Coastal Patios v Bennett & Anor [2013] QCAT 268

CITATION: Coastal Patios v Bennett & Anor [2013] QCAT 268 PARTIES: Coastal Patios Pty Ltd (Applicant) v Mr Hugh Bennett Ms Rosalie Janz (Respondents) APPLICATION NUMBER: BDL073-11 MATTER TYPE: Building matters HEARING DATE: 28 February and 1 March 2013 HEARD AT: Maroochydore DECISION OF: Peter Walker, Member DELIVERED ON: 14 June 2013 DELIVERED AT: Maroochydore ORDERS MADE: 1. Coastal Patios Pty Ltd must pay to Mr Hugh Bennett and Ms Rosalie Janz the sum of $29,009.00, by: 4:00pm on 12 July 2013 2. Coastal Patios Pty Ltd must pay to Mr Bennett and Ms Janz the costs thrown away as a result of the adjournment and/or, the failure of the Applicant to arrange the attendance of the experts at the experts’ conclaves listed for 24 July 2012 and 30 January 2013. The costs are to be agreed or assessed on the Magistrates Court Scale of costs or; i. If the parties do not agree, Coastal Patios Pty Ltd must file two copies in the Tribunal and give one copy to Mr Hugh Bennett and Ms Rosalie Janz by short form assessment of costs, together with any submissions on the amount of costs, by: 4:00pm on 21 June 2013 -- 1 of 18 -- 2 ii. Mr Hugh Bennett and Ms Rosalie Janz must file two copies in the Tribunal and give one copy to Coastal Patios Pty Ltd any submissions in reply, by: 4:00pm on 28 June 2013 iii. The amount of the costs payable by Mr Hugh Bennett and Ms Rosalie Janz will be determined on the papers without an oral hearing not before 28 June 2013. CATCHWORDS: Domestic Building Dispute – where contract provided for construction of an extension – where respondents refused to pay the final payment – whether the works were defective- assessment of damages under the contract including “liquidated damages” – where respondents counterclaim for defective building work assessed and offset against the applicant’s damages – where claim for interest – where claim for variations and whether unreasonable hardship. Costs – where applicant failed to engage experts to attend to attend experts conclaves – where the respondent was put to unfair expense as a result Queensland Civil and Administrative Tribunal Act ss 28, 100 and 103 Queensland Building Services Authority Act s 77. Domestic Building Contracts Act ss 79, 80, 82, 83, 85 and 90 Wulf v Cooper (2008)QCCTB3, Lyons v Dreamstarter Pty Ltd [2011]QCATA142 APPEARANCES and REPRESENTATION (if any): APPLICANT: Coastal Patios Pty Ltd Mr Tony Moran, Director RESPONDENT: Mr Hugh Bennett and Ms Rosalie Janz represented by Peter Arthur, Solicitor, Mooloolaba Law -- 2 of 18 -- 3 REASONS FOR DECISION Background: [1] The Applicants are a construction company that was contracted, by contract signed on 3 September 2010, to construct an extension to a dwelling house situated at 374 Image Flat Road, Image Flat, for the sum of $76,980. [2] The extension could best be described as an enclosed deck. [3] It appears to be common ground that the extension was requested to contain a “cathedral ceiling” and that it be as light and as airy as possible. [4] Construction proceeded slowly and was eventually terminated by the Mr Bennett and Ms Janz as the requisite time period had elapsed pursuant to section 90(1)(b) of the Domestic Building Contracts Act. [5] By this time, however, the builder had also issued a notice of practical completion. It should be noted that there was no defects notice with that as required by clause 25 of the contract. [6] The quality of the construction has been called into question. If one were to look at the extension as comprising a floor section, including the stumps that support it, the wall section, and the roof section, each of the 3 elements are the subject of dispute, with the Respondent submitting that the cheapest course would be demolish the extension and start again. Evidence: [7] The evidence consisted of various affidavits, statements and letters from each of the following supplemented by oral evidence from them: (a) Each of the respondents; (b) Mr Barry Hoskins, an engineer engaged by the Respondents to provide expert evidence; (c) Mr Toby Witt, an expert engaged to give evidence on building defects and the cost to rectify them; (d) Mr Shingles, the salesperson employed by the Applicant who costed and did the work to obtain the approval for the project to proceed; (e) Mr Saint, an engineer who designed a variation to job and who also gave expert evidence on behalf of the Applicant; (f) Mr Carpenter who effectively responded in part to the evidence of Mr Witt and gave expert building evidence on behalf of the Applicant; (g) Mr Moran, a director of the Applicant, the Licensee for the Applicant and to all intents and purposes the supervising builder. -- 3 of 18 -- 4 [8] It is noted that considerable effort has been put, in submissions, as to which evidence I accept by specific reference to the various witnesses. It seems to me that this approach lacks balance. Overall I found most witnesses did their best to present an honest view on most topics and, with minor exceptions, I didn’t find it necessary to make findings based on credit. [9] I would also note that I have been asked to make findings based on an approach that a Court would make when strictly applying the rules of evidence. Naturally the Queensland Civil and Administrative Act 2009 (“QCAT Act”) does not require such a course.1 On the contrary it is the task of the Tribunal to do its best to ensure parties get a fair hearing. Often it would have been preferable for Mr Moran to have been more complete in his cross examination, but it would be unfair to draw adverse inferences from his lack of understanding of the rules of evidence, despite any explanations he may have been given. Overall design: [10] The evidence of Mr Bennett comprised the first morning. His evidence in chief consisted in large part of a rehash of his affidavit evidence. However he did make a number of concessions that were significant in the overall context of the matter. [11] Importantly he was adamant that at all times they had insisted that they required a “cathedral” style ceiling. No real description of what this entailed was ever given other than that it was to be a raked ceiling. Perhaps some indication of his intentions in that regard is contained in the 2 hand drawn diagrams which both he and Ms Janz say are effectively reproductions of diagrams given to Mr Shingles in an early discussion. Mr Shingles denies ever receiving such documents. However they do show an extension with a fairly steep pitch of the roof and a roof significantly higher than the existing building. The documents produced in evidence are not originals so there is no real way I can be sure they accurately represented any documents provided. [12] They do show a wall height the same as that on the existing building, which it was common ground was 2.4 metres high. In questioning Mr Bennett conceded that it was always his expectation that the wall heights would be the same in both the original building and the extension. This was in contrast to the plans which were submitted to the Certifier for approval which contain a dimension showing the wall height as 2.7 metres. Note however, that the plan with that dimension on it also appears to show the wall height as being the same as the existing structure.2 Having regard to this evidence I formed the view that dimension shown on 1 See section 28. 2 See exhibit 8 to the affidavit of Mr Hughes. -- 4 of 18 -- 5 the plan contained an error and that it was the common intention of both parties that the wall height should be 2.4 metres. [13] A further important concession by Mr Bennett, in my view was that he had read the whole of the contract and understood his rights under it. The reason why he had not issued a Dispute Notice under the contract as permitted by Clause 37 was canvassed in cross examination by Mr Moran and Mr Hughes effectively responded saying he did not issue a notice because to do so would have been a waste of time as, he said, Mr Moran was in the habit of ignoring his complaints. He also said that he sought advice from the Building Services Authority and they encouraged him to keep the project moving and to deal with issues at the end. One can never be sure of the context of such advice when the party who is said to have given it is not called but it would seem unlikely that such advice would have been given if the full extent of the complaint, including a fundamental problem with the design, had been given. It seems to be a very clear case where a notice should be given to bring the project to a halt so that the issue could be sorted before either party incurred further cost. [14] To complain about this aspect after the building was complete or largely complete and in circumstances where the plan clearly shows an extension constructed to the same height as the original house seems somewhat unreasonable. [15] I am further reinforced in this view by the evidence given by Mr Bennett in relation to the changed roof design. He called a meeting on-site which was attended by Mr Shingles, Mr Moran and Ms Janz and himself. During that discussion Mr Bennett accepts that he agreed to an alternative design whereby the incorrect trusses that had been delivered would be incorporated into the amended design. In response to questioning it seemed apparent that he was aware of the pitch of those trusses and if he expected that the pitch would somehow be increased beyond that one would have expected that this issue would have been canvassed in detail. Nevertheless it is clear that it was not. [16] On the issue of the trusses it is clear that the original quote called for the use of “scissor trusses”. Apparently it was decided that the use of these would be inappropriate for a reason that is not clear to me. Nevertheless it is clear that had such trusses been used they would have resulted in reduced pitch which presumably would not have accorded with the Respondents requirements. To the extent this represents a departure from the plans it was accepted by Mr Bennett and Ms Janz at the on-site meeting. [17] There remains an issue with respect to what I would refer to as the flat section at the apex of the ceiling which was formed to cover the main beams. However I note that this also was not made the subject of a complaint until such time proceedings were at least contemplated. Again -- 5 of 18 -- 6 it would seem to me that this should have been raised in a substantial way at an early point of time, either by way of a Dispute Notice or otherwise. [18] Accordingly I am of the view that it is too late for the Respondents to raise in these proceedings fundamental issues relating to the design in circumstances where the construction basically accords with the plans and, as far as I can see, the agreement, albeit perhaps reluctantly in the case of Mr Bennett and Ms Janz, of the parties. [19] I accept that the Mr Bennett and Ms Janz are disappointed with the outcome, however the description “cathedral ceilings” is open to a wide range of interpretations and it was conceded by them that at no time was any actual ceiling height agreed or even discussed in precise terms. Quality of work: [20] It is apparent that there are a number of issues relating to the construction that need to be addressed. The original complaint in respect of the matter was made to the Queensland Building Services Authority which has carried out 2 inspections and generated 2 reports.3 It is not my intention to dwell on those inspections or reports other than to note that numerous defects were noted and not all have been attended to. [21] Probably the starting point for the consideration of the alleged defects should be the post holes. There have been a number of issues raised with respect to these, including their depth, width, placement and the quality of concrete actually used. As a part of the investigation of these issues quite a number of the holes have been excavated down the sides by the owners and reported on by Mr Witt.4 Suffice to say that if the combined evidence of these two is accepted one would have to conclude that this aspect of the work is unsatisfactory. The final confirming issue in this respect was the comments of Mr Saint who said that if the footings were dug as described he would consider them to be inadequate and the appropriate remedial technique would effectively be a restumping. He indicated that this would not necessarily require soil testing and engineering design but would need to be assessed on a hole by hole basis. [22] The response of Mr Moran to this is effectively two fold. In the first instance he says that there is no evidence of movement. In this respect he relies primarily on the fact there does not appear to be any cracking in the plaster work in the extension. Secondly he attaches some photos of the exposed footings which appear to show that some footings at least are of, or close to the required depth. [23] Some support for the theory relating to the cracking is to be found in the evidence of Mr Saint who agrees that if there was differential movement in 3 Original inspection date was 15 April 2011 and a report was dated 22 April 2011. The re-inspection occurred on 26 July 2011 and a report thereafter was dated 28 July 2011. 4 See report of Mr Witt. -- 6 of 18 -- 7 the footings it would result in cracking to the plaster work, particularly where the plaster is square set, as was apparently the case here. [24] Mr Saint was cross-examined extensively on the levels as found by Mr Hoskins. In short he did not find them to be as bad as may have appeared on first look. He certainly noted that there were some low points but did not necessarily conclude that these were a result of subsidence but felt that they may have been constructed that way. By way of contrast Mr Hoskins appeared adamant that there were significant subsidence issues associated with the construction.5 He was not cross- examined however as to the cracking issue and his reports do not appear to report its existence. I found that the theory relating to the cracking to be quite plausible. Accordingly it seems to me it is more a case of the posts not having been put in level in the first place rather than having subsided. Nevertheless, having regard to the fact that it would appear that a substantial number do have undersized footings it seems to me that these need to be independently assessed on an individual basis and replaced or repaired where necessary. [25] So far as the quality of the concrete is concerned I do not know the basis of Mr Hoskins statement in this regard. It is really unsupported. Nevertheless the evidence of Mr Moran was that he used proper pre- mixed bags of concrete, and while he did not appear to be certain his recollection was that a concrete mixer was used onsite. Mr Saint confirmed that such pre-mixed concrete is designed to comply with the relevant standards. Accordingly it seems likely to me that this is not an issue and the concrete would not need to be replaced in the holes that have sufficient size. [26] An additional issue related to this topic related to the attachment to the existing dwelling. In effect the evidence of Mr Moran was that the extension was designed to replicate the levels in the existing house and that effectively if there is a fall of 19 millimetres over the length it is because there is a corresponding fall over the floor of the house. [27] If one accepts the fall in the house as a fact (and there was no contradictory evidence of which I am aware), the question becomes whether it is better practice to build the new extension completely level in its own right or whether it is better practice to follow the existing dwelling. The view on this was clearly divergent. However the reasons for following the existing dwelling to me had more merit as it overcomes the issue of “stepping” that creating a new level space adjacent to an out of level one would create. Certainly Mr Saint had no hesitation in expressing this view. In this respect I prefer this view to that of Mr Hoskins, firstly because Mr Hoskins conceded, appropriately that his experience is more with new residences rather than extensions, and secondly because Mr Saint is a registered builder as well as an engineer. 5 See his report of 10 February 2013. -- 7 of 18 -- 8 [28] The next issue for consideration in terms of the structural components is the allegation that bearers and joists are undersized in a number of respects. This issue predominantly arises from the reports of Mr Hoskins.6 The response of Mr Moran is that the sizes are essentially compliant with the relevant Australian Standard.7 Some support for this position and a reasonable explanation of the differences between the 2 positions was given by Mr Saint during the course of his evidence. It seems that there is more than one possible source to turn to when sizing timber. He explained the one generally preferred by engineers was a program put out by the timber supplier, Hynes. He did comment however that the use of the relevant Australian Standard could not be ignored. His thoughts appeared to be that the use of the engineering program would result in a stiffer end product though the use of the Australian Standard would result in greater flexion but it would be structurally quite sound. He agreed when questioned by Mr Moran, that the joist sizes in the main part of the floor, including the cantilever just fell within that design. [29] There was some discussion to indicate that the Standard has been superseded and it was agreed that it had. However no clear view was ever expressed as to whether that review was prior to or subsequent to the design and construction of this extension and in the absence of such evidence it would be inappropriate to conclude that the construction in this respect was non-compliant. [30] The clear exception, so far as this discussion is concerned was the joists spanning in excess of 4 metres which Mr Saint agreed were clearly undersize. It would seem to me that they need to be replaced though which of the 2 methods of doing this is the more practical is a not clear. Given Mr Saints comments about the processes and areas in which re- stumpers work it did not seem to me that it would be not terribly difficult to adopt the approach of putting in a further bearer to reduce the span, rather than replacing the joists with larger ones. [31] Moving up through the building the walls were also the subject of some controversy, but primarily because of their height. I have already found that it was the parties’ actual intention that the height of these walls should match that of the existing house. It appears common ground that they do. I therefore find that it does not amount to a breach of contract to have constructed them at this height. It therefore seems to me that this issue does not provide any support for the proposition advanced on behalf of Mr Bennett and Ms Janz that the whole of the work needs to be demolished. [32] The roof area is a problem of a whole other sort. In short it is clear that it was originally intended that it be constructed using scissor trusses. It was equally clear that these would not have suited the requirements of the owners if the roof height remained in keeping with the remainder of the house. It is further clear that whatever the intentions of the owners there 6 Various and attached to his affidavits. 7 See his affidavits. -- 8 of 18 -- 9 was never any agreement to construct a ceiling to a specific height. There was a meeting held on site to which I have already referred and the amended approach was the outcome. [33] Quite clearly a framing inspection was held and the work, so far as the roof is concerned was not passed. As a result Mr Saint’s firm was engaged to design a solution. A part of that solution included effectively duplicating the existing ridge bean which had the unfortunate consequence of increasing the “flat” area in the ceiling. [34] The structural integrity of the design has been the subject of considerable conjecture but when considered in conjunction with the Trustec report8 I certainly do not have a basis to conclude that the design itself was anything but satisfactory. [35] A larger problem relates to whether the design has been properly implemented. It is most unfortunate that the Builder did not engage Mr Saint to come back and inspect the works to ensure its compliance with his design. However it is clear that this did not occur. Effectively then the only evidence that we have relating to what was carried out is the evidence of Mr Moran himself. [36] Certainly concerns have been raised about both the connection between the two rafters and aspects of the tie down. Significantly Mr Hoskins said he walked on the roof and noticed deflection. Mr Saint says that deflection should not exist if the design was properly implemented. Both of them agree, however, that the real way to determine this issue is for an inspection to be carried out. Admittedly they are both in disagreement with the way this should done with Mr Hoskins saying that the best answer is to remove the plasterboard and Mr Saint saying that removing the roofing iron would provide a simple and effective option. Nevertheless for whatever reason this has not occurred so I cannot draw any conclusions about it one way or the other. I can only fall back to the basic proposition that the onus of proof on the issue rests with Mr Bennett and Ms Janz as this forms a part of their cross claim. I need to be satisfied on the balance of probabilities that there are issues that need addressing. While the evidence certainly raises suspicions I think the comments of Mr Saint are essentially correct that the suspicion having been raised the next step is to investigate those suspicions. This step has not occurred and hence I am not satisfied that the onus of proof on the issue has been satisfied. [37] Further I would note that even if I was satisfied that there were matters that need addressing to make an order for damages in this respect would fall purely into the realm of speculation. Without knowing what, if anything, needs to be addressed how can I possibly determine what the cost of such works could be? 8 See attachment to Mr Moran’s statement of evidence. -- 9 of 18 -- 10 [38] Dealing then with the overall structural integrity of the building it is apparent that there are issues that need to be addressed, however I find that they are considerably short of justifying a finding that the whole extension should be demolished and rebuilt. Individual problems: [39] Despite the fact that the structure does need demolishing it is clear that there are quite a number of defects. The principle sources of evidence in respect of this issue came from Mr Witt, Mr Carpenter and Mr Moran. I don’t consider that it is necessary to consider engineering evidence in this regard, except to say that in giving his evidence, Mr Witt clearly followed all recommendations of Mr Hoskin and to that extent his evidence was relevant. The reports of Mr Groom9 were also obviously of relevance. [40] In submissions I was encouraged to treat the evidence of Mr Carpenter as unreliable on the basis that he did not comment on every issue raised by Mr Witt. As an expert, if he was engaged to comment on some issues only, that is an issue between him and Coastal Patios. Quite clearly they did not have the same budget as Mr Bennet and Ms Janz in dealing with the matter generally. If Mr Carpenter was to comment on matters beyond what he was asked to no doubt someone would have to pay the cost for doing that. I am certainly not prepared to be critical of him for doing what he was obviously engaged to do. I do, however, have some doubts about why he was not asked to comment on wider matters. I find it difficult to accept the evidence of Mr Moran to the extent that his evidence conflicted with Mr Witt, in circumstances where Mr Moran, had he chosen, could have, and you would think, would have, got Mr Carpenter to comment. The most likely scenario, it seems to me, would be that Mr Carpenter would have chosen to side with Mr Witt on those issues, as he did on some issues anyway, so far as defect issues was concerned. [41] I must say that I personally found both Mr Witt and Mr Carpenter to be quite honest in their approach. Not surprisingly perhaps I found Mr Moran to be rather one-sided in his approach and where his evidence as to the need for repairs and the cost of it varied from that of the two building consultant experts I preferred the evidence of the experts. I must say it seems to me that Mr Carpenter has a greater level of experience than Mr Witt, and to the extent that it is appropriate I have taken this into account. [42] One problem that I have encountered in coming to conclusions as to appropriateness and cost is that Mr Witt, while listing cost figures, does not provide an hourly rate. Mr Carpenter does, though I must say I found that rate - $45 per hour to be very much on the low side when one considers other matters in which this type of evidence has been led. I would think a more reasonable rate would be in the vicinity of $60 per hour. 9 See exhibit 8. -- 10 of 18 -- 11 [43] It is not my intention then, to make a finding of fact on each issue of dispute – only those where Mr Witt and Mr Carpenter disagreed. In the absence of specific findings I have accepted the report of Mr Witt. My findings are by reference to the paragraphs as listed in his first report and in particular the costing schedule attached to it. [44] Turning first to the Estimation attached to the report of Mr Witt dated 21 October 2011, I note that Mr Carpenter has taken issue with a number of individual paragraphs as follows: (a) Item 6.02 deals with the issues relating to the new sliding door. Mr Witt has recommended extensive work including complete removal of the door, modifications to it and refitting at a cost of $3,309.90. By way of contrast Mr Carpenter had said that the work identified by Mr Witt as being necessary is pretty much a waste of time, both visually and functionally. He has estimated that rectification he sees as necessary will take some 2 hours. I must say I was impressed with what Mr Carpenter had to say on this issue. I would also note that a found the reports of Mr Groom10 on this issue to be generally supportive. While he does not prescribe a method of resolution the general impression one gets is that the rectification work could be done along the lines recommended by Mr Carpenter. Sum allowed: $150. (b) Item 6.06 involves the issue of gutter not draining properly. Mr Witt does not really come up with a conclusion, other than to say it is a matter requiring further investigation. Mr Carpenter, on the other hand is clear in his conclusions and it appears that his recommendations are reasonable. Sum allowed $80. (c) Item 6.07. In this respect, while Mr Carpenter may have had difficulty finding evidence of water ingress in the relevant area, I find the evidence that such water ingress is actually occurring to be overwhelming. I therefore accept the evidence of Mr Witt in this regard and would allow, subject to my later comments, the sum of $423.50. (d) Item 6.10. In essence there was little difference between the opinions of the 2 experts in respect of this matter. Indeed the costing by Mr Carpenter comes out as being higher than that of Mr Witt when one adds GST. I will therefore allow the amount claimed, namely $264. (e) Item 6.13 related to the tie down rods. I note that Mr Carpenter, in cross examination, conceded that the thread within the tie down rods appeared to be damaged, at least the one he was shown. Furthermore it only appears reasonable that these should be left in a tidy, as well as functional state. I will therefore allow, again subject to my later comments, the sum as set out in in Mr Witt’s report, namely $88. (f) Item 6.14. Both Mr Carpenter and Mr Witt concur that the movement in the balustrade support posts is unacceptable and needs to be rectified, as does Mr Groom. The issue is the precise method of rectification. Both alternatives advanced would appear to be capable of resolving the issue, though as Mr Carpenter has come up with a cheaper way that is the one that is appropriate to adopt. Adjusting his labour rates I would make an allowance of $800. (g) Item 6.15 relates to the stainless steel cable in the bannisters. Again the experts agreed that rectification was necessary and again the extent of the 10 -- 11 of 18 -- 12 works needed to achieve this was the real issue. Mr Witt asserted a need to completely remove the wires and he thought grommets should be placed in the holes. I must say, however, that the view expressed by Carpenter that this could potentially create problems with moisture retention made some sense. Furthermore the reports of Mr Groom did not identify the lack of grommets as an issue and it therefore seems to me that the proposal of Mr Carpenter is quite appropriate. Again allowing for adjustments in the labour rate the sum of $800 is allowed. (h) Item 6.16 relates to aluminium uprights in the balustrade. Again it was agreed this issue needed addressing and again the extent of the work required was the issue. Mr Witt provided a more detailed explanation of work required but did not identify them as being out of position. It seems to me that a little more work would be required that has been identified by Mr Carpenter, particularly so far as tidying up after moving the posts is concerned. I would allow the sum of $250. (i) Item 6.17 related to the timber decking boards. Again while identified as requiring some work the extent and nature of the work differed markedly. Mr Witt felt that the only answer was to remove not only the boards but the joists and replace the lot at a cost exceeding $13,000. At the other end of the spectrum Mr Carpenter identified some work as being necessary, but primarily of a cosmetic nature and estimated the cost at $550. He plainly saw this as a cosmetic issue only. To some extent the reports of Mr Groom support the latter conclusion in the sense that he found that the defect was category 2 and not structural. His envisioned form of rectification was plainly cosmetic also. Of significance however, is the fact that Mr Groom inspected the purported rectification work of Coastal and he implied that it was at least as bad and possibly worse than before it was undertaken. It seemed significant that broken screw heads were identified which was a problem predicted by Mr Witt. It seems excessive to require replacement of not only the boards but the joists, but it seems apparent that the work, allowing for further problems with broken screw heads will not in be inconsiderate. Also I accept that the fill material used by Coastal in their attempts at rectification are not appropriate and will have to be redone. Doing the best that I can I would allow the sum of $3,000. (j) Item 6.18 deals with inadequate clearance between the subfloor and the ground. This has been identified also in the first report of Mr Groom. In the second he describes it as adequately remedied. In these circumstances it does not appear to be appropriate to make any allowance. (k) Item 6.22 raises potential issues resulting from the positioning of a palm tree. This is not raised as anything more than a potential problem and it does not appear to be appropriate to make any allowance for this. (l) Item 6.23. The risk of damage through not installing an appropriate flashing is treated variously. However it appears common ground that this has not been done and should have been. The range of allowances for this is between $352 and $737. I would allow $600 for this item. [45] There is also controversy over item 6 of the attachment to Item 6 to the affidavit of Mr Witt dealing with the alleged problems with the footings. Really I found the evidence in respect of this whole issue to be fairly unsatisfactory. It seems to me that one issue that needs to be considered is that here is there is speculation about subsidence and movement but nothing concrete. Certainly there is another issue about levels, which was be dealt with elsewhere. However it is not clear that this was caused by -- 12 of 18 -- 13 subsidence rather than just being constructed that way in the first instance. As opposed to that it would seem that there is no cracking of the plasterwork. Certainly in my general experience that is something that you expect with movement, particularly where the plasterwork is square set. This view was expressed by a number of people, including Mr Saint who, as well as being an engineer, is a registered builder. It is clear, however that at least a part of the foundation work is substandard and there needs to be some allowance for that. [46] It is also clear that there are a number of substandard features about the foundation work including that the levels are out, even having regard to the factors previously considered in this context. Further there is the fact that some joists need either replacement or additional support. [47] I do not get the impression there is any great magic in the assessment of Mr Witt so far as the re-stumping aspects are concerned. In fact he does not even reach any firm conclusions about the best way to approach this. As opposed to this Mr Carpenter is quite critical of Mr Witt’s approach but really says the matter just needs further investigation. [48] The work that is required is not going to be easy and it could be reasonably extensive. In the circumstances I allow a figure of $8,000 which figure includes addressing all the matters to which I have referred. [49] Additionally there are a number of matters that flow from the finding that the work is structurally sound overall. This includes Item 7.01 where I would not make any allowance in respect of wall and ceiling heights for the reasons already stated. [50] Further, with respect to Item 7.3 I formed the impression, even based on the evidence of Mr Bennett that it was not intended to have a truly compliant wheelchair access. The size of the door was apparent on the plans. I would therefore not make any allowance in respect of this item. [51] In respect of tem 7.05 I would allow this as it was the workmanship that has necessitated the painting, rather than being part of the required painting job. [52] In respect of Item 8.8 I am not prepared to make any further allowance for rectification. A general claim of this nature does not appear to be appropriate when other areas of the report detail costs as low as $71. I do not consider that the onus of proof in respect of this item has been discharged by this global type of claim. [53] The final adjustment that should be made relates to the overall level of the costing by Mr Witt. I have indicated that I felt the hourly rate adopted by Mr Carpenter was too low. I also take note of Mr Carpenter’s comments about the level of costing by Mr Witt.11 I certainly think that to suggest Mr 11 See his report at paragraph 48. -- 13 of 18 -- 14 Witt’s costing should be disregarded altogether goes too far I believe that some reduction is appropriate, as it certainly accords with my general experience that one side generally claims the most possible and the other the least. [54] Taking all these factors into account I allow the sum of $26,000 in respect of the Counter Application so far as it relates to defective and unworkmanlike work. Liquidated damages: [55] Mr Bennett and Ms Janz claim the sum of $1,575 being 105 days at $15 per day.12 [56] Mr Moran has certainly gone out of his way to explain away the delay to the greatest extent that he can. Unfortunately for him, particularly as the author of the contract he is bound by its terms. The building period of 40 days included, in the schedule 15 days of calculable delay but was left blank so far as “Incalculable delays” was concerned. 17.3 clearly requires Coastal Patios to give written notice of extension of time. It is clear that such notice was never given and at the least the Owners were thereby greatly prejudiced in being able to dispute the claim after the fact. [57] In the circumstances I would allow this claim in full. [58] There is a suggestion, in submissions only but not in the Cross Application, that liquidated damages should continue, effectively to the present. Liquidated damages, however, is a product of the Contract only which clearly was terminated by Mr Bennett and Ms Janz in accordance with the requirements of the Domestic Contacts Building Act 2000.13 The way in which it was claimed in the pleading is the appropriate approach. Damages for solatium: [59] There has been a claim of $20,000 for this sum. I have been referred to the decision of Mr P Lorisch in Wulf v Cooper,14 where such an award was considered but not made in the CCT. It is clear however, that the usual basis for such an award is physical inability to be able to enjoy the use of the contract works for a protracted period. This is not the case here. From the time of termination, and in fact prior to that, Mr Bennett and Ms Janz have been able to use the works, dissatisfied as they may have been with the state of them. 12 See paragraph 15 of Second Re-amended Response. 13 Section 90. 14 (2008)QCCTB 3. -- 14 of 18 -- 15 [60] I note that Mr Lorisch did consider that it was established that there was a second possible element to the claim, namely mental stress or anxiety “…. Perhaps tied to what is customarily within a personal injuries claim”.15 [61] In this case I was given some limited evidence as to physical impairment that Mr Bennett suffered that his Medical Practitioner linked to this dispute.16 I am not inclined to allow the claim in this respect on two separate bases. The first is that I am not convinced that the problems Mr Bennett faced were outside the realms of what most Applicants in fully contested building disputes, or indeed litigation of any kind, face. Secondly it seems to me that if the level of problem was so severe as to categorise it as an “injury” it would fall within the provisions of the Personal Injuries Proceedings Act 2002 which requires numerous procedural steps, none of which have been taken.17 The application: [62] Coastal Patios have claimed the sum of $7,851. It says that the contract sum was $76,980 and the sum received was $73,13118. The difference between these sums being $3,894 I assume the balance of $4,002 represents claimed variations. [63] In respect of the variations Mr Moran has said that they were all requested by Mr Bennet and Ms Janz. The principle reason that they are opposed however is on the grounds that there has been no compliance with the contract. [64] There seems to be significant force in that argument as variations are clearly required to be in writing. Regardless what may have been requested it is clear that the relevant provisions of the contract have not been complied with.19 [65] In addition the issue of variations is dealt with in the Domestic Building Contracts Act 2000. In particular section 85 mandates that the Building Contractor may only recover an amount for a variation, where it has complied with section 79, 80, 82 and 83, or if there are exceptional circumstances or if the building contractor would suffer unreasonable hardship. [66] There is nothing about this matter that would indicate exceptional circumstances. On the contrary Mr Moran has deposed to the fact that he thought Mr Bennett and Ms Janz would pay because of what he saw as 15 See paragraph 78. 16 See report of Dr Werschon. 17 See Division 1 of the Act. 18 See Part B of Application. 19 See Clause 20 of General Conditions. -- 15 of 18 -- 16 the good working relationship between them.20 There was no evidence led that would justify a finding of unreasonable hardship. [67] To the extent then that the Application seeks payment for variations it is not allowed. I would however, allow the balance of the claim in the sum of $3,894 on the basis that the amounts allowed for rectification will bring the works into compliance with the contract between the parties and accordingly the full contract price should be considered in assessing the loss suffered, in this case by Mr Bennett and Ms Janz. Final position: [68] Overall then I would allow the claim in the sum of $3,894 and the Cross Application in the sum of $27,575, resulting in a net outcome of Coastal Patios having to pay Mr Bennett and Ms Janz the sum of $23,681. Interest: [69] Particularly having regard to the fact that liquidated damages ceased to be payable on termination it seems to me that it is appropriate to award interest as permitted by section 77 of the Queensland Building Services Authority Act 1991 at the rate of 10 per cent per annum for a period of 2.25 years, namely the sum of $5,328 leading to a total amount owing of $29,009. Costs: [70] There is an application for costs on behalf of Mr Bennett and Ms Janz that is made on a fairly general basis and on the grounds that costs are “discretionary”. [71] Section 100 of the QCAT Act provides that each party must bear their own costs for the proceeding other than provided in the QCAT Act or the enabling act. The enabling act here which confers jurisdiction on QCAT to hear and determine building disputes is the Queensland Building Services Authority Act and s 77 of that Act confers power on the Tribunal to award costs. In Lyons v Dreamstarter Pty Ltd21 the Appeal Tribunal held that the usual position on costs under s 100 of the QCAT Act is displaced by s 77. And therefore although there is no provision that costs automatically follow the event, any application for costs must be considered under the general law having regard to discretionary factors. [72] In this case the issues while not simple, ultimately came down to factual matters. I specifically note that one of the major grounds upon which leave for legal representation was sought was the claim for solatium on which Mr Bennett and Ms Janz were not successful. Furthermore this 20 See his affidavit dated 30 January 2012 at paragraph 7. 21 [2011] QCATA 142 at [34]. -- 16 of 18 -- 17 was not a matter which was ultimately even strongly pursued. It also seems important to also consider the fact Coastal Patios did not have the benefit of representation in circumstances in which this Tribunal is primarily intended for self-representation. [73] Finally I would note that Coastal Patios was partly successful in its claim, and furthermore was successful in significantly reducing the extent of the Cross Application. [74] Having regard to the factors in section 103 of the QCAT Act this does not seem an appropriate matter in which to make a general costs order. [75] There are, however, a couple of matters in respect of which specific orders should be made. Specifically Coastal Patios did not engage an expert builder to meet with Mr Witt at the first Experts Conclave in circumstances where they had engaged one and as a result the Conclave had to be adjourned. Secondly it did not engage Mr Saint to attend the second conclave in breach of an Order of this Tribunal and calling him to give evidence regardless. Indeed Mr Saint gave evidence that he had no knowledge of this second conclave being called. [76] In respect of these two particular issues Mr Bennett and Ms Janz have been put to unfair cost which has been thrown away and I would order that Coastal Patios pay those costs that were thrown away. Orders: I would therefore make the following Orders: 1. Coastal Patios Pty Ltd must pay to Mr Hugh Bennett and Ms Rosalie Janz the sum of $29,009.00, by: 4:00pm on 12 July 2013 2. Coastal Patios Pty Ltd must pay to Mr Bennett and Ms Janz the costs thrown away as a result of the adjournment and/or, the failure of the Applicant to arrange the attendance of the experts at the experts’ conclaves listed for 24 July 2012 and 30 January 2013. The costs are to be agreed or assessed on the Magistrates Court Scale of costs or; I. If the parties do not agree, Coastal Patios Pty Ltd must file two copies in the Tribunal and give one copy to Mr Hugh Bennett and Ms Rosalie Janz by short form assessment of costs, together with any submissions on the amount of costs, by: 4:00pm on 21 June 2013 II. Mr Hugh Bennett and Ms Rosalie Janz must file two copies in the Tribunal and give one copy to Coastal Patios Pty Ltd any submissions in reply, by: 4:00pm on 28 June 2013 -- 17 of 18 -- 18 III. The amount of the costs payable by Mr Hugh Bennett and Ms Rosalie Janz will be determined on the papers without an oral hearing not before 28 June 2013. -- 18 of 18 --