Clarke (aka Ms Marianne Morel) v Symphony Homes Pty Ltd [2013] QCAT 78

CITATION: Clark v Symphony Homes and Anor [2013] QCAT 78 PARTIES: Ms Katherine Clarke (aka Ms Marianne Morel) (Applicant) v Symphony Homes Pty Ltd Joseph Conti (Respondents) APPLICATION NUMBER: BD084-08 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Desmond Lang, Member DELIVERED ON: 19 February 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. Ms Clarke is to pay Symphony Homes Pty Ltd the amount of $104,212.41. 2. Ms Clarke is to provide tiles of her choice to Symphony Homes for it to fix to the kitchen splash back within 21 days of the date of this decision. 3. Symphony Homes Pty Ltd is to make good the defects listed as being required to be rectified in the QBSA report dated 22 January 2009 other than the overflow relief gully being in the wrong position, obtaining an exemption to the BCC small lots code for the driveway and any associated works and installing control joints in the floor tiling within 90 days of the date of this decision. 4. All work is to be completed to the satisfaction of the QBSA prior to Ms Clarke paying any monies to Symphony Homes Pty Ltd. 5. Ms Clarke is to allow Symphony Homes Pty Ltd access to the dwelling -- 1 of 64 -- 2 to enable it to complete the works in these orders. 6. If Ms Clarke does not allow Symphony Homes access to the dwelling, then order 3 is vacated and the sum of $104,212.41 is immediately due and payable. 7. If after being allowed access to the dwelling Symphony Homes Pty Ltd fails to complete the works by Symphony Homes Pty Ltd to the QBSA’s satisfaction, order 1 is vacated and the applications are to be referred back to the tribunal for further orders. 8. Except to the extent stated above Ms Clarke’s claims against Symphony Homes Pty Ltd and Joseph Conti are dismissed. CATCHWORDS: BUILDING DISPUTE where Housing Industry Association contract – where dispute between the parties – whether termination valid – where variations – where defective work – where claims for extension of time Domestic Building Contracts Act 2000 ss 6, 9, 18, 79, 80, 82, 83 84 Queensland Civil and Administrative Tribunal Act 2009, ss 28, 32, 100, 102 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION Preliminary [1] Ms Katherine Clarke is also known as Ms Marianne Morel. Both names are used throughout the material. The Tribunal has previously accepted that she is known by both names in Clarke v Cascade Pools (Qld) Pty Ltd1 and will continue to do so in these applications. [2] Ms Clarke entered into a standard Housing Industry Association contract with Symphony Homes Pty Ltd on 6 July 2007. Joseph Phillip Conti is a Symphony Homes director and the person with whom Ms Clarke dealt with 1 [2010] QCAT 323 -- 2 of 64 -- 3 during the pre-construction, construction and post-construction stages. Ms Clarke also dealt with a Sheree Conti, Mr Conti’s wife during the construction process. [3] The contract called for the construction of a two (2) storey dwelling at 125 White Street, Wavell Heights. Ms Clarke also owned the property at 127 White Street. The material indicates that at some stage the two properties had been a larger block which was then subdivided. Ms Clarke states that she had a house on the original block demolished by a firm called Total Demolition and Asbestos Services. [4] The relationship was never a happy one and resulted in Ms Clarke purportedly cancelling the contract, followed later by the present application and then a later application by Symphony Homes. Ms Clarke also took Supreme Court action which resulted in her obtaining possession of the dwelling on certain conditions. [5] Ms Clarke has changed and added to what she is seeking from the Tribunal since she lodged her original application in February 2008 but it appears she is seeking the following: a) A declaration that she validly terminated the contract in February 2008 and is entitled to the use of the premises and rectification of urgent defects by other trades persons. b) A declaration that she does not have to pay the final contract payment to reflect the actual reduced value of unauthorized deletions and variations and the cost of bringing the works to completion. c) Compensation for additional rental paid by her as a result of Symphony Homes’ failure to complete the construction within time. d) Compensation for undue stress, loss of enjoyment of life including a disturbance to her normal life over the period, and exacerbated health problems. e) Compensation for liquidated and other damages for building errors that cannot be rectified. f) Loss of income for last fourteen (14) months (to October 2008) + ongoing for future earnings yet to come. g) All other associated costs including solicitors and barristers fees. h) The handing over of all certificates obtained during the works. i) A declaration and order that the builder was in substantial breach of the contract. j) A declaration and order that the contract was terminated as at 28 February 2008 under the “Repudiation for gross breaches of contract” clause of the contract. k) A declaration and order that the builder be banned for life due to gross breaches of contract. -- 3 of 64 -- 4 l) The imposition of appropriate penalties on the builder as stated in the Domestic Building Contracts Act 2000. m) A costs order on an indemnity basis. n) An order that she not have to pay previous costs orders made against her including that made in the Supreme Court of Queensland. o) An order that the Symphony Homes pay her the sum of $1,150,000.00 (including that the respondent purchase the dwelling) as compensation for her losses. [6] Symphony Homes seek the following orders against Ms Clarke in its counterclaim: a) That Ms Clarke pay it for variations it says it was asked to undertake. b) That Ms Clarke be required to pay the final payment due under the contract. c) That Ms Clarke pay the locksmith’s account when it took possession of the dwelling after Ms Clarke changed the locks when she purportedly cancelled the contract. d) Interest of outstanding monies. e) Legal costs. The Tribunal’s Role [7] Section 28 of the QCAT Act sets out the general procedures for conducting proceedings. In conducting proceedings the Tribunal must act fairly and according to the substantial merits of the case. It must observe the rules of natural justice, is not bound by the rules of evidence and may inform itself in any way appropriate. It must also ensure so far as is practicable that all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts. [8] During the course of the present applications, the Tribunal has conducted numerous direction hearings at which directions requiring parties to file and serve any material the party wishes to rely on and which the party believes will convince the Tribunal to make the decision the party says is in accordance with the merits of their case. That is, each party has had to consider what issues form the merits of their application, what material is required to prove those issues and then decide how to present that material in a way that best demonstrates and proves those issues. Both parties must prove their applications on the balance of probabilities. [9] Ms Clarke is self-represented while Symphony Homes has been granted legal representation. [10] Both parties have complied with these directions in their own way and seek to have the applications determined on the papers. This deprives the Tribunal of the opportunity to observe witnesses and test their credit. In determining these applications, complete reliance must therefore be placed on the material provided by the parties. -- 4 of 64 -- 5 [11] The Tribunal notes the comments made by the learned Member in Cascade Pools that, in the face of poorly prepared material, the Tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The Tribunal cannot make findings of fact where there is no evidence. It cannot award damages if there is no material that points to the quantum of the damage suffered. [12] These applications have one consistent commonality. Neither party appears prepared to accept ownership of any of the issues raised. Each has asked the Tribunal to determine the application on their material as supplied knowing that they bear the onus of proving their application on the balance of probabilities. Despite her material being difficult to read and understand in parts, Symphony Homes have taken a legalistic approach claiming lack of particularity in Ms Clarke’s material. While this may be the case, Ms Clarke has raised some genuine points to which Symphony Homes should have taken the time to respond. [13] Given the length of the proceedings and the directions requiring each party to make any submissions the party considers necessary to determine its application neither party can complain they have not been afforded natural justice. Ms Clarke’s case [14] Ms Clarke relies on several folders of material which includes: statements of claim; amended statements of claim; statements of evidence; amended statements of evidence; replies to defences and counterclaims; reports from a Roger Karrasch, and a Bevan Sim, both Architects; photographs; copies of letters and emails; a set of plans; and a 1:20 scale plan of the main bedroom en-suite. [15] Much of the material is in narrative form with some in dot form making it difficult to read and comprehend. Updated material often restates earlier supplied material with dates mixed up. Numerous allegations are made without any references to dates or other evidence. Despite this, Ms Clarke appears to have attempted to improve the quality of her submissions since the Cascade Pools decision. [16] On 17 January 2007, Symphony Homes provided an initial quote for preliminary works at 125 White Street which was prepared after a meeting on 15 January 2007, information provided at that meeting and draft plans provided by Ms Clarke. The works included levelling the site (except for necessary fill which was to be determined later), fencing, and the cost of the sewer works. Ms Clarke was to provide a confirmation of acceptance, job commencement sheet and working drawings (the plans) and engineering drawings. [17] Ms Clarke supplied Symphony Homes with the plans for the dwelling together with what she called a “specification” document listing what she wanted included in the dwelling when quotes for the construction were sought. -- 5 of 64 -- 6 [18] A later quote for the construction of the dwelling was provided on 28 June 2007. This latter quote letter states that the quotation was prepared with reference to the plans provided and meetings conducted. The plans, landscaping and fencing, staged floors to the main bedroom and media room are important exclusions. Prime costs items and provisional sums were allowed for in the quote. [19] Ms Clarke believes the concrete at the rear of the dwelling between it and a swimming pool constructed by others should have been included in the dwelling quote but wasn’t. [20] With respect to the issues relating to her application Ms Clarke’s specification document provided (her wording): • Allow for cut and fill of block if necessary – not sure. • Construction as per attached plans. • Bradnams or Boral windows, std range, frosted glass to side windows as per plan instead of privacy screens. • Handrail to upper level deck as per .jpg? or as discussed (cheapest?). • Include 2 cutouts in walls + half niche. • Handrails to stairs as per pic supplied. [21] A list of items which was to be priced separately and included in the final price contained the following relevant items (her words): • Fans s/s (7)? Bedrooms and living. • Gas hot water + gas outlet for BBQ. • Air conditioning 5 split systems 2.75 and 1 HP – itemized – may supply myself. • Insulation batts between ceiling and floor. • PC for 25 lights 20 power points (more needed though probably). • 2 way switches that work as 2 way switches should – in all places needed. • Add a little extra for electrical for extra light/power points over and above 25? And 20? • PC items on light fittings. • Price of alfresco floor tiled + extra 3m x 7m. • Bath, spa bath – harmony cnr or straight spa bath to be decided – both fit in space include step up design around spa as per emailed pic. • Driveway – stenciled or stain resistant paint – to be decided – whatever is cheapest – charcoal colour. • Slimline Water Tank or if can afford to will go underground as per drawings. -- 6 of 64 -- 7 • Fencing 7.5 high as per specs – 4 x 2 top rail – no gaps – left side, nothing at back right rear to existing garage, possibly do not replace existing fence this side – but also price total two sides to replace existing fence (and around block firewall on boundary). Note that photos show no existing fencing to either side boundary. [22] Issues relevant to this application to be later discussed included (her words): • Placement of power points and light switching – will get lighting plan done. • Water tanks and diversion system – may go one slimline tank only instead of underground tanks. • Cut and fill of block – needs minor fill. • Staged floors to main bed/upstairs media room as per pics emailed. [23] The 28 June quote does not separately price the items as requested by Ms Clarke and there is no available evidence that indicates that she pressed the issue. It appears that the only items quoted on were those items listed in the quote letter. Some of the issues which are now disputed as variations are mentioned in this list. [24] This specification document was not included as one of the contract documents. Ms Clarke was to supply many items that were normally included in a house contract and at the quote stage appears not to have chosen these items. Ms Clarke alleges that Symphony Homes did not quote on a fully completed house and that she was initially unaware that Symphony Homes did not include many items in her specification document. [25] Ms Clarke states she selected Symphony Homes over five other builders despite it being the highest price quoted as Mr Conti stated he would have her in the dwelling before Christmas 2007. When she queried a completion date of 28 January 2008 she was assured this date was a safeguard in case of unforeseen circumstances. [26] Ms Clarke states she needed to be in the house by Christmas because she was paying $620.00 a week to rent another smaller house. She and her family had found it difficult to find suitable rental premises and had moved twice in seven weeks before finding her then accommodation. [27] Ms Clarke states that she entered into the contract on 6 July 2007 and alleges she did not see the contract documentation until one month after it was signed and therefore had no idea what it included. She states that she had asked that her specification document be included and discovered later that it was not a contract document and a lot of her items were excluded. [28] She alleges that work commenced on 9 August 2007 which she considered a breach of the contract. She became concerned at that time as “the builder did not have any idea about how to find a datum and did -- 7 of 64 -- 8 not seem to know where to start”. She states she was aware of how important a datum point was as all significant measurements taken during the construction period would refer back to it. She alleges that her plans had been drafted for a cut and fill of 400-400 mm which were indicated on her plans. This cut and fill was also discussed verbally between her friend, Mr George Diggles, the certifiers and Joseph Conti but a much larger cut of 800mm occurred. [29] Ms Clarke provided an unsigned statement from Mr Diggles. He states he drew the plans and arranged the engineering designs. He also states he assisted Symphony Homes with taking levels on the property to establish contour lines and datum level for the building. He does not mention any details of conversations about a cut and fill 400-400mm nor does he mention any discussions with the certifiers. He states that he had seen variations which appeared excessive and were not accompanied by substantiating documents. He formed the opinion that the builder had not taken notice of communications from the client because of a lack of man power or work on other projects. He states that the builder was applying pressure on Ms Clarke to sign variations by threatening to withdraw his services. [30] This larger cut affected the placement of the pool, the level and practicability of the rear deck and caused every major problem at the block. [31] From October 2007 Ms Clarke says she asked for assurances that she would be in the dwelling before Christmas and sought evidence that substantial plans were in place to achieve this. Nothing was provided. [32] Within the first few weeks of construction Ms Clarke states she noticed major errors being made. Examples were errors with the slab construction, with the house frame with walls in the wrong places leaving little room in passageways for passing. Another error she tried to correct before it was too late was the wall in the main bathroom that was so obviously wrong with no room to walk through. She tried to have the sub-contractor concerned stop work until she could get Mr Conti onto the site to sort the matter out. She states that this resulted in Mr Conti getting angry and sending her a letter threatening to ban her from the site. [33] Ms Clarke complains that Mr Conti refused to answer her phone calls and emails requesting information and why workers were not on the site to ensure a pre-Christmas finish. When replies were forthcoming they appeared to her to be excuses for tardy supervision. [34] As work progressed she noticed more substantial construction errors. Measurements were not correctly scaled from the plans resulting in walls being constructed in the wrong place, piping being laid in the wrong location, doorways being constructed with the wrong width measurements. -- 8 of 64 -- 9 [35] Incorrect plumbing installation resulted in floor wastes, downpipes and baths being in the wrong location. Vanity units were installed without the correct clearances. The slab had to be cut to rectify some of these faults. [36] Ms Clarke became aware that the contracts sums for internal fittings and other works were inaccurate. For example, $7,000.00 was allowed for the electrical installation when the actual electrician’s quote was $8,500.00. [37] Ms Clarke alleges that the timber floor allocation was so inaccurate that she had to cancel it because it was too expensive. [38] Ms Clarke asserts that under the Domestic Building Contracts Act 2000 the cost of items purchased and supplied by should be deducted in full from the contract price. She alleges that Mr Conti was adamant that he was permitted to allow a builders margin of 20% to items such as the kitchen and bathroom cabinets which she organized through her trusted cabinetmaker. Mr Conti insisted on having the cabinetmaker subcontract to him allowing him to charge the builders margin. [39] This, she says demonstrates that Mr Conti did not have a full understanding of his responsibilities under the various legislations binding building companies. [40] Ms Clarke alleges that stage payments were claimed before they were due. Symphony Homes claimed a progress payment for the lock up stage when the front door was secured by two (2) boxes of tiles (supplied by her) on the floor. This resulted in the destruction of tiles which she had to replace at her cost. Later a box of tiles went missing, presumably stolen from the garage. Despite her objections, Symphony Homes did not make the dwelling secure for several days which she claims demonstrates a cavalier and unprofessional attitude and further undermined her confidence in the company. [41] Ms Clarke asserts she paid $1,765.39 premium for construction insurance which she presumed would cover the theft of construction materials. Mr Conti refused to allow her to claim for the cost of the stolen tiles as he said the policy was in his name. Ms Clarke states that this is a breach of the Domestic Building Contracts Act 2000. [42] Later two (2) bathroom lights were also stolen. [43] Ms Clarke considered that because she was paying such a large sum of money for the dwelling’s construction she was entitled to good communications with Symphony Homes and to be allowed to view the works. She alleges that Mr Conti consistently refused to respond effectively to her telephone calls emails and letters. This compounded the issues and made them more serious than they were. Site meetings were organized to remedy the communication problem but these often degenerated into shouting matches as Mr Conti disagreed with her within the first few minutes. -- 9 of 64 -- 10 [44] During the course of construction Mr Conti presented her with a large number of variations purportedly under clause 20 of the contract and requested her to sign them. She alleges that these variations were not requested by her and were forced upon her. The variations were also given to her after the work had been carried out. After initially refusing to sign the variations because she had not been informed about them prior to the work being carried out, Mr Conti refused to continue with the construction until she signed the documents. Five remain unsigned as they were presented on the last day. Ms Clarke disputes the variations and alleges they are severely overcharged and need assessing on and a ruling made on each of them. [45] This together with the serious and significant mistakes, the unwillingness to correct the mistakes and the large sums of money involved caused problems with their relationship. [46] As the contracted practical completion date approached Symphony Homes proposed alternate dates being 23 January, 28 January, 1 February, 9 February, 21 February, 26 February, 1 March, 26 March and 14 April. None was complied with. [47] Mr Conti presented her with an extension of time notice claiming further rain days which she says on her understanding of the Domestic Building Contracts Act 2000 is not possible after the contract due date. In her opinion Mr Conti was attempting to justify why he had not fulfilled the contract and was looking at running over time. [48] On 9 February 2008 after numerous attempts to correct mistakes, defects and omissions she gave Symphony Homes written notice of the defects with the notation that “she needed to put an end date to this and suggest that if all works that need to be completed are not completed in two (2) weeks from the date of this letter (7 March 2008) then all items mentioned in this letter will be added to my final claim for compensation.” She claims none of the defects was rectified. [49] On 27 February 2008 through her solicitor she purportedly terminated the contract alleging Symphony Homes’ repudiation of the contract by refusing to rectify the defects. [50] On 28 February 2008 she entered the unfinished premises and changed the locks. Later that day Mr Conti re-entered the property and re-changed the locks. Construction had not reached the practical completion stage. [51] This prevented her from residing in her dwelling forcing her to continue to pay rent of her alternate premises while she sought to obtain access to the house for rectification of urgent items. [52] On 1 March 2008 Ms Clarke engaged Mr Roger Karrasch, an Architect to inspect the property and provide a report on the state of construction. Mr Karrasch also provided an assessment of costs to rectify defects. Ms Clarke asserts that Mr Karrasch’s report outlines numerous and -- 10 of 64 -- 11 significant defects and highlights Symphony Homes’ wholly unsatisfactory standard of work. [53] Mr Karrasch inspected the property again on 26 March 2008 after a further claim by Symphony Homes that it had reached the practical completion stage. Mr Karrasch states that practical completion had not been reached. [54] Ms Clarke states that Handovers.com inspected the house for Symphony Homes even though they had been representing her which she claimed to be both unprofessional and a significant conflict of interest. Handovers.com reported on minor defects only not any Category 1 or 2 defects. She was given a copy of their report with many alterations and deletions and an unmarked copy. [55] Ms Clarke’s solicitor engaged a Mr Bevan Sim to inspect the premises to report on any Category 1, 2 or 3 defects on 22 April 2008. Mr Sim agreed the house had not reached the practical completion stage. [56] Ms Clarke alleges that the Electrical Safety Office, Walker Environmental and Whites International had all stated there were problems with the tanks and associated burnt out electrical components. She alleges the tanks installed by Symphony Homes were installed so they encroached onto the next door property by some 600mm. Incorrect drainage resulted in the tanks being turned off. [57] Ms Clarke lamented on the loss of her life, pouring over mountains of paperwork for up to twenty (20) hours a day while trying to have the rest needed to recuperate. This has hindered her recovery from surgery. She states she has heart problems. She complains of having lost her daily life, having a disorganized life, being a recluse in her own home and not being able to avail herself of any help from organisations who could help with these proceedings. She has no money. She is living with unbearable stress. Ms Clarke complains that there is no help for the victim in these situations while the perpetrators are awarded all privileges including legal representation creating a situation where they will not negotiate sensibly to an out of court settlement. [58] When building the house, Ms Clarke’s plan was to move from her rented premises before Christmas 2007 and use the Christmas period to settle in and unpack. She then planned to take her turn looking after her elderly mother in New Zealand, relieving her brother who was not coping with that task. Her brother largely abandoned his mother leaving other members of the family to put her into a nursing home. This cost over $20,000.00. She planned on being in New Zealand for a minimum of six months to spend the last days with her as her mother’s carer along with other organisations and family. Her mother died in July 2009. Not being able to be there when her mother died has had huge psychological effects on Ms Clarke. [59] Ms Clarke has desperately tried to sell the dwelling without success due to the number of obvious errors and faults. The house was listed with almost every real estate agent in the area and auctioned twice. Many adverse -- 11 of 64 -- 12 comments were made as to the dwelling’s finish. No offer has been received. After three years on the market she gave up and has rented it to prevent the bank from foreclosing. [60] She describes losing a Gold Coast retirement apartment as having the most devastating effect on her. The unit was to be completed in October 2010. The sale of her two houses would have allowed her to transition to this unit. Her present situation has had a ricochet effect on her with her losing the $150,000.00 deposit. She fears the developers may sue for their losses on the sale so her loss is still largely unquantifiable. Despite this she estimates this whole loss together with her retirement loss as being at least $500,000.00. She claims this amount. [61] In June 2008 the Supreme Court granted her possession of the property on production of a bank guarantee to cover outstanding monies. She did not want to provide the bank guarantee but would have been in contempt of Court if she did not do so. No monies owing to her were taken into account when calculating the guarantee amount. She was devastated when she obtained possession to find that the house was not completed to a stage where she could move in until 23 July 2008. Symphony Homes’ reply to Ms Clarke’s submissions [62] Symphony Homes do not dispute entering into the contract with Ms Clarke, nor does it dispute that Ms Clarke paid progress payments under the contract less the disputed variations. Only the final payment and disputed variations remain outstanding. [63] Mr Conti calls Ms Clarke the most difficult and irrational customer he had dealt with and states he completed other major projects over the same period without any problems. Mr Conti stated that “as at July 2007 within the first few days after commencement, the respondent was concerned for his relationship with the applicant for the remainder of the contract. Those concerns were well founded and has been demonstrated by the applicant’s statement of claim and statement of evidence and other documents filed in these proceedings, despite my best efforts to appease her every request, criticism, variation and complaint, our relationship has deteriorated and the number and extent of disputes escalated to the point where these proceedings were commenced.” [64] Mr Conti also states that “during the period July 2007 to February 2008, I genuinely endeavoured to please and appease the applicant. She took an intense, obsessive and intrusive interest in the works. Far more so than any other customer I have dealt with. She insisted on countless site meetings, hundreds of telephone calls and hundreds of emails were sent to him. By February 2008 the respondent was exasperated, frustrated and exhausted in my dealings with the applicant.” [65] Symphony Homes admit omitting insulation between the first and second floor as requested by Ms Clarke. It offered $2,000.00 worth of acoustic underlay as compensation but this was rejected. -- 12 of 64 -- 13 [66] Symphony Homes assert that Ms Clarke’s pleadings move well outside of the scope of what relief the Tribunal can grant under a building dispute. [67] Symphony Homes acknowledge that Ms Clarke initiated successful Supreme Court proceedings (QSC 5524/08) where on 19 June 2008 his Honour Dutney J granted her possession of the site on the condition that she provided a bank guarantee for the amount of $68,713.26. Symphony Homes cannot call upon this guarantee until the present proceedings are determined. Costs were awarded against Ms Clarke. Earlier possession was delayed by arguments about whether the practical completion stage had been reached. [68] As Ms Clarke did not join Symphony Homes as a party to her against Cascade Pools and it asserts that she is estopped by the operation of Res Judicata from making a claim against it in relation to any issue arising out of the pool construction. [69] Symphony Homes claim that Ms Clarke’s submissions lack the basic structure and clarity to allow it to know and comprehend the claim made against it. It further asserts that when faced with such poorly prepared material the Tribunal cannot make assumptions or guess at facts and events or the meaning or the importance of material. It asserts that it cannot make findings of fact where there is no evidence and cannot award any damages in the absence of material that points to the quantum of damages suffered. [70] Symphony Homes assert that Ms Clarke’s submissions do not disclose a cause of action, and contain amongst other things statements of opinion, lack particularity, hearsay assertions and references to legislation and an allegation of a denial of natural justice arising from Dutney J’s order. [71] Symphony Homes assert that procedural fairness requires that Ms Clarke properly identify and particularise her claims against it to allow it to respond to those claims. It states that Ms Clarke must establish her cause of action and any damages suffered on the balance of probabilities. It states that Ms Clarke appears to contend that the Tribunal should read the various boxes of material and documents and attempt to interpret the pleadings to give them meaning and to marry the distilled claim with the possible evidence relied upon. The obligation is on Ms Clarke to establish her claim not Symphony Homes or the Tribunal to make a case where one does not lie. It asserts that as Ms Clarke has not clearly articulated her claim or identified evidence in the absence of detailed written submission in circumstances where the matters are to be decided upon the papers it has been unacceptably disadvantaged. [72] Symphony Homes assert that because of her previous experience in the Tribunal as a litigant and the consequences of her failure to fully particularise that claim and the present claim Ms Clarke’s application should be dismissed with costs. -- 13 of 64 -- 14 [73] Symphony Homes asserts that the Tribunal can infer from Ms Clarke’s voluminous documents, submissions and conduct that she is prone to overstatement, conjecture, bold and uncorroborated assertions and that these attributes make her evidence unreliable and little weight should be given to it. [74] Symphony Homes assert that Ms Clarke’s experts’ reports should be given little weight to the extent that it asserts that Ms Clarke compromised Mr Sim’s report by altering it. It states that its own expert Mr Haskard, in a report dated 13 March 2012 supports its version of events. Mr Haskard, a qualified building contractor and building inspector inspected the dwelling on 4 May 2011 and 31 January 2012. Ms Clarke, Mr Conti, Symphony Homes’ solicitor and Mr Karrasch were present at the May 2011 inspection. Mr Karrasch was to provide his report and photos for the inspections but did not. Mr Conti and the solicitor were present at the January 2012 inspection. [75] Mr Karrasch was not present at the January 2012 inspection. Mr Haskard’s report addressed Mr Karrasch’s concerns and regularly states that Mr Karrasch failed to provide comment or photos of his concerns. Other defects are noted as completed. Mr Haskard’s first inspection post-dates practical completion by approximately two (2) years so it is not surprising that defects have been rectified. [76] Mr Haskard states that Ms Clarke’s plumber came to the dwelling while he was there and told him that there were no plumbing faults at that time. [77] Symphony Homes also asserts that the BSA report of 22 January 2009 is an independent report which is best positioned to guide the Tribunal in its decision making. It acknowledges that the report notes some minor defects and considers it supports its version of events. [78] Symphony Homes asserts that the “disorganization” claim is a claim not known at law. [79] Symphony Homes admits that Ms Clarke orally requested a variation for the cost of omitting tiles to the alfresco area which she elected to provide. It offers her an amount of $1,100.00. No detail of how this is calculated is provided. [80] On 2 May 2008 Symphony Homes responded to letters from Ms Clarke’s solicitors asserting that practical completion had not been reached on 14 April. It denied breaches of the contract. The letter refuted Ms Clarke’s experts claims that the external sheeting had been incorrectly installed claiming that only three defective joints were found out of more than one hundred and fifty which it deemed acceptable. [81] The letter stated that compacted fill had been placed on the right hand side of the dwelling and it was waiting for the ground to settle. It asserted that, as Ms Clarke was responsible for all landscaping and hardscaping works, that area was now her responsibility. -- 14 of 64 -- 15 [82] The letter asserts that the concrete driveway was constructed in accordance with a Brisbane City Council Footway Permit No. 0121105 which provided that the driveway could only be 3m wide and the hand drawn detail on the plan. Ms Clarke designed the driveway layout and was consulted prior to the driveway stencilling. She could not now complain about the driveway layout. [83] The letter asserts that the rear drainage takes water away. It states that Ms Clarke did not want to pay for fill to the site and therefore a cut and fill was agreed. The contour was done by Ms Clarke and her partner George Diggles a qualified Civil Engineer while the builder was present. All parties agreed that a 500mm cut and fill and the slab height was then determined from the plans. This choice and decision by Ms Clarke has resulted in the issues stated in Mr Sims’ report. [84] Symphony Homes state that the rear concrete slab falls away from the house to prevent ponding of water. Ms Clarke’s landscaping and fencing would need to take into account what was needed in this area. [85] The timber retaining wall erected on the boundary meets industry standards and was installed contrary to Symphony Homes’ recommendation. [86] The letter also discussed alleged omissions and deviations from the contract. It asserted that the first floor front stairway wall was discussed between the parties and Ms Clarke agreed with the outcome because of the incorrect design of Mr Diggles’ plans. Ms Clarke chose not to install a door from the main bedroom to the en-suite due to agreed design changes. Ms Clarke provided all of the door furniture and failed to provide a handle for this door. Symphony Homes is not responsible for the performance of items supplied by Ms Clarke. [87] The heated towel rail was not initially installed due to concerns relating to a potential conflict with the shower screen. It agreed to install the towel rail. [88] Ms Clarke changed the en-suite layout and selected a spa bath size which was different to the plan. A variation was raised for this work and has been paid. [89] Ms Clarke was on site and agreed to the walk in robe layouts which were built accordingly. [90] Ms Clarke met with the electrician and outlined all of the power points and lights to be installed. [91] Ms Clarke has never instructed whether she wanted tiles or glass to the kitchen splash back. When instructions are provided the splash back will be installed. -- 15 of 64 -- 16 [92] The tanks have passed all relevant plumbing inspections (on 27 February 2008) and have been approved. The lids were sealed at the time. [93] Ms Clarke advised on 14 November 2007 that the data cabling was not an issue and that her son would get them out of the walls. [94] The doors to the en-suite shaving cabinet do not hit any items. [95] Ms Clarke approved the kitchen design and supplied the dishwasher. [96] On 5 June 2008 Symphony Homes stated it was agreeable to the QBSA inspecting the dwelling but insisted that Ms Clarke complete the contract’s financial requirements before the QBSA assessment. The letter also alleged bias by Mr Karrasch and Mr Sim in their reports. [97] After further correspondence between the parties Symphony Homes wrote to Ms Clarke’s solicitors on 23 June 2008 listing four items agreed to exist and be rectified before Ms Clarke would be given possession of the property. The items included that: Ms Clarke supply tiles for the kitchen splashback; Ms Clarke advise whether she wanted a door installed between the main bedroom and the en-suite; whether Ms Clarke wanted additional smoke alarms fitted; and Ms Clarke was to supply a mirror for the downstairs bathroom. [98] A Peter Knight, a Structural Engineer inspected the dwelling on 20 June 2008 for Symphony Homes, particularly cracking in the slab and expansions joints in the kitchen/dining living room area. He noted that the slab cracking measured less than 1mm which would be defined as very slight under Australian Standard AS 2870 Residential Slabs and Footings Code. He opined that the cracking was due to shrinkage which was normal and did not affect the structural integrity of the slab. He was of the opinion that as the tiling had been laid with a flexible adhesive it did not need an expansion joint. [99] His overall opinion was that the issues raised were common in residential construction but have no bearing on the structural adequacy of the dwelling. [100] Symphony Homes include an email from Ms Clarke dated 8 May 2008 which contains unnecessary provocative and threatening statements such as “I am a bit older and wiser than you, and had a little more life experience, but if you want prove you can win at all costs then that’s fine, just warning you I can also put up a good fight if that’s what you want. And the media are really interested in this story … and believe me they have a lot of information on Symphony Homes already from other dissatisfied clients … you might have to go buy that violin …” The Experts’ reports [101] Mr Karrasch first inspected the dwelling on 1 March 2008 (a cursory inspection) and then 31 March 2008 (report date 26 April 2008). -- 16 of 64 -- 17 Mr Karrasch’s first report not surprisingly found many alleged defects and building faults as the dwelling was still under construction when inspected and was never alleged as having reached the practical completion stage. His second report was written after an inspection on 13 May 2008. While observing builders faults and noting that he has used photographs supplied by the owner he makes no comments about speaking with the builder’s representatives he has made no attempt to verify allegations and get Symphony Homes’ side of the story. [102] In the summary of his 26 April report, Mr Karrasch states that there may be defects concealed by following trade work that have not been observed and that there has been a considerable diminution of the property’s value as a result of non-compliance in terms of the contract documents available for perusal. He does not state the basis for making this observation. These comments are surprising given that Mr Karrasch states that his report is based on a “cursory brief inspection”. As he provides no evidence of the property’s alleged fall in value his comments in that regard can be disregarded. [103] Mr Karrasch reinspected the dwelling on 13 May 2008 after Symphony Homes’ certification of practical completion but when work was apparently still ongoing. He opines that practical completion was precluded because of the substantial disturbance to occupants while the alleged defects were rectified. [104] Mr Karrasch states that the ceiling manhole location was impractical. The manhole is not shown on the plans. Mr Karrasch does not comment on any communications that may have occurred between the parties when the original position was decided upon. [105] Mr Karrasch notes that the vanity cupboard is defective in that it fouls the faucet. He does not comment on the fact that Ms Clarke designed the cupboards with her trusted cabinet maker and also selected the faucet involved. [106] Mr Karrasch notes the lack of provision for storm water discharge on the eastern side of the dwelling and the fact that Symphony Homes has begun to dig an ineffective trench on the neighbour’s property to reduce the depth of water but does not reference his comments to the building plans. He offers no solution for this problem. No reference is made to an email from a Mr George Diggles to Ms Clarke dated 4 February 2008 in which Mr Diggles alludes to the fact that the stormwater drainage was installed as required by Ms Clarke and this same drainage issue is mentioned together with proposed remedies. Ms Clarke was therefore aware of the drainage problem from at least this date and does not appear to have done anything to rectify it. One would also assume that Ms Clarke read Mr Karrasch’s report of this problem and it is surprising she did not clarify the issue and her intentions with him. Mr Karrasch does not appear to have been properly briefed by Ms Clarke on this problem. -- 17 of 64 -- 18 [107] Mr Karrasch states that security screens have not been installed to ground floor windows despite the fact that the contract documentation specifically excluding security screens. [108] Mr Karrasch requires a number of certificates for the work, some of which appear to be unnecessary. One is that the work is complete and ready for occupation. This could not have been a defect because the dwelling was still under construction when inspected. Another was a certificate stating that ponding of water adjacent to the footings outside bedroom 5 did not adversely affect the structurally affect the superstructure. He does not state how these certificates were to be obtained. [109] Mr Karrasch requires documentation prepared by a surveyor certifying that the building set out and elevation above natural ground level complied with the building approval. He does not reference this comment against the council approved plans provided by Ms Clarke which do not show floor levels. Another certificate required an authority to import fill while another required authority to excavate rock when there was no evidence rock was present on the site. [110] One area of importance for Mr Karrasch was what he called the defective a building set out. He notes that the main bedroom had not been set out in accordance with the approved construction drawings but does not state how this was defective. He also notes defects in the garage set out, a passageway was not set out correctly and the dining room had not been constructed to the required dimensions. No further explanation is provided. He appears to allege these defects were caused by inadequate supervision but does not discuss any other options such as incorrect plans and communications between Ms Clarke and Mr Conti. [111] Mr Karrasch adopts Ms Clarke’s list of instructions, defects, incomplete works and unauthorized variations without critically commenting on or examining them. [112] Mr Karrasch states his listed issues are not exhaustive and are typical of those existing in the dwelling and assumes Symphony Homes is fully conversant with the contract and applicable laws and regulations and could easily identify the issues and understand the listings making listing reasons unnecessary. Unfortunately the Tribunal does not have the benefit of Mr Karrasch’s oral evidence and subsequent cross examination and must read and consider his report accordingly. [113] Mr Sim inspected the dwelling on 21 April 2008 and 30 May 2008 for Ms Clarke. He noted that on his second inspection, some of the defects found in his first inspection had been rectified but some had not. As at 21 April 2008 his opinion was that the dwelling was at the “fixing stage” not practical completion. Mr Sim notes that no foundation data or engineer’s documents were provided to him. He does not say why he did not seek these from Ms Clarke given she provided the dwelling’s plans including the slab and footing details. Given that Ms Clarke commissioned -- 18 of 64 -- 19 his inspection and subsequent report one would expect that she would have provided these details for her expert. [114] Mr Sim notes what he calls defects and omissions with the dwelling. One is that there has been no satisfactory evidence that all relevant inspections had been carried out. An example is that an engineer’s certificate of the slab and footing inspection has not been obtained. He reports that there were deep excavations against the right hand side of the dwelling where the tanks had been installed. He reports that the excavations had been backfilled with loose material which was being washed away. He notes that the Inspection Notice dated 27 July 2007 allows the footings to be 1800mm deep and states that there is no evidence that the footings were further inspected. [115] Mr Sim also notes that the ground on the right hand side of the site (the eastern side) has been excavated so that water is trapped. He calls upon the building certifier not to issue a final certificate until a field gulley draining to the street has been installed. The plans show storm water drainage in that area leading to the street. Like Mr Karrasch, Mr Sim does not discus Mr Diggles’ email of 4 February 2008 in which he states that the stormwater drainage was installed as directed by Ms Clarke and offers the same field gully option as Mr Sim. Ms Clarke had apparently changed the stormwater drainage from that shown on the site earthworks plan. The site’s excavation is the result of prior communications between Ms Clarke and Symphony Homes. Unfortunately Mr Sim does not discuss these communications nor compare what he saw during his inspection with Ms Clarke’s building plans (including the drainage change) in order to assist the Tribunal in its determination of the applications. [116] Mr Sim calls for the demolition of the wet area floors and their reconstruction with a floor waste in accordance with Australian Standards. As the QBSA report highlights this is not a requirement for class 1 (residential) buildings. [117] A further defect listed is that there is no discharge from the drain in the alfresco area. This is inconsistent with Ms Clarke’s later inspections which showed drain discharge albeit shallow in this area. Mr Sim states that the alfresco slab area is below natural ground level and subject to flooding and the adjacent retaining wall has not been built on the alignment and is not properly drained. He also states that the boundary pegs are not in position. Mr Sim has not discussed any communications between Ms Clarke and Mr Conti nor referenced his comments against Ms Clarke’s building plans. No site plan showing the extent of the problem was included with the report which together with the fact that a swimming pool has been built by others makes it difficult to comment any further on this alleged defect. [118] Mr Sim comments that the stair layout was incorrect and goes on to provide stair measurements scaled from the plan without providing any sketch to assist the Tribunal. A properly prepared stair detail and cross section would have removed any doubt about the stair design. -- 19 of 64 -- 20 [119] Mr Sim states that the front wall to the stairwell on the first floor has been built 500mm closer to the front wall than the dimension shown on the floor plan. He calls this a potential problem due to the position of the stairs below and the related head room and recommends a sloping ceiling over the stairs to enable the walls to be constructed as per the plans. No sketch showing the problem is provided. It appears from Mr Sim’s comment that the wall was built in its present location to prevent a sloping ceiling but does not comment on any downsides to having a sloping floor in this part of the main bedroom. One would expect this issue to have been considered by Ms Clarke at the design stage and then discussed between the parties during the construction stage. Mr Sim did not explore these possibilities. [120] Mr Sim comments on the main bedroom en-suite layout stating it had not been constructed as per the plans provided. He correctly states the spa size was not shown on the plans but neglects to comment on the importance of that size to the correct setout of the room. He further states that Ms Clarke instructs that she provided the spa size to Symphony Homes but does not comment on her admission that the wrong dimension was provided. [121] Mr Sim states that some downlights in bedrooms 3 and 4 and the kitchen requested by Ms Clarke have not been installed but makes no reference to when they were requested or an electrical plan which showed the lights. If not shown on an electrical plan they would have been a variation for which nothing has been provided. [122] Mr Sim provides a further report dated 30 May 2008. There is no report of an inspection prior to the preparation of this report. In essence the report discusses Symphony Homes’ response to his earlier report. Of concern to the Tribunal is the repeated statement that he could not comment on whether the owner agreed or signed variation documents. One would have expected that he would have obtained detailed instructions from Ms Clarke before responding to the Symphony Homes letter. [123] Symphony Homes state that compacted fill had been placed on the right hand side of the dwelling. While agreeing that photos supplied to him appear to confirm this he still requires a field gully discharging to the street. If a field gully is required and one is not shown on the contract plans then the provision of one would be a variation payable by the owner, Ms Clarke. The fact that the dwelling is constructed on the right hand side alignment means that any possible drainage issues should have been considered at the design stage. No comment has been made as to whether this is a design fault or a construction fault making it difficult to comment further. [124] While he acknowledges the provided driveway is BCC compliant, Mr Sim provides alternative better driveway designs that he says will also comply with the BCC crossing permit. Symphony Homes allege that Ms Clarke designed the present driveway, while Ms Clarke states the opposite confusing the issue. A BCC permit compliant driveway is as much -- 20 of 64 -- 21 Ms Clarke’s responsibility as Symphony Homes as Ms Clarke designed the dwelling without any stated input from Symphony Homes. The present driveway was agreed to by Ms Clarke prior to its construction. Ms Clarke had the assistance of an engineer who prepared the plans and designed the concrete slab and footings and could have provided a better designed driveway. She should have ensured the driveway was suitable for her needs prior to agreeing to it. The presence of a better designed driveway does not warrant the replacement of an existing council compliant driveway with that new design. The Tribunal is not provided with any evidence of the compliance requirements of the standards referred to by Mr Sim so is unable to comment further on this issue. [125] Mr Sim states he cannot say whether a progress payment constitutes approval of work performed or deviations from the contract. A claim for a progress payment under the contract is the builder’s certification that the dwelling’s construction has reached that stage as defined under the contract. In architect designed and supervised homes the architect would compare the construction stage with the definition as a factual comparison. In HIA contracts such as the present case there is normally no such third party intervention and owners rely heavily on the builder’s honesty in this regard. Any discrepancy would result in a claim against withheld monies and damages if those monies are insufficient. However, the Tribunal may review these payments if asked and is provided with the required evidence. In these applications the issue is whether the dwelling reached the practical completion stage before or after 14 April 2008. The practical completion definition requires the dwelling to be in a habitable state. While occupation actually occurred on 25 July 2008 there is no evidence that it could not have occurred when the Supreme Court granted her access on or around 30 June. If completed earlier Ms Clarke could not have occupied it as she did not have possession. [126] Mr Sim states that the dwelling had not reached the practical completion stage when he inspected it. [127] Mr Sim’s reports appear to repeat Ms Clarke’s allegations without critically examining them. Symphony Homes allege his report is biased towards Ms Clarke. A problem with determining the applications on the papers is that the Tribunal is prevented from hearing the experts’ oral evidence and determining issues of credit. [128] Both reports would have been more helpful and relevant if done or updated when Ms Clarke took possession of the dwelling as they would have not only post-dated the Symphony Homes practical completion date but provided a definitive report on the dwelling’s condition prior to Ms Clarke engaging her own contractors to perform work. They do however indicate the state of the dwelling at the inspection dates. [129] Mr Haskard, a registered builder with twenty-five (25) years experience inspected the dwelling on 4 May 2011 and 31 January 2012 for Symphony Homes. Mr Karrasch was present during the first inspection but did not attend the second inspection. Mr Haskard’s inspections were to inspect -- 21 of 64 -- 22 and comment on Mr Karrasch’s report of 26 April 2008. Consistently throughout his report Mr Haskard states that Mr Karrasch did not comment on defects listed in his own report nor provide details of what he called “relevant criteria”. Mr Haskard also notes he was not provided with a set of the dwelling’s plans which is unusual as he was acting for Symphony Homes who possessed a copy of the plans. [130] Mr Haskard lists the items inspected and made comments on each item. He made no adverse comments with respect to many of the allegations. He agreed with some of the alleged defects and noted that with respect to some the builder offered to make good the defects. [131] Mr Haskard’s report appears to indicate that many of the alleged defects noted by Mr Karrasch had been rectified. [132] The QBSA inspected the dwelling on 21 January 2009 at the Tribunal’s request and a report dated 22 January 2009 was prepared by a Bob Clayton. As this report was prepared after the contract would have normally have finished and addresses the concerns of Mr Karrasch and Mr Sim the report’s comments and 22 January 2009 will be used as the relevant date and expert comment in determining these applications unless there is evidence which proves that a contrary approach should be taken. [133] A further difficulty for the Tribunal is that the QBSA inspection was carried out long after Ms Clarke took possession of the dwelling. The report details alleged defects but does not necessarily attempt to apportion responsibility for those defects. For example, in responding to item No 14 of the Karrasch report of 13 May 2008, the BSA report notes that cracking was evident to the four masonry support columns at the rear of the dwelling, that the cracking was minor and normally be attended to during the maintenance period and recommends that rectification works to ensure a satisfactory finish. The report does not however, discuss the fact that between approximately 22 July 2008 and 29 July 2008 Ms Clarke had her own workers doing floor finishes around these same columns and the possible consequences of that work. This is important given that a notation on one of the photos under the date of 18 August 2008 states that render splashes and concrete splashes were up these posts and the posts were cracked. [134] Throughout his report, Mr Clayton notes that Ms Clarke had engaged contractors at her expense to carry out rectification works making it difficult to determine why the work was done. He also notes that some of the defects would be rectified during the defects liability period. [135] After investigating Ms Clarke’s expert’s faults including the cracking of the slabs the report lists the defects which it says require rectification. Symphony Homes has agreed to undertake any repairs ordered by the Tribunal to the QBSA’s satisfaction. -- 22 of 64 -- 23 Ms Clarke’s Claims A declaration that she validly terminated the contract in February 2008 and that she is entitled to the use of the premises and rectification of the urgent defects by other trades persons [136] An application seeking confirmation of the purported termination of the contract was determined by the Commercial and Consumer Tribunal in Katherine Clarke v Joseph Conti t/a Symphony Homes Pty Ltd2 where that tribunal ruled against Ms Clarke. [137] Ms Clarke apparently lodged an appeal against the Tribunal’s decision (DC 1035/08) which was dismissed, apparently as part of the settlement of her Supreme Court claim. [138] The declaration sought by Ms Clarke would have had to be part of a decision of the District Court on appeal. The Commercial and Consumer Tribunal Act did not allow for a member to reopen a decision where an appeal was lodged. [139] Given the elapsed time period it appears that Ms Clarke has now exhausted her appeal rights in the higher Courts. [140] This Tribunal has no jurisdiction to make the declaration sought by Ms Clarke and the claim must fail. A declaration that she does not have to pay the final contract price to reflect the actual reduced value of unauthorized deletions and variations and the cost of bringing the works to completion [141] There is no dispute that under the contract Ms Clarke must pay all monies due and payable to Symphony Homes after taking into account allowable variations and omissions. The Tribunal must assess each claim to determine the final amount payable. There is no evidence to suggest that Symphony Homes were not willing to complete the dwelling. [142] Ms Clarke obtained possession of the dwelling on 30 June 2008 and occupied it on 25 July 2008. Unfortunately there was no inspection of the dwelling at the time Ms Clarke took possession so there is no definitive report of the dwelling’s state at that time and as it appears from the material that her contractors performed work which did not form part of the contract it is difficult to say whether these contractors were finishing the house or further improving it. The available evidence is confusing as Symphony Homes say the practical completion stage had been reached while one of Ms Clarke’s experts states it had reached the sheeting stage only. [143] There is no reliable evidence from her as to the condition when she took possession. The QBSA’s January 2009 report notes that many issues identified by Ms Clarke’s experts had been rectified either by herself at her 2 [2008] CCT BD084-08. -- 23 of 64 -- 24 cost or by others. The QBSA report also noted defects that it recommended be rectified. [144] The Tribunal accepts the QBSA report as the best description of the dwelling’s condition given it was written closest to the possession and occupation dates, was written at the Tribunal’s direction and addresses Ms Clarke’s experts’ concerns. [145] Ms Clarke’s photographs, although not sworn give a photographic history of the dwelling’s construction. They are of limited value in that many of the photos are unnumbered, undated, are not in date order and do not have descriptions of what they depict. As the Tribunal is not constrained by the rules of evidence it may use the photos in clarifying issues relating to these applications. While the photographs show many workers both before and after Ms Clarke took possession of the dwelling and describe work being undertaken, no statement from any of these workers is attached to her application showing what work they undertook and how that work related to any of the defects she alleges against Symphony Homes. [146] Ms Clarke has stated that she undertook to rectify many defects because of a distrust of Symphony Homes’ workmanship and ability to do the work. Therefore she must take responsibility the workmanship and correctness for any of that work. The difficulty for the Tribunal and Ms Clarke is that she has alleged many defects dating from July 2008 to April 2012 but has not stated when they became evident or when she told Symphony Homes in writing of them. [147] Under the contract, Symphony Homes were entitled to make a final claim for monies owed under the contract. There is no evidence that suggests that Symphony Homes were not willing to complete the dwelling. Therefore it is entitled to payment of the claim less deductions allowed under the contract. [148] Ms Clarke asserts that the value of her claims should be deducted from Symphony Homes’ final claim making it necessary to consider each item in turn. The date of Ms Clarke’s items varies from July 2008 to March 2012. This means that the possibility of some items being routine maintenance rather than initial building defects is increased. To prove her case Ms Clarke must provide evidence that all of the items claimed were caused by Symphony Homes and not routine maintenance. Items 1 and 2 – Concreting [149] Ms Clarke alleges that unspecified concreting needs to be redone. In the absence of further evidence this claim cannot be allowed. Item 3 – Costs to render garage wall [150] The plans show that the external wall of the garage was to have a rendered finish. A photograph of the wall on page 81 of the QBSA report -- 24 of 64 -- 25 indicates the wall is neither rendered nor painted. It appears from this that this work has never been completed. An omission such as this should have been a variation under clause 20 of the contract but Symphony Homes have not provided a variation for this work. An amount of $1,500.00 is claimed with a question mark without any information to verify how this amount was calculated. The Tribunal cannot in the absence of proper quotes allow this claim. Symphony Homes must rectify this omission to the satisfaction of the QBSA. Item 4 – Cost of re-constructing retaining wall [151] Ms Clarke’s experts say that the retaining wall has been badly constructed while Symphony Homes say the opposite. Without oral evidence including cross examination from both sides the Tribunal is unable to confirm this issue either way. The Tribunal is unable to allow this claim. Item 5 – Cost of rectification of tiles [152] A figure of $2,612.00 is claimed but no supporting material such as “which tiles” is provided. In the absence of further evidence this claim cannot be allowed. Item 6 – Sewer/machine hire and gravel [153] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Items 7 and 8 – Install of one tank and credit for one tank not being enough [154] These are part of a disputed variation and will be discussed in the Symphony Homes claim. Items 9 and 10 – Disputed electrical works including air conditioning hook ups [155] These are part of a disputed variation and will be discussed in the Symphony Homes claim. Item 11 – Tiles in kitchen not installed [156] Symphony Homes states it is waiting for Ms Clarke to provide tiles to complete this work. Ms Clarke must provide the necessary tiles so Symphony Homes can complete this work to the QBSA’s satisfaction. Item 12 – Cost of replacement tiles [157] There is no evidence that any tiles were “thrown out”. The Tribunal cannot allow this claim. -- 25 of 64 -- 26 Item 13 – Batts missing from floor [158] This is a disputed variation and will be discussed in the Symphony Homes claim. Item 14 – Batts missing from ceiling [159] The QBSA report comments on Mr Karrasch’s item 1 (ceiling insulation) and notes that a visual inspection revealed that insulation had been installed to all areas of the ceiling. Based on this evidence which Ms Clarke does not contradict, this claim cannot be allowed. Item 15 – Wall niche [160] An amount of $750.00 is claimed for an unspecified wall niche. No wall niche is shown on the included plans so its location is unknown. In the absence of additional evidence this claim cannot be allowed. Item 16 – Appliances [161] An amount of $3,980.00 is claimed for unspecified appliances without supporting evidence. In the absence of that evidence this claim cannot be allowed. Item 17 – Bathroom mirrors not provided [162] Ms Clarke has not provided evidence that the contract allowed for the provision of bathroom mirrors. In the absence of that evidence this claim cannot be allowed. Item 18 – Concrete, tiles fix alfresco [163] A total of $7,050.00 is claimed. This work appears to be the work carried out in approximately July 2008 after Ms Clarke occupied the dwelling. No invoices to prove the cost of this work or its necessity has been provided by Ms Clarke. The plans do not show a set down dimension for the rear alfresco area. The parties have not seen fit to advise the Tribunal of their discussions in this regard and therefore in the absence of further evidence the Tribunal cannot allow this claim. Item 19 – Spoon drain at rear [164] A rear drain was not shown on the plans. Landscaping was specifically excluded from the original quote letter and therefore from the contract. Several photographs dated around July 2008 show a drain running across the property between the alfresco area and the swimming pool. It appears that Symphony Homes built the drain as part of a variation. [165] Item No 1 of the list of latent defects on page 85 of the QBSA report states that Ms Clarke advised the inspector that she had engaged her own contractors to carry out the rear drainage work at her cost. Therefore any -- 26 of 64 -- 27 liability for the drain not working rests with Ms Clarke. This claim is not proved. Item 20 – Fix drainage problems around tanks [166] This is part of a disputed variation and will be discussed in the Symphony Homes claim. [167] The QBSA report at item 27.6 on page 66 notes that work had been undertaken by Ms Clarke on the storm water drainage around the dwelling and the inspector could not identify what works had been carried out by either of the parties. There is no evidence that the tanks were not installed in accordance with the manufacturer’s specifications and in the absence of that evidence the Tribunal cannot allow this claim. Item 21 – Tanks not working [168] Symphony Homes state that the tanks passed all of the necessary plumbing inspections and have provided a BCC certificate to this effect. Ms Clarke provided no evidence to contradict this. Appendix “RC – 9” of the QBSA report is an e-mail sent to Mr Clayton on 9 February 2009 indicating that Bushman Tanks were investigating the issue of whether the tanks were installed correctly. No Bushman Tanks report has been provided. There is therefore no evidence that the tanks were not installed in accordance with the manufacturer’s specifications and in the absence of that evidence the Tribunal cannot allow this claim. Item 22 – Credit for one window returned [169] An amount of $250.00 is claimed without any verifying information. In the absence of that evidence the Tribunal cannot allow this claim. Item 23 – Security screens not provided [170] An amount of $3,500.00 is claimed without any verifying documentation. A photograph of a ground floor window on page 76 of the QBSA report appears to show a security screen on a window. Photographs taken of windows and doors in approximately June 2008 are confusing in that some do not show security screens while one photograph appears to have been taken through a security screen. Ms Clarke must prove that she in entitled to this claim. [171] Symphony Homes’ quote letter of 28 June 2007 specifically excludes security screens from the house price and therefore the contract price. In the absence of evidence to prove they were later included in the contract price and then omitted, this claim cannot be allowed. Item 24 – Temporary pool fencing [172] The swimming pool was not part of this contract and issues involving its construction have previously been litigated in the Tribunal. A temporary pool fence is a safety requirement to prevent falls into an unfinished and -- 27 of 64 -- 28 potentially dangerous pool. Ms Clarke’s photographs show she had contractors performing work in the alfresco area after taking possession of the site and show what appears to be a temporary fence in place being used for its intended purpose. Ms Clarke claims a figure of $125.00 per week but does not provide details of when the pool fence was first erected, when it was dismantled and why it was required to be in place for that period of time. She has not provided evidence that proves Symphony Homes contributed to the ongoing hire of the fence. This claim cannot be allowed. Item 25 – Rent at $620.00 per week [173] An amount of $620.00 per week is claimed making a total of $9,300.00 for fifteen (15) weeks. [174] Under clause 32 of the contract Symphony Homes are liable to pay liquidated damages if the dwelling does not reach practical completion by the end of the building period at the rate specified in item 11 which is $15.00 per day. While this amount is ridiculously low and heavily in favour of Symphony Homes there was provision for a higher amount to be included. It appears that the parties didn’t agree on a higher figure so that is the amount the Tribunal must award if necessary. [175] This will be further discussed in Symphony Homes claim B. Item 26 – Cost to find cables [176] This was work undertaken by Ms Clarke’s son at her request and with Symphony Homes’ approval. It appears that the plasterer sheeted the walls and did not make cut out openings for the cabling. This work was not part of the contract and therefore the Tribunal cannot allow this claim. Item 27 – Cabinet mirrors for bathroom [177] This appears to be a repeat of item 17 Item 28 – Electrical quote [178] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Item 29 – Flooring to the alfresco area [179] Ms Clarke claims that forty-one square metres should have been allowed for this work in lieu of the thirty-one square metres and refers back to her specification document. An allowance to provide tiles to the alfresco area was included in the specification document and wish list which is not a contract document. This claim cannot be allowed. Despite this, Symphony Homes has agreed to deduct $1,000.00 from its final payment. -- 28 of 64 -- 29 Item 30 – Internal hardware [180] Ms Clarke claims that fifteen items of internal hardware should have been allowed not thirteen. No further detail of the location of the allegedly missing hardware is provided and in the absence of that detail the claim cannot be allowed. Item 31 – Refund for one tank [181] This appears to be part of items 7 and 8. Item 32 – Compensation for theft of tiles and lights and insurance not in both names [182] Ms Clarke alleges that tiles and lights were stolen from the site and Symphony Homes did not have the construction insurance in both names thus depriving her of the opportunity to claim for these items. Insufficient information is provided to prove that the insurance was not in both names and in the absence of that evidence the claim cannot be allowed. Item 33 – Internal hardware [183] An amount of $300.00 is claimed for this item. It appears from its wording that the exact claim is yet to be determined. The evidence necessary to ascertain what exactly is required to be done has not been provided. Symphony Homes allege that Ms Clarke provided the door hardware. Ms Clarke has not contradicted this assertion even though she has had the opportunity. In the absence of that evidence the claim cannot be allowed. Items 34 and 35 – Lights missing in bedroom and kitchen [184] Ms Clarke has not provided an electrical or lighting plan to demonstrate that these lights were ever included in the contract. In the absence of this evidence there is no certainty that the lights are in fact missing and the Tribunal cannot allow these claims. Item 36 – Fan fix [185] Ms Clarke has had numerous contractors working at the dwelling since July 2008 yet states this is yet to be done. There is no evidence that Symphony Homes caused this fault. This claim cannot be allowed. Item 37 – Frosted glass missing [186] The location of this alleged missing frosted glass is not stated. Like the adjusting of the fan in item 31 this does not appear to be an urgent issue. The plans indicate opaque glass was to be provided to both east and west elevations. While no cost information is provided and the Tribunal is unable to ascertain a money quantum of any loss a physical inspection will reveal whether Symphony Homes has complied with the plans. The claim -- 29 of 64 -- 30 is allowed to the extent that all windows on these elevations must have opaque glass fitted and any without it must be rectified. Item 38 – Tanks don’t work [187] This appears to be a repeat of item 21. Item 39 – Cracking in slab [188] The exact location of the alleged cracks is not stated. Ms Clarke provided the plans for the slab. These included a slab plan which showed the layout of the steel reinforcing the designer believed was necessary to support the weight of the dwelling and any super imposed loads on it. The material shows the slab’s reinforcing passed the necessary inspections. There is no allegation that steel reinforcing was either omitted or put in the wrong position or that the slab was not constructed in accordance with the plans. [189] The QBSA report notes at items No 1.2 and 1.3 (page 19) that only limited visual inspection of slab cracking could be undertaken due to the presence of floor coverings. [190] The slab was poured in approximately August 2007. Peter Knight, a Consulting Engineer inspected the slab for Symphony Homes on 6 June 2008 to ascertain the effects of concrete cracks on the dwelling’s structural integrity. Mr Knight compared the cracking with Australian Standard AS 2870 Residential Slabs and Footing Code and concluded the cracking could be classified as very slight under that standard with no effect on the slab’s structural adequacy. [191] While Mr Karrasch expressed concerns in 2008 about the slab’s cracking he is not an engineer. Paul Haskard, a building inspector inspected the slab on 13 March 2012, more than four and a half years after it was poured. Mr Haskard was of the opinion that the cracks to the slab that he inspected were of a cosmetic nature and not structural. [192] The only expert evidence about the slab’s structural integrity comes from Mr Knight. As Ms Clarke has not contradicted this with her own expert engineering evidence the Tribunal accepts Mr Knight’s evidence. This aspect of the claim has not been proved. [193] The QBSA inspector reported on cracks and misalignment of control joints to the driveway slabs and its stencilling and recommended that these be rectified to ensure a satisfactory finish. Symphony Homes have not commented on the driveway slab issue so it can be inferred that it agrees with the BSA report. This aspect of the claim is proved. Symphony Homes must rectify this work to the QBSA’s satisfaction. Item 40 – Moving kitchen to suit wrong placement of window [194] The plans show the kitchen along the dwelling’s side wall with a window located with the sill at bench height along the length of a straight kitchen bench. No dimensions for the specific placement of the windows are -- 30 of 64 -- 31 shown on the plans. The photographs indicate that the windows were in place before the kitchen was installed. In fact the kitchen could not have been installed prior to the window’s placement, the wall’s sheeting and services such as plumbing and electricity being roughed in. Ms Clarke has not explained how the window was wrongly placed in relation to the kitchen which apparently needed some minor design changes rather than being moved to accommodate the window. This claim is not proved. Item 41 – Handrail [195] An amount of $500.00 is claimed. Item No 8 of the QBSA report deals with the provision of a hand rail and comments that a hand rail is in position and this work was organized and paid for by Ms Clarke. No invoice has been provided to the Tribunal for this work and in its absence the claim must be dismissed. Item 42 – Shower screen [196] This item is no longer an issue for these applications. Items 43 and 44 – En-suite cabinets and wardrobe shelving [197] It is alleged that these need fixing and a total of $400.00 is claimed without any verifying documentation. Item No 12 of the QBSA report deals with the en-suite cupboards and in particular, the lack of space between the top of the mixer tap and the bottom of the cupboards. The report rightly recommends that this item be rectified. The report does not discuss the fact that Ms Clarke designed the cupboards and supplied the tap concerned. It is difficult to understand how a tradesperson could have thought this was satisfactory workmanship and this is possibly a very good example of the breakdown of communication between the parties. No details of any conversations relating to the placement of the wall cupboard are provided. Clearly its suitability given its height and relationship to the wall cupboard should have been discussed between the parties. The Tribunal understands that Symphony Homes has made good this aspect of the claim. [198] Symphony Homes alleges that Ms Clarke agreed to the location of the wardrobe shelving and Ms Clarke does not contradict this allegation. This claim has not been proved. Item 45 – Tiles needing removing [199] Item No 10 of the QBSA report (pages 7 to 9) relates to the workmanship of the ceramic tiling in the main bedroom en-suite and includes a recommendation for rectification of the tiling because of sharp edges and misalignment of tiles. [200] Item No 26.1 (page 63) of the QBSA report relates to the lack of a skirting tile in the laundry and includes a recommendation for the placement of -- 31 of 64 -- 32 skirting tiles to ensure a satisfactory finish. Symphony Homes must make good this tiling to the QBSA’s satisfaction. Item 46 – Floor tiles in bathroom to create a fall [201] Ms Clarke wants the bathroom floor tiles to fall towards a floor waste as do her experts. The plans do not indicate the presence of a floor waste nor does it indicate that the floor is to fall to a floor waste. [202] Item No 11 of the QBSA report deals with Ms Clarke’s request for the floor tiles to fall to this included waste. The report finds that there is no statutory requirement for the floor tiling to fall to a floor waste if installed in a class 1 or 10 building. Appendix “RC – 1” is a copy of a news flash published by Building Codes Queensland, which states that floor wastes are not required in residential buildings and if a floor waste (properly called a floor waste gully) is installed then the floor does not have to fall toward it. [203] To be successful in this claim Ms Clarke must prove that despite this legislative requirement she had requested Symphony Homes to make the tiles fall to the floor waste and they omitted to do so. No evidence of such a request is provided, therefore she has failed to prove her claim and it must fail. Item 47 – Tiles missing from kitchen [204] Ms Clarke alleges that tiles necessary to complete the kitchen splash back were thrown out. Symphony Homes state it will fix the tiling in this area when Ms Clarke provides the tiles. Ms Clarke must provide the tiles for Symphony Homes to fix to the kitchen walls to the QBSA’s satisfaction. Item 48 – Broken garage remote control light [205] Ms Clarke has not produced any evidence to prove this alleged fault was caused by Symphony Homes and therefore the claim must fail. Item 49 – Manhole replacement [206] Ms Clarke seeks an amount of $300.00 for this work. The evidence for this item is confusing. The plans do not indicate where the access manhole is to be located and the parties are silent regarding any discussions as to its location. Mr Karrasch alleges that the original position of this access manhole (not told to the Tribunal) would bring tradespersons such as carpenters, plasterers, finishers and painters into a habitable room disrupting normal living. Mr Karrasch then, quite unfairly given that the dwelling was an on-going construction site when he inspected it, states that based on the state of cleaning and work to date it is reasonable to expect that any residue from completion of trade work on carpet would not be fully removed and disturbed work not made good with care and skill. Such a statement arguably demonstrates bias against Symphony Homes. [207] A question mark appears beside the figure so it can be inferred that this is not necessarily an accurate figure and may be a guesstimate. However, -- 32 of 64 -- 33 item No 2 of page 3 of the QBSA report states that Ms Clarke had engaged her own contractors to do work on the access manhole. Therefore she would know the exact cost of the works done. If Ms Clarke originally approved the manhole’s location then moving it to a different, supposedly more suitable, location as identified by a third party does not justify making Symphony Homes pay for the relocation. In the absence of further explanation and as she has not provided invoices for the work establishing her loss, the Tribunal cannot approve this claim and the claim must fail. Item 50 – Missing door stops [208] No supporting evidence has been provided to substantiate this claim. The claim is not allowed. Item 51 – Final clean [209] Ms Clarke has not provided evidence that Symphony Homes failed to clean the dwelling before it was handed over to her. Comments made by Mr Karrasch in his reports are of no value as they were made while the dwelling was a fully operational construction site where dust and other materials are commonly present. As no supporting evidence has been provided to substantiate this claim, the claim cannot be allowed. The claim would also fail because Ms Clarke has not provided any evidence she suffered any loss for this claim. Item 52 – Driveway stencil [210] This item has been discussed in item 39 above. Item 53 – Compensation for pool fence hire [211] This has been discussed in item 24 above. Item 54 – Unspecified damages [212] Ms Clarke claims $10,000.00 for photocopying and doing her own searches. Such a high amount for these tasks is unsustainable given that, even if successful, any amount awarded would be based on actual costs incurred. Insufficient evidence has been provided to prove this claim and it cannot be allowed. Items 55 and 56 – Council cost to re-submit plan and to amend plans [213] Ms Clarke provided council approved plans for the dwelling’s construction at her cost. The original plans were changed in two (2) areas. Firstly, the external wall sheeting changed at her request. Secondly, the master bedroom en-suite layout changed at her request. Ms Clarke’s building certifier required amended plans for these changes. Ms Clarke has not provided a reason for now making Symphony Homes pay to resubmit the plans. These claims cannot be allowed. -- 33 of 64 -- 34 Item 57 – Credit for sleepers [214] This item has been discussed in item 4 above. Item 58 – Credit for stolen goods [215] An amount of $210.00 is claimed. Ms Clarke states she reported the theft to the Queensland Police Service yet she has not provided any evidence that Symphony Homes was responsible for the loss. In the absence of that evidence the claim cannot be allowed. Item 59 – Credit for one tank insufficient [216] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Item 60 – Construction insurance overcharge [217] No evidence to prove there has been an overcharge for insurance has been provided. This claim is not proved and cannot be allowed. Item 61 – Legal costs [218] Ms Clarke claims $10,000.00 for legal costs and includes tax invoices from three legal firms and a barrister totalling $16,336.22 which appear to relate to her purported termination of the contract and her Supreme Court application, not to this application directly. Throughout these applications Ms Clarke has been self-represented and as she is not a lawyer within the meaning of that term in Queensland, she is not eligible to be paid legal costs. This claim is not proved and cannot be allowed. Item 62 – Building report costs [219] Ms Clarke relies on the reports of Mr Karrasch and Mr Sim and claims $3,015.00 for their costs. This claim can only be successful if Ms Clarke is successful in her claim and then only on the production of receipts that prove monies have been paid to the report writers. Item 63 – Loss of business income [220] Ms Clarke states she conducts a business but has not provided any substantiating evidence. It can be inferred from the supplied material that she conducts a business called “A Flair for Design” as one of the photographs in the QBSA report taken in January 2009 shows a vehicle with that name on the back window. [221] An amount of $10,000.00 is claimed without substantiating evidence such as balance sheets and accountants and/auditors statements giving a comparison of income over the various financial years. [222] Some disruption to normal working and social life can be expected during the construction of a dwelling especially where an owner undertakes to -- 34 of 64 -- 35 supply as many items as Ms Clarke has in this case. Site meetings both planned and unplanned together with the need to organise and purchase items arguably take their toll both emotionally and financially. These have to be planned for and balanced against the need to maintain an income and social life. [223] The material indicates that Ms Clarke not only owned the adjacent premises but at approximately the same time constructed a dwelling on that property together with organizing the construction of a swimming pool on this property. All of these projects would have had an effect on her business income. And any loss of business income would have to be apportioned accordingly. [224] Ms Clarke must prove the extent of any loss which means that she must produce evidence such as audited comparative profit and loss statements for the claim period together with income tax details. This has not been done and in the absence of this material the Tribunal is not able to calculate any losses on her behalf. The claims cannot be allowed. Item 64 – Loss of rent [225] This item has been discussed in item 25 above. Item 65 - Psychological issues, disorganization and serious health problems [226] A claim is made for pain and suffering and psychological damage. There is no evidence that Ms Clarke has suffered any of these conditions or whether constructing this dwelling brought on the illness or whether a pre- existing illness has been exacerbated. A number of significant events listed in her claims could have brought on or exacerbated an illness. These include the construction of this property, the construction of the swimming pool, the construction of the adjacent dwelling, the loss of an apartment on the Gold Coast, the death of her mother and internal family issues alluded to and commencing TAFE studies. [227] The conditions are medical conditions which require expert evidence to prove not only their existence but any future treatments and the extent of any losses and to potentially apportion any losses. A decision on these issues would require not only expert reports from both parties but also cross examination of Ms Clarke and any experts to test their evidence. Without oral evidence it is inappropriate to make a decision on this item. In any event jurisdictional issues surrounding litigating these issues in the Tribunal may be a problem for Ms Clarke. [228] A claim alleging the creation of serious health problems is made. No quantum is provided. As with the psychological conditions, Ms Clarke must provide medical evidence to prove her claim. -- 35 of 64 -- 36 [229] Symphony Homes assert that disorganization is not a valid claim at law and even if it was the Tribunal does not have the jurisdiction to entertain such a claim in a building dispute case. [230] It should be noted that delays in the Tribunal have been caused by both parties and also by illness. [231] The Tribunal made it clear to Ms Clarke in the Cascade Pools decision that it was for her to provide evidence which will prove her case. She has not done this therefore the Tribunal is unable to further consider these items. Item 66 – Cost of bank guarantee [232] This item relates to a bank guarantee which was required to end litigation in the Supreme Court of Queensland which gave Ms Clarke access to the dwelling. Although related to the dwelling it is not directly related to these applications. As such it is not claimable as part of these applications and the claim cannot be allowed. Item 67 – Chris Barnes, Advocate [233] An amount of $2,100.00 is claimed for a Chris Barnes who is supposedly an advocate. No paid invoice is provided nor is any detail as to his relevance to these applications. In the absence of this evidence, the claim cannot be allowed. Items 68 and 69 – Burnt out down lights and Base Electrical installation [234] It is alleged that down lights (in an unstated position) were installed against Electrical Safety Office (ESO) regulations. No substantiating evidence is provided and in the absence of this information, the claim cannot be allowed. [235] Invoice No 14733 from Base Electrical being for an amount of $209.55 is provided. The date of this work appears to be 3 January 2012 almost three (3) years after the QBSA inspection. The invoice includes other work unrelated to these applications and has not been itemised so as to show the cost of replacing five lamps as claimed. There is no evidence that this work was required because of faulty workmanship by Symphony Homes and in the absence of that evidence the claim cannot be allowed. If the claim was to be allowed Ms Clarke has not provided a quantum for her loss and therefore the claim would fail on that ground. Item 70 – Bunnings account for down lights [236] The address on Invoice No 8018/89114 is 127 White Street, not 125 White Street which is unexplained. The lights were purchased on 22 November 2011. If these are the lights installed by Base Electrical then they were installed almost three (3) months after their purchase which suggests they were not a high priority for Ms Clarke. -- 36 of 64 -- 37 [237] As with items 69 and 70 the claim cannot be allowed in the absence of evidence to prove that Symphony Homes was at fault. Item 71 – Top up gravel around tanks [238] An amount of $150.00 is claimed for gravel allegedly needed to top up a hole caused by a serious cave-in. The work was performed on 27 May 2011 almost seventeen (17) months after the QBSA report. The invoice states that it was for drainage work to side of house next to underground tank. [239] Subsidence in this area was not an issue when the QBSA report was prepared. It is possible therefore to infer that there was no settlement or subsidence when that report was compiled. There is no expert evidence to indicate whether the work was anything more than minor settlement as defined in the contract and for which Symphony Homes would not be responsible. The claim is not proved and cannot be allowed. Item 72 – Work to comply with ESO defect notice [240] Ms Clarke claims to have received a defect notice relating to recessed down lights. She has not attached a copy of the defect notice to her material. What has been included is a copy of a facsimile sent to Ms Morel (aka Ms Clarke) from an Adrian Pearce on 11 January 2012 which attaches some information from the ESO’s website. The fax is to clarify the ESO advice by an “Ian” on 1 December 2011. The attachment is an extract from the Wiring Rules (AS3000) and merely states the requirements for installing recessed luminaries. [241] In the absence of evidence that proves that the down lights were installed in the wrong locations so as to make them unsafe this claim cannot be allowed. Items 73 and 74 - Installation of drains to the east side of the house and inspections of drains [242] This relates to the eastern side of the dwelling where the garage is constructed on the alignment. The rain water tanks are also located on this side of the house. [243] Mark Robbie Plumbing inspected the dwelling’s storm water drainage and prepared a report dated 16 April 2011. Items 1, 2 and 3 relate to the dwelling while item 4 relates to the pool and will be ignored for the purposes of these applications. [244] Item 1 states that the tank overflow pipes are drained to the front kerb by running around the rear of the dwelling. The inspection notes that at the time most of this pipe was filled with water indicating a lack of continual fall to the kerb. [245] The original site earthworks plan shows the tank overflow pipes draining to the front kerb under the garage floor slab which means that Ms Clarke -- 37 of 64 -- 38 changed the drainage layout. In his email of 4 February 2008 to Ms Clarke, Mr Diggles notes (his wording) “I checked White St this am & all the stormwater drains appear to be in place. They have taken the roof water from the box gutter thru a rain head like you wanted & piped it under the slab then it goes at right angles under the driveway slab & meets the western pipe so there is only the one outlet to the White St gutter. As for the trapped surface water over the u/ground tank area … it appears there is nowhere for it to go at present and there are two ways to drain it … towards the back in a dished spoon type drain in the tiled area along the east boundary to the existing cross drain between the pool & house and so it drains to the existing western drain pipe out to the White St gutter … this appears the easiest. He could also make up a surface drainage trap under the box utter downpipe (which means cutting the dp etc) which is more work of course … (or he could do both). Either way the finished surface in that area should be able to drain to the stormwater lines which is just fundamental.” [246] Ms Clarke changed the original drainage layout and it can be inferred from doing so that she had considered how the stormwater in that area was to be removed. Mr Diggles made her aware that there were at least two solutions to the water ponding problem, both of which were feasible in his view. Despite her knowledge of the problem she took no steps to rectify it when it could be easily rectified. Despite landscaping and hardscaping works being expressly excluded from the contract and Ms Clarke providing the dwelling’s plans Mr Diggles appears to blame Symphony Homes for the drainage problems. It appears that this item of the Mark Robbie Plumbing inspection and report confirmed the drainage layout as required by Ms Clarke in February 2008 and offers nothing to the present applications. Symphony Homes itself could have assisted by making rectification recommendations in line with Mr Diggles’ suggestions. Neither Ms Clarke nor Symphony Homes have provided details of any discussions they had regarding the stormwater drainage making consideration of this item difficult. [247] Item 2 states that the property next door (presumably 123 White Street) which according to the photographs is on the higher side of the slight hill has been built up and some run off is occurring. Further detail such as where the run off is occurring is not provided. [248] With respect, some water runoff from higher properties which could become a problem for the lower land owner in the absence of preventative measures such as storm water sumps or surface drains is foreseeable given their relative elevations. [249] Item 3 states that no allowance for storm water pits to collect surface water on the eastern side of the house had been made. A large sump with a pump is discussed as is the possibility of running a pipe from a sump in the neighbour’s property to the kerb. Ms Clarke would have been responsible for obtaining the adjoining property owner’s permission to run a drain in that person’s land. The Tribunal is not provided with any such consent. The storm water pit solution was first suggested by Mr Diggles in -- 38 of 64 -- 39 February 2008 and was not acted upon by Ms Clarke. No explanation as to why a sump connected to the existing storm water drainage could not be installed is provided. [250] Mr Sim also discusses the possibility of a sump draining to the kerb but also does not explore the possibility of connecting a sump to the existing storm water drain. [251] Ms Clarke was required to consider stormwater drainage at the design stage. As landscaping and hardscaping works were specifically excluded from the contract she was also required to consider all storm water flows on the site. Ms Clarke obviously considered the need to drain roof storm water in this area but appears to have neglected surface run off from her own property or that from adjoining properties, especially as the house design makes this area a dead end stopping water from draining to another place. Any sump such as suggested by Mr Diggles, Mr Sim and Mr Robbie arguably should have been shown on the original plans. As it was not it would have been a variation payable by Ms Clarke and is not claimable against Symphony Homes. [252] Invoice (No. 32496) for the inspection contains work unrelated to the present applications performed at a later date but is itemized so a figure of $247.50 can be allocated to the pipe inspection. Given that the report confirms what was already known (i.e. there was a drainage problem in the dead end area on the eastern alignment and nothing was done to rectify it) arguably the report was not required and if the claim was allowed this is the figure which would be reimbursed. Item 75 – Inspection of pipework under sinks [253] This work, on 4 March 2012 was to inspect leaks under sinks due to alleged movement. The is no evidence that Symphony Homes was responsible for this alleged movement and in the absence of that evidence this claim is not proved and cannot be allowed. Item 76 – Repair of cracked exterior posts [254] This work was performed on 3 January 2012. Mr Karrasch and the QBSA reported the rear posts were cracked. As the rectification amount is quantifiable the claim is allowed. Symphony Homes must make good these cracks to the QBSA’s satisfaction. Item 77 – Painting of wall [255] No evidence relating to this claim could be found. In the absence of this evidence the claim cannot be allowed. Item 78 – Plumbing to deal with movement of pipes [256] Ms Clarke claims that this Invoice No 33869 for an amount of $563.75 is for plumbing work to deal with movement of pipes. The invoice states it is for work to seal a spigot on the laundry trap under the laundry tub until a -- 39 of 64 -- 40 washing machine is installed and to inspect the wall outside the garage for damage. It does not state what Ms Clarke says it does. This claim is not proved and cannot be allowed. Items 79 and 80 – Neil Kennedy tiling quotations [257] Quote 54 for $935.00 to repair damaged tiles to kitchen area “due to movement in the concrete slab” and quote 53 for $275.00 to replace and repair damaged tiles in an unspecified location were prepared on 25 April 2012 more than three (3) years after the QBSA inspection report. [258] There is no expert evidence that proves that any cracking was due to any fault of Symphony Homes. The available evidence is that as at June 2008 the slab cracking was minor and cosmetic only. The kitchen area tiling was undamaged at that time. There is no expert evidence that the slab has moved further since June 2008 causing damage. Defective tiling does not appear to have been an issue during Mr Haskard’s inspections despite Ms Clarke’s presence at one of them. In the absence of evidence linking Symphony Homes to any alleged defective tiling this claim is not proved and cannot be allowed. Items 81 to 83 inclusive – Cost of printing photos, albums etc [259] These are costs that are incidental to an application and are usually born by a party to an application. Many of the photos are of little value because of the lack of clarity, description and focus. Less photos with more explanation would have helped the Tribunal to understand Ms Clarke’s issues better. [260] This claim is not allowed. Item 84 – Report of moving assets [261] Ms Clarke has failed to explain the relevance of this item to the present applications given the range of orders that the Tribunal can make. This claim cannot be allowed. Item 85 – Loss of rent for 125 White Street [262] This claim for $41,250.00 is for a period from 18 November 2011 to 30 June 2012 (thirty-three (33) weeks). Ms Clarke’s final statement of evidence in her application is dated 30 April 2012 predating some of this claim without explanation. [263] Ms Clarke’s occupation started in July 2008 and has continued despite the faults found in the QBSA inspection report either herself or tenants during these applications. She has not explained why occupation at either market rental or a discounted rental cannot continue, especially given that the claim partly postdates her final evidence. Equitable principles require her to mitigate her losses and to claim the difference between what rent she obtains and what she could have obtained if the faults were not present. -- 40 of 64 -- 41 [264] In the absence of this explanation and supporting evidence to prove her losses this claim cannot be allowed. Item 86 – Loss of rent for 127 White Street [265] This claim is for a separate property and Ms Clarke has not sought to provide any information or evidence to link Symphony Homes with this alleged loss. [266] In the absence of this explanation and any supporting evidence this claim cannot be allowed. Item 87 – Cost of ads to sell the dwelling [267] An amount of $1,258.82 is claimed and supporting invoices are provided. [268] There can be many reasons why the property has not sold such as the property being sold in an unsuitable market or the property being over- priced or the property being over developed and no expert explanation has been provided. [269] In the absence of expert evidence linking Symphony Homes to this alleged failure to sell, this claim cannot be allowed. Item 88 – Claim for finishing past the contract date [270] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Item 89 – Loss of part of bond [271] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Item 90 – Locksmith’s account [272] This invoice for $85.00 not $245.60 is to open a privacy lockset of a bedroom door and is dated 4 March 2011 some twenty six months after the BSA inspection report. While the locksmith claims several locks have problems and recommended considering replacing with new ones, he or she does not make any reference to Symphony Homes being at fault for the installation. [273] In the absence of evidence linking Symphony Homes to this claim it cannot be allowed. Item 91 – New escutcheons [274] This claim is for $61.68. The invoice however, shows it to be for two privacy latches for a total of $30.84. Possibly these are to replace those recommended by the locksmith in item 83. However, as with several other items the price claim is overstated. -- 41 of 64 -- 42 [275] In the absence of evidence linking Symphony Homes to this claim it cannot be allowed. Items 92 and 93 – Door handles etc. and paint [276] This claim includes Invoice No IN-0771 for $844.25 is for various “minor” repairs as directed by Ms Clarke. The quote for the work was dated 29 December 2011 while the invoice was dated 23 January 2012. A quote for other works totalling $644.00 plus GST is also attached. Given the time difference between the dwelling’s construction and when the work was done it is possible that these items were routine maintenance (one item is to repair a dent in wall, another is to inspect/adjust a patio sliding door as it was not sliding correctly, another was to adjust pelmet blind brackets while another was to touch up tyre marks on a garage door trim) rather than anything that Symphony Homes had done. Two items (reattaching toilet roll holders and towel rails) were more serious however, there is no evidence that Symphony Homes had an input into the problems. [277] In the absence of evidence that proves that Symphony Homes caused the faults this claim cannot be allowed. Item 94 – Patio door still to be fixed [278] There is no indication which patio door this relates to. Ms Clarke has had her own tradespersons perform work on some patio doors (e.g. item 85). [279] In the absence of evidence that proves that Symphony Homes caused the faults this claim cannot be allowed. Item 95 – Loss of retirement apartment [280] Ms Clarke states she agreed to purchase an apartment on the Gold Coast on 22 April 2007 before the contract with Symphony Homes was entered into. She then apparently could not complete the purchase and now claims $188,200.00 as compensation. [281] While it is sad that the purchase could not be completed, Ms Clarke has not provided any evidence linking Symphony Homes to that failed purchase. [282] Ms Clarke alleges that she will lose her houses as a consequence of these applications. Ms Clarke has unfortunately failed to explain this claim. Ms Clarke has not provided any financial evidence necessary to explain this claim. Arguably, she has put herself in a difficult financial position by buying a Gold Coast apartment, building this dwelling, and building the dwelling at 127 White Street during the period between the initial deposit and the failure to complete the sale. In the absence of the detailed financial records alluded to above it is not possible to allow this claim. -- 42 of 64 -- 43 Item 96 – Loss of study [283] While these applications have been before QCAT Ms Clarke apparently commenced TAFE study but could not complete it. No amount has been sought and Ms Clarke expects the Tribunal to calculate an appropriate compensation figure. That misunderstands the Tribunal’s role. Each party must quantify the loss and explain why the Tribunal should award that lost amount. In the absence of any evidence the claim cannot be allowed. Item 97 – Loss of fees [284] An amount totalling $898.40 is claimed without explanation. In the absence of evidence that proves that links Symphony Homes to this loss of fees this claim cannot be allowed. Item 98 – Loss of time with caring for ailing mother and missing mother’s funeral [285] An amount of $200,000.00 is claimed for the loss of caring for her mother and missing her mother’s funeral. While the loss of a loved one is sad, these applications have been ongoing albeit intermittently since February 2008. There is no doubt that the Tribunal would have suspended any steps in the application process to allow Ms Clarke to care for her mother had she requested it. Indeed one of the reasons these applications have taken so long to determine is the illness of one of the expert witnesses. [286] Ms Clarke claims for her family missing her mother’s funeral due to the lack of funds and for the loss of monies put aside for “reconnection” with her family after twenty two years. No further details of these claims have been provided and it is unnecessary to discuss them further. [287] This is not an issue where Symphony Homes can be held to be at fault and the claim is not allowed. Item 99 – Cost of interest [288] Ms Clarke claims $150,000.00 for the cost of interest on what she describes as an unsalable dwelling. She has not provided any details of her claim. She says that she will provide loan documents on request but appears not to comprehend the fact that the Tribunal has previously told her (and Symphony Homes) that she must provide evidence to prove her claims. This is especially so where a decision is being made on the papers. [289] Ms Clarke has not provided any expert evidence that the dwelling is unsalable. Her statement appears to be her own opinion. Ms Clarke has provided evidence that the dwelling has been previously let to tenants which indicates that she has received an income from it. She has also provided receipts for advertisements to sell the dwelling. She has made the Tribunal unaware of reasons why this letting cannot continue until a sale takes place. -- 43 of 64 -- 44 [290] This claim cannot be allowed. Item 100 – Water accounts [291] Ms Clarke has provided the Tribunal with water accounts for 127 White Street and now asks it to make some sort of assessment in relation to 125 White Street. She does not explain how it is possible to compare water usage at one dwelling with the other even though they are adjacent. Without details of water usage at 125 White Street any losses at that address cannot be calculated. The claim is not allowed. Item 101 – Cost of tanks that are useless [292] This is part of a disputed variation and will be discussed in the Symphony Homes claim. Items 102 to 105 inclusive – Repairs [293] Ms Clarke claims an estimated amount for future repairs without any verification documentation. Two items relate to ongoing maintenance of the swimming pool and its equipment. [294] The included photographs indicate cracking of plaster work. This may be caused by movement of the house. Ms Clarke provided the plans for the dwelling including details of the concrete slab and its reinforcing size, layout and location. The slab was properly inspected and approved in accordance with relevant statutory requirements. The slab has since cracked but the available expert evidence is that this is not a structural issue. Therefore two issues arise. Either the dwelling’s slab and foundations were under designed or inappropriately designed or they were constructed wrongly. In either case expert evidence is required to indicate which scenario is correct. A decision as to fault can then be made. [295] However, no expert evidence has been provided and the available evidence is that the slab and foundations have been correctly built. The Tribunal accepts that the truth may be completely different but it can only make its decision on the evidence made available to it by the parties. [296] These claims cannot be allowed. Compensation for additional rental paid as a result of Symphony Homes’ failure to complete the construction within time [297] This item has been discussed at item 25 above. Compensation for undue stress, loss of enjoyment of life including a disturbance to her normal life over the period and exacerbated health problems [298] This item has been discussed at item 65 above. -- 44 of 64 -- 45 Compensation for liquidated and other damages for building errors that cannot be rectified [299] Ms Clarke provided the plans and a “specification document” for the dwelling to allow Symphony Homes to provide her with a quote for its construction. Symphony Homes did not separately price items as requested by the specification document and there is no evidence that Ms Clarke pressed this issue. Arguably, many of her present concerns could have been appropriately addressed at the quoting stage. [300] Ms Clarke says she did not know what she was signing when she entered into the contract which is surprising given her claim to have building qualifications and experience (her material indicates she operates a home decorating business). She has not provided any evidence that she was forced to sign the contract at any stage. With her claimed experience one would expect that she would have confirmed the contract’s contents before signing. [301] Ms Clarke provided many items normally supplied by the builder during the works which has also complicated matters. [302] The material indicates that at the quoting stage Ms Clarke had not made up her mind about some important items such as the site works (cut and fill), the number and location of tanks, the electrical work to be done, stage floors, the size of the spa and the dwelling’s floor levels. [303] This has had important consequences for Ms Clarke as her failure to properly ensure that the quote was for the dwelling she wanted meant that if any of these items were to be added later they would be variations to the contract and subject to the contractual requirements for same. They would also cost at least twenty per cent more (builders margin) than if included in the initial quote. [304] By virtue of s 6 of the Domestic Building Contracts Act 2000, the contract price is the total contract price including any variations whether additions or deletions. Schedule 1 of the contract makes it clear that the contract price is subject to change. [305] Variations will be discussed under the Symphony Homes claim. [306] Ms Clarke claims that Symphony Homes have not constructed the dwelling in accordance with her plans and have placed walls in the wrong places and improperly scaled dimensions off the plans. This assumes that the plans were correct in the first place and contained all of the information necessary for Symphony Homes to properly construct the dwelling. No north point is shown on the site earthworks plan and from the names given to the dwelling’s elevations it appears that the street elevation is the south elevation. [307] The site earthworks plan does not show a pool on the site. While the Tribunal is unable to ascertain whether one was contemplated when the -- 45 of 64 -- 46 plans were drawn, a pool was constructed at the same time as the dwelling. The Tribunal would have been greatly assisted by the provision of a site plan incorporating all of Ms Clarke’s development for the block (i.e. the house, pool, retaining wall and concreted area between the pool and the dwelling) together with her required levels and the as constructed levels to enable it to properly understand Ms Clarke’s allegations. [308] The site measures 9.857 m along the street alignment and is 40.240 m deep. Height levels shown on the four corners of the site earthworks plan indicate a fall from east to west on the street alignment of 50 mm, a fall from east to west on the rear alignment of 130 mm, a fall from the north east corner to the road of 1.13 m and a fall from the north-west corner to the road of 1.03 m. The block is therefore quite flat and from included photographs is towards the bottom of a slight hill meaning that surface water flow from adjacent higher properties could always have been a problem requiring drainage or other suitable measures to keep it dry. [309] As the eastern garage wall is constructed on the alignment, with no street access for the area behind the garage, bedroom 5 and the kitchen, possible drainage problems could occur in this enclosed area if the neighbour filled that part of the adjacent site beside the wall. The underground tanks are also located in this area. [310] Mr Diggles’ email to Ms Clarke on 4 February 2008 clearly describes this drainage issue as seen by him. Mr Diggles’ suggestions went unheeded when this issue could have been rectified. [311] The supplied plans do not indicate any datum point nor does the site earthworks plan show the extent of any cut and fill to the site. While Ms Clarke states she was aware of the importance of datum points she did not include one on her plans to help her builder build her home. No floor level relative to the height levels is shown on any of the plans except one dimension on Sections “B-B” and “E-E” indicating that the floor level was to be a minimum of 225 mm above “ground” level. [312] Symphony Homes’ initial quote letter of 17 January 2007 referred to earthworks and the latter quote letter states that discussions took place between the parties before the quote was submitted and accepted by Ms Clarke. Levelling and filling the site to some extent was one of the items that should have been discussed. A July 2007 email from Symphony Homes to Ms Clarke indicates it was aware that site levels were a problem and was seeking to resolve the issue. Ms Clarke states that the site required a cut of 400 mm and the plans were drawn for that cut but again no details were shown on the plans. She has not sought to inform the tribunal of any discussions in this regard. [313] Failing to indicate floor levels meant that the plans did not show Symphony Homes how Ms Clarke wanted the dwelling placed on the block. For example, at what level did she want the 400mm cut and fill to start and finish? The dwelling’s elevations and sections assume a level site but at what level? Being a narrow block, side boundaries and the -- 46 of 64 -- 47 original ground levels could have been, and arguably should have been, shown on the plans to tell the builder how it was to construct the house relative to the topographical features. [314] Mr Karrasch requires a certificate from a surveyor certifying that the building set out and elevation above natural ground line comply with the building approval. Mr Karrasch has not referenced his requirements relating to the elevation above natural ground to the plans and despite alleging this is an omission by Symphony Homes has not explained whether he found a problem with the building elevation above ground level during his inspections. [315] Despite making allegations that the site was “over cut”, Ms Clarke has not provided the Tribunal with any details of discussions with Symphony Homes in this regard or detailed plans showing site levels marked on it to prove her allegation Neither of her experts commented on this important issue. Even if the site had been initially over cut, reasons why additional fill could not have been imported to bring it up to the required level (at Symphony Homes’ cost) have not been provided. Mr Karrasch’s evidence in this regard is curious in that prior to practical completion he requires documentation supporting the authority to import fill despite his client’s requirement that the site have a 400mm cut and fill. He has not explained why this is insufficient authority to import fill. One would also question whether he received full instructions in this regard from Ms Clarke. [316] Ms Clarke states that she began to lose confidence in Symphony Homes when it could not find a datum at the commencement of construction. Her friend Mr Diggles states that he assisted in the taking of levels when the datum was being established. He did not express the same concerns about Mr Conti’s competence that Ms Clarke did. Mr Diggles’ evidence tends to show that she was aware of problems at that time and if so she should have raised her concerns of over cutting of the site at the time when it could have been properly addressed. The failure to resolve her concerns at that time leads to the conclusion that she was happy with the work as it was progressing including the elevation above natural ground level. Ms Clarke’s experts do not comment on this issue. [317] The site plan shows two underground water tanks while the 28 June 2007 quote letter allows for only one tank. Ms Clarke was then apparently unsure as to what type of tank she wanted and perhaps this is why only tank was quoted but again neither party has sought to explain this despite it now being the subject of a hotly disputed variation. The tanks are shown placed between the eastern alignment and the dwelling. Ms Clarke supplied the tanks. No tank dimensions are shown and no installation specifications are provided to support her allegations of their improper installation. No engineering details showing compaction levels for the soils around the tanks are provided indicating that Ms Clarke failed to provide any guidance and left Symphony Homes to its own devices in this regard. Symphony Homes for its part have provided receipts for the supply of materials but not explained in its defence how the work was done. The material shows that the tanks passed all of the necessary BCC plumbing -- 47 of 64 -- 48 inspections which is evidence (subject to evidence to the contrary) that they were installed to the satisfaction of the Council. [318] Ms Clarke claims the tanks are approximately 600mm into the adjoining property. Neither her experts nor the QBSA have commented on this important issue and Ms Clarke has not provided any evidence to prove the tank’s position and her allegation. In the absence of evidence the Tribunal must inevitably find the allegation is without substance. [319] The plans indicate that the main bedroom en-suite layout was amended in August 2007. A photograph of the dwelling’s plans alleged by Ms Clarke to be those used by the builder to construct the house shows what appears to be the original en-suite layout. The water closet, spa and basin layout have been changed. No date as to when the amended plans were given to Symphony Homes has been provided. An undated 1:20 plan was also provided to Symphony Homes. Symphony Homes do not deny receiving this plan but has not stated when it was received. [320] Only the en-suite’s internal layout was altered not the walls enclosing it. The en-suite’s internal wall adjacent to a passageway has an angled offset. No dimensions appear on the plans to show Symphony Homes how to construct it. The offset is reliant on the size of the included spa which was later provided by Ms Clarke who also admits to providing the wrong dimension in any event requiring Symphony Homes to make rectification work which has resulted in a variation disputed by Ms Clarke. [321] Ms Clarke states that Symphony Homes continuously got the dwelling’s set out wrong with walls being put in wrong places. She states that mistakes were made because measurements were not read or even scaled from plans correctly by the builders. In his 13 May 2008 inspection report Mr Karrasch also notes that stairs and walls have been put in unauthorized positions but his observation has to be read in the context that he has adopted Ms Clarke’s list of defects apparently without question. He does not provide any possible explanations for why the stairs and walls may be in the wrong positions. Mr Sim also notes that a wall in the main bedroom is wrongly positioned and provides a possible explanation why. In its 2 May 2008 letter Symphony Homes state that the stairs were put in their position because of a problem with Ms Clarke’s plans. It alleged that Ms Clarke was involved in resolving this issue and was satisfied with the outcome. Ms Clarke has not denied this nor provided the Tribunal with a properly scaled plan indicating this alleged defect to prove her allegation. Neither Mr Karrasch nor Mr Sim comment on this allegation in the 2 May letter. [322] Some measurements on the provided plans are difficult to read while the measurements scaled off the floor plan (always a dangerous thing to do) for some rooms are significantly different from the written measurements. For example, the dwelling has a written depth of 25 m while the scaled dimension is approximately 26.3 m. This enlarges the scope for error and in the absence of the confirmation of dimensions it would not be surprising if mistakes were made. Neither Mr Karrasch nor Mr Sim comment on -- 48 of 64 -- 49 Ms Clarke’s allegation of incorrect scaling off the plans making one question whether they were aware of it, whether they considered it to be a problem or whether it was a problem in the first place. There is some doubt about Mr Karrasch’s knowledge given that he required a certificate certifying the building had been set out properly. [323] A similar problem exists with the angled passageway on the ground floor. Also the brick piers on the ground floor alfresco area have no set out dimension. [324] Ms Clarke alleges that vanity basins were installed without the required clearances for taps. Her experts and the QBSA report also mention this issue. What is not addressed by any person is that she states she designed the cupboards with her cabinet maker and chose the tap concerned. While this does not excuse the plumber for installing the taps, it highlights a lack of foresight when choosing the taps and/or designing the cupboards for which she now seeks to make Symphony Homes responsible. [325] Ms Clarke alleges that floor wastes were installed in the wrong locations. Floor wastes are not shown on the plans and she has not explained her allegation. To prove her allegation she must produce evidence that despite not being shown on the plan, Symphony Homes did not install them in their position as directed orally. In the absence of this evidence the Tribunal cannot find substance to this allegation. [326] Ms Clarke’s expert’s state that walls were not placed as shown on the plans in the main bedroom and one provides a possible explanation why. Symphony Homes state that the walls were constructed in their locations after consultation with Ms Clarke, an allegation she does not deny. It appears that to construct the dwelling without errors Symphony Homes was required to constantly refer back to Ms Clarke for clarification of dimensions. Limited details of these communications are provided. The lack of explanations from both parties prevents the Tribunal from stating the errors complained of were of the nature claimed by Ms Clarke and apportioning blame. Loss of income for last fourteen (14) months (to October 2008) + ongoing for future hearings yet to come [327] Ms Clarke’s claim for the loss of past income has been generally discussed at item 63 above. That item failed because of Ms Clarke’s failure to provide evidence of any income loss. Ms Clarke has not provided any evidence that she will suffer any future income loss. Her claim for future income loss must fail because whether she will suffer any future income loss is uncertain. All other associated costs including solicitors and barristers fees [328] Ms Clarke’s claims for associated costs have been discussed in numerous items above. Section 100 of the QCAT Act provides that subject to the Act -- 49 of 64 -- 50 each party must bear their own costs for the proceeding. Section 102 allows the tribunal to impose costs against a party if the interests of justice require it. Section 102 requires the Tribunal to have regard (i.e. consider but not necessarily follow) factors such as whether a party acts is a way that disadvantages another party, the nature and complexity of the dispute, the relative strengths of the parties’ claims, and the financial circumstances of the parties. [329] Ms Clarke has been self-represented throughout these proceedings and therefore cannot claim legal fees. As a self-represented litigant it was not surprising that her submissions were not of the quality expected of solicitors and barristers. She had previously been advised in the Cascade Pools decision that her submissions were substandard and appeared to improve the quality of later submissions. Her submissions were voluminous, repetitious, badly referenced and contained irrelevant material. Despite this there is no indication that she acted in a way that disadvantaged Symphony Homes. [330] Ms Clarke claimed 105 items, some of which were simple and some were complex. She stated her monetary loss to range between $500,000.00 and approximately $685,000.00 and at one stage said the dwelling owed her more than $1.1M making the claim in her mind a complex one. Symphony Homes applied and were granted legal representation on the basis that the proceedings were complex. The number of claims made the dispute more complex. [331] A third factor to be considered is the relative strengths of the parties’ claims. Symphony Homes claim monies owed under a contract which strengthens its case. Ms Clarke claims relief from payment of those moneys, relief from payment of variations, moneys to rectify construction problems for which she claims Symphony Homes are responsible together with other damages for stress, loss of enjoyment of the dwelling etc. She also seeks certain declarations against Symphony Homes. While some of Ms Clarke’s claims are not as strong as Symphony Homes they cannot be discounted. [332] The Tribunal notes that Ms Clarke sought and was given relief from the payment of lodgement fees when she filed her application. She claims to have lost her income because of the stresses and illnesses caused by these applications. Symphony Homes have not filed any information relating to its financial position. [333] During the proceedings Ms Clarke made a Supreme Court application seeking possession of the dwelling after the parties could not agree on whether the dwelling had reached practical completion. Possession was granted on her provision of a bank guarantee to cover payment for outstanding monies owed under the contract. Despite having possession Ms Clarke had her own contractors carry out construction work she says was necessary and called them “urgent repairs” making determination of her claims more difficult. The legal costs claimed relate to this Supreme Court application. Symphony Homes notes that this settlement was a -- 50 of 64 -- 51 consent agreement. If this was the case no reasons has been provided as to why such an agreement could not have been reached earlier without the need for Court intervention. The Tribunal notes that several failed attempts at mediating these applications were made. Arguably, these applications should have settled at one of those mediations. [334] There is no evidence that Symphony Homes have acted in a way that disadvantaged Ms Clarke during the applications. [335] While the Tribunal can in effect consider any material it considers relevant to the issue of costs, the determining issue has to be the interests of justice. In this case neither party can claim to be fault free. The Tribunal finds that none of the factors in s 102 should be given priority and each party should pay its own costs. The handing over of all certificates obtained during the work [336] Symphony Homes have provided copies of certificates obtained during the construction to the Tribunal. The Tribunal orders that the original certificates be provided to Ms Clarke within thirty (30) days of the date of this decision. A declaration and order that the builder was in substantial breach of the contract [337] Ms Clarke alleges that Symphony Homes was in substantial breach of many if not all of the contract clauses. Such a declaration is unnecessary to determine these applications which can be determined on a factual basis using contractual clauses where necessary. [338] The Tribunal declines to make the declaration sought. A declaration and order that the contract was terminated as at 28 February 2008 under the “Repudiation for gross breaches of the contract” clause of the contract [339] This has been discussed above. A declaration and order that Symphony Homes be banned for life due to gross breaches of the contract [340] The Tribunal does not administer the system of registration of building contractors unless a disciplinary matter is referred to it by the QBSA. Therefore cannot make the declaration sought. The imposition of appropriate penalties on the builder as stated in the Domestic Building Contracts Act 2000 [341] The Tribunal does not administer the Domestic Building Contracts Act 2000 therefore cannot impose the penalties sought. A contravention of the Domestic Building Contracts Act 2000 is a quasi-criminal offence with a -- 51 of 64 -- 52 different standard of proof (i.e. beyond reasonable doubt) to that required to prove these application which is the balance of probabilities. [342] Further the proceedings are completely different to tribunal proceedings and are conducted in the Magistrates Court. A costs order on an indemnity basis [343] See claim G above. An order that she not have to pay previous costs orders made against her including that made in the Supreme Court of Queensland [344] Costs orders made against Ms Clarke must be addressed in the Courts that imposed the orders. The Tribunal does not have the jurisdiction to make the orders sought and she must apply to the appropriate Court for relief. An order that Symphony Homes pay her the sum of $1,150,000 (including that it purchase the dwelling as compensation for her losses [345] Ms Clarke does not explain whether this amount includes all of the other amounts claimed or is in addition to the amounts. She is obviously disappointed in the construction of her dwelling. Her detailed claims have been discussed in Claim B above. Most have not been allowed either because she has not provided evidence to prove her claims or that she has not provided evidence to link Symphony Homes to her claims. Despite making allegations of the dwelling’s loss in value she has not provided evidence of any loss in value. [346] Her claims have changed during her application and vary with her experts. In addition to an order requiring Symphony Homes to purchase the dwelling, she at one stage wanted an order requiring Symphony Homes to demolish the dwelling and start again. The Tribunal notes that while her experts found faults with Symphony Homes’ workmanship, neither opined that the faults were so serious that they could not be rectified by it or that the dwelling required demolition. In fact, no person who has reported on the dwelling for these applications has recommended order similar to those sought by Ms Clarke. [347] No evidence justifying an order of such magnitude has been provided and this claim must fail. Symphony Homes Counterclaim Variations [348] Part 7 of the Domestic Building Contracts Act 2000 applies to variations to regulated contracts (defined in s 9 to be a building contract for which the contract price is more that the regulated amount i.e. $3,300.00). Section 79(1) requires a building contractor to ensure any variation of the contract agreed to between the building contractor and the owner is put into writing -- 52 of 64 -- 53 within the shortest practicable time and if the variation is for an extra amount before the work is carried out. Exceptions to this in s 79(2) include work required to be done urgently or where it is not reasonably practicable to provide a written variation document. [349] Section 79(4) prohibits the carrying out of the work until the variation document is signed. [350] Section 84 limits the building contractor’s right to recover the amount of a variation sought by the building owner to situations where the contractor has complied with ss 79, 80, 82 and 83 or where the Tribunal approves it on an application made to it. Section 84(4) requires the Tribunal to satisfy itself that either there are exceptional circumstances to warrant the recovery of the money, the building contractor would suffer unreasonable hardship if not paid the money or it would not be unfair to the building owner for the contractor to recover the money. Section 84(3) applies to variations not requested by the building owner and includes an additional requirement that unforeseen circumstances apply. That is circumstances that could not be reasonably foreseen by the building contractor when the contract was entered into. [351] The contract provisions are consistent with those of the Domestic Building Contracts Act 2000. Symphony Homes has, except for one variation, completed the works prior to giving Ms Clarke variation documents. While it argues that the works were required to be performed urgently or it was not practicable to provide documents given the number of sub trades it has not explained the relevance of these explanations when it reached practical completion almost three months after the work was performed. In the absence of this evidence the Tribunal finds that the provisions of s 79 have not been complied with and the exceptions do not apply. Therefore the provisions of the Domestic Building Contracts Act 2000 apply and under s 84(4) it can only recover the amounts where there are exceptional circumstances, it would suffer unreasonable hardship or it would not be unfair to Ms Clarke for it to be paid the amounts. Failure to comply with s 79 is of itself insufficient reason to deny payment to Symphony Homes. [352] Mr Conti argues that under the contract Symphony Homes was entitled to fifty-five days extension of time making the practical completion date 14 April 2008. Work was suspended from 28 February 2008 to 26 March 2008 (no extension of time is claimed for this period). Even taking the suspension into account Symphony Homes has not explained why it took so long to build the dwelling especially given that it provided so many alternative practical completion dates and the last variation was dated 1 February 2008. [353] Each variation was presented to Ms Clarke on a standard HIA variation form. In addition to stating what the variation was for the form contained the following sentence: “If the variation will result in a delay, the estimated period of the delay is ….. days”. This means that an extension of time is not automatic right as asserted by Symphony Homes but dependent on whether there will be an actual delay in the completion of the works. The -- 53 of 64 -- 54 term “works” is defined in clause 38.2 to include the completed works handed over to the owner including the variations. Extensions of time do not accumulate and are not like get out of jail free cards. For example, variation 2 is for the construction of the retaining wall which appears to be at the rear of the dwelling and down a side alignment. Performing this work does not necessarily hold up the balance of the dwelling’s construction. Similarly, the cabinet work and electrical work are performed over a period of time and do not necessarily cause delays. [354] The use of the word “if” means that in order to have an extension of time claim approved, Symphony Homes must explain and provide evidence of how each variation and extension of time notice will result in a delay in the total works. Variation 1 – Removal of concrete [355] The evidence relating to this variation is contradictory. Ms Clarke claims that the house which she had demolished was on stumps with a laundry slab being the only concrete on ground level. She claims that the concrete found was in a position that was inconsistent with the position of the old house. She provides a statement from her demolisher stating that he did not leave any concrete buried on the sites. Her demolisher does not state how and where he disposed of the removed material which would be the subject of cross examination. [356] Symphony Homes provides a statement from its contractor stating that he found the concrete buried on the site. [357] The Tribunal does not have the benefit of oral evidence from both contractors to test their credibility. There is no evidence to suggest that Symphony Homes brought the concrete onto the site and it seems illogical for it to do so. There is no evidence that the presence of the concrete was not an unforeseen circumstance within the meaning of s 84(3) and (5). [358] While Ms Clarke did not request this variation the dwelling could not have been constructed if this work was not carried out. The variation would not be unfair on Ms Clarke and is approved. Variation 2 – Timber retaining wall [359] The variation is for a retaining on the rear and side boundaries and is dated 4 October 2007 approximately half way through the original construction period. It does not affect the main dwelling at all. Two days extension of time is claimed. No explanation as to why the entire dwelling would be delayed two days is provided and it is difficult to see how that would be the case. Symphony Homes must prove its claim. In the absence of an explanation the Tribunal is not satisfied exceptional circumstances apply. The extension of time is not approved. [360] This work arose because of the cut and fill to the site. Symphony Homes argue that the work was requested by Ms Clarke and she does not dispute -- 54 of 64 -- 55 this. Ms Clarke and her experts assert however, that the wall as not been built properly. Symphony Homes assert the wall was built to industry standards. Included photographs show the retaining wall adjacent to an open pool excavation which could have damaged its construction. [361] Again the Tribunal does not have the benefit of oral evidence to test the credibility of witnesses. The available evidence is contradictory making it difficult to deny Symphony Homes’ right to the reasonable cost of the work. The variation would not be unfair on Ms Clarke and is approved. Variation 2 – Cabinet works [362] The variation numbering is confusing but that is Mr Conti’s numbering system. A provisional sum of $16,000.00 was allowed for the kitchen and other cupboards. Ms Clarke wanted her “trusted cabinetmaker” to provide these items which is not unusual. However, she wanted to pay the cabinetmaker directly thus removing this item from the contract. Symphony Homes objected to this. [363] Mr Conti states the final price for the works was $22,405.90 some $6,405.90 more than the amount allowed for. Adding the 20% builders margin the variation comes to $7,687.08. [364] This was a variation dated 26 November 2007 which appears to be well before the work was completed. As Ms Clarke has liaised directly with the cabinetmaker she was aware of the final quote which she accepted. The variation would not be unfair on Ms Clarke and is approved. [365] Five days extension of time is claimed. The variation is dated 28 October 2007 (approximately half way through the construction period) and relates to the difference between the cabinetmaker’s quote and the provisional sum allowed in the contract. There is no evidence that the cabinets as quoted and those as shown on the plans were different. Symphony Homes has not explained how this extra money value has caused five days delay given that Symphony Homes’ practical completion date was still more than seven months away. In the absence of an explanation the Tribunal is not satisfied exceptional circumstances apply. The extension of time is not approved. Variation 3 – Moving walls around the main bedroom en-suite to accommodate the spa bath [366] Symphony Homes asserts this work was necessary to accommodate a different sized spa bath than was shown on the plans. Ms Clarke states that Symphony Homes should not have built the wall until the spa bath was on site, a suggestion which, of itself, potentially creates scheduling problems. She also admits giving Symphony Homes the wrong spa bath measurements which required the walls to be moved. [367] No spa bath measurements appear on the 1:100 plans. Measurements of 1.7 m, 1.485 m or 1.665 m are shown on the 1:20 plan making it confusing -- 55 of 64 -- 56 to say the least. An email dated 7 October 2007 to Symphony Homes indicates the spa bath size was 1.665 m x 1.665 m. A later email dated 12 December 2007 to Symphony Homes stresses that the spa bath was always going to be 1.7 m x 1.7 m. Symphony Homes had three measurements to choose from and should have clarified the correct one with Ms Clarke who appeared unsure in any event. [368] A series of emails on 17 October 2007 between the parties indicates discussions had been taking place about the spa bath’s position. Symphony Homes asked her when the spa would be arriving as it was holding up works. She asserts that Mr Conti held up the spa for ten days by not answering phone calls and emails. She also states that he had agreed not to build the wall until the spa bath had arrived on the site. A further email on 29 October 2007 indicates the wall correction had been done on 27 October. [369] The variation is dated 26 November 2007 which does not comply with clause 20.2. No reason for its lateness is provided. This was a variation that arguably should not have been required if the spa bath dimension was clarified. Neither party is fault free nor is it not unfair on each of them to share the cost. [370] Requiring Ms Clarke to then sign the variation document was unnecessary because the work had been done. While it is entitled to a reasonable price for the work Symphony Homes may have deprived Ms Clarke the opportunity to decline to have the work done because of excessive cost. [371] The Tribunal finds that each party should pay half the cost of the work, namely $742.50. [372] The material shows that both parties contributed to the need for this variation. One day extension is claimed. Given this co-contribution the Tribunal does not find any exceptional circumstances exist. The extension of time is not approved. Variation 4 – Installation of stage floor [373] This unsigned variation relates to the provision of stage floors which were specifically excluded from the contract. On 20 November 2007 Symphony Homes sent Ms Clarke an email in which it estimated the construction of the stage floor and extension of the wall would be $1,100.00 plus GST (a total of $1,210.00). Ms Clarke accepted by return email within an hour. [374] The variation is for an amount of $1,430.00. No explanation is provided to explain the difference between the quoted amount and the final claim. [375] The variation would not be unfair on Ms Clarke and is approved subject to the amount being changed to $1,210.00. [376] A claim for one day is made for this work. The variation is undated but Ms Clarke accepted Symphony Homes quote on 20 November 2007. -- 56 of 64 -- 57 Symphony Homes have not explained why it took an extra day to perform this work given that practical completion was approximately five months away. [377] There are no special circumstances claimed. The extension of time is not approved. Variation 5 – Installation of one (1) water tank [378] The contract included one water tank despite the plans showing two 3,400L tanks. At the quoting stage Ms Clarke has not decided on which tank she would install. The slab and footings had been designed to suit the positioning of the two original tanks. At one stage Symphony Homes tried to convince Ms Clarke to accept a 3,000L tank but she decided to have the original two 3,400L tanks. [379] The variation is allegedly the difference between Symphony Homes’ original quote for one tank, the installation of two larger tanks and bigger footings and associated works to suit the larger tanks. If larger footings were installed no engineered footing details have been provided to verify this allegation. [380] This variation is dated 1 February 2008. When Ms Clarke requested this work is not stated but it was before mid-December 2007 as she provided the tanks. Supplied invoices indicate that the tanks were installed around 17 January 2008 dating the variation document after the work was completed. The general explanation provided was that the work was difficult to quote on because of the number of sub-trades, was deemed to be urgent work or it was not practicable to provide a quote before the work was done. None of these appears relevant in this case. The tanks were installed in the place shown on the site earthworks plan. [381] For an unexplained reason the variation document includes the price of the tank which was supplied by Ms Clarke. A Bushmans Tanks Invoice No 35307 addressed to Marianne Morel is dated 20 December 2007 and indicated that on that date two (2) tanks were shipped to the site for a total amount of $9,900.00 including GST ($4,950.00 for each tank). The value for the variation after deducting the price of the tank ($4,950.00 as per the Bushman Tanks invoice) is $1,230.00. This was a variation requested by Ms Clarke. [382] The variation would not be unfair on Ms Clarke and is approved. [383] Four days delay is claimed for this work in Mr Conti’s statement of 17 November 2008. However, the variation document states that the variation could cause only two days delay. No explanation for the difference is provided which is inexplicable given the variation document was provided after the work was performed. Symphony Homes have not explained why it took two extra days to perform this work. -- 57 of 64 -- 58 [384] Symphony Homes knew when the contract was entered into that there was a possibility that two tanks could be required. While there are no special circumstances claimed and the work was required to be performed the lodging of a later claim indicates that this work did not delay the completion of the works. This extension of time is not approved. Variation 6 – Sewer variation [385] This work was purportedly requested after all of the plumbing and drainage to the house had been finalised to provide water and drainage to the outside area for a BBQ with sink and tap which were not shown on the original plans. It appears to be part of the alfresco area. Significant work was apparently necessary to fit new plumbing and drainage and to bury pipes. This work includes plumbing works, machine hire, gravel backfilling and topsoil. Invoice No 184 is dated 1 February 2008. The dates when Ms Clarke requested this work and when the work was carried out are not provided. [386] B & E Plant Hire’s Invoice No 5059 states it is for work between 14 and 17 January 2008 and includes work for installing the tanks and the sewer variation. An amount of $1,200.00 is allocated to the sewer variation. Nudgee Road Landscaping Supplies Invoices No 86413 dated 17 January 2008 and 86288 dated 25 January 2008 have been allocated to the sewer variation. Invoice No 801 from Slick Plumbing dated 10 February 2008 indicates that an amount of $1,000.00 plus GST was allocated to the sewer variation. It appears that the work was undertaken in mid to late January 2008. [387] This was a variation requested by Ms Clarke and arguably should have been performed as part of the dwelling’s original drainage works and certainly prior to the work in variation 7 to avoid cutting of concrete etc. The variation would not be unfair on Ms Clarke and is approved. [388] Four days extensions of time are claimed for this work. The variation document for the sewer work states the possible delay to be one day. No explanation for the difference is provided which is somewhat inexplicable given the variation document was provided after the work was performed when the actual delay to the work would have been known. While there are no special circumstances claimed for the work and it was required to be performed, there was a later extension of time claim on 2 March 2008 indicating this work did not cause a delay in the completion of the works. This extension of time is not approved. Variation 7 – Work between alfresco area and pool [389] This work was not shown on the dwelling’s plans but was included on Ms Clarke’s wish list which does not form part of the contract. The work includes the concrete, boxing, reinforcing, concrete pump and channelling. Invoice No 185 is dated 1 February 2008. It took three (3) carpenters forty- eight (48) hours (excluding builder’s coordination) to perform this work. -- 58 of 64 -- 59 [390] Invoice No 344 from Roy’s Concrete pumping services is dated 31 January 2008 and states it is for the pool surround together with the driveway slab making a total of $591.80. While the invoice is not itemised a hand written note on the bottom indicates that an amount of $120.00 is allocated to Invoice 185. A Boral Concrete statement dated 31 January 2008 is provided but this does not indicate what was provided and to where. An Independent Reinforcing Supplies Invoice No 33314 dated 11 January 2008 is provided and shows that reinforcing was delivered to the site on 11 January 2008 but is otherwise unhelpful. [391] The dates when Ms Clarke requested this work and when the work was carried out are not provided but it appears from the Roy’s invoice that it was poured at the same time as the concrete driveway on or about 31 January 2008. [392] This was a variation requested by Ms Clarke. The variation would not be unfair on Ms Clarke and is approved. [393] Three days extensions of time are claimed for this work. The variation document for this work states the possible delay to be one day. No explanation for the difference is provided which is somewhat inexplicable given the variation document was provided after the work was performed when any actual delay would have been known. The variation document is dated 1 February 2008 and as with variation 6 the lodging of a later claim indicates this work did not delay the completion of the works. The extension of time is not approved. Variation 8 – Electrical work [394] A provisional sum of $8,000.00 was allowed for the electrical work. Ms Clarke did not supply a lighting or electrical plan when pricing the dwelling. The electrical work was undertaken by a business called Electroy. Troy Hanifin, the electrician who performed the work has provided a statement. He states he attended the site with Ms Clarke and Mr Conti on 26 September 2007. They went through the timber framed walls marking where electrical fittings were to be positioned. Mr Hanifin’s invoice for the work dated 1 February 2008 was for $12,265.00. [395] The variation claim is for $5,118.00 being the $4,265.00 difference between the invoice and the provisional sum plus 20% builder’s margin. [396] The claim is for work required by Ms Clarke. It would not be unfair and is approved. [397] Symphony Homes claim four days delay for this work. Curiously, Mr Hanifin who performed the work and the person most likely to complain of the work taking longer than estimated makes no mention of delays in his statement. No explanation for this discrepancy is provided. In the absence of oral evidence from him to test his evidence it would be unfair to Ms Clarke to allow this claim. The extension of time is not approved. -- 59 of 64 -- 60 Extension of time notice - 11 December 2007 [398] Symphony Homes provided weather data for Brisbane for the 11 December 2007 which it asserts substantiates its claim that there were a total of eleven days rain delay up to that point and after subtracting the included five (days the net extension of time claim was six days. The difficulty with rainfall data is capturing the data over the site in question. This type of evidence requires a high level of trust in the person providing it. In the present case there is no reason to doubt the information and the claim of six days extension of time is allowed. Extension of time notices – 23 January 2008 [399] One letter claims a three day rain delay for 15 to 17 January 2008 inclusive. This purportedly delayed work on the outside of the dwelling. Invoices provided in the material indicate that the tanks were installed on or around 17 January 2008. [400] Another letter claims a total of nine days delay caused by earlier variations including the retaining wall. [401] A third letter states that up to that point a total of eighteen days delay had been caused by rain and variations. Adding the claims as outlined by Mr Conti in his 17 November 2008 up to and including the three day rain delay claim on 23 January equals eighteen days. However if the other nine days are added for variations the total becomes twenty-seven days. [402] Symphony Homes has separately claimed extensions of time for delays for each of the variations except the removal of the concrete making the claim of nine days a second claim for the same item. This nine day claim is not allowed. Extension of time notice - 3 March 2008 [403] This claim for thirteen days rain delay between 30 January and 19 February 2008 is dated 3 March 2008. Delays to the exterior painting, laying the concrete driveway and stencilling the driveway were claimed. [404] The letter states that rainfall to support the claim data was provided. [405] These delays are after the end of the original construction period. Despite Ms Clarke’s assertion that there cannot be extensions after the end of the original construction period, the purpose of provisions such as s 18 of the Domestic Building Contracts Act 2000 and clause 17 of the contract is to ensure that extensions of time claims are reasonable. There is no reason why this claim of thirteen days cannot be allowed. Practical completion date [406] The Tribunal must determine the practical completion date. The construction of the dwelling was to be completed by 28 January 2008 (six months after signing plus the three week Christmas break) unless -- 60 of 64 -- 61 extended under the contract. A total of five days for inclement weather were included in the contract. Symphony Homes has claimed fifty-five days extension of time and claims the practical completion date was 14 April 2008. As the contracted practical completion date approached Symphony Homes proposed alternate dates being 23 January, 28 January, 1 February, 9 February, 21 February, 26 February, 1 March, 26 March and 14 April. Ms Clarke asserts that none were complied with. [407] While the contract required Symphony Homes provide a practical completion date to Ms Clarke if she asked for it, the contract also provided that any date provided was not binding. An email from Sheree Conti dated 4 February 2008 clearly reinforces this. Practical completion of the dwelling means the stage when the works have been completed in accordance with the contract and all relevant statutory requirements apart from minor defects or minor omissions and the dwelling is reasonably suitable for habitation. [408] While Symphony Homes state their practical completion date was 14 April 2008, Ms Clarke’s experts agreed that the dwelling had not reached this stage. The parties argued and apparently could not agree on a solution causing Ms Clarke to seek Supreme Court intervention to obtain possession of the property and that Court granted her application for possession on 30 June 2008. If the dwelling was completed, 30 June 2008 was the first date that Ms Clarke could have occupied it and therefore that is the date for practical completion despite actual occupation occurring on 25 July 2008. [409] Symphony Homes were therefore liable to rectify minor defects other than minor settlement or minor shrinkage notified to it in writing up to 1 January 2009. [410] The Tribunal finds that all extensions of time claimed up to the 11 January 2008 letter have been taken into account. This means that extensions of time totalling sixteen (16) days are allowed for rain delays between 15 and 17 January 2008 inclusive and the notice of 2 March 2008. [411] The Tribunal finds that the amended completion date to be sixteen days after 26 March 2008, namely 11 April 2008. [412] On 14 April 2008 Symphony Homes advised Ms Clarke that the relevant issues outlined in Mr Karrasch’s reports had been addressed. A Notice of Practical Completion dated 14 April was attached to the letter. Ms Clarke declined to sign the notice and discussions between the parties communicated with each other until Ms Clarke made her Supreme Court application and Dutney J made his order giving her possession of the dwelling from 30 June 2008. [413] The Tribunal finds that 30 June 2008 was the first date that Ms Clarke could have resided in the dwelling. -- 61 of 64 -- 62 That Ms Clarke be required to pay the final payment due under the contract [414] Symphony Homes concede that Ms Clarke has paid all progress payments except the final one which is in dispute. It originally claimed an amount of $53,437.20 but has amended that figure by deducting amounts of $500.00 (niche) and $1,100.00 (alfresco tiling) to its final figure of $51,837.20. [415] Figures for approved variations must be added to this and claims allowed must be deducted. That Ms Clarke pay the locksmith’s account when it took possession of the dwelling after Ms Clarke changed the locks when she purportedly cancelled the contract [416] Symphony Homes was required to engage a locksmith to change the locks after Ms Clarke had engaged her own locksmith when she purported to terminate the contract. It claims $338.30. In view that Ms Clarke’s actions were later ruled to be incorrect this figure is allowed. Interest on outstanding monies [417] Clause 33.1 provides that if the owner does not pay any amount owing to the builder by the due date then the owner must pay default interest on the amount that is unpaid. Symphony Homes claim interest of 12% on the final payment figure. [418] Interest is claimed at 12%. The term default interest if defined to mean the annual rate equal to the Commonwealth Bank overdraft index rate quarterly charging cycle plus 5%. No evidence to prove this amount is 12 % is provided. No claim period is sought. The final claim is dated 19 February 2008 and became overdue six (6) days later i.e. 25 February 2008. The applications have been on foot since 25 February 2008. Interest is allowed from 25 February 2008 to 25 October 2012, namely fifty-six (56) months. Legal costs [419] Symphony Homes claim $12,925.52 legal fees it says it is entitled to. [420] Clause 34.1 states that the owner must pay to the builder any debt collection costs including legal fees associated with the recovery of any monies due under the contract. This must be read together with the provisions of the QCAT Act. Section 100 of the QCAT Act provides that subject to the Act each party must bear their own costs for the proceeding. Section 102 allows the Tribunal to impose costs against a party if the interests of justice require it. Section 102 requires the Tribunal to have regard (i.e. consider but not necessarily follow) factors such as whether a party acts is a way that disadvantages another party, the nature and -- 62 of 64 -- 63 complexity of the dispute, the relative strengths of the parties’ claims, and the financial circumstances of the parties. [421] There is no evidence that shows each party has acted in a way that disadvantages the other party. Symphony Homes have been granted legal representation because of the complex nature of the applications. Ms Clarke has remained self-represented. [422] Ms Clarke sought variations to the works and Symphony Homes seeks payment for those variations. Ms Clarke argues that the variations were forced upon her and were overpriced but provided no evidence to prove her allegations. [423] Symphony Homes is in a stronger financial position but it failed to comply with the contract’s variations and extensions of time provisions. It required Ms Clarke to sign variation documents when arguably there was no power or necessity to do so which may have caused unnecessary stress to Ms Clarke. This indicates a lack of knowledge of the practical application of the contract provisions. [424] While the Tribunal is required to have regard to these factors it must act in the interests of justice. Symphony Homes has not complied with the variations provisions of the contract or the Domestic Building Contracts Act 2000 and has over claimed extensions of time. [425] Having regard to all of the factors, the Tribunal finds that Ms Clarke must pay the amount of $5,000.00 legal costs to Symphony Homes. Orders [426] Ms Clarke is to pay Symphony Homes Pty Ltd the amount of $104,212.41 calculated as follows: Final payment: $51,837.20 Variation for water tank 1,230.00 Variation for sewer works 3,120.00 Variation for Alfresco Area 4,696.50 Variation for electrical works 5,118.00 Locksmith 338.30 Sub-total 66,340.20 Deductions Floor insulation 2,000.00 Spa bath 742.50 2,742.50 Total 63,597.70 Interest (56 months at 12%) 35,614.71 Costs 5,000.00 Total 104,212.41 [427] Ms Clarke is to provide tiles of her choice to Symphony Homes for it to fix to the kitchen splash back. -- 63 of 64 -- 64 [428] Symphony Homes Pty Ltd is to make good the defects listed as being required to be rectified in the QBSA report other than the overflow relief gully being in the wrong position, obtaining an exemption to the BCC small lots code for the driveway and any associated works and installing control joints in the floor tiling. [429] All work is to be completed to the satisfaction of the QBSA prior to Ms Clarke paying any monies to Symphony Homes Pty Ltd. [430] Ms Clarke is to allow Symphony Homes Pty Ltd access to the dwelling to enable them to complete the works in these orders. [431] Failure to allow Symphony Homes access to the dwelling means that Ms Clarke is satisfied with and accepts the current workmanship in lieu of these orders. [432] If after being allowed access to the dwelling Symphony Homes Pty Ltd fails to complete the works by Symphony Homes Pty Ltd to the QBSA’s satisfaction, order 1 is vacated and the applications are to be referred back to the Tribunal for further orders. [433] Except to the extent stated above Ms Clarke’s claims against Symphony Homes Pty Ltd and Joseph Conti are dismissed. -- 64 of 64 --