law, so that its powers were those conferred by s 146 o the Queensland Civil and Administrative Tribunal Act. That provision enabled the appeal tribunal, if setting aside a decision, either to substitute its own decision or to remit the matter to the tribunal which made the appealed decision for further consideration. Plainly, it is only if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour that the appeal tribunal will be in a position to substitute its own decision. Section 146, as already noted, does not entail any re-hearing of the matter, whether on the evidence below or on fresh evidence. [26] The appeal tribunal’s decision in the negative of the questions whether the suspension decision could be reviewed and whether the member’s construction of the Financial Requirements for Licensing was correct could not determine the outcome of the applicant’s application for review of the exercise of discretion to cancel his licence. That could only be done on a consideration of all the evidence, with appropriate findings of fact and a fresh exercise of discretion. All of that might have occurred had the appeal tribunal been proceeding under s 147. … [28] If the appeal tribunal were to act under s 147 so as to substitute its own finding on the facts and its exercise of discretion for the member’s decision, it was necessary for it to say as much and to give reasons for exercising the discretion against the applicant. As it happened, the tribunal did not address any factual matter beyond the failure to meet the Financial Requirements, the premise which enlivened the discretion. The applicant’s argument that the appeal tribunal if exercising the discretion had to take into account “the facts, matters and circumstances” behind the cancellation of his licence is correct; the circumstances in which his business failed to meet the Financial Requirements 46 [2013] QCA 391, [13] per Holmes JA. 47 Ibid [25]-[26], [28]. -- 32 of 66 -- 33 were relevant, although not necessarily a decisive, consideration. But the real difficulty is that the tribunal, while setting aside the member’s exercise of discretion, did not itself exercise any discretion. [137] In Ericson v Queensland Building and Construction Commission,48 Holmes JA further confirmed that the appeal tribunal has no power under s 146 to conduct a rehearing so as to reach its own conclusions on the evidence. [138] An appeal on a question of law is an appeal in the strict sense. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.49 [139] As a preliminary conclusion it must follow that an application to adduce fresh evidence cannot be made in relation to a ground of appeal relating to an error of law only.50 [140] It is therefore the task of this appeal tribunal to consider ground 14 and to determine the question of law without conducting a rehearing so as to reach its own conclusion on the evidence. [141] In carrying out the task of determining whether there was an error of law, the appeal tribunal must be mindful that if the determination of the question of law does not result in the appeal in its entirety being resolved in Edwards’ favour (and assuming that the appeal is not conducted by way of rehearing on a question of fact or mixed law and fact consequent upon a grant of leave) the matter must be remitted to the tribunal for reconsideration. [142] It is only on an appeal on a question of fact or mixed law and fact pursuant to s 147 can this appeal tribunal undertake a consideration of all the evidence, including fresh evidence (if leave is granted for its introduction), with appropriate findings of fact and a fresh exercise of discretion. [143] There is no basis for proceeding under s 147 in relation to ground 14. No leave has been sought and no error of mixed law and fact has been identified as the basis for a decision by this appeal tribunal to re-hear the matter under s 147. [144] Despite extensive written submissions in relation to the applications for admission of fresh evidence, no submissions have identified an error of fact or mixed law and fact as the basis for the decision to re-hear the matters pertaining to ground 14 under s 147. [145] The applications for the consideration of fresh evidence by the appeal tribunal are refused. [146] Given that the error in relation to ground 14 is premised on the further evidence being considered, there is no necessity for us to consider ground 14 any further. [147] By way of observation, we consider that whilst the ground of appeal is not expressed particularly clearly, it seems that the error is said to be that there was no evidence 48 [2014] QCA 297. 49 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194. 50 Bakir v Body Corporate for Chevron Renaissance & Tran [2016] QCATA 33. -- 33 of 66 -- 34 before the member regarding the alternative solution approval given the Form 15 having been subsequently set aside. Therefore the argument would be that there was ‘no evidence’ before the member on which a determination could have been made. Accordingly, it follows that Edwards’ argument raises an error of law. [148] The argument relating to ‘no evidence’ only arises if the further evidence is allowed. Accordingly, we are satisfied that the member correctly relied upon all the evidence before him and that no error of law has been established. Errors of Fact and Law [149] The errors of fact and law relied upon by Edwards are set out in grounds 2, 3, 5, 6, 7, 8, 9, 11, 12, 13 and 18 of the grounds of appeal. [150] The grounds may be grouped as follows: (a) the findings in relation to the box gutter; (b) the findings in relation to practical completion; (c) the assessment of damages. [151] The submissions by Edwards traverse matters beyond those identified in the grounds of appeal. Accordingly, we confine our consideration to the submissions as they relate to the identified grounds. The box gutter – Grounds 11, 12 and 13 [152] Grounds of appeal 11, 12 and 13 relate to the box gutter. [153] The issues regarding the box gutter took up a great deal of the hearing below and were central to Edwards’ argument that the works had not reached practical completion. It is therefore appropriate to deal with the grounds of appeal relating to the box gutter first. [154] The gutter in question was situated where the existing residence joined the newly constructed extension. The evidence below was that Edwards’ principal concern was whether the performance of the gutter was adequate to deal with a significant rain event. [155] The gutter was referred to as a box gutter in the specifications and as a tapered gutter in the plans. The learned member observed in the reasons that, throughout the evidence, ‘the term “box gutter” was used sometimes in a very general sense and, at other times, as referring technically to a box gutter design’ and that this was required to “be borne in mind when reviewing the evidence”.’ [156] The learned member dealt with the gutter at reasons [116] to [158]. The genesis of the issues relating to the gutter was a change in design during construction and the absence of any communication between Sovereign and Edwards before the construction of the gutter. The learned member stated: [127] The project manager, Mr Marshall, in his affidavit referred to discussions with Stephen Nugent about the design of the box gutter system and how awkward in appearance the large apron would appear and how the join in the -- 34 of 66 -- 35 flashing within the gutter tray, that would be required to give its width, would be a potential problem for the gutter to leak. As a consequence of further discussions, between Mr Nugent and Andre Maul, it was proposed that the details of the gutter system be changed which would result in a similar or better outcome while still meeting Mr Edwards’s requirements that the gutter exceed the Q100 capacity. Unfortunately, this was not discussed with Mr Edwards. [128] Mr Marshall says Mr Edwards was well aware of the changes proposed by Sovereign to the box gutter prior to such work being carried out and completed, and, at no stage, did he inform Mr Marshall that he was not agreeable to such changes. Under cross examination, it became apparent, that Mr Marshall made this assertion on what he was allegedly told by others. He agreed that the email from Mr Edwards of 28 August 2014 was inconsistent with Mr Edwards having such knowledge. I find as a fact, that Mr Edwards was not aware of the changes prior to them being made. [157] The evidence of Sovereign’s director, Mr Firrell, was that the design of the box gutter on the plans was intended to be indicative only. His evidence was that the as- constructed gutter was required to achieve a minimum of Q100 rainfall event capacity if required. The reference to Q100 is a reference to an event that has a 1 in 100 (or 1%) chance of occurring or being exceeded in any one year. [158] Of particular significance in the proceedings below was whether the gutter, as- constructed, complied with the National Construction Code (Alternative Solution) provision. We have referred to this issue earlier in these reasons in addressing ground of appeal 14 and the application by Edwards to rely upon fresh evidence. [159] It is implicit in the learned member’s reasons, although he did not expressly make the finding, that the as-constructed gutter was an alternative solution under the National Construction Code. This much is clear from the finding by the learned member at [133] that ‘Mr Edwards acquiesced in the ‘alternative arrangement’ under the National Building Construction Code and accepted the changes as evidenced by him accepting that Practical Completion had been achieved’. [160] It is against this background that we turn to consider the grounds of appeal relating to the box gutter. [161] Ground of appeal 11 asserts that the learned member erred in law and in fact in finding that the gutter to be installed was not intended to fit the description of ‘box gutter’. At reasons [132] the learned member stated: [132] It was submitted on Mr Edwards’s behalf that the Building Approval contained the following: 1. Gutters, Downpipes and Box gutters (if applicable) shall be fitted to comply with BCA, Part 3.5.2 and AS3500. It is then submitted that Sovereign had an obligation to install box gutters that met that regulatory requirement. The obligation depends upon the gutter being installed being a box gutter. As I have found, I do not consider that the gutter, to be installed, necessarily, was intended to fit the description of ‘box gutter’. [162] While the learned member refers to ‘(a)s I have found …’, it is not immediately apparent from the reasons that any earlier finding regarding the box gutter was made although the learned member states at reasons [116] ‘(t)hrough the oral and written -- 35 of 66 -- 36 evidence, the term “box gutter” was used sometimes in a very general sense and, at other times, as referring technically to a box gutter design’. This was, in our view, an appropriate summation of the evidence and is not challenged in this appeal. [163] The learned member found in relation to the gutter that: (a) on the plans, the gutter was described not as a box gutter but rather as a tapered gutter;51 (b) a perusal of the plans supported the assertion by Mr Flatley that the gutter, as designed, was not in the shape of a box gutter;52 (c) clause 13.6 of the contract provided that in the case of discrepancy or error in documentation, the specifications take precedence over the plans.53 [164] The specifications provided for the installation of ‘… box gutters with ply support sump and overflow provisions included to Level 2 and 3 roof intersections as per plan’.54 [165] The evidence of Mr Firrell was that the terminology of a box gutter was generalised as an ‘internal gutter’.55 Mr Firrell’s evidence was that a gutter could be an eaves gutter, a valley gutter or a box gutter and that what was constructed was a box gutter.56 Mr Marshall’s evidence was that a box gutter could take different shapes.57 The evidence of Mr John Flatley, Sovereign’s design manager,58 was that the gutter, as installed, was a box gutter.59 Mr Flatley said that the plans indicated a different shaped box gutter but not a different style of gutter.60 [166] The experts, Mr Ray, Mr Boyle, Mr Blair, Mr Carpenter and Mr Kwan gave their evidence at the hearing concurrently. Mr Carpenter did not accept that the gutter as- constructed was a box gutter. Mr Kwan stated, ‘call it whatever gutter you like, box gutter or V-gutter or whatever shape you’re talking about’.61 Mr Blair referred to ‘box gutter, V gutters, whatever you want to call them …’.62 [167] At [137] of the reasons the learned member referred to the evidence of Mr Blair that the term ‘box gutter’ would have been used as a general term for consumer understanding, not strictly as the shape of a box section. The learned member found: [137] …. (Mr Blair) said, further, that the term is used to emphasise the difference between a gutter that is inboard of a parapet, or abuts a wall - in contrast to an eaves gutter attached to a fascia. He said the box gutters can take many shapes and sizes and are not all square or rectangular. Mr Kwan says that the builder failed to follow the contractual drawings and specifications which 51 Reasons for the substantive decision [117]. 52 Ibid [119]. 53 Ibid [120]. 54 Specifications dated 30 June 2014, cl 14(b). 55 T1-51, lines 2-3. 56 Ibid lines 4-5. 57 T1-81, lines 4-5. 58 Affidavit of John Flatley dated 15 March 2017. 59 T2-46, line 11. 60 T2-51, lines 26-27. 61 T2-70, lines 22-23. 62 T2-78, line 28 -- 36 of 66 -- 37 use the term ‘box gutter’. I note that it is only the specifications that refer to ‘box gutter’.63 [168] As the learned member correctly observed, the reference to box gutter was found only in the specifications. The evidence before the learned member was that the plans were indicative only and, in relation to the box gutter, would remain so until it could be ascertained how the gutter could be constructed.64 [169] It seems to us that in finding that the gutter to be installed was not necessarily intended to fit the description of ‘box gutter’ the learned member was drawing a distinction between ‘box gutter’ as the term is used in a technical sense and as the term is generally understood in a broader sense. This is apparent from the reasons at [137] and the learned member’s consideration of the evidence of Mr Blair. It is of note that the learned member clearly preferred the evidence of Mr Blair who was of the opinion that the gutter as-constructed satisfied the alternative solution provision of the National Construction Code. [170] When the evidence is considered in this context it is clear that it was open to the learned member to make the finding that the gutter to be installed was not necessarily intended to fit the description of ‘box gutter’ as the term is used in a technical sense. [171] Ground of appeal 11 is not made out. [172] Ground of appeal 13 asserts that the learned member erred in finding: [149] In my opinion, the gutter, as built, meets the requirements of Mr Edwards that the gutter meet a Q100 weather event. After his initial query it does not seem to have been an issue until the relationship between Mr Firrell and Mr Edwards broke down irretrievably. It was not raised at the time of Practical Completion.65 [173] The ground of appeal asserts that the error by the learned member was one of fact and law in finding that the evidence before him was that the gutter, as built, met the requirements of Edwards that the gutter meet a Q100 weather event or implicitly that it met the contract specifications. [174] The learned member stated: [131] John Flatley emailed Mr Edwards on 4 September 2014 with the box gutter size calculations and attached tables and an explanation of how the calculations were made. Mr Flatley concluded the email with the comment: ‘Therefore the box gutters are more than adequate for the Q100’. Cross examined on this document Mr Edwards admitted that he did not respond to the email, his explanation being, that he did not understand it. However, he did not seek an explanation from Mr Flatley. He said he did not understand what was meant by Q100 but added ‘something about an event every - every 100 years and - and they seemed to happen more often than not these days.’ I do not accept that Mr Edwards, at the time, did not understand the email or what Q100 was intended to convey. 63 Reasons for the substantive decision [137]. 64 T2-26, lines 2-4. 65 Reasons for the substantive decision [149]. -- 37 of 66 -- 38 [132] It was submitted on Mr Edwards’s behalf that the Building Approval contained the following: 1. Gutters, Downpipes and Box gutters (if applicable) shall be fitted to comply with BCA, Part 3.5.2 and AS3500. It is then submitted that Sovereign had an obligation to install box gutters that met that regulatory requirement. The obligation depends upon the gutter being installed being a box gutter. As I have found, I do not consider that the gutter, to be installed, necessarily, was intended to fit the description of ‘box gutter’. [133] However, I find that Mr Edwards acquiesced in the ‘alternative arrangement’ under the National Building Construction Code and accepted the changes as evidenced by him accepting that Practical Completion had been achieved. If the guttering was such a big issue, then I would have expected it to be raised at the meeting with Mr Marshall. [175] The ‘meeting with Mr Marshall’ is clearly a reference to the meeting on 11 December 2014 when the Certificate on Practical Completion was signed by Edwards and Mr Marshall. Edwards says that he could not have acquiesced in the ‘alternative arrangement’ because as at the date of practical completion no Alternative Solution had been approved and no-one had raised the prospect of an Alternative Solution at that time.66 [176] The ‘changes’ referred to by the learned member at reasons [133] were those relating to the redesigned, as-constructed, gutter. It was the gutter as redesigned and constructed that was the subject of the Alternative Solution. Relevant to ground of appeal 13 is the evidence before the learned member as to the state of knowledge of the parties regarding the redesigned, as-constructed, gutter. [177] The principal focus of Edwards’ submissions in relation to this appeal ground is the process of approval in relation to the gutter in the months and years after completion. We have addressed the approval of the alternative solution earlier in these reasons in the context of the application by Edwards to adduce fresh evidence. [178] Edwards’ evidence about the box gutter was that: (a) he first raised the issue of the box gutter with Sovereign on 29 August 2014;67 (b) on 3 September 2014 he discussed the gutter with ‘Andre the roofer’ when he attended at the site and was assured that a box gutter would be installed;68 (c) on 4 September 2014 the box gutter was reinstalled by Sovereign.69 [179] The email of 29 August 2014 sent by Edwards to, inter alia, Mr Flatley, Mr Firrell and Mr Marshall, stated: The box gutters were installed yesterday by Andre. Photos attached. 66 Edwards submissions dated 14 December 2018, [60]-[61]. 67 Ibid [70]; Reasons for the substantive decision [121]. 68 Supplementary statement of evidence of Donald Bruce Edwards dated 22 February 2017, [10]. 69 Ibid. -- 38 of 66 -- 39 They don’t appear to be consistent with the plan (width, height where they flare from up the valley), nor the discussion with John and John in the preparatory stages of the project. … The reason for the wide box gutters was to address out concerns that there was absolutely no way water could back up in the heaviest of storms – hence the width as outlined in the plans and the ply underlay to protect. Not sure what happens from here but would like some advice in the first instance including how it is proposed the current box guttering and roof tiling will be completed. [180] Attached to the email was a table relevant to AS/NZS 3500.3:2000 setting out the various sizes of box gutter required in relation to potential water flow and diagrams of cross sections of the gutter. [181] Mr Flatley gave evidence that he sent an email to Edwards on 4 September 2014 in which he set out design details, highlighting the ability of the box gutter capacity to achieve a two times factor for a Q100 storm. The email included Mr Flatley’s calculations and the sizes of the gutter.70 It is appropriate to refer to the text of the email in full: Hi Don I have finally had some success regarding box gutter size calculation. To determine a box gutter size we need to know Brisbane rainfall intensity for Q100 & roof catchment area. Brisbane’s Q100 rainfall intensity is 330mm/hr and the roof catchment area is 36 Sqm. To arrive at a box gutter using the attached table we need to do a calculation to arrive at a Design Flow Q(L/s). To arrive at this we need to do the following calculation – (Catchment Area x Rainfall Intensity) divide 3600(sec) therefore (36 x 333) divide by 3600 = 3.3 (L/s) Now refer to attached table and in this case we will use a Flow of 4 (L/s). It then gives 3 gutter size options. … The box gutter running east/west is 88000mm2 and the gutter running north/south is 50000mm2. Therefore the box gutters are more than adequate for the Q100.71 [182] The evidence of Mr Flatley was that he attached the table to demonstrate to Edwards that what had been constructed ‘greatly exceeded the National Construction Code bare minimum … if you were to go down the deemed-to-satisfy route of that document’.72 70 Supplementary statement of evidence of Donald Bruce Edwards dated 22 February 2017 [19]. 71 Affidavit of John Flatley dated 15 March 2017, exh JAF-03. 72 T2-42, lines 39-41. -- 39 of 66 -- 40 The diagram attached to the email was a cross section of the as-constructed gutters drawn by Mr Flatley after he measured the profile of the gutter.73 [183] Mr Flatley’s evidence was that after sending the email of 4 September 2014 there was no further communication from Edwards regarding the box gutter and Mr Flatley considered the issue of the box gutter to have been resolved.74 [184] The evidence of Edwards was that he did not understand the contents of the email of 4 September 201475 although he did not communicate his lack of understanding to Mr Flatley.76 [185] The finding that Edwards acquiesced in the alternative box gutter design was an inference drawn by the learned member. An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts.77 The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. Whether any facts support the inference is a question of law. Drawing a wrong or impermissible inference from found facts is an error of law. Whether a different inference is available on the facts is a question of fact. There is no appellable error if there is more than one possible conclusion supportable by the same body of evidence and the inference or conclusion is within the permissible range of alternatives.78 [186] In our view it was open to the learned member, on the facts, to draw the inference that Edwards acquiesced in the alternative box gutter solution. Edwards raised the issue regarding the box gutter as soon as he formed the view that the gutter had not been constructed in accordance with the contract. Sovereign promptly arranged for Mr Flatley to investigate. Less than one week later, Mr Flatley had inspected the works and ascertained that the box gutter would perform adequately. Edwards’ evidence was that he did not understand the explanation provided by Mr Flatley in the email of 4 September 2014. Notwithstanding this, and despite Edwards’ very specific concerns about the ability of the box gutter to cope with rainfall events, Edwards sought no clarification from Mr Flatley or from anyone else at Sovereign regarding the alternative gutter construction. At the meeting on 11 December 2014 and before the Certificate on Practical Completion was signed by Edwards and Mr Marshall, Edwards did not raise any issue regarding the gutter. Edwards was concerned that the gutter would properly function in the heaviest of storms.79 Mr Flatley had assured Edwards that the as-constructed gutter met Edwards’ requirements. All of these facts are consistent with, and support the inference, that Edwards acquiesced in the alternative solution. [187] Of course it may be argued that Edwards’ failure to further agitate the issues about the gutter after receiving the email of 4 September 2014 was the result of his not understanding what had been communicated to him. This was certainly Edwards’ 73 T2-42, lines 33-35. 74 Affidavit of John Flatley dated 15 March 2017, [20]. 75 T3-41, line 36. 76 Ibid line 42. 77 G v H [1994] HCA 48. 78 Crosthwaite v Dewit [2017] QCATA 91. 79 Reasons for the substantive decision [121]; Email from Edwards to Flatley dated 29 August 2014. -- 40 of 66 -- 41 evidence. However the learned member did not accept that Edwards did not understand the contents of the 4 September email.80 This finding is not appealed. [188] The evidence before the learned member was that ‘Q100’ is a reference to a one in a hundred years storm.81 Mr Blair’s evidence was that the as-constructed gutter was above the Q100 standard.82 Mr Flatley’s evidence was that the capacity of the gutter as-constructed achieved a two times factor for a Q100 storm.83 It was open to the learned member to accept the evidence of Mr Blair and Mr Flatley. [189] There was no error by the learned member in finding that Edwards acquiesced in the alternative arrangement in respect of the box gutter nor was there any error by the learned member in finding that the gutter met a Q100 weather event. [190] One final issue must be addressed before we leave the grounds of appeal relating to the box gutter. Ground of appeal 13 asserts that it was implicit in the finding by the learned member that the gutter as installed met a Q100 weather event, that the gutter met the contract specifications. It is sufficient to observe that there is nothing in the reasons to suggest or support the implication asserted by Edwards. [191] Grounds of appeal 11, 12 and 13 are not made out. Practical completion – Grounds 2, 3, 5, 6 and 9 [192] Grounds of appeal 2, 3, 5, and 6 relate to the learned member’s findings about practical completion:- (a) Ground 2 – the learned member erred in law and in fact in finding at [36] of the reasons for the substantive decision that Edwards was satisfied that practical completion had then been reached. (b) Ground 3 – the learned member erred in law and in fact in finding at [36] of the reasons for the substantive decision, that Edwards signed the form, being the Certificate on Practical Completion, on 11 December 2014 and in so doing accepted the box gutter design change issue. (c) Ground 5 – the learned member erred in law and in fact in finding at [43] of the reasons for the substantive decision that practical completion had been reached on 11 December 2014 pursuant to clause 24.9 of the contract. (d) Ground 6 – the learned member erred in law and in fact in finding in [44] of the reasons for the substantive decision that clause 25 of the contract had not been complied with and in failing to find that Sovereign permitted Edwards to take possession of the works prior to practical completion having in fact occurred. [193] Though not strictly an appeal ground relating to the learned member’s findings about practical completion, appeal ground 9 is conveniently dealt with here. Edwards asserts that the learned member erred in law and in fact in failing to find that clause 16.1 of the contract enabled Sovereign to seek a reasonable extension of time for any 80 Reasons for the substantive decision [131]. 81 T2-55, line 25. 82 T2-78, line 32. 83 Affidavit of John Flatley dated 15 March 2017, [19]. -- 41 of 66 -- 42 claimable delay described in clause 16.2 and that Sovereign could have made, but failed to make, such a claim. [194] Relevant to these grounds of appeal are the following passages from the reasons: [36] In my opinion, Mr Edwards, at the time of signing, was satisfied that practical completion had been reached and that the damage from the weather events was a separate issue. I am also of the opinion that he had accepted the box gutter design which, subsequently, became such a significant issue in these proceedings. The only other explanation for his conduct is that he knowingly signed the Certificate with no intention of paying the final claim, for some ulterior motive. … [43] I find, as a fact, that practical completion was reached on 11 December 2014 pursuant to Clause 24.9 of the Contract. That disposes of the claim for damages by Mr Edwards for delay based on the claim that practical completion had not been reached. [44] Alternatively, I find that Mr Edwards and his family took possession of the Works. Mr Marshall, at the time of the meeting observed that beds had been set up in the various bedrooms not just mattresses as asserted by Mr Edwards. Mr Edwards says it occurred after the hail event but it seems that they had moved into the works by middle December at least. Ms Ogilvie stated that she moved the children in just before Christmas 2014. Clause 25 provides the circumstance by which the owner can take possession of the Works. It has not been complied with in this case. [195] Grounds of appeal 2 and 3 relate to what Edwards says was error by the learned member in finding that Edwards was satisfied that practical completion had been reached at the time he signed the Certificate on Practical Completion and that in so doing he accepted the change in the box gutter design. [196] The essence of Edwards’ submissions in relation to these grounds of appeal is that practical completion could not have been reached firstly, because the remedial works relating to the effects of the weather events had not been completed and secondly, the box gutter had not been constructed in accordance with the terms of the contract. [197] Relevant to these grounds of appeal is Edwards’ submission that there was no evidence to support the learned member’s finding that the damage as a result of the weather events was a separate issue to the issue of whether the works had reached practical completion. [198] We pause here to observe, in relation to ground of appeal 2, that the relevant finding by the learned member was that Edwards was satisfied practical completion had been reached. This was a finding of fact. Similarly, in relation to appeal ground 3, the finding that in signing the Certificate on Practical Completion, Edwards accepted the changed gutter design, was also a question of fact. To some extent, the issues relevant to grounds 2 and 3 overlap with the issues relevant to grounds 11, 12 and 13. [199] It is necessary to consider the evidence before the learned member. -- 42 of 66 -- 43 [200] It was Sovereign’s case that practical completion occurred on 11 December 2014.84 The evidence of Mr Marshall was that: (a) Mr Marshall and Edwards, inspected the works on 11 December 2014; (b) after the inspection was completed, Mr Marshall, Edwards and Ms Ogilvie sat at the dining room table at which time Mr Marshall recorded minor defects on the practical completion list; (c) both parties then signed the Certificate on Practical Completion.85 [201] Edwards agreed the Certificate on Practical Completion was signed, however he denied there had been an inspection of the works.86 Edwards’ evidence was that he signed the Certificate following a conversation with Mr Marshall which led Edwards to understand that he could still negotiate on the final claim.87 Mr Marshall’s evidence was that no such conversation took place and that no assurance was given by him to that effect.88 [202] Edwards’ evidence at the hearing below was that when he signed the Certificate on Practical Completion he did so only on the basis that he was signing a payment authority which was in fact not relevant to the transaction as Edwards was not borrowing money.89 It was put to Edwards by Sovereign’s counsel that Edwards had not previously given evidence to this effect in his signed statements. Edwards did not dispute this.90 [203] There was evidence before the learned member that Edwards declared, when lodging a complaint with the Queensland Building and Construction Commission (‘QBCC’) regarding the works undertaken by Sovereign, that practical completion had been reached on 11 December 2014.91 [204] The evidence of Edwards was that the issues surrounding the weather damage existed at the time practical completion was claimed by Sovereign and ‘could hardly be considered minor’.92 [205] The learned member accepted the evidence of Mr Marshall in contrast to that of Edwards and Ms Ogilvie about what transpired at the meeting on 11 December 2014. It is not an error to prefer the evidence of one witness rather than another if there is a rational and reasonable basis for so doing. It was open to the learned member to accept that on 11 December 2014 an inspection of the works was undertaken by Mr Marshall and Edwards, following which the Certificate on Practical Completion was signed. It was open to the learned member to prefer the evidence of Mr Marshall that no discussion took place whereby Edwards signed the Certificate on the basis that he would still be entitled to dispute the final payment. In so concluding it is apparent that the learned member accepted that Edwards signed the Certificate on Practical 84 T1-11, line 17. 85 T1-77, lines 15-19. 86 T3-16, lines 20-24; T3-17, line 5. 87 T3-17, line 18. 88 T1-92, line 28. 89 T3-17, lines 17-22. 90 Ibid lines 40-42. 91 QBCC Initial Inspection Report dated 11 April 2016. 92 Statement of evidence of Donald Bruce Edwards dated 2 June 2016, [82]. -- 43 of 66 -- 44 Completion without any suggestion, or assertion by him, that he was reserving his rights in relation to any contractual defects or omissions. [206] In his evidence below, Edwards sought to distinguish between printing his name on the Certificate on Practical Completion and signing that part of the document headed ‘Payment authority’.93 Edwards’ evidence was that he signed the document only when asked to do so by Mr Marshall and despite his protestation that it was not necessary to do so as the build was not financed.94 Edwards accepted that he had not given this evidence in his earlier statements. Notwithstanding that the point was not raised at the hearing, we would observe that this late evidence by Edwards was potentially prejudicial to Sovereign in the absence of re-calling Mr Marshall. In any event, it strains credulity to accept the evidence of Edwards that he merely printed his name on the Certificate on Practical Completion, presumably to signal that he was not ‘signing’ the document, and affixed his signature only in respect of the payment authority. This is particularly so given Edwards’ evidence that the payment authority was irrelevant. [207] We agree with the learned member’s observation at [33] of the reasons. Just why Edwards signed the Certificate when he knew that the works relating to the weather events had not been completed was not explained by Edwards in his evidence. [208] In our view the findings by the learned member at [36] of the reasons are in effect an inference. In our view, taking into account the foregoing analysis, it was open to the learned member to make the relevant findings in his reasons. [209] Ground of appeal 2 is not made out. [210] For the reasons we have set out in relation to ground of appeal 2, and grounds of appeal 11, 12 and 13, there was no error by the learned member in finding that in signing the Certificate on Practical Completion, Edwards accepted the change in the box gutter design. Ground of appeal 3 is not made out. [211] Turning to ground of appeal 5, Edwards says the learned member erred in finding that practical completion had been reached on 11 December 2014 pursuant to clause 24.9 of the contract. Central to this ground is the submission by Edwards that the mere submission of a claim that the practical completion stage had been reached did not entitle Sovereign to be paid nor did it trigger the consequences of clause 24.9 of the contract. In this regard Edwards relies upon the decisions in Macquarie Homes Queensland Pty Ltd v Edge95 and Partington v Urquhart (No 2).96 [212] In Macquarie Homes the former Queensland Building Tribunal stated that the submission by the builder of a Progress Payment Certificate or demand for payment of a particular stage did not automatically entitle the builder to payment of the amount claimed. [213] In Partington the QCAT appeal tribunal affirmed the statement in Macquarie Homes. The appeal tribunal rejected the argument that the doctrine of substantial performance had application to progress payments. In doing so the appeal tribunal referred to the 93 T3-14, lines 39-40. 94 T3-17, lines 17-21. 95 [1996] QBT 66. 96 [2018] QCATA 120. -- 44 of 66 -- 45 decision in Thompson Residential. Notwithstanding that substantial performance was not argued in the present case, the reference to the application of the doctrine in both Thompson Residential and Partington highlights why those cases can be distinguished. [214] Unlike in Macquarie Homes, Partington and Thompson Residential, the present dispute relates to the practical completion stage and the final claim. There is a clear and important distinction to be drawn between, on the one hand, the completion of a building stage (before practical completion) and payment for that stage and, on the other, practical completion and the final claim. [215] In Thompson Residential and in Partington, the relevant contractual provision did not allow for the homeowner to claim a set off in respect of the relevant progress claim. McGill DCJ stated in Thompson Residential:97 [71] In the circumstances it seems to me clear that this clause on its true construction provides a condition precedent to payment of the progress payments, at least in respect of all of them except the last, so that the approach adopted by Samuels JA in HDFI is applicable. The doctrine of substantial performance does not apply. (emphasis added) [216] Three points need to be made here. Firstly, the present matter involved practical completion and the final claim. Secondly, by clause 4.8(b) of the contract between Edwards and Sovereign, Edwards had a right of set off in respect of the final claim. Thirdly, unlike in respect of claims for progress payments (other than the final claim), the contract stipulated certain consequences flowing from the Certificate on Practical Completion in respect of deeming the Date of Practical Completion which in turn triggered obligations on Edwards in respect of the payment of the final claim. [217] The learned member found, as a fact, that practical completion had been achieved on 11 December 2014 pursuant to clause 24.9 of the contract. We are satisfied that there was no error by the learned member in finding that a Notice of Practical Completion had been given by Sovereign as required by clause 24.2 of the contract. We are satisfied that there was no error by the learned member in finding that Edwards signed the defects document as stipulated in clause 24.4 of the contract. The evidence before the learned member was that, after signing the Certificate on Practical Completion, Edwards first communicated complaints about the building works in an email to Sovereign on 5 January 2015. This was clearly not within the 5 business days stipulated by clause 24.5 of the contract by which Edwards was required to give a notice communicating his belief that practical completion had not been reached. Accordingly, there was no error by the learned member in finding that practical completion had been reached on 11 December 2014 in accordance with clause 24.9 of the contract. [218] Ground of appeal 5 is not made out. [219] Ground of appeal 6 relates to the finding by the learned member at [44] of the reasons that Edwards and his family took possession of the works absent compliance with clause 25 of the contract. Clause 25.1 of the contract provided that the owner was not entitled to take possession of the works until the contractor had been paid the contract price. Clause 25.2 provided that the builder could permit the owner to take possession 97 Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132, [71]. -- 45 of 66 -- 46 of the works prior to practical completion however this did not reduce the liability of the owner to pay the outstanding balance of the contract price. Clause 25.3 dealt with breaches by the owner of clause 25.1. [220] Sovereign’s case below was that Edwards took possession of the works in breach of clause 25.1. Under the contract, Sovereign was entitled to either treat Edwards’ actions as a repudiation of the contract and to accept that repudiation; give Edwards a notice to remedy breach of contract; accept Edwards’ actions as a variation to omit that part of the works not carried out and completed as at the date of the breach. [221] Sovereign did not exercise any of the contractual entitlements stipulated by the contract. [222] For present purposes, consideration must be given to what the contract did not stipulate. Importantly, the contract did not provide that early possession of the works by Edwards without Sovereign’s consent resulted in practical completion being deemed. [223] The learned member appears to have found that practical completion was deemed to have been reached by mid December 2014 when Edwards went into early possession of the works and in the absence of consent from Sovereign. In making such a finding the learned member erred. As we have observed, non-compliance by Edwards with clause 25.1 of the contract triggered certain entitlements on the part of Sovereign. None of those entitlements was exercised. [224] However, in light of our findings regarding practical completion, the error by the learned member that we have identified does not affect the outcome of the appeal. It is therefore not necessary for further consideration of this issue on appeal. [225] Ground of appeal 9 asserts that the learned member erred in law and in fact in failing to find that clause 16.1 of the contract enabled Sovereign to seek an extension of time for a claimable delay. Edwards is here referring to the works relating to the weather events. [226] Clause 16.1 of the contract entitled Sovereign to a reasonable extension of time to the building period if commencement or carrying out the ‘works’ was delayed by a claimable delay. In the contract, ‘works’ was defined as ‘the works to be carried out, completed and handed over to the owner in accordance with this contract as shown in the contract documents including variations’. [227] This ground of appeal is premised on the additional works required as a result of the weather events being within the scope of works under the contract. We have addressed a number of the issues relevant to this ground of appeal in considering appeal ground 10. Appeal ground 9 only has substance if the learned member erred in finding that the weather related building work was within the contractual scope of works. As we have set out earlier in these reasons, ground of appeal 10 asserts an error of law by the learned member in finding that a separate contract or scope of works was required for the weather related works and that practical completion was achieved before the damaged works were rectified. We have found that ground of appeal 10 involves both questions of law and questions of mixed law and fact and that, in the absence of Edwards seeking leave to appeal, the ground of appeal would be confined to questions of law. -- 46 of 66 -- 47 [228] In the absence of leave being sought and granted, which it has not, it is not open to Edwards to challenge the findings at reasons [65] to [67]. It follows that, in light of the findings by the learned member and our conclusions in relation to ground of appeal 10, ground of appeal 9 cannot succeed. Assessment of damages – Grounds 8 and 18 [229] Grounds of appeal 8 and 18 relate to what Edwards says were errors by the learned member in assessing his entitlement to damages. [230] Ground of appeal 8 merely states that the learned member erred in law and fact in finding at [45] of the reasons that Edwards owed Sovereign the sum of $46,155.20. [231] The learned member concluded at [45] of the reasons that Sovereign was entitled to the sum of $46,155.20 owed under the contract less any claim for defective work or incomplete work. [232] Ground of appeal 18 relates to damages for 14 items which Edwards says the learned member erred in both law and in fact in failing to award the amounts claimed by Edwards. [233] The following items are listed as relevant to ground 18: (a) removal of the solar panel brackets; (b) labour to pack the walls; (c) removal and reinstallation of palings installed over the Overflow Relief Gulley (‘ORG’); (d) installation of a smoke alarm; (e) incorrectly installed balustrades; (f) new shower shelf; (g) incorrectly installed Towel ring; (h) replacement of boards to rear deck; (i) plumbing work to unblock sewer line; (j) incorrectly installed skirting palings; (k) knots in weatherboards; (l) solatium; (m) interest on money in Edwards’s joint bank account; (n) items or services not provided by Sovereign. [234] We will deal with each of the claims in ground 18 later in these reasons. We will first address the claim by Edwards for solatium. -- 47 of 66 -- 48 The claim for solatium and damages for distress and inconvenience – Ground 18(l) [235] The claim by Edwards is dealt with by the learned member at reasons [115] and [164] to [166]: [115] Mr Edwards claimed damages for loss of amenity in accordance with the decision of Ruxley Electronics and Construction v Forsyth, where the House of Lords reinstated the trial judge's decision to award damages for loss of amenity of £2,500 because the swimming pool built was only 6 foot deep rather than 7 foot 6 inches deep as designed. The homeowner had claimed £21,650 for demolishing and reconstructing the pool. It is submitted on Sovereign's behalf that the case is distinguishable. I think that is the case. The award of damages for loss of amenities was an exception to the rule that a party cannot recover damages for injured feelings. The exception was where the object of the contract was to afford pleasure, such as a holiday. This is not such a contract. I do not allow any part of the claim. … [164] Mr Edwards claims damages of $20,000 for consolation. This claim, appears, not to have been seriously pressed at the hearing. In cross examination, Mr Edwards conceded that the project was inherently stressful, the August storm ‘significantly’ added to his stress. During the build he was stressed by the sudden deterioration in health and death of an immediate family member in February 2015. [165] As a matter of law, general damages for inconvenience, distress and discomfort are not usually available to home owners under a building contract. Mere disappointment or disruption is insufficient unless the object of the contract involved an emotional outcome which is defeated by the breach. As I stated earlier in these reasons the object of the contract here was not to afford pleasure. [166] In any event, no expert evidence has been adduced from a doctor or psychiatrist attesting to Mr Edwards’s health as being affected or the cause of his stress as being related to any breach of contract by Sovereign. I disallow the claim. [236] It is, at the outset, important to distinguish a claim for loss of amenity on the one hand and a claim for anxiety, disappointment and distress on the other. [237] A solatium is a sum paid to a plaintiff to solace the plaintiff for loss of amenity.98 [238] In Ruxley Electronics and Construction Ltd v Forsyth99 the House of Lords reinstated the trial judge’s award of damages to the homeowner for loss of amenity associated with a swimming pool not constructed in accordance with the terms of the contract. It is sufficient for present purposes to simply observe that the pool as-constructed was not sufficiently deep. [239] Jauncey LJ referred to Bellgrove v Eldridge100 and stated that if it is unreasonable in a particular case to award the cost of reinstatement it must be because the loss sustained does not extend to the need to reinstate and that a failure to achieve the 98 Benham v Gambling [1941] AC 157. 99 [1996] AC 344. 100 (1954) 90 CLR 613. -- 48 of 66 -- 49 precise contractual objective does not necessarily result in the loss which is occasioned by a total failure. Jauncey LJ declined to express any opinion about the award for loss of amenity. Mustill LJ agreed with Lloyd LJ and Jauncey LJ and rejected the hypothesis that if the cost of reinstatement and the depreciation in value were the only available measures of recovery, the rejection of the former necessarily entailed the adoption of the latter. Mustill LJ stated that there were not two alternative measures of damage, at opposite poles, but only one; namely, the loss truly suffered by the promisee. Mustill LJ considered that the law must cater for those occasions where the value of the promise to the promisee exceeds the financial enhancement of his position which full performance will secure and which is usually incapable of precise valuation in terms of money, exactly because it represents a personal, subjective and non-monetary gain. Lloyd LJ, with whom Kinkel LJ agreed, considered the award of damages to the homeowner for loss of amenity to be ‘a logical application or adaptation of the existing exception to a new situation.’101 The ‘existing exception’ to which Lloyd LJ was referring was ‘when the object of the contract is to afford pleasure, as, for example, where the plaintiff has booked a holiday with a tour operator.’ [240] The following passage from the judgment of Lloyd LJ is of particular relevance for present purposes:102 That leaves one last question for consideration. I have expressed agreement with the judge's approach to damages based on loss of amenity on the facts of the present case. But in most cases such an approach would not be available. What is then to be the position where, in the case of a new house, the building does not conform in some minor respect to the contract, as, for example, where there is a difference in level between two rooms, necessitating a step. Suppose there is no measurable difference in value of the complete house, and the cost of reinstatement would be prohibitive. Is there any reason why the court should not award by way of damages for breach of contract some modest sum, not based on difference in value, but solely to compensate the buyer for his disappointed expectations? Is the law of damages so inflexible, as I asked earlier, that it cannot find some middle ground in such a case? I do not give a final answer to that question in the present case. But it may be that it would have afforded an alternative ground for justifying the judge's award of damages. And if the judge had wanted a precedent, he could have found it in Sir David Cairns's judgment in G.W. Atkins Ltd. v. Scott, 7 Const.L.J. 215 , where, it will be remembered, the Court of Appeal upheld the judge's award of £250 for defective tiling. Sir David Cairns said, at p. 221: “There are many circumstances where a judge has nothing but his common sense to guide him in fixing the quantum of damages, for instance, for pain and suffering, for loss of pleasurable activities or for inconvenience of one kind or another.” If it is accepted that the award of £2,500 should be upheld, then that at once disposes of Mr. Jacob's argument that Mr. Forsyth is entitled to the cost of reinstatement, because he must be entitled to something. But even if he were entitled to nothing for loss of amenity, or for difference in value, it would not follow as Mr. Jacob argued that he was entitled to the cost of reinstatement. 101 Ruxley Electronics and Construction Ltd v Forsyth [1996] AC 344, 374. 102 Ibid 375. -- 49 of 66 -- 50 There is no escape from the judge's finding of fact that to insist on the cost of reinstatement in the circumstances of the present case was unreasonable. [241] The obvious question that arises is whether a claim for loss of amenity is consistent with the principles espoused by the High Court in Bellgrove v Eldridge. In Bellgrove the High Court held that the measure of damages recoverable by a 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 building conform to the contract. The High Court stated that the general rule is subject to two qualifications: the work must be necessary and it must be a reasonable course to adopt. [242] Subsequently in Tabcorp Holdings Ltd v Bowen Investments Pty Ltd103 the High Court affirmed the rule in Bellgrove and held that the test of unreasonableness is only to be satisfied by fairly exceptional circumstances and that the diminution in value in the measure of damages will only apply where the innocent party is merely using a technical breach to secure an uncovenanted profit. [243] In Tabcorp, the High Court questioned the correctness of Ruxley although not specifically in relation to whether a claim for loss of amenity as a result of breach of a building contract was available to an innocent party. [244] In Bellgrove, the High Court was not required to consider a claim for loss of amenity as a result of the breach of a building contract and does not appear to have done so since. If damages for breach of contract are not recoverable in accordance with the principles espoused by the High Court in Bellgrove and Tabcorp, are there alternate bases upon which such damages might be recovered? [245] The general rule is that damages are not recoverable for anxiety, disappointment and distress arising from a breach of contract. As was observed by Mason CJ in Baltic Shipping Co v Dillon:104 At bottom, this approach to the problem is based on a policy of excluding the recovery of compensation for injured feelings in cases of breach of contract or confining recovery to cases of a limited class or classes, viz., those where physical inconvenience is caused by the breach of contract. This policy is based on an apprehension that the recovery of compensation for injured feelings will lead to inflated awards of damages in commercial contract cases, if not contract cases generally. [246] Mason CJ went on to consider the basis upon which damages for disappointment and distress for breach of a commercial contract might be recoverable. His Honour stated:105 On the other hand, as a matter of ordinary experience, it is evident that, while the innocent party to a contract will generally be disappointed if the defendant does not perform the contract, the innocent party's disappointment and distress are seldom so significant as to attract an award of damages on that score. For that reason, if for no other, it is preferable to adopt the rule that damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the 103 (2009) 253 ALR 1. 104 (1993) 111 ALR 289, 302. 105 Ibid 305. -- 50 of 66 -- 51 object of which is to provide enjoyment, relaxation or freedom from molestation. In cases falling within the last-mentioned category, the damages flow directly from the breach of contract, the promise being to provide enjoyment, relaxation or freedom from molestation. In these situations the court is not driven to invoke notions such as "reasonably foreseeable" or "within the reasonable contemplation of the parties" because the breach results in a failure to provide the promised benefits. In my view, this approach to the problem is to be preferred to the artificial expedient of saying that damages of the kind under consideration will be awarded for breaches of non-commercial contracts but not for breaches of commercial contracts. That expedient requires a distinction to be drawn between commercial and non-commercial contracts; that distinction is by no means easy to draw and, in any event, it is not a distinction which should necessarily be decisive in determining whether such damages are available or not. [247] In Baltic Shipping, Brennan J considered the possibility of the liability of the party in breach being at large should mental reaction to the breach and resultant damage be added without proof of pecuniary loss by the innocent party. His Honour stated:106 But no approximate estimate of liability could be formed if the subjective mental reaction of an innocent party to a breach and resultant damage were added on as further damage without proof of pecuniary loss by the innocent party. If the mental reaction to breach and resultant damage were itself a head of damage, the liability of a party in breach would be at large and liable to fluctuation according to the personal situation of the innocent party. If a promisor were exposed to such an indefinite liability in the event of breach, the making of commercial contracts would be inhibited (Addis v. Gramophone Company Limited (1909) AC, at p 495), the assignment of a contractual right would carry new risks for the party subject to the reciprocal obligation, and trade and commerce would be seriously impeded. [248] Brennan J agreed with the statement of Bingham LJ in Watts v Morrow:107 Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead. If the law did not cater for this exceptional category of case it would be defective. [249] In their joint judgment, Dawson and Deane JJ identified the categories of cases in which an award of damages for breach of contract may include compensation for mental distress: breach of promise of marriage, breach of contract causing physical injury and, of relevance for present purposes, breach of contract causing physical inconvenience.108 [250] McHugh J extensively surveyed the development of the law in relation to damages for mental distress arising out of breach of contract. In restating the principle that damages for breach of contract cannot ordinarily be awarded for distress or disappointment arising from the breach, His Honour referred to the seminal decision 106 Baltic Shipping Co v Dillon (1993) 111 ALR 289, 308. 107 Ibid 334; [1991] 1 WLR 1421, 1445. 108 Baltic Shipping Co v Dillon (1993) 111 ALR 289, 317. -- 51 of 66 -- 52 of Hamlin v Great Northern Railway Co and the following passage from the judgment:109 In actions for breaches of contract the damages must be such as are capable of being appreciated or estimated ... but it may be laid down as a rule, that generally in actions upon contracts no damages can be given which cannot be stated specifically, and that the plaintiff is entitled to recover whatever damages naturally result from the breach of contract, but not damages for the disappointment of mind occasioned by the breach of contract. [251] McHugh J referred to the decision of the House of Lords in Addis v Gramophone Co Ltd110 where an award of damages for ‘the abrupt and oppressive way in which the plaintiff's services were discontinued, and the loss he sustained from the discredit thus thrown upon him’, was set aside. In addressing the general rule that damages cannot be awarded for mental distress for contractual breach, His Honour stated:111 It is difficult to resist the conclusion that the unexpressed … basis for the general rule was the instinctive fear of the common law judges that to allow damages for disappointment or distress consequent upon breach of an ordinary contract would be to inflate damage awards in contract cases, particularly in commercial cases where the breach has been accompanied by high handed behaviour. [252] McHugh J referred to the decision in Hobbs v London and South Western Railway Co112 in which a train passenger was found to be entitled to recover damages for the inconvenience of having to walk home in the rain when the train failed to stop at the station for which the passenger had bought his ticket. In Hobbs Mellor J stated:113 … where the inconvenience is real and substantial arising from being obliged to walk home, I cannot see why that should not be capable of being assessed as damages in respect of inconvenience. [253] In the final result, McHugh J found that the general rule enunciated in Hamlin and confirmed in Addis should not be rejected and stated that the Court:114 … should recognise that damages for distress or disappointment are recoverable in an action for breach of contract if it arises from breach of an express or implied term that the promisor will provide the promisee with pleasure or enjoyment or personal protection or if it is consequent upon the suffering or physical injury or physical inconvenience. [254] Subsequent to the decision in Baltic Shipping, various Australian courts have addressed claims for inconvenience, anxiety and distress as a result of a builder’s breach of contract. [255] In Coshott v Fewings Joinery Pty Ltd115 the New South Wales Court of Appeal considered appeals from orders for damages in favour of an owner arising from a contract to supply joinery for doors and windows in a house. The trial judge awarded 109 (1856) 156 ER 1261, 1262. 110 [1909] AC 408, 409. 111 Baltic Shipping Co v Dillon (1993) 111 ALR 289, 330. 112 (1875) LR 10 QB 111. 113 Ibid 123. 114 Baltic Shipping Co v Dillon (1993) 111 ALR 289, 327. 115 [1996] NSWCA 122. -- 52 of 66 -- 53 the owner $3,205.00 for defective windowsills and $5,000.00 for ‘solatium’. The defendant appealed the solatium award. [256] The trial judge rejected the plaintiff’s contention that he should be awarded damages for the cost of the total replacement of all the windows, and stated: ‘While my own view is that the result would be quite acceptable, I accept that the plaintiff wants perfection. Since he cannot have it, there will need to be some lump sum payment by way of a solatium’. [257] Priestley JA stated:116 As for the competence of the court to include such an amount in the assessment of damages, the recent House of Lords decision, Ruxley Electronics and Construction Limited v Forsyth (1996) 1 AC 344 provides direct support for the approach of Judge Bell. The High Court decision of Bellgrove v Eldridge [1954] HCA 36; (1954) 90 CLR 613 is not inconsistent with the view taken by the House of Lords. In Bellgrove the High Court said (at 618) that usually the builder in breach of contract would have to pay whatever damages were necessary for the other party to achieve conformity with the contract but that this rule was subject to the qualification that "not only must the work undertaken be necessary to produce conformity, but that also, it must be a reasonable course to adopt". In the present case the trial judge, rightly in my opinion, considered that the position fell within the qualification. That view opens the way to include in the award of the lesser amount of damages a sum for what Judge Bell called a solatium and what the House of Lords referred to as "loss of amenity". In the same say that the House of Lords thought an amount awarded for loss of amenity in Ruxley was appropriate, it seems to me the amount awarded by Judge Bell in the present case for a solatium was likewise appropriate. [258] In Boncristiano v Lohmann117 it was held: It now appears to be accepted, both in England and Australia, that awards of general damages of the type to which I have referred can be made to building owners who have suffered physical inconvenience, anxiety and distress as a result of the builders’ breach of contract, but only for the physical inconveniences and mental distress directly related to those inconveniences which have been caused by the breach of contract: see Franklin, “More Heartache: A Review of the Award of General Damages in Building Cases”, (1992) 8 Construction L.J. 318; see also Baltic Shipping Co. v Dillon (1993) 176 C.L.R. 344 at 364. Although it would seem to have been accepted in England that such awards should be “restrained” or “modest” (Perry v Sidney Phillips & Son [1982] 3 All E.R. 705 at 709 per Lord Denning M.R.; Watts v Morrow [1991] 4 All E.R. 937 at 958 per Ralph Gibson L.J. and 960 per Bingham L.J.; Ruxley Electronics & Construction Ltd. v Forsyth [1996] A.C. 344 at 374 per Lord Lloyd of Berwick), this injunction has not met with the approval of the Court of Appeal in New South Wales in the Campbelltown case, where Kirby P. at 504 said that he could “find no logical basis for it” and Samuels J.A. at 505 found it “extremely difficult to attribute any meaning to the phrase.” 116 Coshott v Fewings Joinery Pty Ltd [1996] NSWCA 122, 15. 117 [1998] 4 VR 82, 94-95. -- 53 of 66 -- 54 [259] In Boncristiano the judge at first instance had awarded the homeowners general damages of $1,750.00 for inconvenience, disappointment and stress flowing from the builder’s breach of contract in erecting the super-structure of a house. The homeowners appealed the decision on the basis that the part of the award of general damages for ‘inconvenience’ was manifestly inadequate. On appeal it was held that a claim for general damages consequent upon a breach of contract is a single claim for damages for inconvenience and distress including damages for deleterious consequences to health flowing from the physical inconvenience.118 [260] While the approach in Boncristiano has been followed in various Australian jurisdictions, we are unable to identify any decision of a superior court in Queensland addressing the issue. [261] It is appropriate to refer to two decisions of this tribunal. [262] In Silastone Trading Pty Ltd v Body Corporate for Q1 and Anor119 the respondent argued that it was entitled to an award of damages for disappointment when the applicant undertook building works resulting in a deck with shrinkage crack defects. The tribunal did not accept that the claimed rectification work was reasonable in accordance with the principle in Bellgrove v Eldridge and found that there was no evidence as to diminution in value of the property as a result of the defective work. After considering the principle arising out of Ruxley the tribunal referred to the decision of the Victorian Court of Appeal in Archibald v Powlett120 and in particular the following passage: 62 The general rule is that damages for anxiety, disappointment and distress are not recoverable in an action for breach of contract. The principal exceptions to that rule are where the contract is one whose object is to provide enjoyment, relaxation or freedom from molestation, and where the damages proceed from physical inconvenience caused by the breach. It is the latter exception upon which the respondent relied. 63 The respondent pointed to several cases in which damages for anxiety, distress and disappointment have been awarded following breach of a building contract giving rise to physical discomfort or inconvenience. However, all of these cases involved physical imposition upon the plaintiff, whether by virtue of having to live with offensive odours or a leaking roof, or in unsanitary or dirty conditions, or being obliged to vacate the defective premises. Nothing of this kind was alleged in the present case, where the respondent’s premises were intended for the conduct of a business rather than her own occupation. [263] The learned tribunal member then went on to observe:121 [76] The basis upon which Ruxley was decided, namely loss of amenity, might arguably be within the exceptions to the rule against damages for disappointment or distress stated in Baltic Shipping on the basis that the contract in Ruxley was for the provision of pleasure or relaxation and that was not provided by the other party. But the limitations explained in Baltic Shipping still apply in Australia and to the extent Ruxley is relied on to extend or deviate from those limitations it should not be followed. Too liberal an application of the 118 Boncristiano v Lohmann [1998] 4 VR 82, 95. 119 [2017] QCAT 349. 120 [2017] VSCA 259, [62]-[63]. 121 Silastone Trading Pty Ltd v Body Corporate for Q1 and Anor [2017] QCAT 349, [76]. -- 54 of 66 -- 55 exceptions to disappointment damages leads potentially to awards based on compensation principles rather than damages for loss. [264] A different approach was taken in William George Carlsen t/as W & E Carlsen Builders v Tresidder122 where the tribunal held, after referring to the various authorities, that it did not consider any of the authorities as setting out any binding rules or established principles when considering whether an award is appropriate for distress, disappointment or inconvenience in a contract for domestic building work.123 [265] Whether Ruxley represents the law in Australia is yet to be determined by the High Court. Similarly, until the Court of Appeal determines otherwise we will proceed on the basis that Ruxley does not apply in Queensland and that the relevant principles to be applied are those espoused in Bellgrove v Eldridge and Baltic Shipping. [266] Damages for non-pecuniary loss as a consequence of breach of a building contract are, in our view, confined to those categories identified by the High Court in Baltic Shipping. Claims for loss of amenity associated with breach of a building contract will not, generally speaking, fall within the category of claims arising from breach of a contract for enjoyment or pleasure. It follows that a claim for distress, inconvenience or disappointment as a result of a breach of contract are confined to those cases where the adverse non-physical outcome is consequent upon actual physical inconvenience. Consistent with the authorities to which we have referred, the physical inconvenience must be real and substantial. [267] Before turning to the particular facts before the learned member it is necessary to consider the counter claim filed by Edwards. Relevant to ground of appeal 18(l), Edwards claimed: (a) loss of amenity associated with ‘inferior Weatherboards’ ‘as outlined in paragraph 302 through 315 of the Edwards Statement’;124 (b) solatium ‘as outlined in paragraphs 361 through 363 of the Edwards Statement’.125 [268] Regarding the claim for loss of amenity associated with the weatherboards, and apart from an assertion regarding maintenance arising out of the use of the weatherboards, the statement by Edwards does not address the nature of the alleged loss of amenity. In relation to solatium, Edwards states that the claim is made: To compensate us for the non-financial loss for the considerable stress, disappointment, inconvenience and loss of amenity we have suffered by reason of Mr Firrell’s breaches of contract and which we will suffer when the remedial work is undertaken approximately 2 years on from when he left the build. … Details of the inconvenience and related breach of contract are detailed in Attachment 115. 122 [2015] QCAT 260. 123 William George Carlsen t/as W & E Carlsen Builders v Tresidder [2015] QCAT 260, [250]. 124 Amended response and counter application filed 22 February 2017, annx C. 125 Ibid. -- 55 of 66 -- 56 [269] At the hearing, Edwards did not give evidence in relation to the claim for loss of amenity. Edwards gave evidence that the two rain events were stressful episodes. His oral evidence was otherwise almost completely silent on the issue. [270] In the schedule attached to his statement of evidence, Edwards particularises the claim for solatium under the heading ‘Inconvenience/Loss of Amenity’. The particulars include numerous references to loss of amenity. The document refers to the ‘stress’ associated with dealing with Mr Firrell over insurance related issues. There is otherwise no reference to stress. There was little if any reference to physical inconvenience and certainly no evidence that, even if there was physical inconvenience, it was real and substantial. [271] Turning then to the reasons below, the learned member correctly identified the general common law principle that damages are not recoverable for mental distress or disappointment arising from a breach of contract. The learned member correctly identified one of the exceptions to this general rule: damages for disappointment and distress are not recoverable unless the contract is one the object of which is to provide enjoyment, relaxation or freedom from molestation. [272] The learned member found that the contract was not one to afford pleasure, such as a holiday. On this basis the learned member concluded, correctly in our view, that the claim by Edwards for general damages did not fall within one of the exceptions to the general common law principle. [273] At [165] of the reasons the learned member found, again correctly in our view, that as a matter of law, general damages for inconvenience, distress and discomfort are not usually available to homeowners under a building contract. The learned member went on at [166] of the reasons to find that no expert evidence had been adduced from a doctor or psychiatrist attesting to Edwards’ health as being affected or the cause of his stress as being related to any breach of contract by Sovereign. [274] The learned member, though perhaps not explicitly, did consider the claim by Edwards that he had suffered an adverse health consequence, including stress, as a result of breach of the building contract by Sovereign. It is implicit in the reasons that the learned member was satisfied Edwards had failed to discharge the requisite onus of proof in this regard. [275] An award of general damages is a discretionary judgment. An appeal court will not interfere with such an award, or a decision not to make such an award, unless the court at first instance erred in principle or the assessment of damages is a wholly erroneous one. [276] Whether the learned member erred in exercising his discretion not to award general damages requires consideration of the principles in House v The King.126 Those principles may be stated as follows:- (a) Did the member err in law, including acting upon a wrong principle? (b) Did the member make a mistake as to the facts? 126 (1936) 55 CLR 499. -- 56 of 66 -- 57 (c) Did the member rely upon an irrelevant consideration or ignore a relevant consideration or give inappropriate weight to such considerations? (d) Was the decision unreasonable or clearly unjust? [277] The contract between Edwards and Sovereign was not one for the provision of pleasure or entertainment. In relation to the claim for distress and disappointment, it was open to the learned member to conclude on the evidence before him that Edwards had not established he had suffered real and substantial physical inconvenience resulting in an adverse non-physical outcome. [278] In not awarding damages for solatium or distress, disappointment or inconvenience: (a) the learned member did not err in law or mistake the facts; (b) the learned member did not take into consideration an irrelevant matter; (c) the learned member did not fail to consider a relevant matter; (d) the decision could not be considered unreasonable or unjust. [279] Ground of appeal 18(l) is not made out. [280] The remaining items in ground 18 relate primarily to items of work alleged by Edwards to have been part of the scope of works and an item relating to interest on money in a joint bank account. Items of building work in Ground 18 (a) to (k) and (m) and (n) [281] The learned member dealt with these claims at reasons [85] to [115]. [282] The submissions by Edwards largely fail to specifically identify the alleged error by the learned member. Removal of solar panel brackets – Ground 18(a) [283] The brackets are variously referred to in the reasons as ‘brackets’ and ‘connections’. The learned member found that the removal of the brackets was not part of the scope of works127 and that removal of the connection may involve more work and weatherproofing.128 We do not accept the submission by Edwards that the removal of some of the brackets by Sovereign was evidence that removal of all brackets was within the scope of works. Whether the removal of the brackets was within the scope of works was a matter of construction of the contract. The specifications required the relocation of the existing solar panels. The specifications are silent on the removal of the brackets or connections. [284] The construction of a contract is a question of law. There was no error by the learned member. [285] Edwards says that the learned member failed to give adequate reasons for his findings in relation to the claim for the cost of removing the brackets. Failure to give adequate 127 Reasons for the substantive decision [88]. 128 Ibid [89]. -- 57 of 66 -- 58 reasons is an error of law. The learned member referred to the scope of works. It is readily apparent that in so doing the learned member was referring to the contract which included the specifications. There was no error by the learned member. Labour to pack the walls – Ground 18(b) [286] The learned member found that the rectification of bowing to pre-existing walls was not within the scope of works.129 Edwards asserts that the learned member erred in making this finding and says that the works involved carpentry work which was within the scope of works. [287] The evidence of Edwards’ expert, Mr Carpenter, was that the walls were pre-existing and not affected by the actual building and the connection of the new work to the original building and that ‘it was a totally separate issue’.130 [288] There was no error by the learned member. Removal and reinstallation of palings installed over the ORG – Ground 18(c) [289] Edwards complained that palings installed by Sovereign prevented access to the ORG. Edwards’ submissions do not identify any asserted error on the part of the learned member. His submissions are a recitation of the submissions at first instance. In the absence of any cogent submission asserting error in the decision at first instance this ground of appeal is not made out. Installation of smoke alarm – Ground 18(d) [290] The learned member found that the connection of the smoke alarm to the main circuit was not within the scope of the contract.131 Edwards says that the evidence before the learned member was that the work was within the scope of works and, even if it was not within the scope of works, Sovereign was obliged to raise a variation to undertake the works in order to comply with its regulatory obligations. Edwards’ submissions however identify no specific error by the learned member. [291] It was not contentious in the tribunal below that, if the works were not within the scope, a variation would need to be raised. What was contentious was whether Sovereign was obliged to do so. What Edwards’ submissions overlook is that he would have been obliged to meet the cost of the works. The learned member correctly found Sovereign was not obligated to bear the cost. Accordingly, even if there was error by the learned member it would not have had an impact upon the final result in the proceedings below. Incorrectly installed balustrades – Ground 18(e) [292] The issue of the balustrades was dealt with somewhat briefly at the hearing.132 The evidence of Mr Boyle was that the balustrades conformed to the requirements of the 129 Reasons for the substantive decision [91]. 130 T2-104, line 4. 131 Reasons for the substantive decision [97]. 132 T2-116, line 30 to T2-117, line 12. -- 58 of 66 -- 59 contract.133 Mr Carpenter’s evidence was that there was an uneven number of balustrades on either side of the centre feature situated at the rear deck.134 [293] Unfortunately, the issue of the balustrades is not addressed in the reasons below. If the learned member did not accept the claim, the reasons do not reveal this. If the learned member did accept the claim then he has failed to allow an amount for the cost of rectification. In our view, either way, the error by the learned member is one of mixed law and fact. [294] The rectification cost if the work was found to be defective was agreed by the experts at $650.00. Given that the quantum claimed is not significant and given the outcome of the learned member’s reasons, we do not consider the error warrants the granting of leave to appeal. New shower shelf – Ground 18(f) [295] The learned member accepted the evidence of Mr Boyle that the presence of rust underneath the shower shelf was a maintenance issue and was first brought to the attention of Sovereign outside the defects liability period. That period expired six months after the Date of Practical Completion. [296] The learned member was entitled to accept the evidence of Mr Boyle. This ground of appeal is not made out. Incorrectly installed towel ring – Ground 18(g) [297] The learned member found that the towel ring issue was not brought to the attention of Sovereign within the defects liability period. It is implicit in the reasons that the learned member could not be satisfied, on the evidence, that the issue arose as a result of poor workmanship as opposed to the application of excessive force. [298] There was no error by the learned member. We would add that even had there been error, the quantum of the claim, being $80.00, would not warrant a grant of leave to appeal. Replacement of boards to rear deck – Ground 18(h) [299] Edwards says that the learned member should have preferred the evidence of Mr Carpenter who said that the boards fitted to the rear deck were undersized with different surface profiles. He recommended the replacement of the boards to achieve a consistent appearance. Mr Boyle did not consider the installation of the boards to be defective. [300] The learned member was entitled to prefer the evidence of Mr Boyle. There was no error by the learned member. 133 Report by Chris Boyle dated 14 March 2017, [86]. 134 Building Defect and Cost Report by Garry Carpenter dated 31 May 2016, D.9. -- 59 of 66 -- 60 Plumbing work to unblock sewer line – Ground 18(i) [301] The learned member found that Edwards accepted he was responsible for the blocked sewer line.135 The learned member found that Sovereign had not contributed to the blockage of the ORG. [302] Edwards’ submissions do not address the nature of the error by the learned member. If Edwards says that the learned member failed to take into consideration relevant evidence, the submissions do not address the finding by the learned member or the specific evidence he failed to take into consideration. [303] In the absence of any cogent submissions by Edwards this ground of appeal is not made out. Incorrectly installed skirting palings – Ground 18(j) [304] Mr Boyle opined that once painted the skirting palings would be of an acceptable standard.136 The learned member found that painting was not within the scope of works. The learned member was entitled to accept the evidence of Mr Boyle. [305] There was no error by the learned member in not allowing the claim. Knots in weatherboards – Ground 18(k) [306] Mr Boyle’s evidence was that the weatherboards used were not defective137 and could be adequately filled and painted.138 [307] The learned member was entitled to accept the evidence of Mr Boyle. There was no error by the learned member. Interest on money in Edwards’s joint bank account – Ground 18(m) [308] By clause 8 and Annexure ‘B’ of the contract Edwards was required to pay an amount of $27,580.00 to the security deposit account. By clause 8.3 of the contract, Edwards was entitled to all interest earned on the investment of the security account money. [309] Edwards says that the learned member erred in not awarding him interest on the money he borrowed to pay into the security account. [310] The claim by Edwards is for consequential loss and falls within the second limb of the rule in Hadley v Baxendale:139 Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated. 135 Reasons for the substantive decision [112]. 136 Report by Chris Boyle dated 14 March 2017, [119]. 137 Ibid [123]. 138 T2-130, lines 19-20. 139 (1854) 156 ER 145. -- 60 of 66 -- 61 [311] Edwards’ submissions do not address whether there was before the learned member evidence that, at the time the contract was entered into, Sovereign was aware that Edwards borrowed money to pay into the security account. Nor do Edwards’ submissions address whether there was any evidence that such loss as claimed by Edwards was within the contemplation of the parties when they entered into the contract. [312] In our view Edwards’ entitlement to interest on the borrowed monies was not made out and any failure by the tribunal to address the claim in the decision below had no impact on the final outcome of the litigation. Items or services not provided by Sovereign – Ground 18(n) [313] Edwards says that the learned member failed to consider his claim for the recovery of the value of services not provided by Sovereign. In order to understand this ground of appeal it is necessary to examine the claim made by Edwards at first instance. [314] In the proceedings below Edwards claimed various amounts falling under six categories:- (a) Items that did not form part of the initial build but should have and which were approved by QBE. (b) Items claimed that did form part of the initial build, were performed by Edwards and not by Sovereign, and which were approved by QBE. (c) Items claimed that did not form part of the initial build and which were not provided for under the contract and which were approved by QBE. (d) Items claimed that did not form part of the initial build and which were misrepresented by Sovereign and which were not approved by QBE. (e) Items claimed that did form part of the initial build but which were misrepresented by Sovereign and which were approved by QBE. (f) Items claimed but which were paid for by others. [315] The appeal relates to categories (a), (b), (c) and (d). [316] The submissions by Edwards in support of this ground of appeal are almost entirely lacking in particulars. In an appeal such as this, given the vast number of issues agitated by Edwards, the expectation is that the appellant will sufficiently articulate each ground of appeal and identify, by reference to the evidence and the findings (or lack of findings), where the error asserted arises and what is said to be the consequence of the asserted error. Edwards has conspicuously failed to do this in relation to this ground of appeal. [317] If, as it appears, Edwards asserts that the learned member failed to consider evidence of loss, any error would be one of fact. In his submissions, Edwards fails to identify where the evidence of the loss claimed was before the learned member apart from a bland reference to, and repetition of, his closing submissions in the proceedings below. Those submissions refer to Edwards’ statement of evidence and an attachment thereto. The attachment consists of a table setting out 19 items. The table columns -- 61 of 66 -- 62 refer to ‘item claimed by Mr Firrell’, ‘costs built into initial contract’, ‘amount approved’ and ‘what happened during the build’. Edwards’ submissions do not explain in any way the significance of the attachment, the evidence before the learned member relevant to the contents of the attachment or whether the attachment was the subject of evidence at the hearing. [318] It is not for this appeal tribunal to construct, or attempt to divine, a litigant’s case in the absence of cogent submissions. This is particularly so when the party is legally represented. We are not prepared to consider this ground of appeal further. Claim for false or misleading conduct and unconscionable conduct – Grounds 15, 16 and 17 [319] Grounds of appeal 15, 16 and 17 were withdrawn at the hearing of the appeal. Other grounds of appeal relevant to the assessment of damages - Ground 7 [320] Ground of appeal 7 flows from the error asserted by Edwards in respect of the learned member’s finding as to practical completion having occurred. In light of our findings in relation to the issue of practical completion it follows that this ground of appeal is not made out. Conclusion in appeal APL244-18 [321] Insofar as the appeal relates to questions of law, the appeal is dismissed. Insofar as the appeal is on questions of fact or mixed law and fact, leave to appeal is refused. Appeal APL356-18 - the costs decision [322] The learned member made the following costs orders: a. Edwards pay 70% of Sovereign’s costs, on the standard basis, to be agreed or failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000.00; b. Sovereign pay 30% of Edwards’ costs of the counter application, on the standard basis, to be agreed or failing agreement to be assessed on the Magistrates Court scale appropriate to amounts exceeding $50,000.00. [323] The application for leave to appeal or appeal in relation to the costs decision identifies two grounds of appeal. The first ground is that the learned member erred in awarding Sovereign 70% of its costs because the learned member erred in finding that Sovereign was entitled to be paid $46,155.20 plus interest. The second ground is that the learned member erred in awarding Edwards 30% of his costs of the counter application on two bases: firstly the learned member erred in finding that Sovereign was entitled to be paid $46,155.20 plus interest and, secondly, Edwards succeeded in his counter application. The grounds of appeal make no reference to the learned member’s findings or awards regarding interest to the parties. [324] We have had some difficulty reconciling the grounds of appeal with Edwards’ submissions. -- 62 of 66 -- 63 [325] Edwards says that the costs decision is ‘not so much wrong now, but will be wrong if (the Appeal Tribunal) finds that errors were made in the “Substantive Decision”.’ While we have found error in the substantive decision, these errors do not warrant the granting of leave to appeal and we have refused such leave. [326] Edwards however makes further, somewhat contradictory submissions, in which he asserts error by the learned member. Edwards says that the learned member took into consideration irrelevant and ‘incorrect’ matters. Edwards refers to the following passage from the reasons for the costs decision:140 [15] Sovereign was placed in the position that Mr Edwards would not pay the outstanding final claim, although he gave every indication he would do so. Mr Edwards then reduced the claim and continued to do so, even where Sovereign requested at least the payment of the balance. Sovereign’s only remedy was to commence proceedings which it did. The matter was factually and legally complex, its complexity was exacerbated by the numerous issues and multiplicity of expert opinions. Mr Edwards pleaded and agitated unmeritorious issues which were only abandoned in the last day of the hearing. However, they did not take up as much time as the issue of the box gutter on which he was substantially successful. (highlighting added; footnotes omitted) [327] Edwards’ submission is directed at the particular passage highlighted. He says that the learned member was referring to Edwards’ allegation of fraud relating to the QBE insurance claim. Edwards says that the fraud issue did not exacerbate the complexity of the litigation. [328] Edwards submits that taking into consideration his success in the counter application, the appropriate costs order was that Sovereign recover 50% of its costs of the application and Edwards recover 50% of his costs of the counter application. [329] In a further departure from his original submission that the costs decision was not wrong, Edwards says that the learned member erred in awarding costs to Sovereign on the Magistrates Court scale applicable to matters where the amount recovered exceeds $50,000.00 on the basis that Sovereign recovered an amount less than $50,000.00. This submission is not reflected in the grounds of appeal. [330] Sovereign says that Edwards has identified no grounds upon which leave to appeal against the costs decision should be granted. [331] The leave of the appeal tribunal is required to appeal a costs order.141 As we have referred to above, the relevant principles in determining whether leave should be granted are: is there a question of general importance upon which further argument and a decision of the appeal tribunal is to public advantage; is there a reasonably arguable case that the primary decision-maker made an error and are there reasonable prospects that the applicant would be granted orders in its favour; is leave necessary to correct a substantial injustice to the applicant caused by error. 140 Sovereign Homes Qld Pty Ltd v Edwards (No 2) [2018] QCAT 410, [15]. 141 QCAT Act s 142(3)(iii). -- 63 of 66 -- 64 [332] If the tribunal at first instance errs in exercising the discretion to award costs the appeal tribunal may set aside the costs decision and exercise the discretion afresh.142 [333] Whether the exercise of the discretion to award costs has miscarried requires a consideration of the principles in House v The King:143 did the tribunal act upon a wrong principle or otherwise err in law; did the tribunal make a mistake as to the facts; did the tribunal rely upon an irrelevant consideration or ignore a relevant consideration; in the absence of a specific error, is the decision unreasonable or plainly unjust. [334] In our view the learned member was correct in finding that the matter was factually and legally complex, and that the level of complexity was being exacerbated by the numerous issues and multiplicity of expert opinions. Indeed, the appeal has hardly been of less complexity than the proceedings below. Contrary to Edwards’ submission, the learned member did not find that the fraud issue exacerbated the complexity of the litigation. The learned member simply observed that the fraud issue was abandoned on the last day of the hearing. This is not contentious. [335] Edwards says that the learned member erred in allowing Sovereign its costs on the Magistrates Court scale applicable to matters where the amount recovered exceeds $50,000.00. Despite this not being properly raised in the grounds of appeal, we will nevertheless address the submission. [336] Unlike the Uniform Civil Procedure Rules 1999 (Qld) there is no scale of costs within the QCAT Act and Rules. The Magistrates Court scale of costs, where the amount recovered does not exceed $50,000.00 provides for the recovery of lump sum amounts based upon ‘events’. The scale provides for the recovery of costs on an item basis where the amount recovered exceeds $50,000.00. Where a building dispute involves a degree of complexity, factually and/or legally, and costs are awarded, it is appropriate that an item based scale be applied in determining those costs, whether that be the Magistrates Court scale, the District Court scale or the Supreme Court scale. The ‘lump sum’ Magistrates Court scale is, where matters are of some complexity, not suited to assessing costs. [337] Accordingly, it was open to the learned member to make the costs orders by reference to the Magistrates Court scale applicable to matters where the amount recovered exceeds $50,000.00. [338] Sovereign’s claim below was for the final payment under the contract of $46,155.20 plus interest and costs. Sovereign was successful in respect of its claim. Edwards’ counter application was for an amount of $133,379.30. Edwards was successful in recovering $79,938.30. Of this amount, the most significant component was the repayment of the sum received by Sovereign from QBE Insurance in respect of the two weather events. Although the learned member found that most of the hearing time was spent on issues other than Sovereign’s claim, it should be noted that Sovereign was successful in respect of its claim. [339] It might be said Edwards was fortunate, in light of the extent to which Sovereign succeeded, that the learned member awarded Sovereign only 70% of its costs of the application. In light of the extent to which Edwards was successful and noting that a 142 QCAT Act s 146, s 147(3). 143 (1936) 55 CLR 499. -- 64 of 66 -- 65 very significant part of the amount awarded in respect of the counter claim related to the insurance payment, the allowance by the learned member of 30% of the costs of the counter application was not unreasonable or plainly unjust. [340] Edwards has filed to establish any ground upon which leave to appeal the costs decision should be granted. Leave to appeal the costs decision is refused. Interest [341] In the costs decision Sovereign and Edwards were each awarded interest on damages. [342] The grounds of appeal do not raise a challenge to the learned member’s findings in relation to interest or the awards of interest. [343] In respect of the interest on the award to Sovereign the learned member held: [8] In my opinion an interest rate of 18% is reasonable and I allow that on the full amount owing. It is suggested that I should set off the amount allowed for defects. However, the contract provides that interest at the rate agreed may be charged on the amount outstanding from when it fell due for payment. That amounts to $46,155.20. Mr Edwards says interest should be calculated from18 December 2014, being 5 working days after receipt of the final claim. I accept that. On my calculations, interest from 18 December 2014 to 30 November 2018 at 18% amounts to $32,770.63. [344] In respect of the interest on the award to Edwards, the learned member held: [9] Mr Edwards then claims interest at 18% on the amounts he has been awarded. That rate of interest in clause 32 is for the benefit of the contractor and not the owner. He makes the claim on the amounts that were paid to the insurer being the Hail Event and the Rain Event. Section 77 of the Queensland Building and Construction Commission Act 1991 permits this Tribunal to make orders in relation to a building dispute dealing with interest “at the rate, and calculated in the way, prescribed under a regulation". Section 34B of the Queensland Building and Construction Commission Regulation 2003 provides for the calculation of interest at a rate agreed by the parties or at the rate of 10%. [10] The substantial Hail Event claim was paid to Sovereign on 15 September 2015. It has had the benefit of those funds being $64,954.002 since that date. Although, Sovereign submits it was ready, willing and able to carry out the work from 9 August 2016 that does not detract from the fact that it had the benefit of the funds from that earlier date. It also had the benefit of the funds paid on 6 November 2015 for the Rain Event agreed at $1,344. Together, they amount to $66,298.00. With the defects claim the amount totals $79,983.30. [11] Interest calculated at 10% from 15 September 2015 to date at 10% amounts to $25,625.27. [345] In his submissions, Edwards says that the learned member erred in awarding interest to Sovereign in respect of periods for which it was responsible for delay. Edwards says that the learned member failed to take into consideration evidence of 12 months of delay attributable to Sovereign. [346] Edwards submits that the learned member erred in not awarding interest on the damages awarded in respect of the counter application from the Date of Practical -- 65 of 66 -- 66 Completion. Edwards asserts that, at the very least, he should have been awarded interest on the amount allowed for defective work (being $13,640.13 excluding GST) from the Date of Practical Completion. [347] The grounds of appeal do not refer to the decision in relation to the awards of interest. Leave has not been sought by Edwards to amend the grounds of appeal to include the decision in relation to the award of interest. [348] It would be procedurally unfair to permit Edwards to expand his grounds of appeal in relation to the costs decision beyond those set out in the application for leave to appeal or appeal. In responding to the appeal, Sovereign was entitled to rely upon the grounds of appeal set out in the application. Edwards has, without leave, sought to expand the grounds of appeal well beyond those articulated in the application. [349] Accordingly, we confine our consideration and determination to the grounds of appeal set out in the application for leave to appeal or appeal. It follows that we will not consider further the submissions by Edwards relating to the awarding of interest. Conclusion in appeal APL356-18 [350] Leave to appeal is refused. Costs of the appeals [351] We will make directions for the parties to file and exchange submissions on the costs of the appeals. The question of costs will thereafter be determined on the papers. -- 66 of 66 --