Body Corporate for Rosegum Villas v Queensland Building and Construction Commission [2014] QCAT 588

CITATION: Body Corporate for Rosegum Villas CTS 37755 v Queensland Building and Construction Commission [2014] QCAT 588 PARTIES: Body Corporate for Rosegum Villas CTS 37755 (Applicant) v Queensland Building and Construction Commission (Respondent) APPLICATION NUMBER: GAR319-11 MATTER TYPE: General administrative review matters HEARING DATE: 18 - 19 August 2014 HEARD AT: Brisbane DECISION OF: Member Paratz DELIVERED ON: 18 November 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Queensland Building and Construction Commission made on 19 September 2011 to disallow a claim under the statutory insurance scheme in relation to subsidence or settlement of blocks 2, 3, 7, 12 and 14 at 8 Rosegum Place, Redbank Plains is confirmed. 2. The application is to be set down for a Directions Hearing at a date to be advised by the Registry after receipt of these reasons, to enable the parties to make submissions as to a timetable for submissions on, and process as to determination of, Costs (whether by an on the papers hearing or by an oral hearing). CATCHWORDS: BUILDING – STATUTORY HOME WARRANTY SCHEME – whether the decision of the QBCC to refuse indemnity under the statutory policy should be confirmed – where the experts agree that the footings of five buildings were not constructed in accordance with the relevant -- 1 of 14 -- 2 Australian Standard – whether the footings are performing within the Australian Standard – whether the possibility of a future failure to perform gives rise to a present claim under the policy – where the QBCC had provided a letter of comfort as to acceptance of future claims Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 60 Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 APPEARANCES: APPLICANT: Mr M Stunden of Counsel (Instructed by Piper Alderman, Solicitors) RESPONDENT: Mr S Seefeld of Counsel (Instructed by Holding Redlich, Solicitors) REASONS FOR DECISION [1] Rosegum Villas is a complex of 54 single-storey units located at 8 Rosegum Place, Redbank Plains, which is near Ipswich in Queensland. There are 16 clusters of buildings. Each cluster has 3 to 5 units. [2] This application is a Review of the decision of the Queensland Building and Construction Commission (‘QBCC’) to refuse indemnity under the Policy for subsidence damage. It concerns Blocks number 2, 3, 7, 12 and 14 only. They comprise units as follows: Block 2 – units 6, 7 and 8 Block 3 – units 9, 10, 11 and 12 Block 7 – units 23, 24, 25 and 26 Block 12 – units 40, 41 and 42 Block 14 – units 46, 47 and 48 [3] The Application was filed on 17 October 2011. The Body Corporate sought orders that: 1. The decision be set aside 2. The decision be substituted with a decision that the Applicant’s claim under the statutory insurance scheme be allowed. [4] The Application was amended on 6 August 2014 to include seeking orders that: -- 2 of 14 -- 3 In the alternative, if any or all of the Applicants’ claims under the statutory insurance scheme are not allowed then in respect of the disallowed blocks, a declaration be made that: 1. The footings for the disallowed blocks have not been designed or built in accordance with engineering principles as permitted in the Australian Standard 2870-1996; and 2. The statutory insurance scheme is enlivened when the footings of the disallowed blocks are no longer found to be complying with the Australian Standard 2870-1996; and 3. The lot owners are entitled to rely on the Letter of Comfort from the respondent to the applicant dated 17 March 2014, on providing the respondent with an expert report which finds that any or all of the disallowed blocks are no longer complying with the Australian Standard 2870-1996, without the need to attend to any owner maintenance issues identified therein. [5] The material and submissions filed is extensive and contained in 23 ring binders. The matter was heard over two days. [6] The contract for construction of the complex was dated January 2007. Practical completion was achieved on 27 November 2007. By 6 August 2009 the Body Corporate was aware of structural cracking to the walls and external areas of the buildings. [7] Complaints were filed with the QBCC under the Queensland Home Warranty Scheme. The QBCC rejected all the complaints on 19 September 2011 on the basis that the construction was within the tolerances of AS2870-1996 and therefore was not considered to affect the structural adequacy or serviceability, performance or functional use of the residential construction work; and upon the basis that reasonable maintenance had not been undertaken. [8] Subsequently the QBCC accepted claims for Block 5 on 6 November 2013; for Blocks 4, 8, 9, 10, 11, 13, 15, and 16 on 19 February 2014; and Blocks 1 and 6 on 16 April 2014. [9] The relevant provisions are in Queensland Building Services Authority Insurance Policy Conditions, Edition 7 which came into force on 29 September 2006. [10] Part 3 of the Policy, headed ‘Subsidence or Settlement’ provides: 3.1 Payment for subsidence or settlement (a) Subject to the terms of this policy, BSA agrees to pay for the cost of remedying subsidence or settlement damage to the residential construction work that is primary building work. (b) For the purposes of this policy, “subsidence or settlement” means movement in the foundations of the residential construction work, which adversely affects the structural adequacy or serviceability, performance or functional use of that work. -- 3 of 14 -- 4 [11] The QBCC no longer rely on the exclusion in the Policy in clause 5.4 as to maintenance. The case put by Counsel for the QBCC was that the level of damage of the disputed blocks was not sufficient to be properly described as affecting structural stability or integrity. [12] The relevant Australian standard is AS2780-1996, Residential Slabs and Footings. Clause 1.3.1 relates to the performance of footing systems and provides as follows: The footing systems complying with this Standard are intended to achieve acceptable probabilities of serviceability and safety of the building during its design life. Building supported by footing systems designed and constructed in accordance with this Standard on a normal site (see Clause 1.3.2) which is – (a) Not subject to abnormal moisture conditions; and (b) Maintained such that the original site classification remains valid and abnormal moisture conditions do not develop (see Note 1); are expected to experience usually no damage, a low incidence of damage category 1 and an occasional incidence of damage category 2 (see Note 2). Damage categories are defined in Appendix C. [13] Table C1 of the standard categorises damage in relation to walls, relevantly, as follows: (a) Category 0 – hairline cracks. Less than 0.1mm crack width. (b) Category 1 – fine cracks which do not need repair. Less than 1mm crack width. (c) Category 2 – Cracks noticeable but easily filled. Doors and windows stick slightly. Less than 5mm crack width. [14] The note to table C1 relevantly include the following: 1. Crack width is the main factor by which damage to walls is categorised. The width may be supplemented by other factors, including serviceability, in assessing category of damage. 2. In assessing the degree of damage, account shall be taken of the location in the building or structure where it occurs, and also of the function of the building or structure. 3. Where the cracking occurs in easily repaired plasterboard or similar clad framed partitions, the crack width limits may be increased by 50% for each damage category. 4. Local deviation of slope, from the horizontal or vertical, of more than 1/100 will normally be clearly visible. Overall deviations in excess of 1/150 are undesirable. 5. Account should be taken of the past history of damage in order to assess whether it is stable or likely to increase. [15] Each party put forward an expert witness. The applicant called Mr Ian Bishop, and the respondent called Mr Peter Wright. The experts had met in a Conclave and had differing views. They give evidence by the concurrent evidence process. -- 4 of 14 -- 5 [16] Mr Bishop said that he thought the builder had decided to use screw piers as they would be cheaper and quicker. In his view the design was inadequate, and does not provide any protection if the moisture of the ground changes. He noted that Mr Wright had conducted invasive investigations and found that the buildings had lifted 70mm off the screw piers in places, and that the buildings had lost the support of the foundations. [17] Mr Bishop described the buildings in question as serviceable at the moment, but if the moisture changes that they would become unserviceable. He considered there was a high risk of changes as a result of vegetation effects or services failing. [18] Mr Wright considered there was a finite amount of swell of the ground, and that given that this site was initially in a drought, then had been through three of the wettest periods known, that it had become as wet as it probably would ever get. He thought the risk of further heave was much less than when the buildings were built, and that in the first few years movement stabilises, and that there was a very low risk of future heave being to the same extent. [19] Mr Wright proposed that slabs be installed around the buildings to control sub-soil movements, and to control run-off. He said the broken service pipes do need to be repaired, but the whole of the buildings do not have to be repaired. [20] Whilst Mr Wright said that the foundation system was not one that he would use, there were many screw pier buildings in use and performing adequately. [21] Mr Bishop and Mr Wright differed as to the amount and frequency of damage which fell outside accepted tolerances. Mr Bishop agreed that blocks 2, 3 and 7 fall within the tolerances of Appendix C in AS 2870-1996 (except for the type 3 or 4 damage in units 12 (Block 3), 46 and 47 (Block 12)). He disagreed that blocks 12 and 14 fell within the tolerances. [22] A curiosity in this matter is as to why some blocks have performed differently to other blocks. Mr Wright said that he had spent hours trying to answer that question. He speculated that it could be fill brought in to some areas, or differing swell, but he could not answer the question. Mr Bishop said that he could not answer that question either. The Body Corporate’s submissions [23] The Body Corporate puts forward six basic reasons why the decision of the QBCC should be set aside: a) The works suggested by Mr Wright are not owner maintenance works, but are remedial works. b) The element “performance” in the definition of “subsidence or settlement” at clause 3.1(b) of the Policy cannot be singled out from -- 5 of 14 -- 6 the other elements of “structural adequacy; serviceability; and functional use”. c) A purposive approach to the interpretation of the Policy should be adopted. d) The purpose of the statutory insurance scheme is consumer protection, and the policy must be construed in the way that will best achieve that purpose. e) The QBCC has accepted claims for 11 of the 16 blocks. The non- acceptance of the remaining blocks is contrary to the duty of utmost good faith. It is a capricious result as all blocks have the same inadequate slab and footing system. f) The QBCC places a temporal limitation on the damage and performance of the trial blocks because they are said to be performing. [24] It submits that there is no contest that the slab and footing system used across all the blocks is a latent defect in that the PDE design does not satisfy the requirements of section BP1.1 of the Building Code of Australia 2006 or 2007 as to excessive deformation by ground movement. Further, it says there is no contest that the PDE footing system (a screw pier footing design) offers no protection against ground movement due to heave, and has little capacity to resist differential ground movement compared to the situation if the footing and slab system had been designed in accordance with the Building Code of Australia or AS 2870- 1996. [25] It argues that a number of slabs have been lifted off the screw piers and it is reasonable to expect that this has occurred in all blocks1 and that the ground movement has structurally damaged the footings and the rectification measures to address this fact directly relate to the structural adequacy, serviceability, performance or functional use of the defined work. [26] It notes that the experts are in subjective disagreement about the type and level of damage in units 12 and 14, and argues that this should be resolved in favour of the Body Corporate. It notes that as to blocks 2, 3 and 7 that the experts agree that in terms of the criteria, the type and frequency of the damage is within the tolerance allowed but points out that:2 (a) The Standard pre-supposes a complying footing in the first place; (b) The issue of damage type and frequency is but one very narrow element and fails to recognise that the standard also points to issues of serviceability and that the Building Code of Australia points to issues of building amenity and deformity; 1 Body Corporate submissions 19 August 2014 para 73. 2 Body Corporate submissions 19 August 2014 para 78. -- 6 of 14 -- 7 (c) Caution should be exercised in adopting a strict approach [27] It points in particular to the evidence of Mr Bishop3 that: The footing designs constructed for blocks 2, 3,7, 12 and 14 offer no protection from changes in moisture content of the ground beneath the buildings and rectification measures are necessary to minimise possible future damage. The QBCC Submissions [28] The QBCC submits that there are two key issues for determination: a) Are blocks 12 and 14 performing in accordance with AS2780-1996? b) Even if all five blocks are performing, should the claims against the statutory insurance scheme be allowed in any event? [29] As to the first issue the QBCC submits that:4 The final assessment of whether the amount of damage amounts to more than a low incidence of category 1 or occasional incidence of category 2 is, ultimately, a subjective assessment based on experience of the particular building in question. In this case, Mr Wright inspected each of the properties and assessed each incidence of damage, one by one. In the QBCC’s submission, Mr Wright is the person best placed to advise the Tribunal on the assessment of damage, and consequent performance of the footing system. In the case of blocks 12 and 14, Mr Wright assesses not more than low incidence of category 1 and occasional incidence of category 2 damage to these blocks. Relevantly, a significant proportion of the damage to these blocks consists of damage to cornices, which is damage that commonly occurs in buildings with minor foundation movement. The QBCC submits that this is the view that ought be adopted by the Tribunal. [30] As to the second question, this relates to whether the blocks are performing within the policy. The QBCC submits as to structural adequacy that:5 It cannot be said that movement in the footings in blocks 2, 3, 7, 12 and 14, nor the consequent cracks in the walls adversely affects the ability of those buildings to safely remain standing. The experts’ evidence was that the movement in the subject blocks had lifted the slab from the piers in the order of 10 to 15mm. Both experts agreed that this amount of movement did not amount to the blocks being structurally inadequate. The movement in the footing is well short of rendering the buildings structurally unsound. Structural adequacy has not been adversely affected and so this part of clause 3.1 of the Insurance policy Conditions is not met. [31] It further submitted as to “serviceability, performance or functional use” that these words should be read together as they overlap. It submits that the damage survey reveals no more than occasional category 2 damage to the internal and external walls, and that the damage does not impact on 3 Bishop report 6 August 2014 para 15. 4 QBCC Submissions 19 August 2014 para 46. 5 QBCC Submissions 19 August 2014 para 65. -- 7 of 14 -- 8 the ability of the residents to reasonably carry out the normal activities of a dwelling, that the buildings are habitable, and that the damage is cosmetic. [32] The overall submission of the QBCC is that all five blocks are presently performing in accordance with the standard and accordingly liability under clause 3.1 of the Policy does not arise. [33] The QBCC points out as to the future of these buildings that: a) Whilst the footings have not been built in accordance with the standard, it is not certain when or if the footings will cease to perform in the future b) It cannot be predicted when the footings may cease to perform, if that were to occur c) In the event that the footings did cease to perform at some future date, there is nothing to prevent the Body corporate applying to the QBCC under the Policy at that time. The QBCC points out that it is not raising that the Body Corporate is excluded from making a claim pursuant to the time limit set out in clause 2.5 of the policy; and that there is no reason for the Tribunal not to be satisfied that any future claim would be dealt with by the QBCC in accordance with its usual policies and procedures. Discussion [34] This matter involves difficult technical assessments. The situation is made further complicated by the different behaviour of the various blocks in the complex. There has been extensive investigation of the site. A schedule tendered in evidence lists 37 separate inspections that have been conducted on behalf of the QBCC alone, between 17 April 2007 and 27 November 2013. [35] There have been numerous experts involved in the assessment of the situation from time to time. The evidence is now presented by Mr Wright and Mr Bishop. Each of those persons is an experienced engineer. Mr Wright has had greater onsite experience than Mr Bishop, and Mr Bishop’s evidence is based in part on “desk-top reviews” of the observations of Mr Wright. Mr Wright is based in the local area, and is familiar with the area and the behaviour of structures there. [36] On the whole, where the evidence of Mr Wright and Mr Bishop differ, I prefer the evidence of Mr Wright in this matter. His local knowledge, greater time onsite, and general experience are influencing factors, as well as the views I have formed as to their evidence. [37] It is agreed by the experts that the footing system fails to meet the Australian Standards. The system of screw piles, with ripping of the soil, that was employed, is a system that has given rise to numerous cases that have come before the Tribunal. -- 8 of 14 -- 9 [38] The system was once in favour with builders and developers because it was seen as having advantages in speed and cost over other traditional footing systems. In certain situations, particularly where areas of reactive soils are involved, the results have been problematic. In some cases this may be due to poor construction technique by unsatisfactory ripping of the soil, and pile installation, whilst in other cases it is simply design unsuitability. [39] In hindsight, it is clear that another footing system should have been used on this project. The slabs of some of the buildings have been lifted well clear of the piles, thereby depriving them of any support; whilst in other buildings the lifting has been much less severe. [40] The question to be considered in terms of claiming on the Policy is as to what the effect of the faulty footings is. The issue is how the buildings are performing. Merely because the footings are inappropriate in design does not alone give rise to a necessity or obligation to replace them with a preferable system. [41] Mr Wright has assessed the current performance of all five subject buildings as being within acceptable limits under the Australian Standards. Mr Bishop agrees with that as to three of the blocks, but disagrees as to blocks 12 and 14. [42] As I have indicated, I prefer the evidence of Mr Wright, and adopt his conclusions and reasoning as set out in his reports, leading to a conclusion that all five blocks are operating satisfactorily within the Australian Standard. [43] The owners of the units will understandably feel concerned and uncomfortable knowing that the footing design of their buildings is seen as defective, and be anxious as to the future integrity and value of their investment. [44] Mr Wright does not consider that the buildings in question will get any worse. Mr Bishop says he cannot say. I cannot presume that the buildings will deteriorate further in the absence of expert evidence to that effect. On the evidence before me, I cannot be satisfied that the buildings are going to deteriorate further. [45] Mr Wright says that the situation may become worse if the owners do not take certain steps which he recommends, in order to control changes in the sub-soil moisture. These include extending surfaced areas in the gardens. [46] The prognosis of Mr Wright is contained in part 6.8 of his reports of 9 January 2014 and is as follows: (a) If there is little or no change in the subsoil moisture content in the future then we anticipate that there will be minimal further differential movement in the subsoil. As a consequence there should be little or no further damage in the units. -- 9 of 14 -- 10 (b) It is probable that if the seasonal fluctuations in subsoil moisture can be controlled and cosmetic repairs are carried out that future movement of this building will not see damage more severe than AS2870-1996 would expect in a building supported on a footing system designed, built and maintained in accordance with the Standard. [47] The recommendations of Mr Wright are contained in Part 7.1 and 7.2 of his reports dated 9 January 2014 and are as follows: 7.1 Soil Moisture Stabilisation (a) If the costs of subsoil moisture control measures are significantly less than robust works to stiffen the existing footing system then we recommend steps be taken to limit the seasonal fluctuations in the subsoil moisture. This should limit future subsoil movements and damage to the superstructure. (b) Subsoil moisture control measures should include: (i) All underground drainage must be checked and any leaks detected made watertight. Flexible joints must be used in any repairs. (ii) The control of surface runoff and evaporation by removing all shrubs, placing concrete over the back, front and side yards for a distance of not less than 2.4m with the outer edge of those paths, not in contact with other concrete, turned down into the ground to prevent the flow of water beneath the new paths. 7.2 Cosmetic Repairs (a) Depending upon the weather conditions and vegetation control between now and when the moisture stabilisation works are carried out, cosmetic repairs should be carried out to the internal linings and the external brick veneer. (b) If there is a delay in carrying out the moisture stabilisation works then it may be prudent to monitor the slab performance prior to carrying out cosmetic repairs. The moisture stabilisation works may induce some ground movement which will need time to dissipate before carrying out cosmetic repairs. [48] Mr Bishop agrees that unless measures are taken to stabilize the moisture content of the ground beneath blocks 2, 3, 7, 12 and 14, these buildings will always remain at risk of suffering damage from ground movements due to moisture change arising from extreme weather conditions such a prolonged drought or prolonged flooding rain.6 [49] Mr Bishop argues that these are not maintenance measures:7 17. In my opinion the necessity for such works has been brought about solely by the fact that the footing systems for the blocks have been constructed in accordance with the PDE designs which, as pointed out in the quotations above from the Wright reports, were unsuitable 6 Bishop report 6 August 2014 para 19. 7 Bishop report 6 August 2014. -- 10 of 14 -- 11 for such reactive clay sites. In other words the issue here is not one of lack of owner maintenance but one of defective design. … 21. The additional recommendations in the Wright reports to place additional concrete slabs around blocks 2, 3, 7, 12 and 14 are required to rectify the inadequacy of the constructed footing systems to protect the buildings from the effects of possible moisture change. Therefore such measures must, in my opinion, be considered to be rectification measures rather than maintenance issues. [50] Therefore whilst it might be asked why the owners should have to pay for maintenance measures that could be said to be required to cope with the poor design of the footings, there is a counter-argument that these problems are arising because of the nature of the location, and that such measures are maintenance measures that have arisen in practice having regard to the actual waterflows and vegetation experience of the complex, and are not solely related to the design of the footings. [51] The experts agreed in the joint report of 6 May 2013 that there were maintenance issues that led to variations in the subsoil moisture: 3. It is agreed that poor maintenance issues relate to uncontrolled vegetation, drainage to and from the tanks and elevated gully pits. … 7. The poor surface drainage, both on and off the site, raised gully pits, overflowing tanks, open path joints and vegetation have all contributed to variations in the subsoil moisture and hence variations in the swelling of the subsoil. [52] If the buildings were not performing satisfactorily at the present time, then it would likely follow that the moisture control measures could be seen as consequent necessary rectification works if they were still seen as appropriate in that circumstance. However, where the buildings are performing satisfactorily, then the moisture control measures can be seen as prudent steps to avoid a situation developing in the future, and steps that the owners should take to maintain and protect their property from a possible danger of which they have become aware. [53] A parallel may be drawn with a home-owner who becomes aware that water is accumulating against the outside wall of a building through overland flow that is not currently causing a problem, but would do so if allowed to continue and to accumulate, and is advised to install agricultural piping as drainage along the base of the wall to intercept, collect and divert the water to a remote discharge point. That work would be seen as prudent preventative maintenance, and a homeowner would be foolhardy to ignore such advice. [54] Significantly, Mr Wright does not say that if the footings had been better designed and complied with the Standard, that the heave would not have occurred, or that the owner maintenance he outlines, would not be required. Indeed, he also points to other factors, unrelated to the footing -- 11 of 14 -- 12 design, which have contributed to the heave. He says this as to the cause of damage in Clause 6.7 of his mentioned reports (as to unit 6 in this instance, but he makes similar comments as to other units): 6.7 Cause of damage (a) We are in little doubt that the distortion in the building has been caused by an uptake of moisture in the subsoil which we anticipate was variable in reactivity and moisture state at the time of construction. (b) It is possible the heave in the left hand end of Unit 6 is a result from poor site drainage at the end of the unit combined with a large uptake of moisture into highly reactive subsoil dessicated by a tree now removed from the neighbours site. (c) The footing and slab system has much less strength and stiffness, and hence much less able to resist localised distortion from subsoil heave, than a footing and slab system complied with the requirements of AS2870-1996. [55] The QBCC has attempted to allay the concerns of the Body Corporate by providing a letter of comfort dated 17 March 2014 which offers to consider any future application if further deterioration in fact occurs. The Body Corporate has expressed the view that the letter of comfort is deficient in its wording. [56] Whether the letter of comfort is sufficient to achieve its intended purpose or not, the QBCC have indicated in their submissions to this Tribunal that any future application would be considered with the clear implication that no point would be taken as to such an application being time-barred by a limitation period. If the QBCC were to take a point in the future as to time, then it would be strongly arguable by the Body Corporate that the QBCC is estopped from doing so by its conduct and representations in these proceedings. [57] That argument should give the Body Corporate comfort in law that future applications can be made if the need arises, irrespective of any deficiency in the “letter of comfort”. Having said that, such comfort is predicated upon the Body Corporate taking the preventative measures that Mr Wright outlines. Declaration [58] The Body Corporate is seeking declarations as to the compliance of the design of the footings with the Australian Standard; that the Policy is enlivened if the footings are no longer found to comply; and that the Body Corporate can rely on the letter of comfort without attending to the owner maintenance issues. [59] The QBCC submit firstly that the Tribunal does not have jurisdiction to make the declarations sought, as they relate to future matters, not as to “matters in the proceeding” under s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). -- 12 of 14 -- 13 [60] The QBCC secondly submits that the declarations should not be made as they involve determinations of a question that is abstract or hypothetical.8 [61] The Tribunal will generally be slow to make a declaration that is not directly required to enforce its determination in the matter. A clear requirement, and efficacy, of a declaration would need to be established before it would be made. [62] I do not consider that that a declaration as to the design of the footings would add anything to this matter, or to any related consequence. The experts are in plain agreement as to that aspect, and if the question arose again, then even cursory reference to the joint statements of the experts would quickly put any such issue to rest. [63] Whilst it is obviously envisaged by the QBCC that the Policy will become enlivened if the footings fail to perform in the future, the exact circumstances would still need to be assessed to satisfy that no new or extraneous factor has arisen which would affect liability under the Policy. It would be pre-judging the situation, without having reference to the material and circumstances that may apply in the future, to make such a declaration at present. [64] As I have indicated, I accept the view of Mr Wright that the maintenance works should be undertaken, and there is therefore no basis to exclude that requirement from the letter of comfort. [65] I therefore do not consider that a declaration should be made in any of the terms as applied for. Conclusion [66] Whilst the evidence in this matter has been voluminous, that has resulted largely as a result of the extensive engineering research and reporting that has been needed to be done to describe and analyse the technical causes of the issues, and provide a comprehensive engineering assessment of them. [67] The actual liability issues fall within a fairly narrow compass and flow on from the engineering views that are accepted. [68] I have preferred the evidence of Mr Wright in this matter. The consequence of that is that I am satisfied that the five subject buildings are presently all performing satisfactorily within the Australian Standard. [69] The result of that evidence and finding is that no entitlement arises under the Policy, as there is no present adverse effect on the structural adequacy or serviceability, performance or functional use of the building work. 8 Ref Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 68 FCR 406 at 414 -- 13 of 14 -- 14 [70] That conclusion is consistent with the decision of the QBCC made on 19 September 2011 to disallow a claim under the statutory insurance scheme in relation to subsidence or settlement of blocks 2, 3, 7, 12 and 14 at 8 Rosegum Place, Redbank Plains. I confirm that decision, and I order accordingly. [71] I make no Declarations, as discussed. Costs [72] The parties have indicated that they may wish to make costs applications after consideration of this decision. Those issues may be complex. [73] I will set the matter down for a Directions Hearing after receipt of these reasons to enable to the parties to make submissions as to a timetable and process for submissions as to costs and as to determination (whether by an On the Papers hearing or by oral evidence). -- 14 of 14 --