Body Corporate for Lakes Villas v M & A Ross Pty Ltd [2017] QCAT 277

38206_170008_088.dot CITATION: Body Corporate for Lakes Villas CTS 31637 v M & A Ross Pty Ltd [2017] QCAT 277 PARTIES: Body Corporate for Lakes Villas CTS 31637 (Applicant) v M & A Ross Pty Ltd (Respondent) APPLICATION NUMBER: BDL205-16 MATTER TYPE: Building matters HEARING DATE: 22 June 2017 HEARD AT: Townsville DECISION OF: Member Carey DELIVERED ON: 11 July 2017 DELIVERED AT: Townsville ORDERS MADE: 1. The Application is dismissed. 2. No order as to costs. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where domestic building dispute completed – where dispute arose as to rectification of defects – where defective application of sealant was alleged – whether applicants were aware of the use of the sealant Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 APPEARANCES: APPLICANT: Body Corporate represented by Ms Vicki Bullimore as agent for the Body Corporate RESPONDENT: Mr Andrew Ross and Ms Megan Ross REASONS FOR DECISION -- 1 of 4 -- 2 [1] The Applicant engaged the Respondent to reseal approximately 2,300 square metres of driveway at the Lakes in Townsville in 2014. [2] The Applicant complains that the work was poorly executed and requires rectification. [3] The Applicant also complained to the Queensland Building and Construction Commission (“QBCC”), a representative of which conducted an inspection and on 18 July 2016. The QBCC report (Exhibit 2 in the proceedings) reveals that Mr Kevin Cameron deemed this to be a category 2 defect but did not order rectification of the defect as the time limit under QBCC policies for so doing had expired. That inspection was carried out almost 20 months after the work was completed. [4] The work was completed on 30 October 2014. The Applicant notified the Respondent of its opinion that there were defects in the work on 26 October 2015 and a complaint was made to QBCC on 18 July 2016. [5] The Applicant requests an order that the Respondent rectify the work at its cost. [6] The Applicant and the Respondent were unrepresented at the hearing. Given that, and the provisions of section 95 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the Act), I have given appropriate latitude to the parties as to how evidence was presented to the Tribunal and the matters to which I have had regard. In particular, both parties provided statements of evidence in accordance with Tribunal directions. They were statements from people said to be experts. None of the experts was called to give oral evidence at the hearing. It may have assisted the Tribunal further had these witnesses been called. [7] Notwithstanding non-compliance with the practice direction in respect of a joint expert’s report which is required to be submitted after an expert’s conclave (which was held) I have allowed into evidence the statements of Martin Brook, Alan Church, Chris Murphy and Carl Grimmer. Mr Grimmer was not held out as an expert. He attended the hearing and gave oral evidence in addition to his statement. [8] His evidence was to the effect that he was the person who applied the sealant and that he applied it correctly. Mr Grimmer was not cross examined by the Applicant. I accept his evidence. [9] The experts could not agree. The experts for the Applicant stated the work was defective. Unsurprisingly, the experts for the Respondent stated that it was not. [10] The product statement which the Respondent says it provided to the Applicant with its quote to perform the works states that the sealant needs to be reapplied every 12 months. -- 2 of 4 -- 3 [11] The Applicant denied receiving a copy of this product statement. The Respondent states that it was given to the Applicant. The Applicant states that they would not have proceeded with the quote for use of that product had they been aware of the requirement for re-application every 12 months. [12] The Applicant has the burden of proving its claim to the civil standard on the balance of probability. The civil standard is not applied as a mathematical or scientific exercise but as a reasonable search for the truth in the circumstances of each particular case.1 As Dixon J (as His Honour then was) explained in Briginshaw v Briginshaw:2 ... when the law requires the proof of any fact, the Tribunal must feel an actual persuasion of its occurrence or existence before it can be found... reasonable satisfaction is not state of mind it is obtained or established independently of the nature and consequence of the fact or facts to be proved. It is also important to keep in mind that in cases like these the standard test for weighing and applying the evidence is not one of mathematical or scientific exercise, but based on a reasonable search for the truth in the circumstances of each particular case.3 [13] Section 28 of the Act requires the Tribunal to act fairly and according to the substantial merits of the case whilst observing the rules of natural justice and informing itself in any way that it considers appropriate. [14] In accordance with sections 28(4) and 95 of the Act I have admitted the statements into evidence notwithstanding that only one witness was available to give oral evidence and notwithstanding that the practice direction in relation to joint experts report had not been complied with. [15] On balance, and taking into consideration the submissions made by the Applicant and the Respondent, I find that the Applicant was given a copy of the product statement by Mr Andrew Ross. [16] I find that it would not be reasonable in the circumstances to direct the Respondent to reapply the coating at its expense, for the following reasons: a) The length of time that has elapsed from application, to notification of defects, to complaint to the QBCC to the date of this hearing. Some 2 ½ years has passed since the product was allegedly defectively applied. It would not be reasonable in the circumstances for the Respondent to be put to the expense of repair now, especially considering that the product statement requires re-application every 12 months. b) The QBCC declined to direct rectification on the basis of the length of time that had elapsed between completion of the work and their 1 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267. 2 (1938) 60 CLR 336, 361-2. 3 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267. -- 3 of 4 -- 4 inspection. I do not believe it would be appropriate for the tribunal to do so now. [17] For those reasons the application is dismissed. There will be no order as to costs. -- 4 of 4 --