All Aspects Earthworks Pty Ltd v Zafa Contracting Pty Ltd - [2023] QCAT 483

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

ALL ASPECTS EARTHWORKS PTY LTD V ZAFA CONTRACTING PTY LTD [2023] QCAT 483

PARTIES:

ALL ASPECTS EARTHWORKS PTY LTD

(applicant)

v

ZAFA CONTRACTING PTY LTD

(respondent)

APPLICATION NO.:

BDL269-22

MATTER TYPE:

Building matters

DELIVERED ON:

11 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

ORDERS:

1. All Aspects Earthworks Pty Ltd must pay to Zafa Contracting Pty Ltd $13,903.00 within twenty-eight days.

2. No order as to costs

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – whether QCAT has jurisdiction – whether the dispute the subject of the proceeding is a building dispute – whether the work undertaken by the parties is building work – whether the dispute the subject of the proceeding is a minor civil dispute

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – MEASURE OF – breach of contract – damages for breach of contract – where applicant subcontracted respondent for the laying of asphalt driveway – where defects were identified in the respondent’s work – where the respondent subsequently undertook rectification works of the defect - whether further remedial work is reasonable and necessary – whether remedying the defect is out of proportion to the achievement of the contractual objective

Queensland Building and Construction Commission Act 1991 (Qld) Schedule 1B, s 20, Schedule 1B s 22, Schedule 2
Queensland Building and Construction Commission Regulation 2018 (Qld) Schedule 1 s 32, s 6
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, Schedule 3

Bellgrove v Eldridge [1954] HCA 36

PND Civil Group Pty Ltd v Bastow Civil Constructions Pty Ltd

[2017] NSWCA 159

Scott Carver Corporation Pty Ltd v SAS Trustee Corporation (Formerly State Authorities Superannuation Board) [2005] NSWCA 462

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

This proceeding falls to be finally determined.
The dispute between the parties relates to the construction of driveway at a domestic residence. The applicant is an earthmoving contractor. The respondent is a contractor engaged in laying asphalt surfaces. Neither party is the holder of a licence issued by the Queensland Building and Construction Commission.
Jurisdiction – is this a proceeding for a building dispute or a minor civil dispute?
At first blush the dispute appears to be a building dispute. For the reasons that follow, it is not. The dispute is in fact a trader/trader dispute and falls to be determined as a minor civil dispute.
The jurisdiction of the Tribunal to decide a building dispute is strictly circumscribed by the provisions of the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
The QBCC Act provides that the parties to a building dispute, whether a domestic building dispute or a commercial building dispute must be:
(a)A building owner and a building contractor;
(b)Two or more building contractors;
(c)A building owner or a building contractor and an architect, an engineer, a surveyor, a quantity surveyor, an electrician or an electrical contractor or a supplier or manufacturer of materials used in the tribunal work the subject of the dispute. [1]
[1]Queensland Building and Construction Commission Act 1991 (Qld) Sched 2.
A ‘building contractor’ means a person who carries on a business that consists of or includes carrying out building work, and includes a subcontractor who carries out building work for a building contractor.[2] ‘Building work’ has a particular meaning.[3] Of relevance for present purposes, ‘building work’ does not include work of a kind excluded by regulation from the ambit of the definition of the term. One then turns to the Queensland Building and Construction Commission Regulation 2018 (Qld).[4] The following is work excluded from the definition of ‘building work’:
(a)Work consisting of earthmoving and excavating;[5]
(b)Laying asphalt or bitumen.[6]
[2]Ibid.
[3]Ibid.
[4]Queensland Building and Construction Commission Regulation 2018 (Qld).
[5]Ibid s 32.
[6]Ibid s 36.
The applicant’s business involves earthmoving and excavating. The applicant is therefore not engaged in ‘building work’. The applicant’s business does not consist of or involve ‘building work’ and, therefore, the applicant is not a ‘building contractor’.[7] For the same reasons, the respondent is not a ‘building contractor’. As neither of the parties to the dispute is a ‘building contractor’, the dispute is not a building dispute.[8]
[7]n 1.
[8]Ibid.
The Tribunal has jurisdiction to decide minor civil disputes.[9] A minor civil dispute includes:
(a)a claim to recover a debt or liquidated demand of money of up to the prescribed amount;
(b)a claim arising out of a contract between 2 or more traders, that is for payment of money of a value not more than the prescribed amount; or for relief from payment of money of a value not more than the prescribed amount. [10]
[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11.
[10]Ibid Sched 3.
The prescribed amount is $25,000.00.[11]
[11]Ibid.
The applicant’s claim is for:
(a)Relief from payment of any amount claimed by the respondent for undertaking asphalting work; and
(b)Payment of the amount of $22,621.50 being damages for the cost of rectifying the respondent’s defective work.
The applicant claims unliquidated damages. The respondent’s counterclaim is for payment of the amount of $14,003.00 as money due and owing for performing the asphalting work. The claim is for a liquidated sum.
Both parties are traders. The claims by the respective parties fall within the jurisdiction of the Tribunal to decide minor civil disputes.[12]
[12]Ibid Sched 3.
In accordance with Tribunal directions, both parties have filed statements of evidence. The Tribunal has directed that the proceeding be determined on the papers.
The works
The applicant was engaged by the owners of a domestic property at Dayboro to undertake the construction of a driveway. The driveway was to have an asphalt covering. The applicant undertook extensive earthworks in constructing the driveway in readiness for the application of the asphalt cover. The respondent subsequently laid the asphalt cover. On the same day the work was carried out by the respondent, it was noted by the homeowner that there was a ‘hump’ in the surface of the asphalt. Some days later the respondent returned to the site to undertake rectification work. A section of the asphalt was removed and additional asphalt re-laid. The dispute relates to this further work. The homeowners are dissatisfied with the outcome. They complain that the section of driveway repaired is now an unsightly patch. The applicant agrees. The applicant and the homeowners say that the entire asphalt covering should be removed and re-applied. The respondent says that the area complained of constitutes 2% of the total driveway area and that it is unreasonable to require the entire driveway to be recoated.
What do the parties say?
The applicant says:
(a)after the respondent completed laying the asphalt on 20 June 2022, one of the homeowners noted the presence of a large hump in the asphalt surface;
(b)the applicant’s principal, Mr Kane Prechelt, inspected the site and notified the respondent of the hump;
(c)left over cold mix had been left at or about the site of the hump which, says the applicant, may not have been cleaned prior to the pavement machine laying the section of asphalt, resulting in the hump;
(d)Mr Prechelt suggested to the respondent that a roller be returned to the site to cross roll the area while the surface was still hot in an attempt to flatten out the hump. This suggestion was not taken up by the respondent;
(e)On 23 June 2022 the respondent returned to the site and a discussion took place between the respondent’s employees and the owner of the property, Mr Cawood. After it was suggested by the respondent that the hump would be ‘shaved’ off, Mr Cawood informed the respondent’s employees that he did not want repair work undertaken that would be visible. No work was undertaken by the respondent on 23 June;
(f)On 27 June 2022 Mr Prechelt was informed by the respondent that its employees would be returning to the site that day and that an alternative method of rectifying the hump was proposed. The meeting on site was attended by Maddie Prechelt, a machine operator for the applicant, Mr Zachari Fall-Brown the principal of the respondent, and the home owners. The respondent proposed to remove the hump and lay a new patch of asphalt. Mr Fall-Brown advised that the replacement patch would not be visibly distinguishable from the surrounding asphalt within two weeks of the rectification work being undertaken;
(g)The respondent subsequently undertook the rectification work;
(h)On 29 June 2022 Mr Prechelt forwarded to Mr Fall-Brown an email attaching a photograph of the rectified section of driveway and noted that the colour difference was not seamless as Mr Fall-Brown had advised it would be;
(i)A series of subsequent email exchanges between Mr Prechelt and Mr Fall-Brown did not resolve the issues in dispute: on the one hand the applicant wanted the rectification works undertaken in accordance with the agreement reached on site on 27 June 2022, and on the other hand the respondent wanted to be paid for the work undertaken;
(j)The applicant has obtained two quotes to have the entire driveway recoated with asphalt. Those quotes are for $20,773.50 and $46,300.32;
(k)The applicant has also obtained a report from a geotechnical engineer. I will address this evidence later in the reasons;
(l)In the originating application, the applicant seeks to recover the amount of $22,621.50 for the cost of rectification work.
The respondent says:
(a)The respondent agreed with the applicant to lay an asphalt driveway over earthworks undertaken by the applicant. The agreed price was $14,003.00;
(b)The respondent did not inspect the works before agreeing to undertake the laying of the asphalt;
(c)The respondent undertook the works;
(d)A small bump in the surface of the driveway, approximately 1500mm by 1000mm, was identified after the asphalt was laid;
(e)The bump could have been caused by the asphalt machine becoming stuck which in turn could have been caused by insufficient compaction of the underlying surface or the absence of sealant to prevent the subgrade surface from breaking. The respondent is unable to identify with any certainty the cause of the bump;
(f)Mr Prechelt advised the respondent of the defect and the respondent agreed to return to the site to undertake rectification work;
(g)When the respondent’s employees attended at the site, the homeowner, Mr Cawood, advised the respondent’s employees that he wanted the bump removed without cutting, heating or altering the asphalt surface in such a way as was noticeable. This was not, says the respondent, a viable solution and it was agreed that the respondent would return to the site after further discussions between the respondent, Mr Prechelt and Mr Cawood;
(h)All parties subsequently agreed that the best course of action was for the section of driveway containing the bump to be removed and replaced;
(i)Despite undertaking the rectification work, the applicant has refused to pay the respondent the agreed contract price;
(j)The defect comprises less than 2% of the completed work and it is therefore unreasonable to expect the respondent to be responsible for the cost of re-covering the entire driveway;
(k)Mr Cawood’s expectations are a matter for the applicant to manage and are not the responsibility of the respondent;
(l)The respondent has obtained a report from an engineer. I will address the content of the report later in the reasons;
(m)The respondent seeks orders that the applicant’s claim be dismissed and that the applicant pay to the respondent the outstanding contract price of $14,003.00 together with interest.
In response, the applicant says:
(a)The respondent did in fact undertake a site inspection while the driveway preparations were underway;
(b)If the respondent was concerned about the state of the driveway preparation, these concerns could have been voiced to the applicant before the respondent laid the asphalt surface;
(c)If there was an issue associated with the absence of sealant to the subgrade surface, it was the respondent’s responsibility to apply such a sealant;
(d)The respondent failed to comply with the agreement to undertake the rectification works such that the replacement section of the driveway was not noticeable. As a result, no part of the contract price was paid by the applicant to the respondent;
(e)The applicant relies upon its expert’s report and says that the respondent’s work was defective in a number of respects, other than the presence of the hump.
The applicant’s experts, the joint authors of a report dated 10 January 2023, are Mr Roache and Mr Bruce who are both geotechnical engineers. They opine as follows:
(a)A noticeable patch is located immediately before the turning circle along the primary driveway, extending across the full width of the driveway and approximately two metres along the length of the driveway;
(b)A depression extending across the width of the driveway is evident where the patch was rolled into the existing driveway;
(c)Further defects in the main driveway were observed with minor shoving, minor depressions, minor cracking, minor ravelling and chipping of the asphalt surface;
(d)Defects were observed consisting of rutting and chipping of the asphalt of the secondary driveway;
(e)Core samples taken of the asphalt surface revealed that the thickness of the surface varied from 10mm to 30mm on the shorter secondary driveway and 25mm to 35mm on the longer primary driveway;
The respondent’s expert, Mr Nielsen, is an engineer who opines as follows:
(a)The bitumen driveway was appropriately constructed with no major cracking or splitting evident in the body of the pavement;
(b)The bitumen repair patch colour has settled to be similar to the original driveway;
(c)The joints of the repair patch appear to generally be tight and flush with the original surface with the exception of a small section approximately 250mm showing moisture retention from a recent rain shower;
(d)The driveway crown appears appropriately constructed and drainage appears adequate from the road surface;
(e)There is a slight rise of between 5mm to 10mm where the patch has been installed in the direction of travel along the driveway;
(f)The repaired patch appears a darker colour than the rest of the main pavement area;
(g)The repaired patch is the full width of the driveway and is approximately 3.4 metres wide and 2.82 metres long;
(h)A minor crown is evident in the driveway;
(i)The edge of the driveway appears adequately constructed to match the existing pavement surface level;
(j)Minor cracking is evident in the edge of the bitumen crossover, approximately 1 metre in length. This cracking has likely arisen from the absence of concrete edging during the asphalt application. The pavement has likely cracked under load. This can be remedied with the application of asphalt crack sealer;
(k)Based on the low traffic volumes expected for the driveway, open graded asphalt (OGA) can be substituted as the design material for use. There is no universal rational design system for OGA and basic parameters are usually established by specified requirements for materials, volumetric properties and any additional performance tests. A 10mm or 14mm dense graded asphalt intermediate course is typically provided under open-graded asphalt. Provision of this course enables the open-graded asphalt to be fully removed without unduly disturbing the underlying pavement when resurfacing is required. Based on the nature of the use of the pavement, this requirement appears to have been met;
(l)Pavement cracking evident in the vehicle crossover pavement area could allow moisture into the underlying materials, causing loss of pavement strength. At the time of inspection the extent of the cracking was not expected to cause any accelerated rate of deterioration;
(m)Surface water holding in the driveway appears to be within the limits of the construction material;
(n)The cracking evident can be repaired with appropriate asphalt crack sealer;
(o)The replaced section of the driveway appears to have been constructed with materials that match the existing pavement, in line with Austroads Pavement Design standard.
Each of the parties has filed statements of evidence.
The applicant’s evidence
The applicant relies upon statements of evidence of Kane Prechelt and Maddie Prechelt. In summarising the applicant’s case above I have largely reflected the evidence of these witnesses. It is however necessary to refer to some specific aspects of the evidence.
The evidence of Maddie Prechelt is that during the site inspection on 27 June 2022, Mr Fall-Brown advised that the removal and replacement of the section of driveway containing the hump would result in the patch not being visible within weeks.
The evidence of Paul Cawood, the homeowner, is that on 23 June 2022 the respondent’s employees returned to the site and advised Mr Cawood of the proposed method of remediating the hump. This would involve scraping the hump out and reheating and compacting the asphalt. Mr Cawood was advised that this would leave the surface of the driveway with a mark and blemish. Mr Cawood advised the respondent’s employees that this was not an acceptable outcome. Mr Cawood’s evidence is that on 27 June 2022 the respondent’s employees returned to the site. In attendance was Mr Fall-Brown. Mr Cawood says that he told Mr Fall-Brown on 5 or 6 occasions during the visit that any repair to the driveway was not to be visible and that Mr Fall-Brown advised that in undertaking the removal and replacement of the section of driveway, the patch would not be visible within fourteen days. Since the remedial work was undertaken the colour of the patched area has not changed and appears to have come from a completely different batch of asphalt and a different colour. Mr Cawood says that a hump also remains however it has been elongated. Mr Cawood says that he does not accept the outcome of the work undertaken by the respondent or the look of the driveway and 5 months after the remedial work was carried out ‘it looks worse’.
The evidence of Tegan Simpson, the other homeowner, largely reflects the evidence of Mr Cawood and supports his version of the discussions that took place on 27 June 2022.
The respondent’s evidence
The respondent relies upon the evidence of Mr Zachary Fall-Brown. I have referred earlier in these reasons to the evidence of Mr Fall-Brown when summarising the respondent’s case. Mr Fall-Brown says that it was not possible to rectify the driveway without cutting, heating or otherwise altering the driveway in such a way that the rectification work was not noticeable. Mr Fall-Brown says that the applicant and the homeowners agreed with the rectification work proposed by the respondent which was subsequently undertaken.
Discussion

There are a number of issues requiring determination:
(a)What were the terms of the contract between the parties;
(b)Was the work undertaken by the respondent defective;
(c)If so, what remedial work is proposed and is the remedial work both necessary and reasonable;
(d)What is the applicant’s entitlement to damages;
(e)What is the respondent’s entitlement to payment of the contract price.
The contract
I find that the contract between the parties required the respondent to lay 370 square metres of asphalt over a driveway prepared by the applicant. Although there is no direct evidence on the issue, the quote prepared by the respondent dated 16 June 2022 attaches a one page document titled ‘Terms & Conditions’. The terms and conditions included the following:
(a)An obligation on the part of the respondent to replace or redo any defective materials or work at the cost of the respondent;[13]
(b)A warranty against defective materials and workmanship for a period of three months from the date of completion.[14]
[13]Clause 8.2.
[14]Clause 8.3.
Even if the printed terms and conditions did not form part of the contract I would be satisfied that the following terms were implied into the agreement between the parties:
(a)That the materials used in the subject work would be suitable for the purpose for which they were used;[15]
(b)That the work would be carried out:
(i) in an appropriate and skilful way; and
(ii) with reasonable care and skill.[16]
[15]n 1 Sched 1B s 20.
[16]n 1 Sched 1B s 22.
The contract price was $14,003.00.
Was the work undertaken by the respondent defective?
There are two aspects of the work undertaken by the respondent to be considered. Firstly, the raised hump which was the subject of the rectification work undertaken by the respondent. Secondly, the other issues identified in the expert evidence.
It is clear from the evidence, and I find, that after the asphalt was laid by the respondent a raised area variously described as a lump or a hump was evident. I accept the evidence of Mr Fall-Brown that the area of asphalt was approximately 1.5 square metres in size. I accept that the agreement between the parties required the laying of a flat and smooth asphalt covered driveway. The presence of the hump was a defect. While it is not clear from the evidence how the defect came to be present, I accept that it was the result of the work undertaken by the respondent. The respondent speculates that the cause of the defect may relate to insufficient compaction of the underlying surface or the absence of sealant to prevent the subgrade surface from breaking. The respondent presents no evidence to support these assertions. The apparent willingness of the respondent to take steps to rectify the defect speaks to an acceptance by the respondent that it was responsible for the defect.
Had the works been carried out by the respondent in an appropriate and skilful way and with reasonable care and skill, the hump would not have been present.
As to the other issues identified by the experts, there is some variance in opinion. The applicant’s experts refer to minor shoving, minor depressions, minor cracking, minor ravelling and rutting and chipping of the asphalt surface. The respondent’s expert agrees that there is minor cracking present limited to approximately 1 metre along the edge of the bitumen crossover. Taking these opinions into consideration, I am not satisfied these issues are other than minor in nature. I generally prefer the evidence of the respondent’s expert who does not express the view that the identified cracking is the result of defective work by the respondent.
On balance, I am satisfied that the respondent breached the contract by failing to carry out the works in an appropriate and skilful way and with reasonable care and skill however this finding is limited to the hump subsequently rectified by the respondent.
The applicant’s entitlement to damages as a consequence of the respondent’s breach
In Bellgrove v Eldridge[17] the High Court stated the general principle on which damages are recoverable by a building owner for breach of a building contract: the building owner is entitled to recover the cost of making the work or building conform to the contract, subject to the qualification that not only must the work be necessary to produce conformity, but it must also be a reasonable course to adopt. The test of unreasonableness will only be satisfied by fairly exceptional circumstances.[18] The principle in Bellgrove v Eldridge applies in relation to claims by contractors against sub-contractors where it is alleged that the sub-contractor’s work is defective.[19]
[17][1954] HCA 36.
[18]Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272.
[19]PND Civil Group Pty Ltd v Bastow Civil Constructions Pty Ltd [2017] NSWCA 159.
The qualification on recovery stated in Bellgrove, that remedial work must be necessary and reasonable, is an important one depending upon the facts of the particular case. In Scott Carver Pty Ltd v SAS Trustee Corporation (Formerly State Authorities Superannuation Board)[20] Ipp JA stated:
[120] In my view, the qualification expressed in Bellgrove v Eldridge at 618 (namely, that the rectification work must be a reasonable course to adopt), is aimed at determining whether the cost of remedying the defect is out of proportion to the achievement of the contractual objective. As Lord Jauncey said in Ruxley Electronics Ltd v Forsyth (1996) AC 344 (at 358):
“[I]n taking reasonableness into account in determining the extent of loss, it is reasonableness in relation to the particular contract and not at large.”
[121] In my view (and with respect to those who have expressed contrary views), the details of any contract that the proprietor might make for the sale of the building defectively constructed is collateral to the issue of the proprietor’s loss, or, as it used to be described, res inter alios acta.
[20][2005] NSWCA 462.
The comments by Ipp JA have particular resonance in the present case.
The respondent undertook rectification work to address the issue with the raised area of the driveway. It is the remediation work that is the subject of complaint by the applicant and the homeowners.
It is not disputed that the overall contractual objective was achieved: the respondent laid an asphalt surface over 370 square metres of driveway. The evidence of the respondent’s expert Mr Nielsen, which I accept with one qualification, is that the work undertaken by the respondent is not defective. The qualification is that as originally undertaken, the work was defective, that defect being the hump. The respondent undertook rectification work involving the removal and replacement of a section of the asphalt cover. I accept the evidence of Mr Nielsen and the applicant’s experts Mr Roache and Mr Bruce that the replacement patch is approximately 2 metres long, and the width of the driveway, and is of a different colour. The photographic evidence reveals that the asphalt patch, while noticeable, is not markedly different from the surrounding asphalt.
The applicant’s experts make reference in their report to the thickness of the asphalt covering. There are two observations to make about this. Firstly, the contract did not provide for a specific level of asphalt cover. Secondly, nowhere in their report do the applicant’s experts express the view that any observed variation in asphalt thickness demonstrates a failure by the respondent to apply the asphalt cover in an appropriate way. Nor do the applicant’s experts express the view that in order to address what they identify as defective work, the entire driveway requires a further asphalt cover to be applied.
As I have earlier noted, I prefer the evidence of the respondent’s expert Mr Neilsen who has approached the assessment of the driveway in a practical and methodical manner.
True it may be that the homeowners are unhappy with what they perceive to be an unattractive section of asphalt cover which differs in colour to the surrounding asphalt. And as I have earlier found, the respondent breached the contract in failing to perform the works initially in an appropriate and skilful way and with reasonable care and skill. However, the respondent has undertaken rectification work to remove the hump. The method of rectification was one on which all parties agreed although I accept that the building owners wanted to achieve uniformity of colour. I accept that there is some variation in colour between the driveway generally and the replacement patch. To this extent, the homeowners wishes have not been fulfilled. They, and the applicant, want the entire driveway to be re-covered. The question to be determined is whether the proposed further rectification work is necessary and reasonable. As the respondent observes, the area of asphalt replaced by the respondent constitutes approximately 2% of the total surface area of the driveway. Is it reasonable for the respondent to be responsible for the cost of re-laying the entire driveway with asphalt?
I return to the comments by Ipp JA in Scott Carver Pty Ltd v SAS Trustee Corporation (Formerly State Authorities Superannuation Board)[21]. Whether the homeowner is unhappy with the cosmetic appearance of the driveway is collateral to the issue of the applicant’s loss.
[21]n 20.
I am not satisfied that it is reasonable or necessary for the entire driveway to be re-coated in asphalt in circumstances where approximately 2% of the driveway is affected by the relatively slight colour variation. There is no suggestion that the patch of driveway is not performing as required. It seems to me that, in time, the asphalt patch is likely to further fade in colour and the difference in appearance will gradually diminish. The relief sought by the applicant is disproportionate to the achievement of the contractual objective. And, I should add, the minor discolouration complained of by the building owner and the applicant relates to an asphalt driveway which could hardly be said to be a cosmetic highlight of a residential property.

The respondent’s entitlement to payment of the contract price

For the foregoing reasons I am satisfied that the respondent has performed its obligations under the contract and is entitled to the payment of the contract price of $14,003.00.
Conclusion
I am satisfied that the respondent breached the contract in failing to undertake the works in an appropriate and skilful way and with reasonable care and skill. I am satisfied that the respondent undertook remedial works to rectify the defect. I am not satisfied that it is necessary nor reasonable for the entire driveway to be re-coated with asphalt to address a minor colour discolouration involving an area of approximately 2% of the total driveway area.
The applicant has established that the respondent breached the contract. The applicant has not established an entitlement to substantive damages. The applicant is entitled to an award of nominal damages. I assess nominal damages in the amount of $100.00.
The respondent is entitled to recover from the applicant $14,003.00. Taking into consideration the applicant’s entitlement to nominal damages, there will be a final decision for the respondent in the amount of $13,903.00.
As both the application and the counter application are within the minor civil disputes jurisdiction, costs recoverable by each of the parties is limited by rule 84 of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld). Each party has been successful to some degree. I therefore make no order as to costs.