Al Hakim v Goolburri Regional Housing Company Limited [2011] QCAT 103

CITATION: Al Hakim v Goolburri Regional Housing Company Limited [2011] QCAT 103 PARTIES: Latif Al Hakim v Goolburri Regional Housing Company Limited APPLICATION NUMBER: BD037-09 MATTER TYPE: Building matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr Thomas Bradley, Member DELIVERED ON: 25 March 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The application is dismissed. [2] The applicant is to pay the respondent’s costs of and incidental to the application to be assessed in accordance with the District Court scale. [3] The applicant is to pay the respondent’s costs of and incidental to application BD120- 08 to be assessed in accordance with the District Court scale. CATCHWORDS : Domestic building contract – alleged defective foundations – alleged breach of contractual warranty – whether foundations as constructed were defective – application to be dismissed – whether costs should be awarded APPEARANCES and REPRESENTATION (if any): APPLICANT : Mr Al Hakim, self-represented RESPONDENT: Mr Hartley-Holl, solicitor -- 1 of 18 -- BD037-09 / Page 2 of 18 REASONS FOR DECISION 1. This is a decision on a domestic building dispute between the applicant Dr Latif Al Hakim and the respondent Goolburri Regional Housing Company Limited. Background facts 2. The applicant is the owner of a property at Samuel Court, Toowoomba. The respondent is a licensed builder and a member of the Queensland Master Builders Association. 3. It is common ground that on or about 1 July 2004 the applicant entered into a contract with the respondent for the construction of a new house on the applicant’s land. The contract was in writing in the form of the Master Builders Residential Building Contract RBS – 1 July 2001. The date fixed by the contract for practical completion was 23 December 2004. The new house was not practically complete by that date. 4. On 9 May 2005, the applicant commenced proceedings in the former Commercial and Consumer Tribunal (BD249-05). 5. On 29 November 2005 the applicant and the respondent signed a written “variation agreement”, which recited that: “the parties have now reached agreement on all outstanding matters in dispute between themselves; and this agreement sets out both the terms of the variation of the said [building] contract and the terms of settlement which have been reached.” 6. Clause 6 of the variation agreement provided that: “The owner and the builder agreed that it is their intention that this agreement shall resolve all matters in dispute between them up to and including the date hereof with the intention that it may be pleaded in bar to any proceedings hereafter in respect of such matters in the Commercial and Consumer Tribunal or any other court having jurisdiction over any other matters contained in or relating to the said contract and that they will sign all forms required by the Tribunal for bringing to an end all proceedings currently before the Tribunal without additional costs or claims.” 7. Clause 2 of the variation agreement provided that: “It is a condition of this agreement that within 14 days from the date hereof the owner will obtain from his bank namely Westpac Banking Corporation a letter confirming that the owner has sufficient funds to pay for the balance of the monies owing under the said contract and agreeing to secure the same and pay each instalment without any deduction upon the completion of the various stages set out in Appendix Method B of the said contract as herein varied.” 8. On 15 December 2005, the respondent terminated the variation agreement on the grounds that the applicant failed to comply with clause 2. -- 2 of 18 -- BD037-09 / Page 3 of 18 9. On 23 April 2006, the former tribunal dismissed the applicant’s application and the respondent’s defence and counterclaim in BD249-05, finding that the former tribunal no longer had jurisdiction to “by reason of a settlement agreement entered into between the parties (and in particular clause 6)”. 10. This decision appears to have proceeded on the basis that the domestic building dispute in BD249-05 had been settled by the variation agreement and that the former tribunal’s jurisdiction with respect to domestic building disputes did not include disputes between parties to a settlement agreement about the enforcement or alleged breaches of its terms: see eg Anderton v Parks Horticultural Services Pty Ltd (1996) 17 Qld Lawyer Reps 48. There was no appeal from the decision. 11. On 19 March 2008, the applicant commenced a second proceeding against the respondent in the former tribunal (BD120-08). The respondent applied (successfully) to strike out the applicant’s claim, but the former tribunal gave the applicant leave to re-plead and the respondent leave to re-apply to strike out any new pleading from the applicant. This was on the basis that the applicant’s claim was so poorly expressed as to be embarrassing, in the legal sense. See Al-Hakim v Goolburri Regional Housing Company Ltd [2008] QCCTB 190 at [41]-[42]. 12. Instead of re-pleading his claim in BD120-08, on 20 January 2009, the applicant commenced a third proceeding in the former tribunal (BD037-09). This is the present proceeding, which was transferred to this tribunal on 1 December 2009. 13. In this third proceeding, the respondent applied to strike out the applicant’s application and the statement of claim. That application was allowed, in part, with the applicant being permitted to amend his statement of claim. 14. On 19 October 2010, the applicant filed another statement of claim in BD037- 09, which he annotated as “Re-plead of Application BD120-08”. The respondent applied to strike out the re-pleaded statement of claim. The respondent’s strike out application was heard on 22 April 2010, with the result that the tribunal limited the hearing of this proceeding to paragraphs 1, 2, 13 to 21, 26 and 27 of the applicant’s re-pleaded statement of claim and struck out the balance of the statement of claim. The remains of the applicant’s claim 15. It is this remaining part of the applicant’s claim in BD037-09 that is to be decided by the tribunal, on the papers. Those remaining parts may be summarised as follows: (a) The parties entered into the contract, with a fixed price of $166,500, a date for practical completion of 23 December 2004 and a provision for liquidated damages of $25 per day. See statement of claim at [1]. (b) By July 2005 the building works had not progressed beyond the footings stage; and the applicant commenced BD249-05 complaining about the delay. See [2]. -- 3 of 18 -- BD037-09 / Page 4 of 18 (c) The respondent obtained a foundation design report from Soil Test Australia Engineering Services dated 10 August 2004 (“STA 2004”), which the applicant came to know of in 2007. See [13]. (d) STA 2004 stated that fill was encountered across the site, which could not be certified as compacted in the absence of documentation that this had occurred in accordance with AS 3798-1996. STA 2004 required, in terms of site preparation, that the construction pad be cleared of vegetation and loose material and any fill should be placed to a dry density ratio of 95% standard AS1289.5.1.1. It provided details of reinforcement where the depth of suitable founding material is significant and details of how different depths of fill should be compacted. See [14]. (e) STA 2004 required edge beams to be founded at least 200 mm into a suitable founding material and the edge beam footing to be 600 mm deep with a minimum soil embedment of 500 mm from the top of the beam into the soil and a minimum allowable bearing capacity of 150 kPa at the base of the edge beam. An edge beam footing could be stepped to follow the contours in which it is constructed. See [15]. (f) In 2007, Baker Rossow Consulting Engineers (“Baker Rossow”) and Reid Construction (“Reid”) investigated the suitability of the constructed foundation. Both concluded that the foundation is inadequate and can be certified as structurally suitable [sic]. The construction pad has not been compacted in accordance with STA 2004 and none of the footings meet the design requirements. Demolition of the works was the only practical solution to enable construction of a house on the site. See [16]. (g) These matters were not the subject of BD249-05 or the variation agreement. See [17]. (h) On 28 April 2008, the respondent relied on a communication issued before work started as a communication made after completion of the foundation work to show that the foundation issue was the subject of BD249-05. However, the former tribunal was not convinced that the same claim was being made in BD249-05 as was made in BD120-08. See [18]. (i) The respondent relies on a checklist, which: i. Indicates no fill was inspected or found and that reinforcement was not inspected or found; ii. States that the maximum depth of the piers – footings is 500 mm. The respondent is obliged to illustrate before the tribunal how the foundation work was constructed and how approval for the work was obtained. See [19]. -- 4 of 18 -- BD037-09 / Page 5 of 18 (j) The statutory warranties under part 4 of the Domestic Building Contracts Act 2000 were incorporated in the contract by clause 10.1. See [20]. (k) The relevant parts so incorporated are clauses 10.1(a) and (d). See [21]. (l) The applicant paid a deposit of $8,250 and an additional $1,000 to the respondent. As the works are of no use to the applicant, he claims a refund of those moneys as part of his damages for breach of the contract. See [26]. (m) The cost of demolishing the footings, foundations and initial brickwork and constructing a new house in accordance with the original plans and specification is $310,200. In addition to the $9,250 referred to above, the applicant claims the difference between this cost and the contract price as damages for breach of contract, namely $148,200. See [27]. Jurisdiction 16. The applicant claims damages for breach of contract, based upon the statutory warranties incorporated into the contract by clause 10.1, paragraphs (a) and (d), namely: “(a) The Builder will carry out the Works: (i) in an appropriate and skilful way; (ii) with reasonable care and skill; (iii) in accordance with the Plans and Specifications; and (iv) in accordance with all relevant laws and legal requirements including, for example, the Building Act 1975; … (d) If the Works consist of the erection or construction of a detached dwelling or is work intended to renovate, alter, extend, improve or repair a home to a stage suitable for occupation, the Works will be suitable for occupation when the Works are completed.” 17. Plainly, the applicant’s claim relates to work performed by the respondent under the contract. That work was the construction of a detached dwelling on the applicant’s land; and therefore was “domestic building work” for the purposes of section 8 of the Domestic Building Contracts Act 2000 and “reviewable domestic work” for the purposes of the Queensland Building Services Authority Act 1991 (the “QBSA Act”). The dispute between the applicant and the respondent relating to the performance of that work is a “domestic building dispute” within the meaning of the QBSA Act and the tribunal has jurisdiction to determine the dispute pursuant to section 77 of the QBSA Act. That jurisdiction is original jurisdiction pursuant to section 10(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 the (“QCAT Act”). -- 5 of 18 -- BD037-09 / Page 6 of 18 Grounds of defence 18. The respondent’s defence to this reduced claim is in two parts. 19. Firstly, the respondent contends that the applicant is not entitled to raise the issue of the footings or foundations at all. Secondly, the respondent contends that the applicant has not made out his claim that the foundations or footings were defective, which he must prove to establish that the respondent was in breach of contract, negligent or otherwise liable to the applicant. Defence of compromise and estoppel 20. The respondent’s first ground of defence turns on whether the applicant compromised these remaining claims by entering into the variation agreement. The respondent submits that: “by the express or implied terms of the settlement agreement reached in November 2005, the applicant settled all claims in relation to work done on the property by the respondent up to that time, whether such claims were incorporated in the said application, and whether or not such claims had by then been made.” 21. This submission does not accord with the express terms of clause 6 of the variation agreement. The respondent has not identified the basis upon which such a term could properly be implied into the variation agreement. The usual requirements for implication do not appear to be met, eg the suggested implied term does not appear to be necessary to give business efficacy to the variation agreement. 22. On an ordinary reading of clause 6, the claims that were compromised were the “matters in dispute” between the applicant and the respondent “up to and including” 29 November 2005. 23. The applicant contends that he was not aware of the alleged defects in the foundations of the house until after he obtained a report from Baker Rossow in mid-2007. In the earlier proceeding, the applicant’s claim centred on the failure of the respondent to complete the building work within the time fixed by the contract. I can find no substantial basis for a contention that the applicant made any claim of defective design or construction before 29 November 2005. It follows that the applicant’s remaining claims are not barred by the compromise he entered into with the respondent on November 2005. 24. The respondent also contends that the applicant is estopped from raising the remaining claims because he could have raised them in the original proceeding BD249-05 and that proceeding was dismissed. 25. Such an estoppel could arise if the defective foundation claims were so relevant to the subject matter of BD249-05 that the defective foundation claims properly belonged to the subject matter of BD249-05, if it would be expected that the applicant would raise those matters in its claim in BD249- 05, if it would have been unreasonable for the applicant not to rely on those -- 6 of 18 -- BD037-09 / Page 7 of 18 matters in BD249-05, so that, exercising reasonable diligence, the applicant might have pleaded the defective foundation claims in BD249-05, rather than reserving them to assert in later proceedings. It is a type of estoppel considered by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589. 26. The subject matter of BD249-05 was a claim that the respondent had failed to reach practical completion by the date specified in the contract. It was not necessary to examine the quality of the respondent’s incomplete building work for the purpose of making or pursuing that claim. I am not satisfied that it was unreasonable for the applicant not to have made such a claim in BD249-05. In the circumstances, I do not find that the applicant is estopped from asserting his defective foundation claim in this proceeding. 27. It follows that the first ground of the respondent’s defence fails. It is necessary to turn to what remains of the applicant’s claim on its merits and the respondent’s defence to the substance of the claim. Defence to the substance of the applicant’s claim 28. The manner in which the applicant and respondent have acted in this proceeding produced the result that the respondent’s material was filed first in time and the applicant’s material was filed afterwards. Given this history, it is convenient to deal with the respondent’s material first and then set out the applicant’s material. Some of the respondent’s material, in particular STA 2004, is relied on by the applicant also. Respondent’s material 29. The respondent has put into evidence before the tribunal: (a) The Foundation Design Report prepared by STA on 10 August 2004, which appears to be the STA 2004 report referred to by the applicant in paragraphs [13] to [15] of the statement of claim; (b) A certificate by STA dated 19 May 2010, to which is attached an STA Inspection Certificate for an inspection date of 19 January 2005; (c) A letter from STA dated 24 June 2010, attaching an email of 2 July 2010 and three photographs; and (d) A further letter from STA dated 1 September 2010, attaching eight photographs. STA 2004 30. STA 2004 states that it was commissioned by and prepared for the applicant. Its internal reference is “Project Job No. 63174”. It classifies the site as “H”, meaning “highly reactive clay sites, which can experience high ground movement from moisture changes”: see AS 2870-1996, clause 2.1.1. 31. After classifying the site as Class “H”, STA 2004 noted: -- 7 of 18 -- BD037-09 / Page 8 of 18 “However 100mm to 700mm of fill was encountered across the site. This fill can not be certified as compacted because at the time of writing this report we had not been presented with any documentation to show that it was compacted and certified in accordance with AS 3798-1996. (Level 1 Supervision).” In this respect the first allegation in paragraph [14] of the statement of claim is correct. 32. Under the heading “Site preparation”, STA 2004 stated: “The construction pad is to be cleared of vegetation and loose material. The pad is to be prepared in accordance with the proposed site preparation details as indicated to [STA] (i.e. Cut/fill, total cut etc.) If any trees are removed from the building pad area, the voids created by their removal, must be excavated, backfilled and compacted with suitable material. Any fill should be placed to a dry density ratio of 95% standard AS1289.5.1.1.” 33. The fill referred to in this paragraph is the fill to be introduced to the site by the builder, not any existing fill on the site. 34. Under the heading “Edge beam and Slab”, STA 2004 stated: “It is recommended that the edge beam (footing) and slab are constructed as set out in this report. It is also recommended that the edge beam is founded at least 200mm into suitable founding material. On this site the suitable founding material is: NATURAL STIFF SILTY CLAY Where the depth to suitable founding material is significant, excavated or drilled piers can be adopted. It is also required that 2/Y12 bars are located at the intersection of the slab thickenings and the edge beam, projecting 400mm into the edge beam and lapping 500mm with the thickening reinforcement (as detailed on Foundation Sketch). Where the length of drilled footing piers exceeds 1500mm, they are to be reinforced with 4/Y12 bars tied to an R6 spiral @ 150mm pitch or equivalent & tied into the Edge Beam Footing cage. Alternatively a pre- fabricated steel cage may be adopted. (Neumann NS4 Cage)” 35. Under the heading “Fill beneath the Slab” STA 2004 stated: “Organic material, highly reactive clays and large rocks are not suitable for use as fill. Fill is to be spread in 150mm deep layers and extensively track rolled with a drott. Where fill depth is to exceed 400mm, the material is to be compacted with suitable equipment (refer appendix C). Alternatively the slab is to be suspended on 350mm diameter piers and founded into the same material as the edge beam.” 36. Like that referred to under “Site preparation”, the fill referred to in this paragraph is the fill to be introduced to the site by the builder, not any existing fill on the site -- 8 of 18 -- BD037-09 / Page 9 of 18 37. Page 7 of STA 2004 is a section drawing of wall that is “Blocked Up & Backfilled”. It specifies the reinforcement to be used for various wall heights. It shows the edge beam footing as 600mm deep with the beam itself being embedded 500mm into the footing. This latter specification is noted as “500Min. Embedment”. The “Notes” to the drawing commence with “excavation shall be taken into natural material with min. allowable bearing capacity of 150 KPa.” 38. Page 8 of STA 2004 is a section drawing entitled “Continuous Footing Specifications”. It includes two drawings under the heading “Stepping Strip Footing” one with a footing beam sloping at < 1:10 and the other for a step > 200mm but < 2D, where “D” is shown as the depth of the footing containing the footing beam. STA certificate and inspection certificate 39. The STA certificate certifies that an authorised representative of STA conducted a site inspection of the pad footing on 19 January 2005 and left on site an inspection check list. The “scope of works pertaining” to the inspection are described as “Pier location, depth, diameter documented.” The certificate notes that “All non habitable components to foundations e.g. patios, pergolas etc. are not included within this certification.” The other significant parts of the certificate are in items 4 and 5: “4. Providing all instructions on the inspection checklist have been carried out and the site conditions have been maintained by the builder, then placement of concrete may proceed. 5. Further to our inspection, we certify that the Inspection – Pad Footing was carried out in accordance with STA Consulting Engineers design documentation Project Job Number: 63174.” 40. The Inspection Certificate attached to the STA certificate identifies itself as an inspection certificate about an aspect of building work identified as “Inspection – Pad Footing” at the applicant’s site. The building or structure is described as being “As per Proposed Building Design Details as stated within design Documents Project Job Number – 63174”. The components certified are described as “Pier location, depth, diameter”. The inspection date is 19 January 2005. The basis of certification, ie “the basis for giving the certificate and the extent to which tests, specifications, rules, standards, codes of practice and other publications, were relied upon” is as follows: “AS 1289.0-2000 Methods of testing soils for engineering purposes AS 1726-1993 Site Investigation Code AS 2870-1996 Classification of site in accordance with “Residential Slab & Footings” AS 3798-2007 Guidelines on earthworks for commercial and residential development BCA The building code of Australia -- 9 of 18 -- BD037-09 / Page 10 of 18 AS 1170.2-2002 Structural Design Actions – Wind Actions AS 3600-2009 Concrete Structures SAA Hb28-1997 The design of residential slabs and footings.” 41. The reference documentation is described as the design documentation produced by STA in “Project Job Number: 63174”. The certifier is Angelo Iancu, a registered engineer. 42. It is obvious that AS 3798-2007 and AS 3600-2009 were not in existence on 19 January 2005. Obviously the inspection certificate was produced at the time of the STA certificate, ie 19 May 2010. I take the references to the more recent Australian Standards to be intended to be references to the standards they superseded, namely AS 3798-1996 and AS 3600-2001. STA letter 2 June 2010, email and photographs 43. The STA letter of 2 June 2010 and the email of 2 July 2010 are from the managing director Justin Williamson, as an authorised representative of STA. In the letter, Mr Williamson describes the “’As Constructed’ as built foundations” as follows: “the entire strip footing onto which the timber floor section was set upon had been installed under the strip footing, footing piers to an average depth below surface level of 1100mm. “Additional piering had been installed at the corners of the bricked up retaining wall section in the garage area end to the front of the garage. “All piers and depths were documented by [STA] and photographed. “The suggestion that the foundations have not been founded within the natural stiff silty clay is incorrect. “… “In conclusion the foundation and dwelling are performing in accordance with performance standards outlined within Australian Standard AS 2870-1996.” 44. In the email, Mr Williamson states: “I have had a crew go to site to excavate and investigate the matter discussed with you. I can know [sic] confirm the following with impunity. 1. The strip footing was piered to a depth of 1100mm below existing ground level. 2. The piers are 350mm Dia. -- 10 of 18 -- BD037-09 / Page 11 of 18 Conclusion, the foundations are fully founded into the Natural Stiff Silty Clay. As per original design report. There is [sic] no issues pertaining to the structural integrity of the foundations. Please find attached photo‟s of “As Constructed” foundation piers.” 45. Each of the three photographs shows an excavation beside a concrete pier; one shows a tape measure indicating a depth of about 79cm or 31 inches; and another photograph shows a tape measure indicating a depth of about 108cm or 42½ inches. 46. The applicant, in his written submissions dated 8 October 2010, asserts that the email “evidences that the respondent and [STA] entered the site and conducting activities in private property without permission.” The applicant says this is “evidence obtained without permission.” He asks whether the tribunal accepts “evidence obtained via unacceptable or illegal conduct?” 47. There is no evidence before the tribunal that the respondent entered the site. The evidence is that STA entered the site. STA was commissioned by the applicant to prepare the STA 2004 report. Plainly, for that purpose, the applicant must be taken to have permitted STA to enter the site. Whether the more recent entry by STA to confirm that the work required by STA 2004 had been undertaken, as its inspection certificate attests, was within the scope of that earlier permission may be doubted. By then it appears STA was acting as an expert witness for the respondent. However, the tribunal is not the appropriate forum in which to determine the lawfulness of that entry. 48. As the applicant’s written submissions note, the applicant may have given STA permission to enter the site, had he been asked. The tribunal had directed on 30 July 2010 that the respondent’s expert be given reasonable access to the site to enable preparation of the expert report. This direction had anticipated 24 hours’ notice would be given to the applicant by email. 49. According to the applicant, his expert Mr Reid visited the site on 2 September 2010 with an excavator, excavated three pits and provided a further report, which the applicant received by 8 September 2010. That report and a further version of the report dated 29 September 2010 were attached to the applicant’s written submissions, dated 8 October 2010. In this way, the applicant has had a reasonable opportunity to call evidence in respect of the matters the subject of the STA evidence. 50. In all the circumstances, there is no good reason to exclude the evidence from STA. I do not intend to do so. -- 11 of 18 -- BD037-09 / Page 12 of 18 STA letter 1 September 2010 51. The STA letter of 1 September 2010 is from Mr Williamson, as an authorised representative of STA. It provides Mr Williamson’s comments on the 2007 letters from Baker Rossow and Reid. Mr Williamson states that these two reports “fail to correctly address the standard to which the “As Constructed” foundations have been built.” He repeated the comments made in the STA letter of 2 June 2010, extracted above. 52. Mr Williamson also noted the following statement in the Commentary to AS 2870-1996, under section 3, clause 3.1, paragraph (k), dealing with strip and pad footings on reactive sites: “The internal supports can be on deep stumps or grinded internal strip footings” stating that STA “designed the internal support using deep stumps (pad footings).” 53. Mr Williamson noted that all of the facts in the letter: “have been verified with an onsite investigation. At the time of the investigation [STA] exposed a footing pier at a corner position within the strip footing. This investigation verifies the existence of footing piers as originally documented but also the depth recorded.” 54. Mr Williamson concluded: “i. The foundations are designed in accordance with AS2870-1996 ii. They are constructed in accordance with the engineered design iii This has been verified by an onsite investigation. In closing this matter, we strongly make the following comments. There are no structural defects and the structure is performing in accordance with performance standards outlined within Australian Standard AS2870-1993.” 55. The eight photographs attached to the letter include the three photographs that were attached to the email of 2 July 2010. One of the further photographs is of another excavated foundation, showing a depth measured by tape at 1010mm. The other four are overview shorts of the building works above ground on the site. No joint expert report 56. The STA letter of 1 September 2010 was submitted to the tribunal following directions for the parties’ respective experts to confer and submit a joint report. The applicant’s experts did not participate in a conference with STA. 57. The tribunal’s direction of 7 May 2010 required the applicant to file in the registry and deliver to the respondent “any statements of evidence including expert reports by 25 June 2010”, and the directions of 30 July 2010 required -- 12 of 18 -- BD037-09 / Page 13 of 18 the parties to nominate their experts by 6 August 2010 and for the nominated experts to meet and prepare a joint report by 3 September 2010. On 25 August 2010, the applicant sought an extension of time to comply with the direction about the preparation of a joint expert report. The extension was refused by the tribunal on 26 August 2010. 58. According to his written submissions, the applicant did not nominate his expert, Mr Lindsay Reid of Reid Consulting Engineers, until 5 September 2010. It may be that he did so as early as 5 August 2010: see email of that date noted under the applicant’s evidence. The applicant says he did not receive Mr Reid’s expert report until 8 September 2010; the report is dated 3 September 2010. 59. The written submissions suggest that the applicant was unaware that the direction for a joint report had not been complied with until he attended a directions hearing on 10 September 2010. The applicant seeks to explain his default in this respect on the basis that he simply left matters to his expert. At that directions hearing, the tribunal did not make any further direction for a joint report or for the filing of any further expert evidence by either party. In an email attached to his written submissions, the applicant told his expert, Mr Reid, that the issue of the joint report “has been resolved and the Tribunal will deal with the matter by written submission only.” 60. Notwithstanding the absence of a direction, the applicant attached two reports by Mr Reid to his written submissions. These are considered below. The applicant’s material 61. The applicant’s written submissions are dated 8 October 2010. Attached to the submissions are five appendices: (a) Appendix A: part of email exchanges between the applicant and Mr Reid between 5 and 27 August 2010 and another email from the applicant to Mr Reid dated 14 September 2010. (b) Appendix B: another email exchange with Mr Reid of 8-9 September 2010, Mr Reid’s reports of 3 and 29 September 2010; (c) Appendix C: a letter from Baker Rossow dated 6 October 2010; (d) Appendix D: Sheets 1, 4, 5, 9, 10 and 11 of Building Plan 201/04 prepared for the applicant by Martin Design & Drafting, dated 27-30 July 2004; and (e) Appendix E: extracts of AS 2870-1996. 62. In addition, the applicant’s written submissions refer to his earlier written submissions dated 24 June 2010, which, in turn, refer to and attach a report of Baker Rossow dated 8 June 2007 and a report of Reid Consulting Engineers dated 22 October 2007. -- 13 of 18 -- BD037-09 / Page 14 of 18 Email exchanges August 2010 63. The email exchanges concern the provision of a joint expert report, as directed by the tribunal. They indicate that the applicant did advise the respondent that Mr Reid would be his expert on 5 August 2010. They also record that on 27 August 2010 the respondent’s solicitor expressed his client’s concern about the lack of contact between the experts about the joint report. The respondent’s solicitor also recorded: “It is my understanding that any fresh inspection should be carried out jointly by the engineers, and it should also proceed on the basis that there were variations to the design of the foundations from the Design Report dated 24th August 2004, before the initial pouring of the foundations were carried out in January of 2005, information that Mssrs, Baker Rossow did not ascertain or take into account, when they issued their original report dated 8th June 2007”. Reid 3 September 2010 64. Mr Reid’s report of 3 September 2010 records that he has extensive experience in the field of domestic footing and slab construction. He visited the site on 2 September 2010 for the purpose of further investigating the founding conditions and the depth of “fill” around the perimeter of the building. 65. For this purpose, under his own supervision Mr Reid had three test pits excavated adjacent to the perimeter of the existing footing system using a mini-excavator to expose the concrete work. He also conducted “pocket penetrometer” testing beneath the base of the footing system to establish the “Safe Soil Bearing Capacity” of the material upon which the footing system was founded at each test location. He documented the results of his investigation in the report, including a plan of the locations and a photographic record. 66. Mr Reid’s findings were set out as follows: “The most recent testing has established that the site was filled using up to 600mm of fill material beneath the immediate building area. The fill material was encountered to its maximum depth around the back right hand section of the proposed house (i.e. the North-Western section). In the two (2) locations where fill material was encountered, shallow bored piers were found to have been excavated below the base of the strip footing. The bored piers extended approximately 500mm into undisturbed natural ground and the base of the footing was founded onto the natural clay soils. (i.e. the footing system was founded at least 500mm into firm natural materials.) The strength of the soils upon which the bored piers and the strip footings were founded measure to be in excess of 350kPa in each location which was tested. -- 14 of 18 -- BD037-09 / Page 15 of 18 On the basis of the information obtained during our investigations at the three (3) test site we consider that there is no evidence to suggest that the founding conditions at the base of the “footing system” do not comply with either clause 6.4.3 (c) (i), Clause 6.5.2 (a) and or clause 6.5.2 (b) of AS2870-1996 – The Australian Standard Code for the Design of Residential Slabs and Footings. The fill material which has been placed above the natural site materials was observed to be of a nature which would fall into the category of “undercompacted fill” material.” Email exchange 8-9 September 2010 67. In an email exchange with the applicant on 8 and 9 September 2010, Mr Reid provided some short answers to additional questions the applicant posed. Of interest are those extracted below: “No compaction testing was used to measure the strength of the soil. (This was not considered necessary). “The footing system was founded on natural materials in the locations tested, this was accessed by visual appraisal when I was in the excavation. “[Test Pit No 2] The pier footing was integral with a strip footing therefore the footing system was embedded in fill material. “[Test Pit No 2] The footing system was founded onto materials with a measured bearing capacity at the test site which was in excess of 350 kPa.” 68. In this exchange, the applicant suggested to Mr Reid that the natural ground material to which his report referred was not “Natural Stiff Silty Clay”. Mr Reid rejected that suggestion. Reid 29 September 2010 69. Mr Reid’s second report, dated 29 September 2010, reproduces the text of his 3 September 2010 report and adds one further paragraph: “We have reviewed the contents of this firms‟ [sic] previous report dated 24th October 2007 and do not consider that there is any reason to alter the opinions previously stated in regard to the structural design of this footing system upon the basis of our most recent investigations.” 70. It is convenient to consider the earlier Reid Consulting report dated 22 October 2007 at this point. Reid Consulting 22 October 2007 71. In his written submissions dated 24 June 2010, the applicant had submitted that the engineering reports prepared by Reid Consulting and by Baker Rossow “provide clear cut expert evidence supporting every claim or particular item stated in paragraphs 13 to 21 of the re-pleaded statement of -- 15 of 18 -- BD037-09 / Page 16 of 18 claim filed in the Tribunal on 19 October 2010. The engineering reports speak for themselves and there is no need for further explanation.” 72. In his 8 October 2010 written submissions, the applicant contended that the Reid Consulting report dated 22 October 2007 “points out several pitfalls in the structural design of the footing system” and submitted that, together with the Baker Rossow report “emphasises that the footings are inadequate and cannot be certified as structurally acceptable.” 73. The 2007 Reid report contains the following statements: “It is outside the scope of this firm‟s current commission to investigate the strength of the fill materials which are situated towards the rear of the building area. “We consider the site classification provided by [STA] was correct except for the possible omission of a “P” from the classification. “We consider that the structural; design documented by Drawing No. 69174 by [STA] exhibits a number of structural design deficiencies which may potentially affect the ability of the Footing and Slab system to protect the building against the anticipated soil moisture related effects. “Although AS2870 does not specifically require that internal stiffening beams incorporated into footing systems are provided at points of discontinuity in isolated footings, it is nevertheless this form‟s opinion that the omission of such beams represents poor structural design practice and that such an omission does not provide a footing system which will protect the building against the action of soil moisture related movements to an acceptable standard.” 74. The report identified two particular issues with the design: a lack of structural continuity at numerous locations in the perimeter footings; and the lack of adequate continuity in the reinforced concrete beams connecting the garage and the main house sections of the footing system. 75. It is clear that these opinions concern the design and not the foundations as they were constructed. It is also clear that the report does not allege a failure to comply with AS 2870; rather it is critical of a failure to include additional structural continuity elements in the design, which are not specifically required by the standard. 76. Having regard to the opinions subsequently expressed by Mr Reid about the foundations “as constructed”, these opinions are not sufficient to establish the applicant’s claims in paragraphs 13-21 of the re-pleaded statement of claim. Baker Rossow 6 October 2010 77. The letter from Baker Rossow dated 6 October 2010, which the applicant attached to his written submissions is brief, with only the following content: -- 16 of 18 -- BD037-09 / Page 17 of 18 “Further to previous discussions regarding the foundations for the above project, The Foundation Design Report by [STA] – Project 63174 states on page 3 under „Site Preparation‟ that „Any fill should be placed to a dry density ration of 95% Standard AS 1289 5.1.1‟ If you have any questions relating to this proposal, you may contact Mr Michael Ryan of this office.” 78. This does not amount to evidence of any expert opinion that could assist the tribunal in determining the claim. Between the quotation from STA 2004 and the invitation to contact Mr Ryan, there is a large space about seven lines in depth. If there was ever any additional text in this space, it has been redacted. Baker Rossow 2007 79. The earlier report of Baker Rossow is dated 8 June 2007. It refers to Sheets 1, 4, 5, 9, 10 and 11 of Building Plan 201/04 prepared for the applicant by Martin Design & Drafting, dated 27-30 July 2004. 80. Like the letter of 6 October 2010, the 2007 Baker Rossow report also consists, largely, of quotations or summaries of parts of STA 2004. It is not apparent from the report that its author, Mr Glen Adams, claims any expertise in footing and slab design. Rather the report seeks to locate the design recommended in STA 2004 in the context of the land contours shown on sheet 1 of the drawings by MD Martin Design and Drafting, conduct a theoretical “test” of the design against the stated requirements in STA 2004 on the basis of “levels” taken “on top of the edge beam footings on the western and rear side of the house” judged against the soil testing information in STA 2004. 81. In other words, the report assumes the natural land contours were as depicted by the Martin Design sheet 1, assumes the soil test data in STA 2004 applies across the site and assumes the foundations were constructed in accordance with the STA 2004 design. 82. On the basis of these assumptions, the report concludes that the footings “are inadequate and can not be certified as structurally acceptable.” 83. The last of the Baker Rossow assumptions is no longer necessary. The tribunal has the evidence of STA and Mr Reid to establish that the foundations were constructed in a manner that departed from the design in STA 2004, complies with the relevant clauses of AS2870-1996 and has been certified. In this respect I accept the evidence of Mr Williamson of STA and Mr Reid of Reid Consulting. Given the assumptions on which it is based, I decline to make any finding based on the opinion of Baker Rossow. Gillam Homes 84. Among the papers filed by the applicant on 24 June 2010, was a quote for construction of a residence on the applicant’s land. It was prepared by -- 17 of 18 -- BD037-09 / Page 18 of 18 Gillam Homes and is dated 8 February 2008. The quote includes the cost of removing the current brickwork and footings, levelling and compacting the site. The total price is $310,200.00. This is the basis for the applicant’s claim in paragraph 27 of the statement of claim. Given the findings I propose to make with respect to the applicant’s claim, it is not necessary to consider the quote further. Finding 85. Having considered all the evidence submitted by the parties and the extensive written submissions filed by each, for the reasons set out above, I have concluded that the applicant has failed to establish, on the balance of probabilities, that the respondent’s building work in constructing the foundations for the house was defective. It follows that I find there has been no breach by the respondent of any relevant condition or warranty in the contract to that effect and no breach of any relevant duty of care. Costs 86. The respondent seeks an order that the applicant pay its costs of the proceeding in the tribunal and in the former tribunal. The respondent also seeks an order that the applicant pay its costs in proceeding BD120-08 in the former tribunal. 87. The tribunal may exercise a power to award costs under paragraph 77(2)(h) of the QBSA Act. The general costs provisions in Chapter 2, Division 6 of the QCAT Act is not an impediment to the exercise of this power. 88. The applicant’s claim was a considerable one, in value. He sought damages of $148,200.00 and an order for the repayment of $9,250.00. The applicant also sought an order that the respondent pay his costs of and incidental to the application. 89. It was appropriate that the respondent prepare to meet this claim with the benefit of legal advice and expert evidence. No doubt, in this effort the respondent incurred significant costs. 90. In the circumstances, the respondent ought to recover its costs of successfully defending against the applicant’s claim. In this case the interests of justice require it. Those costs logically include the costs incurred in defending in proceeding BD120-08, as the applicant has conducted this proceeding as if it were a continuation of that earlier proceeding. Orders 91. The orders of the tribunal will be that the application is dismissed, that the applicant is to pay the respondent’s costs of and incidental to the application to be assessed in accordance with the District Court Scale, and that the applicant is to pay the respondent’s costs of and incidental to application BD120-08 to be assessed in accordance with the District Court Scale.. -- 18 of 18 --