Actell Glass Pty Ltd v MKM Group Pty Ltd & Anor [2010] QCAT 62

CITATION: Actell Glass Pty Ltd v MKM Group Pty Ltd & Anor [2010] QCAT 62 PARTIES: ACTELL GLASS PTY LTD V MKM GROUP PTY LTD AND MLADEN MICHAEL KLJAIC APPLICATION NUMBER: BD445-07 MATTER TYPE: Building Matters HEARING DATE: 07.09.09, 08.09.08, 09.09.09, 10.09.09 and 17.09.09 HEARD AT: Brisbane DECISION OF: Mr Paul Favell DELIVERED ON: 16 March 2010 DELIVERED AT: Brisbane ORDERS MADE: The Tribunal orders the second respondent to pay $120,693.08 ($95,414.44 plus $25,278.64) to the applicant by 4pm on 2 April 2010. CATCHWORDS: Domestic Building Contract- defective work- variations- APPEARANCES AND REPRESENTATION: Mr M. Ambrose of Counsel instructed by TVP Law for the first and second respondent. Mrs W. Csukardy director of the applicant. -- 1 of 39 -- REASONS FOR DECISION Introduction 1. On or about 31 November 2006 the applicant, Actell Glass Pty Ltd (“Actell”), and the first respondent, MKM Group Pty Ltd (“MKM”), agreed in writing that Actell would supply and install glazing and related products at a residential property at 95 Gibraltar Drive, Isle of Capri for $89,650.00 plus GST. 2. The applicant contends that the agreement was constituted by plans provided by the second respondent, Mr Michael Kljaic (“Kljaic”), to Actell in or about October 2006 a revised quote submitted by Actell to MKM on or about 13 November 2006 and an acceptance from MKM to Actell dated 1 December 2006. Factual Background and Claims 3. The applicant is in the business of supplying and installing glass windows, doors and related framing. The first respondent is a builder and the second respondent is the director of the first respondent. 4. In or about late November 2006, the applicant and the first respondent entered into a ‘Housing Subcontract Agreement’ in standard QMBA form (as it was in May 2005) to carry out certain works for an agreed contract price of $98,615.00 (GST inclusive) at a property located at 95 Gibraltar Drive, Isle of Capri situated on the Gold Coast. The Principal to which the first respondent had contracted was the Kljaic Family Trust and it is not in contest that there was a formal written contract in that regard. 5. The written subcontract agreement between the first respondent and the applicant is dated November 2006. 6. The applicant seeks to hold the second respondent responsible for any liability of the first respondent under the contract by reason of the guarantee forming part of a credit application. The applicant contends that Kljaic guaranteed the obligations of MKM under the agreement. 7. The applicant contends that it commenced installing the products in the week commencing 5 February 2007. 8. The applicant contends that variations totalling $64,873 plus GST were requested. The applicant contends that on or about 31 May 2007 it completed the works and the variations. 9. The applicant has been paid $9,861.50 in respect of invoice 46228 (progress claim 1) and $22,305.36 in respect of invoice 46263 (progress claim 2). Otherwise claims for payment of $79,359.94, $41,618.50 and $16,830.00 have not been paid. (progress claim 3 and variations 5 and 6) -- 2 of 39 -- Applicants claim 10. The applicant claims $137,808.44 together with interest at the rate of 10% per annum from 31 May 2007. In written submissions that claim was put at $180,324.42. Associated costs of $28,066.93 (which were made up of legal costs, application costs, costs of reports and witness expenses) were also claimed and a sum of $250,000.00 “restitution” was claimed but later abandoned. Respondent’s response and counterclaim 11. In response to the applicants claim the first respondent says it is not indebted to the applicant and makes a counterclaim. 12. The first respondent counterclaims that the glazing works required to be carried out by the applicant under the agreement: (a) are not practically complete; (b) were not carried out in a proper and tradesmen like manner; (c) were not carried out in accordance with the plans and specifications as required under the Agreement; and/or (d) were not carried out in accordance with Australian Standards. 13. The first respondent further claims that substantial rectification and reconstruction works are / were required to be undertaken to complete the glazing works in accordance with the agreement as set out under the item numbers below. Item 1: Front door 14. The first respondent claims that the existing front door installed by the applicant does not comply with the Australian Standard AS 1288, 2006. 15. MKM claims that the door is required to be removed and reinstalled with 15mm toughened glass. 16. MKM also claims that the fixed glass panel beside the door has not been sealed in place and requires sealing. Item 3: Stacker sliding door frame alignment with windows above in courtyard 17. MKM claims that the applicant has failed to align the vertical mullions of the “stacker” sliding dors in both locations in the Courtyard off the formal lounge with the vertical mullions of the fixed glass windows coupled above the sliding doors. 18. MKM claims that the horizontal transoms in the fixed sashes of the courtyard/corridor high light windows do not align and that there are signs of water ingress. -- 3 of 39 -- 19. MKM claims that the existing frames are required to be removed and new frames manufactured and installed. Item 4: Tops of Stacker Sliding Door Frames in Courtyard incomplete 20. MKM claims that the applicant failed to fit finishing plates with a purpose- made stop which has left an open section at the top of the end plate of these frames. 21. It is claimed that finishing plates are required to be fitted. Item 5: Office Sliding Door 22. MKM claims that the applicant failed to fit the handle on the external face of the closing mullion. 23. MKM further claims that the applicant failed to fit the top of the door with interlocking blocks, stop blocks and end caps to the stop blocks. 24. It is claimed by MKM that the applicant failed to remove excess sealant used in the frame/wall junction. 25. MKM claims that these works are required to be completed. Item 6: Dining Room Sliding Door 26. MKM claims that the head margins between the cover plates and the door frame are not parallel and require straightening to achieve even/parallel margins. Item 7: Laundry Sliding Door Frame 27. MKM contends that the applicant failed to fit the cover plate to the right-hand end stile of the sliding door correctly which has resulted in a large gap at its head. 28. MKM claims that the applicant failed to clean excess sealant used on the frames at the wall junctions. Item 8: Rear Hopper Window 29. MKM claims that the lower section of the hopper window shows an ”out of parallel” against the sill section of the frame when in the closed position and requires rectification. Item 9: Fixed Window at Rear Elevation 30. MKM claims that visible calcium staining was left at the coupling bar along the sill section as a result of water being trapped in the extrusion and weeping out via the joint. 31. It says this requires rectification as well as reinstating the damage to the face of the aluminium. -- 4 of 39 -- Item 10: Kitchen Sliding Door 32. MKM claims that the applicant installed an incorrect sill profile to the sliding door which does not allow water to drain externally. 33. The sill is required to be replaced with the correct extruded section. Item 11: Family Room Window and Door Stiles do not line up 34. MKM claims that the applicant has failed to align the sliding door frames to the rear elevation of the family room with the mullions of the window/wall section directly above. 35. It is claimed that the existing frames are required to be removed and new frames manufactured and installed. Item 12: Family Room “Stacker” Sliding Doors 36. MKM contends that the applicant has cut the tops off each stiffening vertical mullion in the sliding doors at differing heights and at differing angles. 37. It is contended that this defect applies to every door set throughout the dwelling. 38. MKM claims that the applicant has poorly placed a screw fixing adjacent to one of the handles of this “stacker” sliding door which has protruded out through the side of the closing mullion. 39. The mullions of this “stacker” sliding door do not correspond in vertical alignment with the mullions of the window joinery directly above. 40. It is claimed that the existing frames are required to be removed and new frames manufactured and installed in order for these defects to be rectified. Item 13: Cantilevered Bedroom Windows 41. MKM contends that the windows installed by the applicant leak water and require wet sealing to stop water penetration. Item 14: Gym Sliding Door 42. MKM submits that the door is prevented from fully engaging into the jamb by a “D” type door handle that hits the frame when the door is closed. 43. It is claimed that the correct door stops have not been installed to prevent the handle hitting the frame. Item 15: Automatic-Opening Garage Sliding Door 44. MKM claims that glazing panels to the head of the frame installed by the applicant have not been fully completed in the beading area which work requires completion. Item 16: Master Bedroom Windows and Doors -- 5 of 39 -- 45. MKM asserts that the lever handles to the hopper sash windows in this room supplied and installed by the applicant are black coated units which are inconsistent with the rest of the house (where clear anodised units are installed) and should be changed. 46. MKM claims that the applicant has failed to install “interlock” blocks and the correct door stoppers. 47. It is claimed that removal of the face fitted door stops installed by the respondent will need repair as screw fixing holes will be left when the proper stoppers are fitted. Item 17: Daughters Bedroom Windows 48. MKM asserts that the lever handles to the hopper sash windows supplied and installed by the applicant in this room are back coated and inconsistent with the rest of the house (where clear anodised units are installed). Item 18: Nursery Stacker Sliding Doors 49. It is claimed that the applicant has failed to fit the external door handles causing the door to be difficult to operate from the outside. 50. The applicant has also failed to fit integrated door stops designed to match the joinery in this room. Item 19: Roof Top Terrace 51. MKM claims that the joins in the sill sections and the head sections of the “stacker” sliding door frame to the rear elevation of the roof top terrace are out of alignment and not flush. 52. The vertical stiffening mullions on these “stacker” sliding doors have been trimmed in length (on site) by the applicant and MKM submits that the finish at their top is uneven and cut on differing angles. Item 20: Stacking Sliding Door System corresponding with a defect identified by Gary Holmes, Branch Manager in the report and quotation of G. James Glass & Aluminium dated 13 January 2009]. 53. The stacking sliding door systems installed by the applicant at the premises were generally installed back to front. 54. Presently these stacking door systems all slide internally leaving exposed weep holes and air pressure holes. 55. It is submitted that in order to rectify this defect the door systems should be reversed so that the doors slide externally and the door threshold will cover the weep holes and air pressure holes. Item 21: various remaining defects identified in the Report of Robert A Hancock & Associates (not including Items 1 to 20) -- 6 of 39 -- 56. The costs to undertake the rectification and reconstruction works as estimated by Gary Holmes Branch Manager for G James Glass & Aluminium in his report and quotation dated 13 January 2009 are as follows: Item Number(s) Item Description Cost GST Total 1 Front Door $5,025.00 $502.50 $5,527.50 3, 11 and 12 Stacker Sliding Doors Frame Alignment: - courtyard frames - canal front frames $18,840.00 $14,200.00 $1,884.00 $1,420.00 $20,724.00 $15,620.00 10 & 20 Stacking Sliding Door Systems $6,600.00 $660.00 $7,260.00 13 Cantilevered Bedroom Windows $2,400.00 $240.00 $2,640.00 4, 5, 6, 7, 8, 9, 14, 15, 16, 17 and 18 “various items” $4,850.00 $485.00 $5,335.00 $51,915.00 $5,191.50 $57,106.50 57. The first respondent claims against the applicant the full costs of the rectification and reconstruction works ($57,106.50) as a debt due by the applicant to the first respondent. 58. The first respondent also claims, as against the applicant, liquidated damages at $500.00 per day, for each day after the date for completion of the glazing works in accordance with clause 2 of the Agreement. The first respondent asserts that the date for practical completion was, as agreed, on or about 5 March 2007. 59. The first respondent also claims as against the applicant the following additional costs (trade costs) incurred by the first respondent as a direct consequence of incomplete works, delay in completion of works, the applicant’s re-fitting of window frames and failure by applicant to carry out the works in a proper and tradesman like manner: (a) External rendering $11,600.00 (b) Scaffolding for an extra six (6) weeks $11,827.20 (c) Mobile scaffolding $ 2,304.94 -- 7 of 39 -- (d) Waterproofing work to windows $ 2,560.00 (e) Protection of bottom window sills $ 2,425.50 (f) Labour to clean site (2 days total) $ 600.00 (g) Cleaners $ 300.00 (h) Gold Coast Door Control $ 3,245.00 (i) Commercial Windows Qld $ 2,574.00 (j) Commercial Windows Qld $ 3,498.00 (k) Unique Carpet Care & Pest Management $ 1,452.00 $42,386.64 60. Following the rectification and reconstruction works required as itemised above, the first respondent estimates that additional trade costs will be incurred by the first respondent to effect repairs required to the window and door surrounds as follows: (a) Re-tiling around doors and windows $ 7,000.00 (b) External and Internal rendering $12,000.00 (c) Gyprock (plasterboard) $ 2,500.00 (d) Painting $ 1,200.00 (e) Waterproofing $ 2,000.00 (f) Scaffolding for 4 weeks for rendering and gyprock work $11,500.00 (g) Cleaning $ 2,000.00 $38,200.00 61. The first respondent contends that in or about December 2007, water leaks appeared in the ceiling of the family room of the premises at the Gibraltar Site. The first respondent asserts that the source of the water leak was the tracks of the sliding glass doors of the upper level roof terrace of the premises (“the tracks”). 62. The first respondent claims that the tracks, as installed by the applicant, had been fitted in such a manner that the external upper edge of the tracks was higher than the internal upper edge of the tracks. It is claimed that this manner of installation inclined water to flow away from the drain hole in the external side of the track and flow back into the mortar bed underneath the tracks. -- 8 of 39 -- 63. The first respondent asserts that the installation of the tracks and generally the installation of the frame of the glass doors of the roof terrace caused water to ‘pond’ and flow into the mortar bed of the premises, rather than through the drain hole in the side of the track. 64. It is also submitted that the tracks had a saw cut in the base that also allowed water to flow freely into the mortar bed. 65. The tracks (sills) installed by the applicant had a vertical structure/fin underneath the track. It is claimed by the first respondent that when the tracks had been installed by the applicant, this vertical fin had been forced hard down into the waterproof membrane causing it to rupture. 66. The first respondent claims that from the mortar bed, the leaking water permeated the ruptured membrane and made its way through the concrete slab into the family room below. 67. The first respondent claims that in December 2007 and in around July 2008 rectification works were required to be undertaken by the first respondent and its sub-contractor All Metal Works Pty Ltd to repair the damage caused by the water leaks and to remove and reinstall the glass, window and door frames. 68. It is claimed that the rectification worked undertaken by the first respondent in December 2007 included: (a) Jack hammering tiles to top floor balcony (b) Re-waterproofing, re-bedding, re-tiling, re-sealing new tiles (c) Moving furniture and erecting scaffold (d) Removal of all panels and bulkhead (e) Removal of damaged plasterboard (f) Cut through Bondec to determine source of leak (g) Replacement and re-installation of damaged plasterboard (h) Re-painting (i) Re-installation of down lights (j) Dismantling scaffold (k) Cleaning of site and moving furniture 69. The rectification works undertaken by All Metal Works Pty Ltd in July 2008 included removal of glass and window and door frames to top level of house and the re-installation of complete system. 70. The cost of the repairs undertaken by the first respondent was $16,500.00 71. The cost of repairs undertaken by All Metal Works was $36,062.40. -- 9 of 39 -- 72. The first respondent claims that the installation of the tracks and generally the installation of the frames of the glass doors of the roof terrace undertaken by the applicant under the Agreement was not carried out: (a) In a proper and tradesman like manner; (b) In accordance with the plans and specifications as required under the Agreement; and/or (c) In accordance with Australian standards. 73. The first respondent claims against the applicant the costs of the rectification works required to repair the damage caused by the water leaks at $52,562.40. The First Respondent’s Second Counterclaim – the Calabro Way Site 74. In or about July 2006, the parties entered into a Commercial Subcontract Agreement for the supply and installation of windows and doors in commercial units located at the Calabro Way Site (“the Calabro Way Agreement”). 75. The first respondent asserts that in so far as the Calabro Way Agreement was in writing it is evidenced by the following: (a) A revised quotation from Actell to MKM dated 7 June 2006; and (b) A Commercial Subcontract Agreement signed by Actell on 7 June 2006 and signed by MKM on 10 June 2006. 76. The scope of the works for the Calabro Way Agreement was supply and installation of wall commercial windows and entry doors all in accordance with plans, specifications and revised quotation 4 dated 7 June 2006 (“the Calabro Way Works”). 77. The price of the Calabro Way Works was $99,560.00 plus GST. 78. The first respondent asserts that it was a condition(s) of the Calabro Way Agreement that the Calabro Way Works be undertaken: (a) Pursuant to the terms of the Commercial Subcontract Agreement; (b) In accordance with the plans and specifications; (c) In an appropriate and skilful way; (d) With reasonable care and skill; (e) In a proper and workmanlike manner; and (f) To the satisfaction of the applicable Australian standards. 79. In accordance with the Calabro Way Agreement, and from or about August 2006, Actell undertook the Calabro Way Works. -- 10 of 39 -- 80. All monies invoiced by Actell to MKM in respect of the Calabro Way Works were paid by MKM. 81. The first respondent asserts that the Calabro Way Works are defective as the windows and doors installed by Actell at the Calabro Way Site are not properly sealed and leak water. 82. Accordingly, the first respondent asserts that the Calabro Way Works were not undertaken by Actell: (a) Pursuant to the terms of the Commercial Subcontract Agreement; (b) In accordance with the plans and specifications; (c) In an appropriate and skilful way; (d) With reasonable care and skill; (e) In a proper and workmanlike manner; and/or (f) To the satisfaction of the applicable Australian standards. 83. The first respondent asserts that work is required to fix the water leaks and that, despite demand, the applicant has failed or refused to attend the Calabro Way Site to rectify the water leaks. 84. The first respondent claims against the applicant payment of the sum of $20,639.30, being costs of undertaking the rectification work required at the Calabro Way Site. 85. In all, the counterclaims amount to $190,255.54 plus liquidated damages. Reply and answer 86. In response to the defence of the respondent, the applicant claims: (a) The matters alleged at paragraphs 1-12 inclusive, 16 of the Defence are irrelevant to the determination of these proceedings; (b) In relation to paragraph 14(b), the works commenced in the week commencing 5 February 2007; (c) In relation to paragraph 15(d), the Statutory Declaration referred to is not attached to the defence served on the applicant; (d) The admissions both express and implied in the defence are adopted; (e) The matters contained in the applicant’s Statement of Claim are otherwise repeated and adopted. 87. In answer to the counterclaim of the respondent, the applicant claims: (a) In relation to the work performed by the applicant at the Gibraltar Drive, Township Drive, Lemana Lane and Calabro Way sites, the -- 11 of 39 -- work was not defective in the manner alleged by the respondents or at all except as identified in the report of Jeffrey Hills & Associates dated 4 July 2008 filed in these proceedings (I note only the Calabro Way counterclaim is pursued by the respondents); (b) In relation to paragraphs 20 and 21 and the costs of rectification works identified in the report of Robert A Hancock & Associates dated 2 July 2007, those costs are not referable to any breach of contract, negligence or other legal liability of the applicant and further, those costs are unreasonable to attend to the defects alleged by the respondents; (c) In relation to paragraph 24: 1. the contract did not contain a provision for the payment of $500.00 for liquidated damages; 2. the contract was not subject to practical completion by 5 March 2007 or any agreed timetable at all and further, the respondents required numerous variations to the original contract which could not have been completed by 5 March 2007 in any event. (d) In relation to paragraphs 25 and 26, the amounts claimed are unreasonable and the need to incur any such cost is not referrable to any breach of contract, negligence or other legal liability of the applicant to the respondents; (e) In relation to paragraphs 27 to 37, any leaks in the ceiling alleged by the respondents are not referrable to any work performed by the applicant and the works referred to in paragraphs 28 and 29 allegedly causing the leaks were performed by the respondents, not the applicant; (f) In relation to the allegations in paragraph 13, there was no failure or refusal to attend the Township Drive site to rectify any water leaks; (g) In relation to the cost of rectification of alleged defective works contained at paragraph 14 on page 7, the amounts claimed are unreasonable and the applicant relies on the report of Jeffrey Hills; (h) In relation to the allegation in paragraph 22, the works at the Lemana Lane site were not defective and relies on the report of Jeffrey Hills (I note this claim was not pursued by the respondents); (i) In relation to the costs of defective repair work alleged at paragraph 30, the costs alleged are unreasonable and relies on the report of Jeffrey Hills; -- 12 of 39 -- (j) In relation to the allegation at paragraph 42, it did not perform any defective work at the Calabro Way site; 88. In relation to the costs of repair works claimed at paragraphs 46 and 47, the amounts claimed are unreasonable and relies on the report of Jeffrey Hills Evidence 89. The Applicant relied upon the evidence of Jeffrey Hills (ex 1), Jack Perovic (ex 4), David Snow (ex 6), Ken Elsdon and Robert Csukardy (ex 7). 90. The respondents relied upon the evidence of Michael Klaic (exs 8 and 9), Bevin Sim (exs 12 and 13), a quote from G. James (ex 15), Robert Hancock (exs 16 and 17), Josip Brkic (ex 18), Troy Aherns, Leslie Simmons (ex 19, Davor Erceg (ex 20) and Alan John Herbert (ex 21) as well quotes from Commercial windows (Mr Van Hoven) (exs 22 and 23), a report from BSA (ex 11) and various photos. 91. The Tribunal also had a joint experts report (ex 2). 92. As well as the issues outlined above some matters arose or we emphasised during the hearing. They included: the extent of the contract; was there a construction timetable?; were there any remedies for delay?; were variations made and if so how?; did defects or mistakes attributed to the applicant cause other matters to be rectified?; were the applicants responsible for the leaks?; was a steel beam required?; is there any common ground from the experts?; were the applicants banned from the site and if so when?; was any lock out reasonable and a breach of contract?; did the applicants delay and if so did they breach the contract?; was the motor commissioned and was it faulty? and was the water proof membrane in tact when the windows were put in?. 93. David Snow, a director of the applicant whose statement became exhibit 6 gave evidence and was cross examined. His evidence establishes the credit application and the contractual documentation relied upon. During his evidence he pointed out clauses 2a and 2b of the subcontract which refer to the start and completion of the work. He pointed out that although the words “as per construction programme” were used there was no construction programme. 94. The works to be carried out under the subcontract which was between the applicant and the first respondent was described in the subcontract as “supply and install Aluminium commercial windows and doors to the above project all in accordance with plans specifications and quotation (revised) 13- 11-06 including clear anodised frames blue glass” (ex 5 to exhibit 6). Matters Raised by the Applicant 95. The applicant relies on the report of Jeffrey Hills (“Hills”). Mr Hills commented on the report provided by the BSA. Much of that report was as observed by Hills. The applicant outlines the main points therein as follows: -- 13 of 39 -- (a) Hills described in detail how the roof top leak could have occurred due to differential shrinkage of the slab. He drew it on the white board (Exhibit 5). Hills gives a written explanation on page 11 and 12 of Exhibit 1 of the problems and issues he had with Hancock’s report (Exhibit 17) regarding the leak to the roof terrace. One of the points he makes is ‘I am concerned that the conclusion reached by Hancock may be construed as slightly biased and not that of an independent observer given the available evidence’; (b) Hills agreed in his oral evidence that the house was only Certified for two levels, but Kljaic built a third level enclosed roof terrace that was not on the certified plans; (c) Hills confirmed that the front entry door complied with 1288-2006 Australian Glass and Glazing Standards; (d) Hills gave a costing to re-align the stacker door mullions with the fixed windows above as $1,500.00 per opening. There are three openings in the house; (e) Hills said it was unnecessary to remove the roof-top terrace doors, fixed glass and frames; (f) Hills said the waterproofing was the responsibility of the builder and the area under the sill becomes saturated due to seepage through the tile bed. A cut in the sill would not have caused water to leak through the roof; (g) The respondent’s costing to remove the roof terrace doors was $36,036.00. Hill’s costing was two men for two days at $45.00 an hour = approximately $1,500.00, including one extra day for contingencies the total max cost was $2,250.00. He said the respondent’s invoice was unrealistic; (h) Hills said $2,500.00 for a door lock was excessive; (i) Hills stood by his costing of $6,000.00 to complete the work recommended by the BSA report; (j) Hills noted that Hancock failed to raise at the expert’s conclave items that he perceived to be defective in his first report in July 2007; (k) Hills stood by his statement relating to Kljaic’s admission to him that a plank was placed on the window sill by external workers and hence causing the damage; (l) Hills confirmed the opening for the dining room sliding door was the responsibility of the builder to ensure it was square; (m) Hills confirmed that a window schedule was not provided and that had one been provided, doubt over the sliding door aligning with the fixed window above may not have happened. Actell complied with industry standards; -- 14 of 39 -- (n) Hills confirmed he had not seen a head contract; (o) On the day that Hills attended the Calabro Way site, it was raining and he only saw evidence of water leaks on 3 windows. He said this could be repaired with a tube of silicone and a ladder. With regard to Hancock’s report, the applicant asserts: (p) Hancock did not notice that the Approved Building plans were only for a two storey house when a three storey house was actually constructed; (q) The Housing Subcontract Agreement Hancock refers to did not match the quotes he was given and he failed to mention this is his report; (r) The formula based on the ‘rate per square metre of glazing to be replaced similar to the original rate per square metre for the cost to install the glazing’ was based on an incorrect document; (s) The quote prepared for the three storey residence upon which the contract was formed had more square metres than the first two quotes dated 3 October 2006 and 23 October 2006 and a different price. Hancock’s calculation of price per square metre for installation was incorrect and, consequently, his quote for $45,000.00 to $50,000.00 was incorrect; (t) Mr Jack Perovic (“Perovic”) also disputed the defect list; (u) The report of Jeffrey Hills (“Hills”) found: i. That to ‘rectify and replace the necessary works to comply with the requirements of the BSA summary would be of the order of $6000 plus GST. The costings by Hancock are considered commercially unrealistic’ ii. The conclusion reached by Hancock may be construed as slightly biased and not that of an independent observer given the available evidence; iii. Hancock failed to raise at the expert’s conclave items that he perceived to be defective in his first report in July 2007; (v) The saw cut that allowed water caught in the track on the roof to flow freely into the mortar bedding beneath the track and make its way through the damaged section of the waterproof membrane and through the concrete slab to the room below was not there when Hancock did his first report. Hancock admitted that the cut was not mentioned in his first report. Hancock agreed that this cut was visible. Even though Hancock considered the cut serious enough to put in his later report, it had not been fixed nearly a year later. 96. With regard to Kljaic’s Statutory Declaration, the applicant asserts: -- 15 of 39 -- (a) The conversation at the signing of the contract between Kljaic and Mr Elsdon did not happen as alleged because Mr Elsdon testified that the contract was signed by the parties separately via post. This was confirmed by the letter dated 1 December 2006 and the signing dates on the subcontract agreement, which are four days apart; (b) There was no agreement made to pay for window protection because Mr Brkic testified that he commenced work on site on 19 March 2007 and rendering could not be done before the windows were installed; (c) The glazing work begun in late February 2007 to early March 2007 because Mr Brkic testified that he commenced work on site on 19 March 2007 and rendering could not be done before the windows were installed. This is further evidenced by Mr Stibbard’s invoice stamped and dated 9 March 2007 and the fact that Kljaic agreed that he had to have seen the frames or sills installed to then make contract with Mr Stibbard and organise the window protection work; (d) Kljaic’s constant threats of $500.00 a day liquidated damages were not reasonable as there was no construction schedule on which to base the claim. This was confirmed by Mr Snow and Mr Elson’s oral testimonies; (e) Kljaic’s claim that he was not happy with the work the applicant was doing on site is illogical considering that he signed DS attachment 22; (f) Kljaic changed his story by first denying that the applicant was on site in February 2007 and then asserting that he did not think that 10% of the work had been done in February when questioned by the applicant as to why he sent the facsimile dated 12 March 2007; (g) Kljaic relied on the facsimile dated 12 March 2007 to comply with item 4cii of the Subcontract Agreement. The applicant questions why, given the importance of the document, Kljaic failed to include this document with his Exhibit 8 Stat Dec- Index of Correspondence and make reference to it in his Statutory Declaration; (h) Kljaic failed to include in his Statutory Declaration the facsimile dated 12 March 2007 sent to him by Actell and when questioned by the applicant, gave an explanation of how his accounts department must not have received it before the end of the month and if they had he would have paid it; (i) Kljaic’s claim that he responded immediately to the claim that there were overdue accounts is untrue. The account was first brought to his attention on 12 March 2007 and he failed to respond to his overdue account until 22 March 2007; -- 16 of 39 -- (j) Kljaic signed a personal guarantee on a Credit Application and, in particular, paragraph 3 under the Terms of Payment meant that the Facsimile dated 12 March 2007 could be considered as though the applicant’s were in anticipation of him breaching the contract. Thus, MKM being overdue on an account on a previous job affected this contract; (k) Kljaic’s statement that ‘not one single piece of aluminium window was fixed into the house at that time’ was untrue because the applicant proved that it was on site at that time, installed and delivered the material. This was evidenced by Kljaic paying the account on 4 April 2007 even though Kljaic stated that he only paid the account to keep the peace; (l) Kljaic only paid 10% of the account because TVP Law advised him to do so. The applicant asserts that this is evidenced by the numerous facsimiles from Kljaic to TVP Law on 3 April 2007; (m) Kljaic did not pay the applicant’s account in time because his account was in overdraft, as evidenced by Kljaic’s bank statements in Exhibit 8; (n) Kljaic’s denial that the steel beam was installed in accordance with the original plans because the transom, used to install a single 5.9 meter floor to ceiling glass like curtain, wall would be in the way of the rolling automatic curtains is untrue and he did authorise the variation. The series of events surrounding the installation of the steel beam and evidence provided by Perovic are correct. Mr Perovic and Mr Elsdon both testified that the job at Calabro Way was not the same application as the Gibraltar Drive job. Calabro Way was fixed glass and a hinged door. Gilbraltar Drive was fixed glass and stacker doors. Mr Elsdon denied saying that he could do the same works on the Gilbraltar Drive site as he did at the Calabro Way site; (o) Delays in the project were due to Kljaic requesting changes. This is evidenced by Perovic’s statement which, the applicant asserts, has shown to be reliable; (p) Kljaic’s statement is unreliable because he initially says in Exhibit 8 para 68 that the meeting on site on 27 April 2007 was with Mr Snow only, but changes in Exhibit 9 para 25 say that Mr Robert Cskardy was there. The applicant submits that Snow gives an accurate account of the meeting on site on 27 April 2007. This is confirmed by Mr Csukardy’s testimony and statement; (q) Kljaic’s assertion that ‘vertical mullions in the floor to ceiling glass walls and the void panels did not line up’ would not have existed if Kljaic had supplied a window schedule to the applicant. Hill’s report responds to Kljaic’s statement by stating ‘as there was no specification or details contained in the plans the contractor has adopted industry standard and made the doors uniform. By -- 17 of 39 -- default however as the door mullions are larger than the windows above, the framing does not align’; (r) Kljaic admitted in testimony that he forwarded a defect list to his solicitors, TVP Law, but not to the applicant despite constant requests. The applicant asserts that this was in breach of paragraph 17b of the Contract; (s) Kljaic admitted in testimony that did not follow 18b of the Contract which states that ‘if conciliation in accordance with Condition 18(a) is unsuccessful, then a domestic building dispute must be referred to the Queensland Building Tribunal for resolution’; (t) Kljaic’s statement that ‘in the second week of June 2007 I had instructed TVP Law to engage a consultant to inspect and report on the works…about one (1) week later, in about mid June 2007, I had a call from Robert’ is unreliable and untrue. The applicant asserts that Kljaic stated in this telephone conversation ‘don’t you dare set a foot on site. I don’t owe you anything’ and that Csukardy’s version of the conversation is correct; (u) Kljaic asked Mr Alan Herbert (“Herbert”) to make the statement concerning the vertical fin rupturing the waterproof membrane to prove this case and increase his counterclaim. The applicant asserts that Herbert’s statement is impossible considering that the sill had no fin on it. Kljaic changed his statement to it being screws and packers that broke the membrane. Kljaic admitted that he had not taken any photographs to prove his find, had not called out a building expert to confirm it, had not informed Bevan Sim (“Sim”) when he did his report in November 2008 that he had done major rectification work to the roof top terrace in July 2008 and had not informed Hill that he continued having leaks in early 2008. Herbert could not show where on the photographs the sill being installed back to front had caused water to run back into the room. The applicant asserts that Herbert’s statement is a lie because it is never mentioned in any of the four expert reports and Mr Glen Van Hoven (“Van Hoven”) from Commercial Windows Queensland testified that all the sills were installed the right way; (v) Herbert could have only changed his statement regarding the membrane if he was told by someone who was at the hearing what to say and the truthfulness of his statement is called into question because Herbert testified that he put things in his statement that Kljaic had told him about and he had not personally seen. Herbert said when he was signing his statement, which he admits he signed at TVP Law, he didn’t read the statement properly and ‘vertical fin’ should read ‘vertical screw’; (w) The following invoices listed in Kljaic’s counterclaim were untrue: i. The work on the Roof Top terrace invoice did not happen and the invoice is a fake and made up to increase MKM’s -- 18 of 39 -- counterclaim. This is evidenced by Mr Ambrose’s failure to cross-examine Kljaic and Herbert about the claim; ii. The invoice from Josip & Frankso Brkic. This is evidenced by Mr Brkic’s testimony that this was not the invoice he had given to MKM for payment and that it was not his handwriting ‘GST INCL’; iii. The invoice from Yacht Access Pty Ltd. This is evidenced by the fact that the hire finished on 2 May 2007 and the invoice was not submitted until 27 June 2007. the applicant asserts that the ‘description’ is not correct and that this invoice is for another job; iv. The invoice from Oldfield Access Pty Ltd. This is evidenced by Brkic’s testimony that he was using scaffold to finish the rendering and the fact that the applicant had paid for its own scaffolding; (x) The letter from Kljaic in Exhibit 9 ‘MMK 04’ claiming that damage to the roof was caused by Actell is untrue. The applicant asserts that Kljaic and Herbert made up the story about seeing fins or screws go through the waterproof membrane. Hancock admitted ‘the waterproof membrane was damaged in places but it was not possible to establish if the visible damage had occurred at the time of the installation of the sliding door track or at the time of removing the mortar bed to establish the cause of the leak through to the living room below.’ Hills testified that it is the builder’s responsibility to waterproof. Thus it was Kljaic’s responsibility to waterproof and the applicant should not be liable to pay for repairs to something that it did not damage; (y) The assertion in MMK 04 that roof repairs were done over the ‘Xmas break closure time’ is untrue considering that the leak occurred on or about 12 December 2007. Further, Kljaic lists the scope of the works but fails to supply any proof of costings; (z) Kljaic created his own problems by not allowing the applicants on site to make repairs. The applicant asserts that, had Actell been allowed on site, all the works would have been finished before the bill was due on 30 June 2007; (aa) Kljaic admitted in his testimony that, even by his standards, 85% of the work was completed but he only paid the applicant for 30% of the work. He did not obtain a BSA report by an independent assessor, instead he relied on the report by Hancock which has now been proved to be inaccurate. He did not follow the dispute process as required by the contract. Submissions of the Respondents 97. The first respondent denies that Michael Kljaic (the second respondent) entered into the Agreement because the second respondent was not a party -- 19 of 39 -- to the contract. The respondents submit that there is a significant and fatal hurdle that the Tribunal does not have power under its authorising Act to grant judgment in favour of the claimant which does not form part of the building contract the subject of the proceedings. The respondents rely on Eckersley v Medical Board of Queensland [1998] 2 QdR 453 and National Parks and Wildlife Service v Stables Perisher Pty Ltd [1990] 20 NSWLR 573 to assert that, as a specialist tribunal, the Commercial and Consumer Tribunal’s jurisdiction is limited by statute. The respondents submit that although such an interpretation may result in ‘a multiplicity of proceedings’ that is merely part of the ‘price to be paid for the advantages of having such Tribunals.’1 98. The first respondent submits that works did not commence on site on 15 February 2007, but in fact commenced in late February when the applicant started delivery glass and some aluminium framing to the Gibraltar site. 99. The first respondent contends that the works were not completed by the applicant. 100. The first respondent submits that the applicant’s defect list is incomplete and is not a proper list of all the defects, rectification and reconstruction works required. 101. The first respondent does not dispute the first four items on the variation claim but disputes the following variations asserted by the applicant: (a) Variation No. 5 is for ‘change windows and doors facing water to no steel beam revert back to having steel beam’ at a cost of $37,835.00 plus GST. The respondents assert that the variation has never been the subject of any written variation or direction from the first respondent and it was conceded by the witnesses for the applicant in cross-examination that none of the contractual requirements with respect to variations has been complied with; (b) Variation No. 6 is for ‘change sliding doors to low profile sill re- order and re-manufacture sliding doors’ in the amount of $15,300.00 plus GST. The respondents assert that the variation has never been the subject of any written variation or direction from the first respondent and it was conceded by the witnesses for the applicant in cross-examination that none of the contractual requirements with respect to variations has been complied with. 102. The first respondent submits that the applicant has not discharged its onus of proof with respect to proving that Variation No. 6 was directed by, and indeed was a variation from the contract works for the first respondent. 103. The first respondent submits that, with respect to Variation No. 5, if the applicant has proceeded to install the transom without obtaining direction or clarification from the first respondent, then that is not a matter for which the first respondent can be held accountable. Further, despite its obvious cost and inconvenience, nowhere in writing is there a claim or request for a 1 Nix & Dunn v Pittwater Council (1994) 84 LGERA 199. -- 20 of 39 -- variation to cover that cost, and certainly nowhere in writing is there a direction from the first respondent. The respondents thus submit that there has been an abject failure by the applicant to comply with the relevant provisions of the Subcontract. 104. The first respondent submits that the claim for Variation No. 5 in fact is no different from the purported variation with respect to Claim No. 6, and that is that the applicant has made assumptions and done work in the absence of having any direction from the first respondent for the works to be undertaken. The respondents assert that when the direction or clarification was obtained the applicant then sought to claim what in fact was the original cost under the contract as a variation from the work which they had done without proper authorisation. 105. The first respondent submits that the inclusion of the clause requiring written variations is to avoid the situation where a builder effectively becomes an insurer for a subcontractor’s erroneous carrying out of works other than in accordance with the scope of works under the contract. 106. Using the variations to recalculate the total contract price, the respondent’s submit that $111,526.80 is the total contract price being the original contract price of $98,615.00 (GST inclusive) plus the agreed variations 1 to 4 with a combined value of $12,911.80 (GST inclusive). 107. That amount is undisputed by the first respondent as being the total contract price, had the works been fully installed and completed. The respondents assert that there are two primary bases of disputing the claim by the applicant. The first is that variations 5 and 6 with a combined total of $58,448.50 (GST inclusive) were not variations under the contract for which it is liable. Secondly, that the works done by the applicant on the property were incomplete and, additionally, were defective. 108. The first respondent has counterclaimed as a set-off against the applicant’s claim the cost of completing the contract works that should have been completed by the applicant and rectifying defects. 109. Following the Tribunal hearing in September 2009, the first and second respondents delivered joint submissions on 14 September 2009. 110. With regards to the evidence of Mr Perovic (“Perovic”), the respondents assert: (a) Perovic’s evidence was ‘a little hazy’ in some respects, though whenever there was a point material to the applicant’s case, his memory seemed to improve. Mr Perovic has a vested interest from a professional perspective with respect to allegations that the work was not carried out in a proper and workmanlike manner, or was otherwise slow and disruptive to other trades; (b) Perovic’s evidence concerning the conduct of the works should not be accepted in the absence of corroborating evidence. Perovic mostly responded to questioning about Hancock’s first report with a denial that the defect as alleged existed, or at the -- 21 of 39 -- existence of the item identified by Hancock was not a defect but was uncompleted work. The respondent asserts that it was not put to Hancock in cross-examination that the items identified by him in his first report did not exist. Hancock provided photographic evidence of many of the defects. The respondent asserts that Perovic’s denials are inconsistent with the defects identified by Mr MacGregor of the Queensland Building Licences Authority and as predominantly agreed to in the joint expert reports of Sim, Hancock and Hills. The respondent asserts that the assertion of incomplete work is unfounded considering correspondence dated 31 May 2007, wherein the applicant stated, in effect, that the work under the contract had been completed and requested a list of defects; (c) Perovic does not give any evidence in relation to the claim for Variation No. 6 which appears as Exhibit 18 to the statement of Snow and describes the works claimed as ‘changes sills of sliding doors to low profile sills re-order and manufacture sliding doors door fit’ for an amount of $16,830.00 including GST. The respondent asserts that Perovic does not speak of either the work undertaken or the alleged direction to make any such variation. The respondent submits that there was no direction to vary, as alleged by Snow, because an examination of the facsimile at Exhibit 17, and in particular the second paragraph thereof, clearly shows that there was no such direction for a variation to be made. The respondent asserts that the facsimile recounts a sample of a sill being shown, some dissatisfaction with the proposed sill being voiced and an alternative product being shown and that when that alternative product was found to be a domestic sill rather than a commercial sill (the basis upon which the contract had been entered into) the original sill was accepted and included in the work. Further, the recipient of the facsimile, Mr Eldson, did not provide evidence supporting the existence of any such variation. The respondents note that Exhibit 17 was created some significant time after the event having been apparently ‘over looked’ and that Snow gave evidence that he went through the records and spoke to Mr Eldson to enable him to create the invoice but Mr Eldson denied that he had spoken to anyone about the creation of an invoice subsequent to the contract work being carried out; and (d) Perovic’s statement in relation to the claim for Variation No. 5 which appears as Exhibit 16 to the statement of Mr Snow should not be accepted. The respondents assert that there is a serious conflict in the evidence about how the use or suggested use of the transom came about, as well as the move to the steel beam. The respondents assert that by reason of the lack of detail in the plans there is no plan that the applicant has pointed to which shows a steel beam being utilised in the relevant areas and that the plans clearly show there is a break between the doors below and the windows above and that something is to be in that area. The respondents assert that the evidence that it was not a lack of -- 22 of 39 -- strength in the suggested transom that resulted in it not being used, but rather its shape which would have inhibited the use of blinds on the inside of the windows, is inconsistent with Perovic’s statement at paragraph 9. Furthermore, the respondents assert that there is no good evidence why the first respondent would have proceeded along such a course in the face of such obvious expert advice about the lack of capacity of the transom. The respondent notes that despite Perovic’s suggestion that both he and Mr Eldson had expressed such a concern, that concern did not appear from the evidence of Mr Eldson and is contrary to the statement of Snow contained within paragraph 19, in which a transom that would be satisfactory for such a use in terms of compliance with weight and wind loadings had in fact been identified by the applicant. The respondent submits that where there was discussion about the use of the transom, it is unlikely that such a discussion would have taken place in the absence of any mention of the most recent use of the transom in a job between the two parties to discuss whether, and if so, how, that previous design could be used on the current project. The respondent submits that the more likely scenario is that put forward by Kljaic that the applicant suggested a transom could be used, however, when he saw it, it was apparent that it would not work with the internal workings of the blinds and so a steel beam was used instead. 111. The first respondent submits that, with regards to quantum, the following matters appear to be without contention on the evidence: (a) The matters identified in Hancock’s first report as being defects existing as at 2 July 2007; and (b) The defects noted in the report of Mr MacGregor and the subsequent expert’s conclave. 112. With respect to the leak appearing in the vicinity of the roof top terrace, the respondents rely on the evidence of Hancock that for the ‘substantial differential slab movement’ to be the sole cause one would expect to see a crack or cracks approximately 3mm in width, of which there is no evidence before the Tribunal of the existence of such cracks. Thus, the respondents assert that the cause of the leak is nothing more than a supposition on the part of the applicant. 113. The first respondent relies on the following quotes in support of its claim for rectification costs: (a) Commercial Windows Queensland Pty Ltd quote in the amount of $49,802.50 inclusive of GST from Mr Glenn Van Hoven to undertake repairs to ‘all windows where leaking occurs at transoms, remove fixed glass panels, seal transome ends, drill drain holes and wet seal glass to all rails. Replace trims so they align with walls throughout project, remove frames and cut down where floor finishes do not meet door sills and refit’. The -- 23 of 39 -- respondents note that Mr Van Hoven gave evidence of work he had actually undertaken and for which accounts had been sent; (b) G.J. James Glass and Aluminium quote in the amount of $57,106.50 including GST from Mr Gary Holmes to provide glazing services to the Gibraltar Drive site. The respondents note that the amount quoted is around (though slightly above) the estimate provided by Mr Hancock to undertake works. The respondents assert that the applicant’s failure to cross-examine Mr Holmes on the basis that he had not complied with the formal requirements under the Tribunal rules with respect to expert evidence was unfounded because Mr Holmes was not held out to, and does not purport to provide an expert report and, to the extent that it may be relevant, he provided his relevant expertise within the industry for the purposes of providing the quote. The respondents assert that Mr Holmes provided the quote based on an inspection undertaken of the premises as to what his company would charge to do the work set out therein and that he had extensive and exclusive experience in the provision of glazing services to provide the quote. The respondents assert that because the quote Mr Holmes provided was not wrong or overstated or otherwise open to attack, the quote was effectively uncontested; (c) G.J. James Glass and Aluminium quote in the amount of $15,928.00 including GST from Mr Gary Holmes to provide glazing services to the Calabro Way site. The respondents assert that there was clear evidence from Mr Van Hoven that where the evidence of leaking was relied upon by him, he was of the view that those leaks were related to the windows and/or frames and not from another source and that this evidence was uncontested. The respondents submit that Mr Van Hoven was an honest witness who was responsive to questions and gave an honest recollection and appraisal of the works and quotes; and (d) All Metal Works quote in the amount of $36,062.40 including GST to undertake work related to the roof top terrace doors and windows and more particularly the removal of the doors, windows and frames, the removal of the pollock (I note the use of this term by Mr Herbert during his evidence with respect to material which, as shown on the photographs, may be ‘alpolic’ cladding) as which was required for that part of the roof top terrace where the pollock adjoined the window and door framing, and the replacement of the frames, windows, doors and pollock. The respondents note that the evidence of Mr Herbert with respect to the pollock was that once removed it could not be reused and entire new sections had to be reordered and replaced. The respondents note that the applicant, during cross-examination, alleged that the invoice provided by All Metal Works was, in effect, a fraud and that the works set out therein was not in fact carried out. The respondents submit that there is no evidence before the Tribunal that would allow such a conclusion to be drawn. The respondent notes that -- 24 of 39 -- the assertion was put to Mr Herbert and denied. The respondents assert that Mr Herbert’s evidence, whilst successfully challenged in some respects, was in reality that of an honest witness as Mr Herbert readily made concessions when confronted with suggestions as to the source of his evidence and did not seek to defend his position in an unreasonable manner. The respondent submits that there is no basis on which the Tribunal would accept that the whole of Mr Herbert’s evidence ought to be rejected. 114. The first respondent concedes that much of the evidence given by Mr Herbert with regards to what was seen on site during the course of the frame removal work was hearsay, he having admitted to not having seen it himself but to have been told that information by his workmen on site. The respondents assert, however, that even the evidence is limited to what Mr Herbert was told, it is not inconsistent with that provided by Mr Kljaic during which, under cross-examination, he gave evidence of being present when the sill was lifted and seeing physical signs of screws having penetrated through the waterproofing into the concrete to hold the stackers in place. 115. The respondents submit that the factual bases for the first respondent’s counterclaim are made out because the existence of defects and the cost of rectifications, even leaving aside the All Metal Works invoice, were not seriously in contest. Discussion 116. On the evidence available I am not satisfied that the applicants caused the roof top leak. The evidence given concerning the work done purporting to correct work done by the applicants on the roof top level was unsatisfactory and at times I was left with the impression that much of the evidence given on behalf of the respondents was an unreliable attempt at reconstruction. I am not satisfied that the applicants are responsible for the leaking. 117. Some of the evidence given was given by witnesses who had no direct knowledge of the matters they were giving evidence about. For example the evidence of Mr Herbert was in that category. His statement is exhibit 21. He gave evidence about the rectification of windows and doors and the replacement of apolic cladding however he was not on the site. He did not carry out the work. Despite saying he could produce invoices for the ‘pollock’ cladding (which may be ‘alpolic’ cladding) replacement claimed none were produced. He was generally unable to comment on issues which had been claimed by the respondents such as whether the sill tracks were back to front or whether there had been puncture/s in the sills or tracks. He said he had been told by Mr Kljaic that there had been various punctures and that one section of a sill had been put on back to front and there were holes in the membrane. He said he got some of his information from Mr Kljaic and some from his staff. In my view he was an unreliable witness and I do not find his evidence credible. I my view if the work claimed was done the amount estimated by Mr Herbert was excessive. In my view his evidence concerning any need to replace pollock or apolic cladding is not reliable or credible. I find it incredible in the light of the evidence given by Mt Kljaic that “vertical fin” in the statement of Mr Herbert was meant to be “vertical screw”. -- 25 of 39 -- 118. Given the nature of the defects claimed and the allegations concerning fins on a sill or later screws and packers causing a membrane breach I would have expected evidence of same. In my view none was forthcoming. 119. I accept the evidence of Mr Van Hoven that the sills were installed in the correct manner. I also accept the evidence that the weep holes were an indication of correct installation. 120. In respect of any need to remove the roof terrace doors and reinstall them I prefer the costings of Mr Hill and I accept his evidence in that regard. I found Mr Hills evidence to be given in a forthright manner. It was credible. 121. As to the claim for liquidated damages, I find there is no basis for it. There was no construction schedule provided and there was no trigger for liquidated damages. I do not accept the evidence of Mr Kljaic in this regard nor the claim made. I accept the evidence of the applicant about delays and variations and I find that much of the delay was because of changes made and a lack of a window schedule. I found the assertion by Mr Kjlaic during his evidence that he used liquidated damages claims as a wake up call disingenuous. Further I accept the evidence of Mr Hills that that there was a lack of specification and detail in the plans. 122. As to the claim made that Mr Kljaic is to be held liable for the liability of the first respondent I find that the credit application document is not part of the building contract entered into. The contract makes no reference to it. It may be that the credit application and attachments do amount to an enforceable guarantee but that is a matter for another place as this Tribunal only has jurisdiction to deal with matters it is empowered to deal with under the Commercial and Consumer Tribunal Act 2003 or an empowering Act. The Tribunal is not empowered to deal with any question of a guarantee as the circumstances exist here. 123. As to the respondent banning the applicant from the site I find that it had no right to do so and when it did it was repudiating the contract. There was no timetable incorporated into the contract. The complaints about the applicant causing delays in my view are without a proper basis. Any delays were in my view because of Mr Kljaic making changes or requesting work to be redone to accommodate other trades. I note the evidence concerning the state of the financial affairs of the respondent at the time and a lack of liquidity. 124. There is no doubt that the works were not completed by the applicant. I my view the reason for that is that that the second respondent wrongfully prevented them from completing the work. I accept that approximately 85% of the work had been completed. 125. The respondent does not dispute the first four items of the variations claimed but disputes variations 5 and 6. They are disputed on the basis that there was no written variation. Clause 5 of the contract deals with variations and requires them to be in writing. Part 7 of the Domestic Building Contracts Act 2000 also deals with variations and requires them to be in writing. Section 84 gives a right to a building contractor to recover an amount for a variation in certain circumstances. -- 26 of 39 -- 126. Section 84(4) provides: (4) The tribunal may approve the recovery of an amount by a building contractor for a variation only if the tribunal is satisfied that- (a) either of the following applies- (i) there are exceptional circumstances to warrant the conferring of an entitlement on the building contractor for recovery of an amount for the variation; (ii) the building contractor would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a); and (b) it would not be unfair to the building owner for the building contractor to recover an amount. 127. I accept the evidence of Mr Snow concerning the requests by Mr Kljaic for changes. In my view the fact that the contractual requirements were regularly not complied with, the variations were required by the owner who was also the director of the first respondent, the work was done and was in excess of $53,135 (when the initial value of the contract was $98,615) there is an entitlement for recovery of a variation amount. I am also satisfied in those circumstances that the applicant would suffer unreasonable hardship by the operation of subsection (2)(a) or (3)(a) of section 84. I am also satisfied that given the work was done and the materials supplied it would not be unfair to the building owner for the applicant to recover an amount. If those works were defective then that is a matter which impacts on the “amount” to be recovered. 128. I accept the evidence of Mr Perovic. I found his evidence to be credible and the manner in which he gave it genuine. He was prepared to accept responsibility for mistakes which he admitted were his. His statement is exhibit 4. His evidence in my view corroborated that of Mr Snow and Mr Elsdon. 129. The statement of Mr Perovic is Exhibit 4. He gave evidence concerning the installation of the glazing at Gilbraltar Drive. I have taken into account the submissions of the respondents concerning his evidence (as I have earlier set out) and based on my observation of him during his oral evidence and during cross examination, I find him credible. It is feasible that work regarded by others as defective could consistently be regarded by Mr Perovic as unfinished. I accept his evidence and his account of conversations had with Mr Kljaic. I find that Mr Kljaic was making constant changes as described by Mr Perovic. As to the use of a steel beam or a transom (variation 5), I accept that there is no steel beam shown on the plans but I accept that there was a change in the use of a steel beam and then another change as outlined by Mr Perovic, such change caused by Mr Kljaic. 130. There are defects identified by Mr Hancock in his first report as existing at 2 July 2007 that do not seem to be in dispute. -- 27 of 39 -- 131. There are also defects noted in the report of Mr MacGregor and the experts’ conclave joint report which are not disputed. 132. It is appropriate to deal with each of the items set out in the BSA report in turn 133. Item 1 Front Door. All the experts agree. The installation of the “pivot- hinged” front door has been finished by the owner. The cylinder lock into the door handle stands proud of the external face and the cover plate at the bottom pivot hinge is not fitted correctly and is not the correct type. They are defects but not done by the applicant. 134. Item 2 “Stacker “ sliding Doors- formal lounge. All the experts agree. The doors have been finished by the respondent using non genuine parts and as a result the doors do not operate as easily as they should. They are defects but not done by the applicant. 135. Item 3 “ Stacker “ sliding door frame not aligned to windows directly above All experts agree that the plans show the upper and lower vertical mullions/frames of the fenestrations to be in alignment and the configuration of some openings have changed from the plans. All agree that the glass panels in the sliding doors to the lower section are of equal width. and the glass panels in the upper section are of equal width but different width to the sliding door panels below due to different frame or mullion thicknesses resulting in the misalignment of the frames/mullions. The BSA, Hancock and Sim agree that in order to comply with the plans the width of the upper glass panels should have been adjusted. Hill disagrees and says that if the above was done the glass panels would be of unequal width and thus not comply with the plans. He does not regard it as a defect. All agree that aesthetic rectification is required. 136. Item 4 Tops of Stacker sliding door frames incomplete. All the experts agree. A gap can be seen at the top of the end panel of the frames and a finishing plate incorporating a purpose made stop has not been fitted. 137. Item 5 Office sliding door All the experts agree The respondent has attempted to make doors operational but the applicant is responsible for the fitment of the missing door handle, interlocks blocks, proper door stops and cleaning the frames of excessive sealant at the frame/wall junction. That is incomplete work by the applicant. 138. Item 6 Dining room Sliding Door The respondent carried out work to the door. The head margins between the cover plates and the door frame are not parallel. All agree that the opening is not square which is the respondent’s obligation but the applicant had an obligation to bring that to the respondent’s attention so that it could be rectified. All agree that a single piece purpose made aluminium cover plate would be acceptable 139. Item 7 Laundry sliding door frame All the experts agree The cover plate to the right-hand end stile of the door exhibits a large gap at its head. That and the need to clean excessive sealant at the wall junctions is incomplete work. -- 28 of 39 -- 140. Item 8 Rear Hopper Window All the experts agree that the sill is not level and should be rectified. 141. Item 9 Fixed window at Rear Elevation All the experts agree. There is slight calcium staining at the coupling bar along the sill section from water being trapped in the extrusion and weeping out via the joint. The applicant should rectify and reinstate the damage to the face of the aluminium. 142. Item 10 Window/wall Breakfast room All the experts agree. The large window /wall section fitted between two external walls show varying margins on the side moulds against the rendered walls. This is not defective or incomplete for the purpose of the inspection. 143. Item 11 Window and Door Stiles do not line up. The experts had the same views as set out with respect to item 3. 144. Item 12 Family Room Stacker sliding doors. The experts had the same views as set out with respect to item 3. 145. Item 13 Cantilevered Bedroom windows The experts agreed that if the window leaks it should be repaired however whilst the window leaked into the timber floor during the construction phase it has been rectified and no apparent defect is noted. 146. Item 14 Gym Sliding Door All the experts agree. The “D” type door handle hits the frame when the door is closed which prevents the door fully engaging into the jamb. The correct door stops have not been installed. That is incomplete work. 147. Item 15 Automatic Opening Garage Sliding Door The experts agree that glazing panels to the head of the frame have not been fully complete in the beading area. 148. Item 16 Master Bedroom Window and Doors The experts agree that the lever handles to the hopper sash windows are black coated units which are inconsistent with the clear anodised units in the rest of the hose. The “interlock” blocks and the correct door stoppers have not been installed. Once the incorrect door stops have been removed, the face will need repair due to the screw fixing holes. 149. Item 17 Daughters Bedroom Windows The experts agree that the lever handles to the hopper sash windows are black coated units which are inconsistent with the clear anodised units in the rest of the house. 150. Item 18 Nursery Stacker Sliding Doors The experts agree that the external door handles are incorrectly fitted causing the door to be difficult to operate from the outside. The fitted door stops are not the integrated door stops designed to match the joinery. 151. Item 19 Roof Top Terrace The experts agree that the joins in the sill and head sections of “stacker” sliding door frame are out of alignment and not flush. This may or may not involve the total removal and replacement of the door frame. Localised work on the frame is the preferred option. The finish -- 29 of 39 -- at the top of the vertical stiffening mullions on these “stacker” sliding doors is uneven and cut on differing angles. 152. Mr Jeffrey Hills (“Hills”) is an expert engineer who gave evidence for and on behalf of the applicant. Exhibit 1 contains his report with respect to the following matters: (a) Whether or not the works carried out by Actell complied with the relevant contracts and applicable government and industry standards. Hills found that: i. The BSA’s comments and conclusions were consistent with his site observations, save for items 1, 3 and 5, being works considered to be defective; ii. He disagrees that the need to rectify in Items 3, 6, 8, 11 and 12(c) lay with the subcontractor; iii. These works were not completed nor repaired due to the inability of the contractor to access the site; and iv. If the contractor had access to the site the defects and incomplete works would normally be rectified as part of the final site works by the subcontractor. (b) Whether or not the defects alleged by MKM were in fact defects when assessed against the requirements of the relevant contracts and government and industry standards. Hills found that: i. The standard on which any claim of defective and incomplete work is to be measured against is the assessment as completed by the Queensland Building Services Authority. This BSA report is a complete and exhaustive summary; and ii. Apart from items 1, 3 and 5, the remaining items are confirmed as being defective and/or incomplete works. (c) Whether or not the amounts claimed by MKM for rectification works were reasonable and, if not, what would be appropriate amounts to be allowed in favour of MKM for those works. Hills found that: i. The cost to rectify the items contained in the BSA report would be $6,000 plus GST; ii. The cost to rectify the items contained in the BSA report, save the items objected to, would be $2,800 plus GST; and iii. As noted in the BSA report, works have been undertaken by the owner. The incorrect works would need to be rectified as part of the BSA list. -- 30 of 39 -- (d) Whether or not the findings contained within Mr Hancock’s report dated 2 July 2007 were, in his view, accurate. Hills found as follows: i. Labelling and Certificates: Compliance with the standard is required which involves a sticker on the frame and a Form 16 confirming compliance with the standard; ii. Shop Drawings: Standard practice is that all specifications and requirements are produced by the architect in a window schedule layout. Details for matching are contained in a separate specification document or specifically included on the architects plans. Detail is grossly lacking in the window and door specification in the original contract which created uncertainty as to the detail required. The subcontractor has completed the works in accordance with normal building standards and industry practice. If the contractor had been allowed access to the site the incomplete and defective works would have been completed; iii. Defects List: The defects list has been incorporated into the inspection by the BSA. The BSA report is the reference document for this matter and no further comment is required. Refer to Inspection Summary of the BSA and comments as to agreement or disagreement with that summary; and iv. Costing of Rectification: To rectify and replace the necessary works to comply with the requirements of the BSA summary (excluding the objections) would cost $6,000 plus GST. (e) Whether or not the findings contained within Mr Hancock’s additional report dated 12 December 2007 were, in his view, accurate. Hills found as follows: i. This report deals with the water penetration from the roof top to the internal family room; ii. The roof area consists of an external balcony that is reached from an internal room that is stepped up from the external balcony slab. Glazing incorporating sliding doors have been installed to enclose the room; iii. Water penetration occurred in or around December 2007; iv. Hancock attributes the water penetration to the glazing installation; v. A step down in the slab is provided to prevent water entering the internal room of the dwelling; vi. The balcony floor, the upstand and the area just inside the room should have been waterproofed; -- 31 of 39 -- vii. Water leaks occurred in November / December 2007. Glazers were ordered from the site in June 2007 viii. The tiled area and grout underneath the sliding doors will be subjected to flooding and saturation being externally placed. The underlying water proof barrier is provided to prevent water penetration. It is therefore irrelevant that the track is not perfectly level and drains back into the grout area; ix. Hancock comments that contractors must either accept or reject the work of the previous trade before working over it and therefore the glazers accepted there were no defects before commencing their work. Following this reasoning, the tiler who commenced work after the glazers accepted their work as being defect free; x. The water proofing failed. The exact cause of this failure is unknown. It is not uncommon for the slab to shrink differentially causing stresses, which if not adequately provided for in the water proofing, will result in failure of the water proofing after building completion. This is very common in high rises; and xi. There is no evidence to conclude unequivocally that the glazers damaged any part of the water proofing on the deck. It is highly unlikely that the glazers were responsible given the time delay between completion of the building and water penetration. There are numerous more realistic scenarios which may have led to the failure of the membrane. (f) The claims of Water Penetration to Other Buildings. Hills found as follows: i. Inspections were conducted at 30 Township Drive, Burleigh Heads and also Corner Calabro Way and Ern Harley Drive, West Burleigh; ii. Mr Klajiac indicated that it was not necessary to conduct an inspection at 48 and 49 Lemana Lane, North Burleigh; iii. The complexes visited were commercial factories constructed of tilt up concrete walls on concrete slabs with sheet metal roofs. Glazing has been installed into openings within the walls; iv. No specific windows were identified as suffering from water penetration save for one at 30 Township Drive, Burleigh Heads. One window here was identified as leaking. This window faces south and it is probable that during extreme weather events water penetration occurs between a small gap in the rubber seals; -- 32 of 39 -- v. During the inspection it was raining and there was no physical evidence of water penetration observed in either of the complexes; vi. A number of tenants at Ern Haryley Drive did confirm that during extreme weather events minor water leaks occurred; vii. The window frames were assessed and it was found that minor shrinkage of the rubbers may have occurred at the top of the frame causing the mitre to open. This is typical of rubber deterioration in an exposed environment. Windows facing south are exposed to driving weather and windows facing east or west are exposed to sun damage. The upper corners of the windows are the area where water penetration can occur when the rubbers shrink with this window design. Remedial work involves sealing the mitre with silicon; viii. The glazing contractor is liable for leaks occurring within 6 years of construction. After this the sealing would be undertaken as maintenance; ix. It is recommended that any leaking windows are accurately identified so that remedial works through sealing of the rubbers could be completed; and x. The cost to complete the sealing of affected windows would be minimal with a one off window costing as little as $50. The estimate of rectification cannot be provided until the extent of the leaks has been identified. 153. I accept the majority of the Hills report with the exception of the need to adhere to the plans, which I comment on later. 154. Robert A Hancock is an expert architect who gave evidence for the respondents. Exhibit 16 is his advice with respect to the glazing installation at 95 Gibraltar Drive and his report on the finish and standard of workmanship involved in the fabrication and installation of the aluminium frame doors and windows. He also gave an opinion as to whether the supply and installation of the aluminium commercial windows and doors had been completed. He reported that generally all aluminium doors and windows are in place in the building and that there are several inconsistencies about installation in particular the junction between the jam and head frame. He prepared a separate schedule which is attached to the report headed door and windows defect schedule. 155. He also noted that none of the doors and windows had been labelled in accordance with the Australian standard AS2047. That standard required the window assemblies for housing to be labelled in a certificate in accordance with clause 8.3 provided so that the window labels could then be checked against the requirement of the standard to see if they conform to the quotations of the 3 rd October 2006 and 23rd October 2006. He commented that it was normal practice for the subcontract aluminium fabricator to submit the shop drawings to the building contractor showing -- 33 of 39 -- various information and said that had the shop drawings been supplied most of the problems between the glazier and the building contractor could have been eliminated. He concluded that whilst work and defects remain outstanding the glazing subcontract could not be considered as having reached practical completion and that in this case some of the glazing work that had been installed would have to be replaced or at least partially replaced. He gave an opinion of probable cost to carry out rectification work based on a casual specialist tradesman at a rate of $60 per man hour for some tasks and / or a rate per square metre of glazing to be replaced similar to the original rate per square metre for the cost to install the glazing as between $45,000 to $50,000. 156. Exhibit 17 is Mr Hancock’s report with respect to the glazing installation on the rooftop terrace at 95 Gibraltar Drive and a report on the possible cause of the leak coming from the ceiling in the family room directly below the rooftop terrace. 157. His inspection of the upper level roof terrace and rumpus room and in particular the sliding door on the eastern side of the rumpus room was done when two workers had removed the section of the floor tiling approximately one tile wide to three quarters of the length of the sliding door approximately above the area where water was appearing in the ceiling of the family room below. He said the sliding door track had been placed into the upper edge of the structural concrete slab in approximately 50mm above the step down level of the structural concrete floor to the external balcony. That part of the track not supported by solid concrete beneath it was roughly supported by pieces of broken tiles and an extension of the mortar bed that served as bedding for the ceramic tiles to the exterior of the deck. He said that the cross section of the silt track sloped back into the interior. The track had been fitted in such a manner that the external upper edge of the track was higher than the internal upper edge. He said that water was inclined to flow away from the drain hole in the external side of the track and back into the water bed underneath the track. The water proof membrane of unknown manufacture had been applied to the structural concrete slab and was visible in places where the water bed had been removed. He said that the water proof membrane was damaged in places but it was not possible to establish if the visible damage had occurred at the time of the installation of the sliding door track or at the time of the removing the water bed to establish the cause of the leak through the living room below. He also identified a saw cut in the bottom side of the track that allowed water caught in the track to flow freely into the water bedding beneath the track. With water flowing back away from the balcony area there was a tendency for water to pond beneath the track and finally make its way through a damaged section of the waterproof membrane and eventually through the concrete slab to the room below. He said that the damage to the waterproof membrane can only be the responsibility of the glazier because prior to a trade moving on to an area on site to work over another trade that is here where the water proofers have to finish their section of the project prior to the glaziers moving in and working over the waterproofing then the second trade must either accept or reject the work of the previous trade before working over it and covering it over. -- 34 of 39 -- 158. He summarised his findings as: 1) “The glaziers installed the frame sloping back into the room causing water to flow in that direction rather than through the drain hole on the side of the track to the exterior tile surface; 2) The track had a saw cut in the base that allowed water to flow freely into the mortar bed; and 3) By the fact that the glazier had installed the sliding doors to the rumpus area then it is accepted and understood that the work of the water proofer was up to standard and accepted by the glazier but was then damaged by the glazier during their installation of the sliding glass doors.” 159. I note that no breach of the membrane attributable to the applicant is identified and I note the alternative causes of leaking available. 160. Mr Bevan Sim an architect provided a report which is exhibit 12 concerning the construction at 95 Gibraltar Drive. He addressed some of the items in the BSA report and admitted others on the basis that there was an agreement between the BSA and Mr Hills concerning some items. As to item 3 the stack of sliding door frame not aligned to the windows directly above he agreed with the BSA report that the non-alignment is defective work but he also agreed with the Hills report that should the door mullions be made to align with the window mullions above there would be non- alignment of the mullions of the sliding sashes with the fixed members when in the open position. In his opinion, the solution is to change the spacing of the fixed windows to the high light above to align with the mullions of the sliding door. In addition the horizontal transoms in the fixed sashes of the courtyard corridor highlight windows do not align. He said that there were signs of water ingress which would be rectified by default during the re-spacing of the fixed window mullions. 161. As to item number 6 the dining room sliding door he agreed with the BSA report that the item represents defective work but he also agreed with the Hills report that the trueness of the opening was not the responsibility of the window installer. 162. He made the same comments with respect to items number 11 and 12 as he did with respect to item number 3. 163. As to item number 13, cantilevered bedroom windows, he observed evidence of minor leaking to the retreat windows which he said should be rectified. 164. In his conclusion he said that the items in 2.1 to 2.20 (of his report) that the BSA report identifies as requiring rectification (with the exception of item 2.6) should be rectified by the window installer. With regard to item 2.6 more information was required prior to assigning responsibility. With regard to items 2.3, 2.12 and 2.13 in his opinion the fixed window mullions should be made to align with the door styles rather than the sliding doors made to align with the window mullions. With respect to the cost of rectification he -- 35 of 39 -- recommended that the scope of works for such rectification be forwarded to a licensed contractor to prepare a quotation. 165. Mr Sim also gave a report (exhibit 13) with respect to works at lots 13-15 Calabro Way West Burleigh. His inspection of the site did not involve water testing and was limited to the observation of the staining of the transoms, efflorescence on adjoining concrete floor and water damage to adjacent materials due to previous rain. He said the windows have been constructed using the extrusions equal to or very similar to those which were illustrated in his attachment b which was a popular extrusion where a curtain wall exterior appearance is required thus minimising the amount of framing viewed from the exterior. Because of the design there are smaller drainage galleries should any water penetrate the frames via the glazing beads and / or joins in the frames. 166. He said due to this high exposure of the frames, the junctions of the heads, transoms and sills to the jams must be sealed with a durable gasket and stroke or sealant to ensure water tightness. There is evidence that the sealant used is of poor quality and is showing early (less than 2 years) signs of drying out and shrinking. He said that for the joints to be water tight prior to assembly all faces need to be squared and deburred to present a surface equal to that of the extruded surface. Some of the joints inspected, particularly the transom / jamb junctions feel like they are raw cut edge. 167. He commented that there was very minimal step down from the internal floor slab to the car park level however any water entering the frames by way of the locations he identified may be less likely to back up and enter the building at ground level if there were weep holes in the sub sill and a greater height differential between the floor and car park surfaces. 168. He was unable to accurately pinpoint the causes of the water ingress but thought that it was from the windows. 169. It was his opinion that the joints of the transoms and the jambs need to be made more watertight and to achieve that would require the disassembly of the windows which may also result in the need to replace some members as any facing up of existing members might effectively shorten the member and thus increase the gap that needs to be sealed. He says that by default that operation would involve the replacement of the glazing beads so that any problems existing with the beads would be automatically addressed. He said that with the regard to the sills / sub sills there should be available a stop end similar but larger to allow the water to be contained within the sub sill and then discharge via loopholes. 170. I have accepted the evidence of Hills in this regard and I do not accept that there is the need for the rectification as set out by Mr Sim and quoted for in the CWQ quote. 171. The scope of works which he mentioned are set out in the CWQ quote. 172. That quote which was initially exhibit B for identification was for $15,928. And it was for the “Calabro Way Factories”. -- 36 of 39 -- 173. Exhibit 15 is a quote from G James Glass and Aluminium and was in respect of the frameless door at 95 Gibraltar Drive. The author of the report was of the opinion that the existing front door is a 10 mm toughened glass frameless door which does not comply with Australian standards in that the glass required for the doors to be 15 mm thickened glass. The cost to rectify the front entry door would be $5,025 excluding GST. I note that the joint experts do not hold the applicant responsible for this defect. 174. Where the stacking doors did not align with the fixed glass windows above the rectification for that was estimated by G James Glass and Aluminium to be $18,840 excluding GST for the court yard frames and $14,200 excluding GST for the canal front frames. 175. For the stacking sliding door system G James Glass was of the belief that they were installed back to front because at the moment they slide internally and there are exposed weepholes and air pressure holes. They are of the view that if those systems were reversed then the doors slide externally and the door threshold cover the weepholes and air pressure holes. To rectify that system to all three levels the cost would be $6,600 excluding GST. To rectify two of the mitred fixed glass frames to level two requiring wet sealing to stop wall penetration would be $2,400 excluding GST and to tie up the other small issues such as sliding stops, interlocks, thresholds, addressing the awning window and assorted glazing beads to the garage area would be $4,850 excluding GST. For this matter I have accepted the evidence of the joint experts and the Hills report. 176. Evidence was given by Dagor Erceg (exhibit 16) to the effect that he carried out work on the site at 95 Gibraltar Drive as a plumber and although there seem to be difficulties with the applicant coming to the site that difficulty did not hold up his work. 177. Leslie John Simmons (exhibit 19) was a licensed electrical contractor who did work at the Gibraltar Drive site. The effect of his evidence was that Actell frustrated him in the way they were carrying out their work and that the installation of the windows on the site dragged out much longer than it should have. I do not accept that Mr Simmons has the expertise to give that evidence and I do not intend to act on it. 178. Josip Brkic was a solid plasterer who worked on the Gibraltar Drive site. The effect of his evidence was that he couldn’t remember window fitters being on the site when he came to the site on 19 th March 2007. He says problems with the windows slowed down his work on the site and he couldn’t do external rendering on some walls because the windows hadn’t been installed. He said that when the job was finished he was asked by the second respondent to re-render some areas because the window frames had been taken out and put back in and damaged some of the render. When that was required to be done the render had to be applied to the whole wall. The extra work that was involved he said amounted to $11,600. 179. Allan John Herbert the owner and operator of All Metal Works Pty Ltd gave evidence that on several occasions he saw window fitters from Actell bashing aluminium frames with hammers trying to make them fit in the spaces. He did not approve of that practice and was critical of the need for -- 37 of 39 -- such a practice. He however did not see any distortion caused by the practice. He gave evidence that there was poor workmanship and lack of performance by the window fitters on site. And that because of the delays that occurred in window fitting he was delayed in completion of the metal work. He estimates that the construction of the house probably took another 2 months because of the delays he says were caused by the installation of the windows. He also gave a tax invoice for the removal of glass and window and door frames to the top level of the house and re-installation in sum of $36,062.40. 180. Commercial Windows Queensland Pty Ltd through their estimator Glenn Van Hoven gave a quote for $49,802.50 to “repair all windows where leaking occurs at transoms. Renew glass panels, seal transom ends, drill drain holes and wet seal glass to all rails. Replace trims so they align with walls throughout the project, renew frames and cut down where floor finishes do not need seals and refit – scaffolding is required for all this work to be supplied by MKM – working platforms required at each working level.” 181. For the work at the Calabro Way factories the quote was for $15,928. 182. I accept that the contractual documents are as described by Mr Snow. In my view the contract does have various elements of uncertainty. I accept the evidence of Mr Snow. Most of his statement was supported by exhibits and I found his account of conversations credible. 183. I do not accept the evidence of Mr Kljaic where it conflicts with the evidence given on behalf of the applicant. I found his evidence to be unconvincing and I found that where the evidence conflicts I could not rely upon it. The evidence of Mr Herbert confirmed my view of my reluctance to accept the evidence of Mr Kljaic. I am of the view that the evidence of Mr Herbert was contrived and not supported in any way by evidence of work done or any apparent problems when it could have been so supported by those who did the work, if real work occurred. 184. In the main I find the submissions made on behalf of the applicant compelling and convincing and in accord with the evidence I heard, read and observed. 185. I accept the costing of Mr Hills that to rectify the items in the BSA report an amount of $6,000.00 plus GST. Whilst I have otherwise accepted the report of Mr Hills, I accept that with respect to item 3 there has been a departure from the plans and I accept that in order to comply with the plans the width of the upper glass panels should have been adjusted. In that regard the costings by G. James Glass should be accepted. 186. Where I have not accepted the Hills report is the alignment of the fixed glass windows. He does not seem to have included such in his estimate for rectification. In that regard, I accept the evidence of G. James Glass so that the rectification costs are $18,840.00 excluding GST and $14,200.00 excluding GST, namely $20,724.00 and $15,620.00 (Total $36,344.00). 187. As to the need for rectification work to be carried out at Calabro Way, I do not accept that the rectification work is as extensive as quoted on by -- 38 of 39 -- Commercial Windows Queensland. I accept the evidence of Mr Hills and that the minor leaks found could be rectified by the sealing of the metre with silicon and that the cost to complete the sealing of affected windows would be minimal, say for example, one off windows as little as $50.00. 188. In my view, the claim made by the applicant for total contract plus variations of $169,975.30 should be allowed minus the amount of $32,166.86 paid less an amount of $6,000.00 for rectification/completion of glazing work at Gibraltar Drive and less $50.00 for rectification of leaks at Calabro Way and less $36,344.00 for the alignment rectification. 189. The second respondent shall pay to the applicant the sum of $95,414.44. 190. Under clause 4(e) of the subcontract, the subcontractor is entitled to interest on the unpaid balance of any overdue progress payment including any part of a progress claim wrongfully withheld by the builder either at the rate set out in clause 5 of the schedule (which has an amount inserted) or at the rate of 10% a year plus the rate comprising the annual rate as published by the Reserve Bank of Australia for 90 day bills for each day the amount is unpaid whichever is the higher. The applicant informed me that 90 day bill rate applicable was 3.6%. The applicant claims 13.6% interest since 31 May 2007. A claim was made for a payment of the contract and variations 1 – 4 on 30 May 2007. 191. I allow interest on the unpaid portion of the progress claims of $66,448.14 ($98,615.00 contract sum minus $32,166.86 payments made) from 31 May 2007 at the rate of 13.6%, namely interest in the amount of $25,278.64. 192. The Tribunal orders the second respondent to pay $120,693.08 ($95,414.44 plus $25,278.64) to the applicant by 4pm on 2 April 2010. -- 39 of 39 --