Barbi v Brewer [2013] QCAT 348

CITATION: Barbi v Brewer [2013] QCAT 348 PARTIES: Noel Ronald Barbi (Applicant) v Alan Tony Brewer (Respondent) APPLICATION NUMBER: BDL123-12 MATTER TYPE: Building matters HEARING DATE: 26 November, 2012 HEARD AT: Brisbane DECISION OF: Fiona FitzPatrick, Member DELIVERED ON: 8 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Alan Tony Brewer must pay Noel Ronald Barbi the sum of $14,220.80 by 9 August 2013, together with interest at the rate of 10% on that sum on and from 28 June 2012 until and including the date of payment. 2. Alan Tony Brewer must pay Noel Ronald Barbi’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the Magistrates Court scale of costs. 3. If the amount of Noel Ronald Barbi’s costs is not agreed with Alan Tony Brewer within 28 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Alan Tony Brewer. 4. Alan Tony Brewer is to pay Noel Ronald Barbi’s costs (as agreed or assessed) within 28 days of such agreement or assessment. -- 1 of 16 -- 2 CATCHWORDS: BUILDING MATTERS - Claim for damages for negligent installation of glazing by a licensed contractor; oral contract; work not complete; glazing not waterproof; failure to follow manufacturer’s installation manual; where glazing demolished and replaced; post sealing; whether windows could be rectified to ensure compliance with Australian Standard AS2047, “Windows in Buildings- Selection and Installation”. Queensland Building Services Authority Act 1991 (Qld) ss 75; 77(2)(c);77(1)(h) Queensland Building Services Authority Regulation 2003 (Qld) r 34B(1)(c) and 34B(2) Queensland Civil and Administrative Tribunal Act 2009 (Qld). ss 3, 100; 107 Queensland Civil and Administrative Tribunal Rules 2009 (Qld). r 87 Domestic Building Contracts Act 2000 (Qld) s 30; Ballina Building Services Pty Ltd v Doyle [2010] QCAT 643; Bryan v Maloney (1995) 182 CLR 609; Voli v. Inglewood Shire Council (1963) 110 CLR 74; Lyons v Dreamstarter Pty Ltd [2011] QCATA 142; Oshlack v Richmond River Council (1998) 193 CLR 72; Scottish Benefit Society v Chorley (1884)QBD 872 APPEARANCES and REPRESENTATION (if any): APPLICANT: Noel Ronald Barbi represented by Ms Strijland of N.R. Barbi RESPONDENT: Alan Tony Brewer represented by Mr Garlick of counsel. REASONS FOR DECISION [1] In November 2011 renovation work began at Mr Barbi’s unit in New Farm. As part of these renovations Mr Brewer installed a wall of aluminium casement windows and a glass roof to convert an existing pergola into an internal space. The parties did not enter into a written agreement. -- 2 of 16 -- 3 [2] Mr Brewer was recommended as a glazier by the chairperson of Mr Barbi’s body corporate. He is licenced to work with glass and aluminium and has a clear licence. [3] On 8 February 2012 it rained and the windows leaked. Mr Barbi says that Mr Brewer walked off the job and would not return to rectify the defects, so he had to engage another contractor to replace the glazing system at a cost of $14,080 plus GST. [4] Mr Barbi chose not to have Mr Brewer’s work rectified, because the contractors he engaged to perform the work said they could not guarantee rectification work on a system that was not their own. [5] Mr Brewer says when he left the site the work was merely incomplete, not defective. Mr Brewer said he walked off the job on 7 February 2012 because Mr Barbi “stood over him” and owed him $400. Mr Barbi says that, to the contrary, he has overpaid Mr Brewer $1925. [6] Mr Barbi says that Mr Brewer was an independent contractor, whereas Mr Brewer says that he was an employee taking direction from Mr Barbi. [7] Mr Barbi claims: a) Damages of $15,390 for rectifying the defective windows; b) Interest at 10%; c) Costs, including the cost of obtaining expert evidence. Jurisdiction [8] The tribunal has jurisdiction to decide building disputes1, which include domestic building disputes such as this one. “Domestic building disputes” are defined to include “claims in negligence related to the performance of reviewable domestic work …”. I am satisfied that Mr Brewer’s work is reviewable domestic work. [9] The work done by Mr Brewer was domestic building work worth more than $3,300. Under the Domestic Building Contracts Act 2000 it was Mr Brewer’s responsibility to ensure that his contract with Mr Barbi was in writing. Mr Barbi is a solicitor who should also be aware of this legislative requirement. Nevertheless, the parties entered into an oral contract. [10] The DBCA goes on to say that a domestic building contract which is not in writing is unenforceable2. This means that the agreement cannot form the basis of a claim in contract. However, as Mr Barbi is seeking damages for negligence, the DBCA does not prevent the tribunal having regard to the 1 Queensland Building Services Authority Act 1991 (Qld) ss 75 and 77. 2 Domestic Building Contracts Act 2000 (Qld) s 30; Ballina Building Services Pty Ltd v Doyle [2010] QCAT 643. -- 3 of 16 -- 4 oral agreement between the parties to the extent that it is relevant to the negligence claim. The fact that the law recognizes the existence of concurrent duties in contract and tort does not mean that the existence of a contractual relationship is irrelevant to either the existence of a relationship of proximity or the content of a duty of care under the ordinary law of negligence. In some circumstances, the existence of a contract will provide the occasion for, and constitute a factor favouring the recognition of, a relationship of proximity…3 [11] The tribunal may make orders to resolve a building dispute including awarding damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation. [12] To succeed in a claim of negligence Mr Barbi must establish that, on the balance of probabilities: a) Mr Brewer owed him a duty of care; b) Mr Brewer breached that duty by failing to take reasonable care when installing the windows; c) Mr Barbi suffered damage as a result of Mr Brewer‟s breach of duty; and d) the damage was not too remote a consequence of the breach of duty. Mr Barbi‟s evidence [13] He told Mr Brewer that the area being enclosed had to be waterproof and explained in broad terms what he wanted. Mr Brewer agreed to measure the area, decide on which system and materials to use and then deal with the suppliers. [14] On 7 February 2012 Mr Brewer advised him that the windows and roof were complete and waterproof, so he arranged for the plasterers to install plasterboard. Over the next couple of days it rained and water leaked through the widows and damaged the plasterboard. [15] When Mr Brewer refused to return to the site he engaged G James Glass to assess the work and they presented him with a menu of four options. He chose option 4, which was for the following scope of work: “Remove the 6 section of hopper windows, framing and skylights (from the internal living area section) and replace with new G..James 450 series fixed glass windows, of a similar configuration, including reglazing the skylights. After which, we will install external drip moulds to all original external windows, sealing joints and finishing works as described above (in item 1 option 1) to all the windows; $14,080”. Mr Brewer‟s evidence [16] He outlined some of his recent experience, which included assembling 30- 40 sets of aluminium bifold doors while working for Civic Glass and 3 Voli v. Inglewood Shire Council (1963) 110 CLR 74 per Windeyer J. -- 4 of 16 -- 5 Aluminium. He had also worked for other owners in Mr Barbi’s community titles scheme, for example units 1, 3, 5 and 7. [17] He agreed that he and his son were to be paid a total of $85 per hour. When asked why he did not charge GST he said he believed that he was a casual employee. He said he declared the money he received from Mr Barbi as wages in his tax return. In relation to the 10% on cost for materials, he said that this was the first time he had ever charged a “margin” to an employer. He travelled from the Gold Coast to New Farm each day and the fuel for the return trip was $40. [18] Initially Mrs Barbi told him what to do in relation to the kitchen cupboards, toilets and tile removal. However, after a while Mr Barbi took more of an active role. [19] He chose the glazing system. He selected materials manufactured by Rapid Aluminium and supplied by C and K Windows and Doors. In cross examination he was asked about opinion evidence from Mr Bellert, an employee of G James, that a window system of this complexity is best manufactured in a specialist factory environment. Mr Brewer replied that he manufactured the windows at home on a transportable saw bench with a good quality, sharp saw. [20] When asked why he employed a dry joint construction method instead of sealing progressively as recommended by the manufacturer, Mr Brewer said he intended to use a post sealing method to waterproof the windows. He said by 8 November 2011 he had already sealed the sashes. He said that the frames have clip in access on the underside of the transoms which would have enabled him to get at the screws to post seal them. He was going to remove the cover plates and seal, which was a method he had used successfully before. He said that he had not received any complaints after using this method. [21] When referred to the expert conclave report he accepted that there were problems with windows, but said it was because the job was not complete. Before he left the job the awning sashes were sealed, however the skylight was only temporary 6mm glass as he was still waiting for patio glass. He was also waiting for three Z flashings and intended to post seal the whole system when it was finished. [22] While he maintained that it was possible to post seal to acceptable standard, he did agree that post sealing was not the industry practice. When asked to comment on expert evidence casting doubt on the longevity of exposed sealant, he said he could seal “inside the channel”. [23] When asked about the missing whisker seals Mr Brewer replied that he had found they “shrink in the corners,” so he intended to put a full polyurethane seal all the way around so it wouldn’t leak. [24] He said that Mr Barbi had messed up his previous wage payments and stood over him. He says that he told Mr Barbi he couldn’t continue without about the $400 he was owed. He said that if Mr Barbi had paid him the $400, the windows would have been completed. -- 5 of 16 -- 6 [25] He agreed that Mr Barbi asked him to return and fix the windows but he refused as he believed he was owed money. Conclave report [26] Mr Hills, a forensic engineer, and Mr Massingham from CKA Windows and Doors (the widow supplier), prepared a joint report on Mr Brewer’s work following an experts’ conclave. Both had inspected the windows, although Mr Massingham did not see them until after they had been removed from the site. [27] While the technical aspects of the report were helpful, the report did not establish the experts’ qualifications to comment on the issues or acknowledge their primary duty to assist the Tribunal.4 While Mr Hill was able to give oral evidence about his qualifications and experience, Mr Massingham was not called as a witness. However, as the supplier of the Rapid Aluminium system used by Mr Brewer and a licensed contractor himself, I accept that he is qualified to comment on Mr Brewer’s installation methods. [28] The Building Code of Australia refers to Australian Standard AS2047, “Windows in Buildings- Selection and Installation.” The relevant performance requirements for windows under the Standard include “water penetration” standards. [29] The experts agree that the: a) external aluminium glazing beads are missing; b) vinyl is short in some of the corners or missing completely from some windows and sashes; c) awning stays are not installed straight; d) awning sash frame corner mitres have gaps and have not been sealed during manufacture; e) sub head and sill are missing the whisker seals to the frame; f) sub sill is fitted hard down to the hob wall, preventing pressure equalisation; g) male female coupling mullions are missing the whisker seals in the vertical joints; h) entire frame system seems to have been manufactured without any sealant in the joints, (known as “dry joint” construction;) (my emphasis) i) awning sash adaptors are not sealed in the notched corners. [30] They say that items a), b), g) and i) will probably lead to water ingress. The experts have a difference of opinion in relation to Items c) and d). Mr Hills says that these will cause water ingress, whereas Mr Massingham says that they could have been sealed post manufacture, had Mr Brewer finished the job. [31] Mr Hills viewed the windows on site and was able to make these additional comments,: 4 QCAT Practice Direction No 4 of 2009. -- 6 of 16 -- 7 a) the skylight glass is not structurally glazed to the frames and is lacking support in the flashings. b) flashings are missing from above the glass louvres and the aluminium framework for the new glass roof. It is clear from the evidence that these two issues are a result of the work being incomplete, not defective. [32] Mr Hills says that while some of the above issues could have been rectified post construction, the joints and mitres could not have been post sealed to an acceptable standard as: a) there is no guarantee of a complete seal; and b) exposed sealant deteriorates more quickly and “detracts from the aesthetics of the frame”. [33] In his opinion it was reasonable for Mr Barbi to replace the windows, because rectification of Mr Brewer’s work would not ensure compliance with the Australian Standard. [34] Mr Massingham agrees that if Mr Brewer had post sealed his work it may not have met Australian Standards. Mr Hills‟ oral evidence [35] Mr Hills discussed the fabrication method for this system with a representative from Rapid Aluminium, the manufacturer, and obtained a copy of their installation manual. The manual specifies that the joins should be sealed during fabrication to ensure compliance with the Australian standard in relation to structural adequacy and water and air ingress. [36] When asked to explain the certification process he said that each manufacturer of aluminium extrusions has their product tested for compliance with the Australian Standard. When that has been done they can claim that their product complies with the Standard. The finished product can then be certified, provided it has been installed correctly. [37] In his opinion the dry joint construction was the main impediment to both long term water resistance and certification. He said post sealing was not a common industry practice as thermal movement breaks down a post sealed joint, compromising the longevity of the seal. In addition, because the compliance tests for these windows did not recognise post sealing, it was unlikely that the finished job would have been certified. Post sealing also detracts from the aesthetics of a job. [38] He was asked about the use of polyurethane instead of whisker seals and replied that he didn’t know how it would work, although he acknowledged that there were some removable parts/clip off sections. He has seen clip off sections before. He was asked why Mr Brewer couldn’t post seal internally using these sections. He said window walls like these would still allow water penetration in other areas. -- 7 of 16 -- 8 [39] When asked to comment on Mr Massingham’s hand written amendment to the conclave report he said that some manufacturers use soft foam pads which act as a seal for the subsills. However they can be only retrofitted by dismantling and reassembling the system. While acknowledging this as a possible solution to this part of the problem, he said that it would be time consuming, and the outcome could not be guaranteed. [40] In cross examination he agreed that Mr Brewer’s work was not complete and that most of the “defects” could have been rectified post construction, except for the dry joints. [41] He was referred to the BSA report which attributes the missing rubber beads and flashing to the fact the work was incomplete. He said even if these had been installed the windows would still leak without sealant. [42] He agreed that as he didn’t see all the windows on site it was possible that they were not as “tight” as when they were on site. He agreed that it may not have been good representation of the windows and that he would have preferred to see them on site. [43] Mr Hills was asked whether Mr Barbi’s decision to replace Mr Brewer’s work with option 4 on the rectifying contactor’s menu of 4 options was “extravagant”. He replied that Mr Brewer’s work system may not have been certifiable, so it needed to be replaced. He expressed the view that option 4 was “commercially realistic”. [44] Mr Barbi called Mr Collins and Mr Bellert from G James Glass. Both witnesses are experienced in working with glass and aluminium and presented as reliable witnesses. However, as counsel for Mr Brewer observed, as long term employees of the business which rectified the work, they cannot be regarded as wholly independent witnesses. [45] Both Mr Collins and Mr Bellert saw the windows leaking, however that was not in dispute. [46] Mr Bellert has worked in the glazing industry since 1977 and has been employed by G James Glass since 1987. In his opinion dry joints are acceptable in internal areas but not external areas. His test is to slip paper through the joints to test whether they are sealed. He did this with the vertical and horizontal joints and there was no resistance. He said all the joints in Mr Brewer’s windows were dry joints. [47] He said that Mr Brewer’s system was replaced in accordance with option 4 in a menu of options given to Mr Barbi. The cost for the work was $14,080 plus GST. [48] While acknowledging the system could have been post sealed, Mr Bellert said that it was a “Band-Aid measure” and potentially short lived depending on the level of exposure. In his opinion it was not the “done method” for the industry or a long term solution. -- 8 of 16 -- 9 [49] He said that while his employer fabricates some jobs on site, with this one, it would be hard to be accurate. Cutting with a saw on site gives you limited quality because the joins will not be perfect. “Controlled in a factory you can get it right all the time.” [50] During cross examination he agreed that the job was not finished when Mr Brewer left the site. Did Mr Brewer owe Mr Barbi a duty of care? [51] A duty of care giving rise to liability for economic loss only arises under the common law of negligence where the parties are in a relationship of proximity5. “The existence of .. a contractual relationship between builder and client (does) not preclude the existence either of a relationship of proximity between them in relation to that work or of a consequent duty of care under the ordinary law of negligence.”6. [52] Although the oral contract between Mr Barbi and Mr Brewer was rendered unenforceable by the operation of legislation, its terms establish a relationship of proximity between them in relation to the work on the windows. This is a case where “the relationship of proximity arises by virtue of the contract and the work to be performed under it”.7 [53] The required degree of proximity can be established by the degree of known reliance by one party on the other, or by the assumption of responsibility by one party, or by a combination of the two.8 Did Mr Brewer assume responsibility for the glazing and/or did Mr Barbi rely on Mr Brewer‟s professional skill and judgment? [54] Mr Brewer claims that he was Mr Barbi’s employee, not an independent contractor. He said that: a) Mr Barbi didn’t ask to see his licence and Mr Brewer didn’t offer to show it to him as he thought he was being paid as an employee; b) Mr Barbi directed his work, for example, by obtaining an engineering report on the windows and asking him to comply with it; c) He did not quote for the windows in dispute, rather he received an hourly rate of $85 to construct them, which included his son’s wages; d) Mr Barbi paid for materials and Mr Brewer charged 10% of the cost of materials, but the parties agree that this was to reimburse him for his work in choosing, measuring and ordering them; e) Invoices for the windows were issued in the name of “Alan Brewer”; f) Mr Brewer did not charge GST. In her email of 1 December 2011 to Mr Brewer, Mrs Barbi says “on the topic of the tax invoice we will 5 Bryan v Maloney (1995) 182 CLR 609. 6 Ibid. 7 Ibid at para [10]. 8 Ibid. -- 9 of 16 -- 10 organise to pay your wage component (sic) … to your account… we would prefer to pay the supplier direct for the aluminium and glass … so we can charge the GST components…….The reasonable margin you are charging for ordering, transport etc we will pay you separately.” [55] In cross examination Mr Brewer acknowledged that: a) his first invoice had been pre stamped with his business name, Bromax Glass and Aluminium, and his licence number. It was put to him that this did not reflect an employment relationship, but he said that this related to the bi fold doors he reinstalled, not to the windows; b) Mr Barbi had not told him which system or supplier to use; c) He had rectified defective work on the roof at his own cost because he made a mistake with the measurements; d) He had never received a wage slip or superannuation. [56] It was put to Mr Barbi in cross examination that he had given instructions to Mr Brewer about the glazing work. He disagreed and said he had relied totally on Mr Brewer, except for choosing the colour of the powder coating. He didn’t supervise Mr Brewer as he didn’t have any building experience. [57] The question of whether Mr Brewer owes Mr Barbi a duty of care does not depend on whether he was an independent contractor or an employee. “…it is now beyond doubt that, for the reasonably foreseeable consequences of careless or unskilful conduct, a (person following a skilled calling) is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. To such a person he owes a duty of care quite independently of his contract of employment."9 [58] A duty of care arises if: a) Mr Brewer assumed responsibility for the glazing; and/or b) Mr Barbi relied on Mr Brewer’s professional skill and judgment in relation to the glazing. [59] I find that Mr Brewer has assumed responsibility for the glazing because: a) he selected the glazing system and the supplier, and used his own judgment about how it should be installed. Although he followed Mr Barbi’s instructions in relation to the Engineer’s report, Mr Brewer made all the other decisions about the glazing; b) he rectified the roof at his own cost because he made a mistake with the measurements. [60] I find that Mr Barbi relied on Mr Brewer’s professional skill and judgment because: a) The first invoice from Mr Brewer on 17 November 2011 was in the business name, “Bromax Glass and Aluminium”, and bore his licence number. I find that Mr Brewer held himself out as a licensed glazier, 9 Voli v. Inglewood Shire Council (1963) 110 CLR 74 per Windeyer J, with the concurrence of the other members of the Court (Dixon CJ and Owen J), quoted in Bryan v Maloney op cit. -- 10 of 16 -- 11 so that from that point on it was reasonable for Mr Barbi to rely on Mr Brewer, and he did in fact rely on Mr Brewer, for “the competence and skill that is usual among (glaziers) practising their profession”.10 b) Mr Barbi gave evidence that he had engaged a building contractor to supervise all trades, except for Mr Brewer. There was some argument about whether Mr Barbi should have been licensed as an owner builder, as the glazing work was worth more than $11,000. However the test is not whether a Mr Barbi should have been responsible for the work, rather it is whether Mr Brewer assumed responsibility for the work, and in this regard I rely on my findings in the previous paragraph. [61] Mr Brewer had a duty of care to Mr Barbi because it was reasonably foreseeable that if he performed the glazing work in a careless or unskilful way, Mr Barbi would suffer injury as a result. Did Mr Brewer breach his duty of care to Mr Barbi? [62] In order to address this question the Tribunal must first consider the nature and extent of the duty of care Mr Brewer owed Mr Barbi: "He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among (glaziers) practising their profession. And he must use due care. If he fails in these matters and the person who employed him … suffers damage, he is liable to that person. This liability can .. arise either from a breach of his contract or in tort."11 [63] Accordingly, the applicable standard of care, skill and diligence should be determined by reference to usual industry practice, including the need to meet building standards and codes. [64] Leaving aside the central “dry construction” issue, there were suggestions that the general standard of Mr Brewer’s work was poor. However the evidence in this regard was muddied by the fact that some of the work was inspected after the system had been demolished, which may have exacerbated any shortcomings. [65] In relation to the joins, this was a precision job which was difficult to execute on ordinary trade equipment. However, work is not defective merely because it is not up to a “factory manufactured” standard. Mr Brewer was not required to have an “extraordinary degree of skill or the highest professional attainments”. [66] After conducting an inspection of the work before it was demolished, the Queensland Building Services Authority concluded that the work was incomplete, not defective. It did not direct Mr Brewer to rectify the work. 10 Ibid. 11 Ibid. -- 11 of 16 -- 12 [67] Mr Hills’ evidence was that it would have been practical to both complete and rectify any shortcomings in Mr Brewer’s work, (as opposed to demolishing and replacing it) at a much lower cost to Mr Barbi, if it had not been for the dry joint construction. [68] The evidence indicates that Mr Brewer has the level of competence and skill that is usual among glaziers. He was recommended as a competent glazier by the chairperson of Mr Barbi’s body corporate. He is licenced to work with glass and aluminium and has a clear licence. The evidence also shows that Mr Brewer approached this job in good faith. For example he rectified a mistake about roof measurements promptly and at his own cost, although he had only received a modest hourly rate for his work. However he made an error of judgment in following his own work preferences and not the installation manual for this complex job. [69] Turning to the dry joint construction, the expert evidence from Mr Hills and Mr Massingham, with which Mr Brewer agreed, was that post sealing the windows, as he intended to do had he returned to the job, was not usual industry practice, as it had a much shorter waterproofing life than internal sealing. [70] Mr Brewer was installing a specific glazing system, which came with manufacturer’s directions for internal sealing as part of its effective assembly. In Mr Hills’ opinion, the Rapid Aluminium system would only be certifiable if it was constructed in a way which satisfied the approved compliance tests for that system. An externally sealed system was likely to fail the approved compliance tests. [71] Mr Brewer’s decision not to return and finish the work deprived him of an opportunity to demonstrate that he could finish and post seal the assembled system internally, in a way which allowed the system to be certified. As he did not finish the work, the Tribunal must base its decision on the the expert evidence that post sealing could only have been done externally. [72] I find that an experienced glazier using due care and skill would have followed usual industry practice and the manufacturer’s installation guidelines, which were to seal the product progressively. [73] I find that Mr Brewer breached his duty to exercise due care and skill when he employed a dry joint construction method. Did Mr Barbi suffer any damage as a result of Mr Brewer‟s breach of his duty of care? [74] Both parties agree that the windows did not meet Australian Standard AS2047 as they leaked. Mr Brewer says they leaked because they were incomplete. Mr Barbi says they were defective. -- 12 of 16 -- 13 [75] Mr Hills and Mr Massingham agreed that the windows leaked both because they were incomplete and because they had not been installed in accordance with the manufacturer’s instructions. [76] Mr Brewer did not return to finish the job because he believed he was owed $400. I accept that he believed the money was due and owing, however it appears that this was an accounting error arising from Mr Brewer’s practice of adding outstanding amounts from previous invoices into subsequent invoices, resulting in some “double counting”. [77] I accept that when Mr Brewer left the site he was still waiting for patio glass and flashings, and he had not finished the waterproofing work. In his complaint to the Building Services Authority the day after the windows first leaked, Mr Barbi describes the work as “incomplete”. The BSA and Mr Hills accepted that the work was incomplete. [78] I accept that if Mr Brewer had finished the work by installing the patio glass, flashings and post sealing, the system may have been waterproof. Nevertheless, it would have been defective work. [79] The effect of the expert evidence is that the only way to ensure longevity of the seal and certification would have been for Mr Brewer to dismantle his work and then reassemble it, following the manufacturer’s instructions to seal progressively. I am satisfied that Mr Brewer would not have undertaken this time consuming task had he returned to the site. [80] A competent glazier exercising due care and skill would have supplied Mr Barbi with an internally sealed product which could be certified. Mr Barbi suffered damage as a result of Mr Brewer’s failure to install the windows to industry and certification standards. Is the damage too remote? [81] The damage complained of by Mr Barbi was directly attributable to Mr Brewer’s failure to follow the manufacturer’s directions, so it is not too remote. Assessment of Damages [82] It is unfortunate that Mr Massingham was not called as a witness as he may have been able to clarify the cost implications of rectifying the Rapid Aluminium system. His evidence may have assisted the Tribunal to explore more fully whether it was reasonable for Mr Barbi to demolish and replace Mr Brewer’s system rather than dismantling and reassembling it. In the absence of that evidence the Tribunal is left with Mr Hill’s general evidence that dismantling and reassembling Mr Brewer’s system would lead to an uncertain result. On the basis of this evidence, to limit the damages to the cost of dismantling and reassembling the system would -- 13 of 16 -- 14 be to give Mr Barbi the cost of a doubtful remedy would not adequately compensate him.12 [83] Mr Barbi claimed $15,390 for the rectification work. However the evidence of Mr Bellert, a cost assessor from G James Glass was that Mr Barbi chose option 4 on the G James menu of options for obtaining Code compliant windows. Mr Bellert said Mr Barbi paid $14,080 plus GST, (a total of $14,220.80), for option 4. [84] The confusion may stem from the fact that the G James invoice budgets for „up to $15,390‟ for the work, and for other items which are not relevant here, which add up to $31,400.60. This clouds the amount paid for the windows. The issue is complicated further because the description of options 3 and 4 in G James menu of options is in identical terms, and yet they are costed at $15,390 and $14,080 respectively. I accept that, as the assessor/estimator, Mr Bellert is best equipped to comment on what the job cost and what was paid. I find that Mr Brewer must pay Mr Barbi the sum of $14,220.80. Interest [85] The Queensland Building Services Act 1991 empowers the Tribunal to award damages, and “interest on the damages at the rate, and calculated in the way, prescribed under a regulation”.13 [86] The Queensland Building Services Authority Regulation 2003 provides that if the parties have not agreed on an interest rate on an award of damages, interest is payable at 10%14. The interest is payable on and from the day after the day that the amount became payable until and including the day the amount is paid.15 Costs [87] In most QCAT proceedings each party bears their own costs.16 However in the case of building disputes, the Queensland Building Services Act 1991 provides that the Tribunal may award costs.17 While the QBSA provision seems to give the Tribunal a broad discretion, this power must be exercised judicially.18 In other words, in the absence of special circumstances the Tribunal should exercise its discretion to award costs to the successful party: 12 Bellgrove v Eldridge (1954) 90 CLR 613 per Dixon CJ, Webb and Taylor JJ. Although this case deals with damages for breach of contract, this principle applies equally to damages for negligence. 13 Queensland Building Services Authority Act 1991 (Qld) s 77(2)(c). 14 Queensland Building Services Authority Regulation 2003 (Qld) reg. 34B(1)(c). 15 Ibid reg.34B(2) 16 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 100. 17 Queensland Building Services Authority Act 1991 (Qld) 77(1)(h). 18 Lyons v Dreamstarter Pty Ltd [2011] QCATA 142 per Deputy President Kingham. -- 14 of 16 -- 15 …subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour.…The primary purpose of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation…19 [88] The exceptions to the usual order as to costs focus on the conduct of the successful party. These include: ….when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute…There are few, if any, exceptions to the usual order as to costs outside the areas of disentitling conduct. 20 [89] Mr Barbi entered into an oral contract with Mr Brewer when he should have known of the legislative requirement for it to be in writing. While this could be described as “lax conduct”, the failure to document the agreement did not “invite” this litigation, although that may have been the case had the dispute been about the terms of the contract. As there was no other “disentitling conduct”, Mr Barbi is entitled to his costs. [90] Although Mr Barbi did not represent himself he was represented by a solicitor from his own legal firm. He is entitled to the same costs as if he had engaged alternative legal professionals, other than any items which were unnecessary because he was his “own client”.21 [91] It is not possible to fix Mr Barbi’s costs,22 so his costs of and incidental to the proceeding must be quantified on the standard basis of assessment in accordance with the Magistrates Court Scale.23 [92] I accept that Mr Brewer is not a man of means, and that the consequences of this decision will be momentous for him financially. However, having accepted the job, the law requires him to take responsibility for his unfortunate lapse of professional judgment. [93] I order that: 1. Mr Brewer must pay Mr Barbi the sum of $14,220.80 by 9 August 2013, together with interest at the rate of 10% on that sum on and from 28 June 2012 until and including the date of payment. 2. Mr Brewer must pay Mr Barbi’s costs of and incidental to the proceeding on the standard basis of assessment in accordance with the Magistrates Court Scale of Costs. 19 Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J quoted in Lewis Constructions Pty Ltd v Pollock and Anor (No 2) [2012] QCAT 398 20 Ibid. 21 Scottish Benefit Society v Chorley (1884) QBD 872. 22 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 107. 23 Queensland Civil and Administrative Tribunal Rules 2009 (Qld); rule 87. -- 15 of 16 -- 16 3. If the amount of Mr Barbi’s costs is not agreed with Mr Brewer within 28 days, the costs are to be assessed by Hickey & Garrett, Legal Costs Consultants, Level 21, 141 Queen Street, Brisbane at the cost of Mr Brewer. 4. Mr Brewer is to pay Mr Barbi’s costs (as agreed or assessed) within 28 days of such agreement or assessment. -- 16 of 16 --