Adaptit Group Pty Ltd v Davie [2026] QCAT 332

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Adaptit Group Pty Ltd v Davie [2026] QCAT 332 PARTIES: ADAPTIT GROUP PTY LTD (applicant) v JENETTE DAVIE (respondent) APPLICATION NO/S: BDL087-23 MATTER TYPE: Building matters DELIVERED ON: 27 July 2026 HEARING DATE: 7 May 2026 and 8 May 2026 HEARD AT: Brisbane DECISION OF: Member Howe ORDERS: 1. Adaptit Group Pty Ltd pay Jenette Davie the sum of $32,613.03 by 4 August 2026. Any application for costs by a party be made in writing with supporting submissions and be filed in the Tribunal with a copy to the other party by 4pm on 18 August 2026. The responding party file submissions in response with a copy to the applying party by 4pm on 1 September 2026. Submissions on costs must address both the assessment and fixing of costs, and with respect to the latter, with all necessary supporting evidence. Any decision about costs shall be determined on the papers. CATCHWORDS: CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where the parties entered into two fixed price domestic building contracts – where the contracts could have been the subject of one contract – where by s 11 Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) the two contracts were taken to be a single contract for which the contract price was the sum of the separate contract prices – where quotations preceding the contracts were part of the contract documents and prescribed scopes of work – where the builder failed to do the work in accordance with the items listed in one of the -- 1 of 17 -- 2 quotations – where the work done under that particular separate contract was defective and deficient – where that prevented the builder claiming practical completion of the work to be done under one of the separate contracts – where the builder achieved practical completion of the work specified under the other separate contract – where the builder’s claim for payment of practical completion under both separate contracts was a breach of the combined contract – where the owner was entitled to terminate the combined contract – where the builder was liable for damages for breach of contract Queensland Building and Construction Commission Act 1991(Qld), s 71D, schedule 1B s 1, s 11, s 13, s 14 Building Regulation 2021 (Qld), s 44, schedule 1 s 8(1), s 8(2), schedule 6 s 16. Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38 Aquawest Pty Ltd v Twynham [2017] NSWSC 652 Commonwealth v Verwayen [1990] HCA 39 Mertens v Home Freehold [1921] 2 KB 526 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 Robinson v Harman (1848) 1 Ex Ch 850 Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 Sweeney v Magnay [2011] QCAT 648 APPEARANCES & REPRESENTATION: Applicant: M O’Donoghue, Construction Law MD Respondent: P J Hick of Counsel instructed by Robinson Locke Litigation Lawyers REASONS FOR DECISION [1] Before December 2021 the respondent (‘Ms Davie’) asked the applicant (‘the builder’) to quote on new roofs to replace hail damaged house and shed roofs on her property, and for construction of an increased roofed patio area with concrete floor adjacent to the existing house. [2] The builder gave a number of quotations, two for the re-roofing of the existing house and shed, and another for construction of the patio. [3] On 22 December 2021, the parties executed two contracts. The price for the re-roofing of the existing house and shed (‘the roof contract’) was priced in accordance with the last quotation, $64,500. The price for the construction of the patio (‘the patio contract’) was also in accordance with the quotation, $171,282. [4] Work commenced around April 2022. -- 2 of 17 -- 3 [5] In November 2022 the builder claimed practical completion had been reached in both contracts, which Ms Davie disputed, and the builder withdrew the claim for practical completion. [6] On 21 December 2022 the builder again claimed practical completion and again Ms Davie disputed that. [7] All stage claim payments under the two contracts had been made at that time save for practical completion under both contracts. [8] On 2 February 2023 Ms Davie gave the builder Notice to Remedy breach of the roof contract and informed the builder a complaint had been made to the Queensland Building and Construction Commission concerning defective work associated with the patio. [9] On 31 March 2023 the builder filed the withinapplication for building dispute in the Tribunal. [10] On 14 July 2023 Ms Davie’s solicitors served a Notice of Termination of both the patio contract and the roof contract based on failure to rectify defects. Orders sought [11] The builder admitted at hearing that the work under the roof contract was not completed in accordance with the contract, agreed rectification of defects was required but claimed the contract remained on foot. The builder asked for an order it be directed to rectify the defects concerned and Ms Davie be directed, after that, to pay it the practical completion payment under the roof contract, $6,458. [12] In respect of the patio contract the builder sought an order that Ms Davie pay the practical completion stage payment of $36,773.97 plus interest, or alternatively reasonable remuneration based on quantum meruit. [13] Ms Davie seeks damages for breach of the two contracts in an amount of $50,697.03. The contracts [14] Whilst the parties entered into two contracts, Ms Davie says they must be treated as one and that there are significant consequences that follow from that. [15] By s 11 of schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’): 11 Multiple contracts for the same domestic building work (1) This section applies if a building contractor and building owner enter into 2 or more separate contracts that— (a) could be the subject of a single contract for carrying out domestic building work; and (b) if they were the subject of a single contract, would be a contract for carrying out domestic building work. (2) The separate contracts are taken to be a single contract for which the contract price is the sum of the contract prices for the separate contracts. Example for this section— -- 3 of 17 -- 4 A building contractor that manufactures and installs kitchens enters into one contract with a building owner for the manufacture of a kitchen and a second contract for its installation. [16] Ms Davie submits there need only have been one contract. [17] The separate contracts both utilised the Master Builders Basic Works Contract (Residential) format. Both were dated 22 December 2021. The price for the work was different in each, but the work to be done was done at the same property and generally at or about the same time. It seems to have been the builder’s choice to prepare two separate contracts. No explanation for two is forthcoming. [18] The description of the work in item 4 of each contract was identical, namely ‘In accordance with the Contractor’s Scope of Works/Quotation’. There were identical descriptions of the stages of work under both contracts, save for the amount of the stage payments. Stage payments 1, 2 and practical completion of each contract accounted identically for 22, 63 and 10 per cent of the different contract prices. [19] In each contract there was attached an identical document entitled ‘Roof Replacement Specs’. [20] Under the Roof contract, the period of construction was nominated as three days, under the Patio contract, 53 days, with the date for commencement of each nominated as 22 April 2022. Despite the different construction periods, the builder issued Notices of Practical Completion for each contract on the same date, 21 December 2022. [21] At hearing Mr Stolberg, the builder’s director, accepted that the certifier made one inspection only and provided one Form 21 Final Certificate covering both contracts. [22] The builder suggests in closing submissions that the roofing work required engagement of a roofing specialist. There was no evidence led at hearing to support that claim. Rather, Mr Stolberg merely said at hearing that the builder’s work involved ‘simple, basic stuff’1 in describing his company’s usual quoting and contract preparation practices. Builders commonly perform all aspects of domestic building work, from base and slab, enclosed, fixing and roof through to practical completion under one single contract. If a specialty, such as waterproofing or tiling, plumbing or electrical work is required, subcontractors are engaged. [23] The builder also submits the roof works were of comparatively short duration, taking only three weeks. The builder says it would not make commercial sense for the builder to wait for payment for the roof contract until the patio work was done. I fail to understand why that should be so. The parties are fee to agree on the stages of work and payments for the stages.2 [24] Mr Stolberg concedes that Ms Davie initially approached his company for a quotation covering both re-roofing work and a new patio and landscaping. [25] Roofing work, concreting work and patio construction is fairly common domestic building work. All are commonly found in the one scope of work under one single contract of domestic building work. 1 (Transcript)T1-37 (Line)L1. 2 Subject to s 34 Schedule 1 B QBCC Act, proportional payment for proportional work. -- 4 of 17 -- 5 [26] The current s 11 has its roots in s 17 Domestic Building Contracts Act 2000 (Qld) (repealed) (‘DBCA’). Section 17 focused on domestic building work being carried out in a series of separate contracts. By s 17 DBCA, the separate contracts were to be taken to be a single contract and the contract price the sum of the separate contract prices. [27] The explanatory notes to that legislation explained that the provision was to prevent circumvention of the regulatory regime governing domestic building contracts by framing the work as a series of small contracts, each less than the floor amount for a regulated domestic building contract.3 [28] Section 17A, added in 2003, expanded the reach of the provision. Section 17A was not limited to serried contracts below the floor amount for a domestic building contract,4 but expanded to generally cover multiple contracts for domestic building work where one contract could suffice. [29] Whilst the DBCA was in force, such things as the deposit that could be asked in a contract or the percentage of the price able to be claimed for stage payments where the price was more than the regulated amount but less than $20,000, was regulated. Hence s 17A was aimed at addressing more than artificial multiple contracts for less than the base (regulated) amount. [30] The current iteration of s 17A is s 11 of Schedule 1B of the QBCC Act and the provision now checks such contrivances as multiple contracts which could be the subject of one contract, but each or one priced at less than the level 2 regulated amount but more than the base regulated amount. There are significant consequences attaching to contracts under or over the level 2 regulated contract amount.5 [31] Here I determine the roof contract and the patio contract could have been the subject of a single contract for carrying out domestic building work. Section 11 of Schedule 1B therefore clearly applies. No explanation is offered why a single combined contract could not have been utilised. Indeed, as mentioned, no explanation is attempted to explain why two separate contracts were initially used. [32] Section 11 is clear in its wording, as too its effect. It is a statutory prohibition on domestic building work being divided up into separate contracts where one would suffice. The legislated outcome is that the separate contracts are taken to be one contract. [33] The statutory insurance scheme adopts the same formulaic view of separate contracts that could be the subject of a single contract for the purpose of the statutory warranty scheme – see s 71D QBCC Act. [34] A statute should be construed from outset on the basis that its provisions are intended to work harmoniously together.6 3 Explanatory Notes, Domestic Building Contracts Bill 1999, 12. 4 QBCC Act, sch 1B s 1 (definition of ‘regulated amount’). 5 See QBCC Act, schedule 1B ss 13, 14. 6 Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28, [70]. -- 5 of 17 -- 6 [35] Permitting contrived division of building work that could be done under a single domestic building contract into several contracts could pose significant issues for sensible and consistent administration of the statutory insurance scheme.7 [36] I determine the separate contracts here could have been the subject of a single contract, and therefore they must be taken to be one single contract (‘the combined contract’). The price of the single contract is the combined price of the separate contracts, which totals at $235,864. Procedural fairness [37] The builder challenges Ms Davie’s reliance on s 11. The builder claims it has been denied procedural fairness, and that it should be afforded an opportunity to file further evidence and submissions directed to that issue. [38] Soon after the hearing commenced, Mr O’Donoghue for the builder was asked whether he would be raising an argument that the Tribunal consider the surrounding circumstances associated with formation of the roof contract and the patio contract, given his witness, Mr Stolberg, commenced giving oral testimony about pre- contractual matters not covered in his written statements of evidence. Mr O’Donoghue said yes. [39] Mr Hicks for Ms Davie then responded: Member, not to that level of detail. I could say that what is going to be put in issue by the respondent is the – there’s no argument about the formation of – or, rather, the entering into of two building – WUC (sic) building contracts. The respondent’s position is that those two domestic building contracts are – must be taken to be a single domestic building contract pursuant to section 11 of the schedule 2B (sic) of the QBCC Act. And so surrounding circumstances, where they’re relevant from the respondent’s point of view, is just the quotations that were delivered, the circumstances in which those contracts were entered, signed on the same day, et cetera.8 [40] The builder was clearly put on notice at that very early stage of the hearing that the s 11 argument contending for a combined contract would be pursued. The builder was permitted to continue eliciting oral testimony to establish which documents formed part of the contracts and which did not, and in particular with respect to the latter, it was the builder’s evidence that the preceding quotations were excluded.9 [41] There has been no denial of procedural fairness to the builder. The issue of one combined contract by virtue of application of s 11 was clearly raised at outset of the two-day hearing. There was no application to adjourn. The solicitor for the builder had opportunity to have Mr Stolberg address the issue in his oral testimony but that opportunity was not taken. The builder made closing submissions about the application of s 11 in its reply to the closing submissions of Ms Davie. [42] In so far as the builder also complains that the issue should have been ‘properly pleaded’, the Tribunal process does not employ pleadings. Rather, the issues for 7 See the strict time limits applying to claims under the statutory insurance, Queensland Building and Construction Commission Regulation 2018 (Qld), schedule 6 s 16. 8 (Transcript) T1-12 L32. 9 T1-13 L10. -- 6 of 17 -- 7 determination are derived from perusal of the statements of evidence exchanged by the parties. Scope of work under the combined contract [43] The builder’s initial contact with Ms Davie was through her request for a quotation for re-roofing works and a new patio and landscaping. [44] A salesperson for the builder provided a (final) quotation for ‘re-roof components’ for the re-roofing of the house and a shed on 29 November 2021 and a quotation for construction of a patio with associated concreting work on 21 December 2021. [45] In both the roof contract and the patio contract, item 4 of the contract schedule described the works to be performed as ‘In accordance with the Contractor’s Scope of Works/Quotation’. [46] The price of the work under the roof contract was $64,580 (incl GST). The quotation for the re-roofing of the house and shed was $64,580 (incl GST). [47] The price of the work under the patio contract was $171,284 (incl GST). The quotation for the re-roofing of the house and shed was $171,284 (incl GST). [48] The quotations were not attached to the contracts presented to Ms Davie for signature on 22 December 2021. Attached to the roof contract were, as relevant, pages described as ‘Re-roof project; Roof replacement plan (existing residence); Roof replacement plan (existing brick wall shed); Roof replacement ‘specs’; site plan’. [49] Attached to the patio contract were, as relevant, pages described as ‘Construction project; Project overview; Roof plan; Side and front elevation; Roof specifications; Roof replacement plan; Roof replacement “specs”; site plan’. [50] The documents entitled Roof replacement plan (existing residence) and Roof replacement in the patio contract were basically identical. The documents entitled Roof replacement ‘specs’ were identical. [51] The documents attached to the contract lacked the details set out in the quotations. Importantly the quotation for the re-roofing included the builder supplying and installing new aluminium top hat roof battens and triple grip tie-downs to bearers to ‘comply with code’. [52] The builder maintains the quotation for the re-roofing work did not form part of the contractual documents. The builder did not use new aluminium top hat roof battens in re-roofing the house and shed. The existing aged timber battens were left in place. Mr Stolberg’s evidence at hearing was that the re-roofing work was done in accordance with the documents attached to the contract. Given the quotations were not attached, none of the work detailed in the quotations was done. [53] He blamed the salesperson for failure to link the quotation to the contract. This exchange occurred between Mr Stolberg and Counsel for Ms Davie: Right. So just to be clear here, we’re just dealing with the roof contract for now. The quote said that you’d remove and replace the existing battens. It said that you would apply triple grips to the rafters and roof bearings to bring it up to Code, but, in fact, you just did what you always do, rip the sheets off, looks okay, throw a new sheets on and give a nod to the certifier. Do you agree?---Uh – we just followed – my builders followed the scope of works that was a tr – agreed in the contract. So it is the salesman responsibility and – and, ultimately, -- 7 of 17 -- 8 the company to transfer everything from the quote that was discussed through to the – the scope of works. So - - -?---And it’s because the builders only have the scope of works to go on. They don’t – they don’t have access to old quotes, then – and sometimes there can be multiple. There can be 10 quotes that formulate a job. You’re the builder, Mr Stolberg. Your company is the builder?---Yes. You have access to the quote. It’s your quote?---That’s right. Yep?---My builders – my builders don’t. You – builders don’t get on laptops and go on things. They - - - So you don’t - - -?---They - - - - - - instruct them?---They – but they – they have a – we print out their scope of works. They go out on site, and they build. That’s what they do. So that’s why we – we only go by what’s on a contract. What’s attached to a contract is what the guys go and do, hence why it wasn’t done, because it wasn’t clear. If it was clear, it would have been done.10 [54] The builder argues that because the quotations were not transferred to the scopes of work documents in the contracts by the salesperson, the quotations simply did not form part of the contracts. [55] The builder pursues that submission by suggesting that the ordinary function of a forward slash, as used in item 4 of the contract setting out a description of the work to be done under the contract, is to separate alternatives or alternative labels. That is, that a forward slash always has a disjunctive purpose, never conjunctive. [56] In Aquawest Pty Ltd v Twynham,11 Lonergan J said in context of the facts there: [23] … a forward slash is not a word, but a form of punctuation creating relationship between “director” and “shareholder” in the context of rights and liabilities contained in the contract clause. The phrase “director/shareholder” is a composite one – the forward slash may be conjunctive or disjunctive. It is arguable that its interpretation gives rise to a constructional choice. [24] “Director/shareholder” may mean: 1. Director or shareholder – this is the construction put forward by the appellant. 2. Director and shareholder. 3. Director and/or shareholder.”12 [57] I find that constructional choice applies here as well. [58] Item 4 of the schedule has alternative boxes to be figuratively ticked. One provides ‘in accordance with the Contractor’s Scope of Works/Quotation’. The other provides ‘as described’. That perhaps constituted a separate disjunctive choice to be made by the parties. 10 T1-35 L39 to T1-40 L18. 11 [2017] NSWSC 652. 12 Ibid, [23]-[24]. -- 8 of 17 -- 9 [59] In so far as the first box was selected, I determine the choice was to nominate the scope of work under the contracts as that found in the quotation and another document or documents given a rather broad-brush description of Scope of Works. The description is broad-brush because there is no particular document entitled Scope of Works attached to either contract. [60] The phrase Scope of Works is not defined in the general conditions. Works is defined but that offers little enlightenment. Item 4 sets out no requirement that either the Quotation or a document entitled Scope of Works be attached to the contract. [61] The builder was permitted to lead evidence of the surrounding circumstances of formation of the contract. Turning to consider that I note Mr Stolberg did not prepare the contracts. He said it was the builder’s salesman, Andrew Latimer, who was responsible. It was also the salesman’s responsibility to transfer all necessary information from the quotation to the scope of works.13 It is unclear how the contract preparation process proceeded, but Mr Stolberg took no responsibility for it. He said he and his workers simply followed the contract material made available without enquiry as to content. He said he was never privy to discussions between his salesman and owners about quotations. He said at hearing: … the client’s accept – once there’s an acceptance of price – because, you know – and I’m not saying this happened in this situation, but it’s – I – we do a lot of jobs. They could be “Right, Mrs Jones has agreed on 50 grand.” And, you know, in the quote it said a couple of things. And then they’ve gone, “Oh – how about I’m going to take out that ceiling fan, but can you change the post to kwila?” And go “All right, so that’s now in the scope of works.” But if you went back to the quote, it doesn’t reflect that. Because we change it. It might be exactly the same price. So I’m never party to what happens as they’re talking. You know, Jenette and Andrew, they went back and forth. “Righto, that’s the price.” Da-da-da-da-da. This happened over a few days. Then they put together the specs and then I – you know, I get handed the contract and to – right, Justin, let’s go and build this.14 [62] The price of the quotations is precisely the amounts of the contract prices. There is a great deal of precision with respect to the included items in the quotation. The patio contract is dated 21 December 2021. Both the patio contract and the roof contract were executed the following day, 22 December 2021. The person signing the contract on behalf of the builder was Mr Latimer, the salesman who prepared the quotations. Mr Latimer did not give evidence. [63] I find the quotation did form part of the contract, as well as the various other documents attached. All combined to describe the scope of works to be performed under the contracts. [64] I determine that in the circumstances the forward slash in item 4 of the contracts prepared by Mr Latimer was intended to serve a conjunctive purpose incorporating the quotations he had prepared, and all the other documents attached to the contracts were given the broad brush descriptor Scope of Works. 13 T1-35 L45. 14 T1-37 L9. -- 9 of 17 -- 10 All the stages of work under one contract [65] Given my finding that the roof contract and the patio contract are to be considered a single contract, how are the stages of work to be viewed? Section 11 of schedule 1B gives no guidance about that, save the price of the work is the combined amounts under the separate contracts. [66] The two contracts feature identical stages of work. I determine the identical stages of work under the combined contract are amalgamated so that each named stage under the combined contract is the combined scopes of work under the individual roof contract and patio contract and the stage payments for each amalgamated stage is as follows: Stage and description of Stage % of price Combined amount Deposit 5% $11,793.20 Stage 1Check measure/Council Submission 22% $51,890.08 Stage 2 Material delivery/construction commencement 63% $148,594.32 Practical Completion 10% $23586.40 Total 100% $235,864.00 [67] To earn a stage payment for a named stage, all the work to be done in that stage in both the roof contract and the patio contract had to be completed. That also applied to practical completion stage. Practical completion [68] Practical completion is defined in the common general conditions as: … that stage of the works when: The works are completed in accordance with the contract, including all drawings and specifications, and all statutory requirements applying to the works, without any defects or omissions other than minor defects or minor omissions that will not unreasonably affect occupation; and If the owner claims there are minor defects or minor omissions, the contractor gives the owner a defects document for the minor defects or minor omissions. [69] The engineering expert, Mr Baxter, concluded that gaps in the foil backed insulation used in the roof breached the requirements of Australian Standard AS4200.2. [70] He also found some roof battens were defective, particularly the ridge timber battens. He concluded that the use of what he described as inadequate battens, meant the work did not comply with Australian Standard AS1684.2. He suggested some options to rectify the defects including the provision of additional timber support to existing poor battens or removal of the roof sheeting and replacement of the battens concerned then reinstatement of the roof sheets. -- 10 of 17 -- 11 [71] At hearing, Mr Stolberg, for the builder, accepted that with respect to the re-roofing work, the builder claimed practical completion leaving defective roof battens in place, that the defects concerned were not minor and in result that the work failed to conform with Australian Standard AS1684.2. [72] The builder further conceded that the practical completion stage, as far as it concerned the roof contract, had not been finished. That was an appropriate concession given the regulatory requirements had not been met, and meeting the regulatory requirements was necessary to claim the practical completion stage payment. [73] I have found the quotation formed part of the contract. The failure of the builder to replace the existing timber battens with new aluminium top hat battens also disqualified the builder from being able to claim practical completion of all the work required to be done under the roof contract had been done in any case. [74] With respect to the patio work, Mr Baxter found only minor defects and omissions which did not affect occupation. The defects liability period of 12 months following practical completion would apply to remedy those under normal circumstances outside breach of the contract. The work to be done in the practical completion stage for the patio contract, if the patio contract is considered distinct from the combined contract, was therefore finished. [75] Ms Davie says the patio concrete slab and the patio roof post piers should have been certified but were not, and therefore the patio works never reached practical completion, and the Form 21 Final Inspection Certificate was not sufficient. [76] The Form 21 appears to have mistakenly referred to the dwelling roof as a class 10a structure and the patio roof as a class 1a. That seems to have been no more than a simple formatting error. The house was a class 1a single dwelling. The patio (including roof) was a class 10a non-habitable structure. [77] The Form 21 only certified completion of the work on the roof of the house and patio roof.15 Mr Stolberg agreed that was the case at hearing.16 [78] The Form 21 certifies that construction complies with the structure’s development approval. The building approval here however is not in evidence. [79] By s 44 of the Building Regulation 2021 (Qld) (‘BR’): 44 Stages of assessable building work—Act, schedule 2, definition stage (1) For schedule 2 of the Act, definition stage, the following stages of assessable building work are prescribed— (a) all stages at which the building development approval states the work must be inspected; (b) if the work is the construction of a single detached class 1a building, the following stages— 15 There is no mention made of the roofing work done on the shed and whether that was certified. There is no shed mentioned in the Form 21. 16 T1-35 L7. -- 11 of 17 -- 12 (i) after excavation of foundation material and before the concrete for the footings, or slab, for the building are poured; (ii) if the building is to have footings—after the placement of formwork and reinforcement for the footings but before the concrete for the footings is poured; (iii) if the building is to have a slab—after the placement of formwork and reinforcement for the slab but before the concrete for the slab is poured; (iv) to the extent the bracing for the frame of the building consists of cladding or lining—after the cladding or lining is fixed to the frame; (v) to the extent the bracing for the frame of the building does not consist of cladding or lining—before the cladding or lining is fixed to the frame; (vi) if reinforced masonry construction is used for the frame of the building—before the wall cavities are filled; (vii) at the completion of all aspects of the work; (c) if the work is an alteration to a single detached class 1a building— each stage mentioned in paragraph (b) that is relevant to the alteration; (d) if the work is the construction of, or an alteration to, a class 10 building or structure, other than a swimming pool—the completion of the building or structure or the alteration; …. [80] With respect to the patio structure, the only certification requirement was therefore at completion pursuant to s 44(1)(d). The Form 21 Final Inspection Certificate provided was therefore sufficient and my finding that the work to be done at practical completion stage of the patio contract had been done, subject to minor defects and omissions, remains. [81] Given practical completion under the roof contract was not achieved, practical completion of the combined contract was not achieved. The builder was therefore not entitled to claim any payment for practical completion under either the roof contract or the patio contract when it did firstly on 23 November 2022, from which it resiled when challenged, or after that on 21 December 2022. Possession and therefore practical completion [82] The builder says Ms Davie used and therefore took possession of the patio area within the meaning of and triggering clause 8.7 of the general conditions. Clause 8.7 provides: If the Owner takes Possession of the Works when not entitled to do so under the Contract, the Works are deemed to have reached Practical Completion without any defects or omissions on the Day that the Owner takes Possession, and the Owner is liable to the Contractor for any loss or damage that the Contractor may incur or suffer as a result. -- 12 of 17 -- 13 [83] Works is defined as: The whole of the work to be carried out by the Contractor under the Contract, a description of which is contained in item 4 of the Schedule …. [84] Possession is defined to mean: When the Works, or any part of the Works, are taken over, occupied or used by the Owner or the Owner’s employees, other contractors or agents. [85] It is not clear from what date the builder maintains the owner took possession of the Works. Ms Davie was occupying the house at all material times. [86] It is not simply the act of taking possession of the Works or part of the Works that is significant under clause 8.7, it is taking possession when not entitled to do so under the contract. [87] That Ms Davie was in occupation from the first day of construction, and the builder proceeded with the build without claiming clause 8.7 was triggered is strong evidence that her occupation was known, agreed and accepted by the builder. [88] There is no evidence about any agreement struck between the parties about Ms Davie’s occupation during the build, but equally there is no evidence of the builder raising any objection to Ms Davie’s presence on site, nor that of her son. There was apparently no issue between the parties concerning the matter until hearing when the builder’s solicitor asked Ms Davie’s son whether he had written permission from the builder to use the patio area, and the son answered no. [89] The circumstances of claimed taking of possession by the owner was not further explored with Ms Davie’s son. It was not explored or put to Ms Davie herself, nor was the matter raised with Mr Stolberg for comment. [90] Clause 8.7 does not impose a requirement that an owner obtain the builder’s permission to occupy the work site in writing. Hence what was put to Ms Davie’s son was of little value and the same with the son’s response that he did not obtain permission in writing from the builder. [91] The contract was not tailored to take into account the owner’s occupation of the premises throughout the build. The builder must have known from the time of quoting for the job that Ms Davie was in occupation of the existing dwelling and the dwelling was the proposed work site. [92] The builder proceeded with the work without evidence of objection to Ms Davie’s presence on site nor that of her son. I conclude that the builder knew and accepted that Ms Davie would remain on site throughout the construction work and had no objection. I find, in so far as the builder had a right under the contracts to exclusive use of the site, the builder waived its entitlement to exercise the right. That waiver, or perhaps the failure to exercise the right of exclusive possession, or divestiture of rights,17 howsoever described, under the roof contract and the patio contract continued throughout the build. The waiver was never revoked.18 After termination of the contract by Ms Davie, it was too late to revoke the waiver. 17 Commonwealth v Verwayen [1990] HCA 39, [9] per Brennan J. 18 Allianz Australia Insurance Limited v Delor Vue Apartments CTS 39788 [2022] HCA 38, [29]. -- 13 of 17 -- 14 Termination [93] Ms Davie disputed that practical completion of either the roof contract or the patio contract had been achieved in a Notice of Dispute dated 22 December 2022. The notice stated it was issued in accordance with clause 13.4 and clause 19.1 of the general conditions. [94] Clause 13.4 provided: If the owner disputes all or any part of the total amount of a progress claim or the final claim, the owner must: a) give the contractor a written notice of dispute in accordance with clause 19.1 setting out the amount in dispute and details of the dispute by the time stated in item 14 of the schedule or the date ten (10) business days after the submission date, whichever is the earlier, and b) pay the contractor the amount of the progress claim or the final claim that is not disputed by the owner by the time stated in item 14 of the schedule. [95] Clause 19.1 referred to in clause 13.4(a) provided: If a dispute or difference (together referred to as a ‘dispute’) arises out of, or in connection with, the contract, either party may give the other party a written notice of dispute setting out the details of the dispute, including any amount in dispute. Notwithstanding the giving of a notice of dispute, the parties must, subject to the contract, continue to perform the contract. [96] By clause 19.2, the parties were to arrange and participate in a without prejudice conference in an attempt to resolve the dispute. There is no evidence that any such conference was arranged or attended. [97] On 2 February 2023 Ms Davie’s solicitors wrote to the builder’s solicitors serving a Notice to Remedy Breach under clause 14 of the general conditions. The builder was given 10 business days of receipt to remedy a breach with respect to completion of the roof contract. [98] In the Notice to Remedy Breach Ms Davie complained amongst other things about the failure of the builder to supply and install new aluminium top hat roof battens and other defects not minor. That was a valid claim. The builder failed to remedy the breach. That failure entitled Ms Davie to terminate the combined contract.19 [99] On 14 July 2023, after the within proceedings had been commenced by the builder, solicitors for Ms Davie served Notice of Termination of both the patio contract and the roof contract, and therefore the combined contract. I find that was effective termination of the combined contract and entitled Ms Davie to claim damages for breach of that contract. [100] Additionally, the builder’s continued pursuit of a claim for practical completion payment constituted repudiation of the builder’s obligations under the combined contract and was also an available ground for Ms Davie to terminate the combined contract:20 19 Sweeney v Magnay [2011] QCAT 648, [241]. 20 Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359. -- 14 of 17 -- 15 But the rule is of general application in the discharge of contract by breach, and enables a party to any simple contract who fails or refuses further to observe its stipulations to rely upon a breach of conditions, committed before he so failed or so refused, by the opposite party to the contract as operating to absolve him from the contract as from the time of such breach of condition whether he was aware of it or not when he himself failed or refused to perform the stipulations of the contract. 'It is a long established rule of law that a contracting party, who, after he has become entitled to refuse performance of his contractual obligations, gives a wrong reason for his refusal. does not thereby deprive himself of a justification which in fact existed, whether he was aware of it or not…. Claim for damages [101] Ms Davie claims costs to rectify and complete the house roof in the amount of $75,845. There is a quotation from a roofing company, Manchester Roofing, dated 15 May 2025, quoting that amount. The quotation refers to roof replacement of the main house and shed. [102] The quote does not address the separate costs associated with replacing the house roof as opposed to the shed roof. There was little information in either the statements of evidence or testimony at hearing concerning the rectification work necessary for the shed roof as opposed to the house roof. Whilst Mr Baxter was briefed to advise on both, his report focused almost exclusively on the house. [103] At hearing Mr Stolberg said that a defective roof batten in the shed had been replaced after complaint made. There seems to have been nothing more done. [104] The builder submits that Mr Stolberg gave evidence that the cost of roof repair was no more than $3,500. Mr Stolberg said at hearing that after Ms Davie complained he offered a refund based on an estimate of the cost of metal battens not supplied. Mr Stolberg said he made up the price.21 It was something he offered to appease Ms Davie’s son who was complaining. I do not accept the offer to refund money amounts to any true estimation of costs of rectification of either the house or shed roof, given the extensive rectification work I determine is necessary. [105] Mr Baxter, the engineering expert, noted in his report that if re-roofing work affects more than 20 percent of a roof area, certification of the tie-down arrangements is required. In his report and at hearing he said he could not speak to the adequacy of tie-downs because the roof had been replaced and he could not access relevant areas to determine the tie-down connections utilised. [106] He referenced s 8(2)(a) of Schedule 1 of the BR. Schedule 1 deals with self-assessable development (not requiring external certification) and s 8 provides: Particular repairs, maintenance or alterations only affecting structural component (1) Building work if— (a) the building work consists of repairs, maintenance or alterations to an existing building other than— (i) alterations to existing fencing for a regulated pool; or 21 T1-33 L34. -- 15 of 17 -- 16 (ii) repairs, maintenance or alterations to an existing solar hot water system or photovoltaic solar panel attached to the roof of a building; and (b) the building work— (i) does not change the building or structure’s floor area or height; and (ii) is for, or only affects, a minor structural component of the building; and (c) the requirements under subsection (2) are met. (2) For subsection (1)(c), the requirements are— (a) if the building work does not affect more than 20% of the building’s structural components of the same type … [107] Where building work does affect more than twenty percent of the building’s structural components of the same type, for example more than 20 per cent of a roof, the work is not self-assessable. [108] The Form 12 inspection certificate for the roof, presumed to cover tie-downs, is dated 8 December 2022, the same date as the Form 21 Final Inspection Certificate. By that date the re-roofing had been completed. If Mr Baxter was not able to confirm adequacy of tie-downs utilised because he could not access appropriate areas given the roof was already in place, I conclude the person who gave the Form 12 Inspection Certificate was no better placed. I conclude there was no inspection of tie-downs by the person who gave the Form 12. Therefore, accepting the evidence given by Mr Baxter, who seemed to be a knowledgeable and competent engineering expert, I find there was no certification of tie-downs, at least as concerned the main dwelling roof, and that absence precluded the builder from claiming practical completion of the roof contract work. [109] It is unclear whether the same problem of non-access to ascertain tie-down connections applied to the shed roof. There was no ceiling in the shed. The Form 12 does not mention the shed however, nor does the Form 21. [110] The quotations, which I have determined to be contract documents, apparently called for removal of existing battens on one roof and supply and installation of new aluminium top hat battens on both the house and shed roofs. Both roofs were to have triple grip tie-downs supplied and installed and building approval and certification for the tie-downs ‘to comply with code’. [111] The work quoted to be done in the Manchester Roofing quotation will achieve those requirements. The builder makes no comment about the reasonableness of the costs quoted for the itemised work noted in the quotation. [112] I allow Ms Davie damages in the amount of the quotation, $75,845 for rectification of the roofs. [113] Ms Davie also claims $18,084 as costs to rectify and complete the patio. A quotation in that amount from Signature Substrates states it is for the repair and remedy of aggressive and inconsistent broom finish, cracking and haemorrhaged saw cuts. -- 16 of 17 -- 17 [114] Mr Baxter found only minor defective work done with respect to the slab, which defects did not affect occupation. He described the cracking as generally less than 1 mm in width and very slight and appropriately categorised as not defective. He found some cracks more than 1 mm but less than 2 mm in width which could be described as defective, but noted cracking in concrete is to be expected. [115] Mr Baxter suggested rectification of the cracking be achieved by applying a suitable epoxy filler to those cracks more than 1mm in width only. Given the minor nature of the defects concerned, the rectification work and cost for that of $18,084 is unreasonable, and on that basis refused. There is no estimate of the costs for epoxy filling. Given I have no cost information available for that appropriate limited item of remediation, I am unable to award any damages for repair of the concrete. [116] I have found the builder provided appropriate certification for the patio area. There is no award to be made for that, even if there had been evidence of costs associated with that provided, of which there is not. [117] Given Ms Davie seeks damages for breach of contract, and she has not paid all the moneys agreed under the combined contract, she must credit the outstanding money she would have had to pay the builder to complete the scope of work of the combined contract as agreed.22 The amount of $6,458 remains outstanding under the roof contract and $36,773.97 under the patio contract. [118] Setting off those amounts against the damages award, that leaves the builder to pay Ms Davie $32,613.03. 22 Rocci & Anor v Diploma Construction Pty Ltd [2004] WASC 18, per EM Heenan J, citing Robinson v Harman (1848) 1 Ex Ch 850, 855; [1848] EngR 135 and Mertens v Home Freehold [1921] 2 KB 526. -- 17 of 17 --