Chelbrooke Homes Pty Ltd v Russell & Anor
[2011] QCAT 278
•28 April 2011
| CITATION: | Chelbrooke Homes Pty Ltd v Russell and Anor [2011] QCAT 278 |
| PARTIES: | Chelbrooke Homes Pty Ltd |
| v | |
| Michael Russell and Charmaine Russell |
| APPLICATION NUMBER: | BD159-09 |
| MATTER TYPE: | Building matters |
| HEARING DATE: | 21, 22, 23, 24 and 25 February 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | R F King-Scott, Member |
| DELIVERED ON: | 28 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Respondents pay the Applicant the sum of |
| CATCHWORDS: | BUILDING CONTRACT – Wrongful repudiation – Calculation of time under the contract – Defective work – Whether AS 1684 or AS 1720 appropriate to the roof design – Is a roof truss chord a rafter? Sopov and Another v Kane Constructions Pty Ltd (2007) 20 VR 127 DTR Nominees Pty Ltd V Mona Homes Pty Ltd (1978) 138 CLR 423 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Codd of Counsel, instructed by O’Keefe Mahoney Bennett Solicitors |
| RESPONDENT: | Mr Hitchcock of Rudkin Hitchcock Lawyers |
REASONS FOR DECISION – AMENDED
Introduction
This is a building dispute between the Applicant Builder, Chelbrooke Homes Pty Ltd, and the Respondent Owner, Michael and Charmaine Russell.
The Owner entered into a regulated contract under the Domestic Building Contracts Act 2000 (DBCA) with the Builder to construct a 794.2m² house at Lot 11 Samuel Drive for $790,470.
During the course of the contract, the Owner, represented by the male respondent, Michael Russell, expressed concern on a number of issues relating to the Builder's performance and progress with the contract.
The issues were pleaded under the former legislation, the Commercial and Consumer Tribunal Act 2003 (CCTA), and included a counterclaim by the Owner. The proceeding is a pending proceeding within the definition of section 245 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT), and jurisdiction to hear the proceeding was vested in this Tribunal.
At the outset of the hearing I asked the parties’ legal advisers to identify the issues they required the Tribunal to determine. Counsel for the Builder, Mr Codd, identified those issues as follows:–
(a)whether or not practical completion was achieved;
(b)whether or not the final claim became payable or, in the alternative, the determination of the amount payable as damages;
(c)whether or not termination was effected by the applicant or the respondent, and the proper basis upon which termination is found to have been effected;
(d)the calculation of time under the contract, and whether or not liquidated damages are applicable; and
(e)the extent, nature and approach to the evaluation of the alleged defects.
Mr Hitchcock, solicitor for the Owner, agreed that those were the issues for the Tribunal’s determination.
A claim for general damages by the Owner for distress, upset and humiliation was abandoned at the commencement of the hearing.
In accordance with directions given by the Tribunal’s predecessor under the CCTA, evidence in chief was directed to be in the form of sworn statements. Expert witnesses were called by both sides. The experts were:–
·Eric Fox, a registered professional engineer;
·Eldon Bottcher, a registered professional architect;
·Desmond Salmon, a registered Builder;
·Jeffrey Hills, a registered professional engineer and registered Builder.
All experts were called and cross-examined. There had been an earlier conclave of experts comprising Mr Fox and Mr Hills, at the direction of the Tribunal, and as a consequence of the conclave some issues were agreed. I will refer to those agreed issues later in these reasons.
Of the lay witnesses, the Builder called:–
·Stephen Jon Goulding, the current Operation Manager of the Builder;
·Peter Riewoldt, Director and Owner of the Builder, Chelbrooke Homes Pty Ltd;
·Peter Wheatley, Supervising Builder;
·Neville Holland, previous Operations Manager of the Builder.
Michael Russell was the only lay witness called by the Owner.
Before considering whether Practical Completion has been achieved, it is necessary to determine the Contract Period from which the Date for Practical Completion can then be determined.
The Calculation of Time Under the Contract.
The contract is described as a Residential Building Contract, and comprises the completed contractual schedule published by the Queensland Master Builders Association, September 2001 edition. The basic home price appears to be $559,119 with inclusions of $231,280 particularised in an annexure to the Schedule entitled Chelbrooke Homes Inclusion.
The Queensland Master Builders Association, September 2001 edition General Conditions of Contract are also annexed and form part of the contract. Eight drawings are also annexed. All these documents are contained in Exhibit 1 and comprise the contractual documentation.
Item 10 of the Schedule contains the Date for Practical Completion provisions. It provides that practical completion will be 266 days from the date of commencement. Item 9 of the Schedule provides that the Date of Commencement is to be determined in accordance with clause 8.
Clause 8 provides that “The Builder must commence the Works on Land or before the date (if any) specified in Item 9 of the Schedule; or within 10 days of receiving all of the following”… provision is then made for the delivery of certain documentation the last document being a notice from a lending body. The Works are defined as meaning “… the whole of the work to be carried out by the Builder under the contract, a description of which is contained in Item 3 of the Schedule, includes variations to the Works”. Item 3 is the Description of Work and refers to “Construction of a New Home”.
Although the Owners did not provide a notice from the lending authority that the Works may commence until 9 February 2007[1], it is not disputed that on 5 February 2007 a subcontractor, John Burrows, excavated the house pad[2]. Quite clearly, the excavation comprised “Works” within the meaning of that term as contained in the contract. Mr Riewoldt’s contention was that such work was done at the Builder’s risk and before the requisite financial approval was given, because the sub-contractor was going on holidays and would be away for three weeks. He contended that the starting date was 16 February 2007 when the substantive part of the works was commenced. I find that the Works commenced on 5 February 2007.
[1]Letter Westpac Bank to Builder 30 January 2007 date stamped received 9 February 2007 Ex 6 page 627.
[2] Tax invoice $2,194.50 Ex 6 page 360.
The original date for completion of 266 days from 5 February 2007 sets the completion date as 29 October 2007. It is argued by the Owner that the 28 days allowed for the Christmas break in 2006 should not be included because the Works did not actually commence until after that time. It is further argued that an adjustment should be made to delete the 28 day Christmas break pursuant to section 18(6) of the DBCA.
Section 18(6) provides that
‘If the contract is varied but the building contractor has not complied with a variation provision for the variation, the stated completion date or period-
(a) must be adjusted to take account of any reduction in the number of days required to carry out subject work; and
(b) may, with the tribunal's approval given on an application made, as provided under the QCAT Act, to the tribunal by the building contractor, be adjusted to take account of the additional days required to carry out the subject work.’
The word “variation” is defined in section 16 as an addition of the domestic building work to the subject work; or an omission from the subject work. I read the definition as meaning an omission “of domestic building work” from the subject work.
The Owner argues that by commencing the Works at a date after the 2006 Christmas break the contract had been varied, presumably, by conduct. In my opinion, section 18(6) relates to variation by the addition or omission of domestic building work and not to the calculation of the construction period. It is true that the passage of time has caused the allowance of 28 days for the Christmas 2006 break to be rendered otiose. However, it would be unreasonable at a later stage of the contract for the Owners to reduce the construction period when the Builder has programmed his works in reliance on the construction period agreed to in the contract. In any event, any variation whether under the contract or under statute, requires notice in writing (unless it is a matter of urgency). There is no such notice from the Owner. The first time it was raised was on 19 May 2008 when the construction was nearing completion. At that time, the Owner wrote to the Builder in terms that he had found a discrepancy in the contract and asserted that the construction period was actually 232 days[3].
[3] Ex 6 page 655.
There have been three extensions of time for which notice has been given in accordance with clause 15 of the contract and which the Owner has not disputed by notice in writing within seven days of receipt of the claim. The extensions of time are as follows:–
EOT14 September 2007 delays in construction whilst awaiting Owners’ tile selection 30 days claimed;
EOT212 November 2007 delays in construction program whilst awaiting spa 30 days claimed; and
EOT317 December 2007 Christmas break 2007 – 24 days claimed.
There were two further claims for extension EOT4 and EOT5 which were not persisted with.
Two of the above claims for extensions of time were accepted by the Owner. The EOT2 claim is disputed. The evidence is not clear as to when it was served but the Owner acknowledges receipt on 23 November 2007. In an email to the Builder dated 27 November 2007, the Owner said “I do not want to argue with (the Builder) regarding this issue I felt that I would like it noted for the records that I am not happy about the situation…”. The Owner then goes on to allege that he was misled about the reason for the extension of time. The Owner relies upon the email as a notice of dispute disputing the claim for the extension in EOT2. The Owner has not included this period of 30 days in its calculation of the construction period, although I note that the Owner had impliedly accepted the claim when he came to calculate the contract period under Section 90 of the DBCA, as appears below. In my opinion, the Owner fails to exclude this period as the email does not categorically give notice that the claim for extension is disputed, but rather begrudgingly accepts it.
The delay was caused by the unavailability of the spa as originally ordered. Although the Owner made allegations of dishonesty in the email, it was not followed up with any further evidence. Cara Gale, the Builder’s representative who purportedly made the allegation, was not required for cross-examination. I am satisfied that it was reasonable to adjust the completion period under section 18(4) and (8)(b) of the DBCA.
The calculation of the construction period applying claims EOTs 1, 2 & 3 in accordance with Item 8 of the Contract Schedule, is as follows:–
Construction period (Item 8) 266 days
Plus EOTs 1, 2 & 3 84
Total 350
Before determining the quantum of liquidated damages, it is necessary to proceed to the next issue which is whether or not the Owner has validly determined the contract under section 90 of DBCA and, if not, whether that determination amounts to a wrongful determination of the contract that has been has been accepted by the Builder.
Was the Contract validly determined?
On 10 June 2008, the Owner by email purported to determine the contract. He did so in reliance upon section 90 of the DBCA. Section 90 provides:
Ending contract if completion time extended or contract price increased
(1)The building Owner under a regulated contract may end the contract if—
…
(a) the subject work is not finished within a period that is 1.5 times—
(i)if the contract has an effective completion date—the period starting on the starting date for the contract and ending on the effective completion date; or
(ii)if the contract has an effective completion period—the period.
…
(2)To end the contract, the building Owner must give the building contractor a notice under this section.
(3)The notice mentioned in subsection (3) must—
(a) be in writing; and
(b) be signed by the building Owner; and
(c) state the building Owner is ending the contract under this section; and
(d) state the ground on which the building Owner is ending the contract; and
(e) give details of the ground.
(4)In this section—
starting date, for a regulated contract, means the date stated in the contract as the date the subject work is to start.
The “effective completion period” is defined in section 18 of the DBCA, for a regulated contract that has a stated completion period, as “… the stated completion period, as adjusted under (the) section.” As I stated earlier it was reasonable for the Builder to make the adjustment for the spa under section18(4) and (8)(b) of the DBCA.
The Owner, in calculating the section 90 period, has multiplied the 266 days by 1.5 and then added on the extensions EOTs 1, 2 & 3, resulting in a figure of 483. The Owner calculated the period from the commencement of the contract to the date of the email (10 June 2008) as 485 days, when in fact from 5 February 2007 it is 491 days. However, the calculation is clearly in error, as the calculation of 1.5 times the completion period should be on the whole of the adjusted period. A calculation of 1.5 times 350 days returns a figure of 525 days which, from 5 February 2007, is 14 July 2008.
The calculation above is consistent with the legislative intent of the DBCA.
It is apparent that the Owner’s calculation is wrong and the determination of the contract based on that calculation is misconceived.
The Owner also alleges, in the alternative, that he was terminating the Contract due to the Builder’s breach by its refusal to complete the Works.[4] By email dated 4 June 2008, the Builder advised the Owner that the Works had reached Practical Completion and their intention was to schedule the handover for 18 June 2008.[5] The Owner responded requiring a final progress claim. By email dated 5 June 2008, the Owner disputed that the Works had reached Practical Completion and particularised 6 areas of defects.[6] Further, the Owner suggested that the Builder was a long way from Practical Completion. On 6 June 2008, the Builder provided a Progress Claim Certificate 5 (Practical Completion) Tax Invoice of $88,839.00.[7]
[4] Paragraph 44 of the Defence and Counterclaim.
[5] Ex 6 page 554.
[6] Ex 6 page 557.
[7] Ex 39 MJR 86.
In considering this issue, I have to look at the DBCA and the contract. The provisions of the DBCA cannot be contracted out.[8] Section 67(6) provides:–
[8] Section 93 DBCA.
In this section—
completion payment, for a regulated contract, means a payment required to be made under the contract by the building Owner to the building contractor for the practical completion stage.
practical completion stage, for a regulated contract, means the stage when—
(a)the subject work has been completed in accordance with the contract and all relevant statutory requirements, either—
(i) without any omissions or defects; or
(ii) apart from minor omissions or minor defects; and
(b)the detached dwelling or home is reasonably suitable for habitation.
The defects listed by the Owner at that time were not such as to prevent the home from being reasonably suitable for habitation, and I accept the Builder’s submission that that was evidenced by the fact that the Owner did move his family into the property. In my opinion, the defects at the time notified were minor. Mr Eldon Bottcher, an architect, called as an expert by the Builder, expressed the opinion that the Works had reached Practical Completion. No contrary opinion was expressed by any other expert.
I find that the Builder did not refuse to complete the Works prior to 10 June 2008, and was not in breach of the contract.
The next issue is whether the Owner has repudiated the contract.
Was the Repudiation Wrongful?
Following the email of 10 June 2008, the Owner took possession of the site that day by moving his family in. Clause 17.9 of the Contract provided:–
If the Owner takes possession of the Works or any part of the Works when not entitled to do so under this Contract, the Works are deemed to have reached Practical Completion on the date of Possession and the Owner is liable to the Builder.
In Sopov and Another v Kane Constructions Pty Ltd (2007) 20 VR 127, the Court of Appeal reviewed the authorities on repudiation. I have extracted some relevant statements of principle. The Court said at paragraph [9]:–
“In our view, the objective test of repudiation, as stated by Brennan J in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd, (1989) 166 CLR 623 leaves no room for consideration of whether the party in breach — the alleged repudiator — held the honest belief that its action was justified by the contract. Axiomatically, the repudiator’s state of mind is irrelevant. What matters is the character of the repudiator’s conduct.”
In DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 the High Court said at 432 per Stephen, Mason and Jacobs JJ.:
“No doubt there are cases in which a party, by insisting on an incorrect interpretation of a contract, evinces an intention that he will not perform the contract according to its terms. But there are other cases in which a party, though asserting a wrong view of a contract because he believes it to be correct, is willing to perform the contract according to its tenor. He may be willing to recognize his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him.”
In the instant case, the Owner, following his letter of termination on 10 June 2008, went into possession of the property. The next day, he wrote to the Builder offering to pay the value of the Works up to termination. For the next 3 days, insulation was installed in the house by a subcontractor, apparently in ignorance of the state of the Contract. Two Extension of Time claims dated 4 June 2008 sent by registered post prior to the Owner’s termination arrived on 11 June 2008, and were the subject of dispute by the Owner. The Owner engaged another Builder, Trevor Scott, mid June 2008 who inspected the roof and on 19 June 2008 requested Currumbin Roof Trusses to inspect the site[9]. On 26 June 2008, the Owner engaged another Builder to install a partition wall into the garage.[10]
[9] Ex 39 paragraph 146.
[10] Ex 39 paragraph 150.
I find that the Owner has repudiated the contract, and he did so wrongfully. His conduct subsequent to the Notice evinced an intention to be no longer bound and he frankly admitted that he had had earlier discussions with Mr Hills’ employee, one Blair Ripley, on how he could bring the contract to an end. It is unfortunate that the Owner did not heed Mr Ripley’s concerns about the complexities of terminating a contract under section 90 of DBCA.
By letter dated 10 July 2008, the Builder accepted the repudiation and the contract came to an end.[11]
Whether or Not the Final Claim Became Payable or, in the alternative, the Determination of the Amount Payable as Damages?
[11] Letter OMB to Owner dated 10 July 2008 Ex 39 MJR 101.
The Builder has elected to claim damages and not a quantum meruit. The proper measure of the damages is that the Builder is entitled to be paid the balance of the contract sum less the cost of the defects and incomplete work less any liquidated damages.
It follows that if the commencement date of the Works was 5 February 2007, then the Date for Practical Completion would be 21 January 2008. The Owner is entitled to liquidated damages of $20 per day for 141 days or $2,820. The Builder has credited the amount of $1,160, leaving a balance of $1,660.
The Overhang Issue
The design of the house provided for several large, flat, sloping roofs which extended beyond the house walls and had significant overhangs.
The plans of the house, including the roof, were drawn up by a draftsman, not an architect. The draftsman was one Stuart Osman, whose affidavit was filed in the tribunal. However, Mr Osman was not required for cross-examination. The Owner did not engage an architect but administered the contract himself.
The Owner alleged in paragraph 4 of the Defence and Counterclaim:
“During the course of construction and at frame stage, the Applicant did negligently and in breach of the contract, allow installation of roof trusses that were structurally deficient and defective, and non-compliant with the building code of Australia, as set out in the report dated 18th of May 2009 from Geoffrey Hills & Associates Engineers.
Particulars:
(i)The eave line varies more than 50 mm;
(ii)Tie-down rods in the roof cavity have not been connected to anything;
(iii)Rafter overhangs exceed limits provided in Australian Standard 1684.2;
(iv)Inadequate structure fascias are installed, being 90 x 35 mm size timber which is not equivalent to 190 x 19 mm fascia;
(v)The rafter overhangs are structurally inadequate.”
The Builder pleaded by way of Reply:
In respect of paragraph 4 of the Amended Defence, the Applicant:–
(a)…
(c)Says the installation of the roof trusses were not structurally deficient or defective or, in the alternative, to the extent any such defects exist, such defects were not such as to amount to more than minor incomplete works or minor defects as would not preclude practical completion.
(d)….
Further and, or in the alternative:–
(e)Says to the extent that there was any variation in the eaves line, such variation would, at best upon practical completion, amount to a minor defect or omission, not that it admitted there was any such variation at the relevant time.
(f)Says that to the extent any tie-down rods were not connected, such, at best, amounted to minor incomplete work in relation to works under construction.
(g)Says that in relation to Particulars (iii), (iv) and (v), the matters therein alleged were irrelevant as at the date of the first Hills report, but that the allegations therein pleaded are denied because:–
i.the roof structure had been appropriately engineered;
ii.in accordance with proper engineering principles;
iii.has been accepted by the statutory building certifier; and
iv.is structurally sound.
The framework for the roof comprised pre-manufactured trusses designed and made by Currumbin Roof Trusses. They made a mistake in the design of the trusses in the area known as the “alfresco area” which, as originally designed, had a gable end on a 45° angle to the main roof line. The roof as designed by Currumbin Roof Trusses manufactured this part of the roof with a 90° angle to the roof line. The incorrect trusses were installed by the Builder. When the Builder became aware of the error, the trusses were modified and strengthened by Currumbin Roof Trusses. At the hearing, I was informed by the solicitor for the Builder that as the error had been rectified, it ceased to be part of the claim but so far as the standard of workmanship was concerned it was still a relevant issue.
A considerable amount of the Tribunal’s time was taken up with the “overhang” issue. Both engineering experts, Mr Eric Fox of Eric Fox Consulting Pty Ltd and Mr Jeffrey Hills of Jeffrey Hills & Associates Pty Ltd, were examined and cross-examined on issues such as which Australian Standards applied to the structure and whether a “rafter” and top chord of a truss were the same.
It was asserted by the Owner that the rafter overhang in many areas of the building were sagging and out of alignment and exceeded 50 mm in many areas.
Pursuant to an order of the Tribunal, a conclave of engineering experts was held and a joint report produced from Messrs Fox and Hills. It is dated 3 June 2010 and is Exhibit 12 in the hearing.
The substance of that report so far as it is relevant to this issue is:
1. It was agreed that there was no significant danger of collapse of the roof due to “breakage” of structural members due to long-term or short-term loading.
2. It was agreed that with respect to deflection of roof of the roof the relevant performance criterion of the Building Code of Australia (P2.1) is that the structure “to the degree necessary … minimise … loss of amenity through excessive deformation …”.
3. It was agreed that the architectural design of the house is such, in that it includes long flat sections of sloped roof with unusually large overhangs, that deflection of the overhangs is unusually prominent.
4. It was observed that the corner overhangs in some areas demonstrated readily visible excessive deflection. The deflection in these areas is primarily attributed to errors in construction with a problem with the structural connections of the roof support. The exact cause had not been identified.
5. It was agreed that analysis of the roof design indicates that the members specified for the overhangs should be sufficient to carry the self-weight of the roof, which is the load presently on the roof, without perceptible deflection.
6. It was agreed that with respect to maintenance loading the overhangs as designed are adequate to carry the distributed load in accordance with AS/NZS 1170 Loading codes without inordinate deflection.
7. It was agreed that the overhangs as designed are strong enough to resist the ultimate wind load for the site without collapse.
Both experts have inspected the house and have prepared several reports containing their observations and opinions.
I will start with the first report of Mr Fox dated 10 August 2009.[12] In that report, Mr Fox referred to the appropriate Australian Standards that applied when designing a structure such as the house. He opined that in a timber frame house, an engineer might use the simplified designs of AS 1684 Residential timber framed-construction in the “standard” areas and the more sophisticated design approach of AS 1720.1 Timber structures Part 1:Design methods for more unusual or complex elements, or in order to obtain a more efficient “tailored” design. Mr Hills in his report of 7 September 2009[13] referred to AS 1684.2 Residential Timber Framed-Construction – Non Cyclonic areas and AS 1684.4 Residential Timber Framed-Construction – Simplified – Non Cyclonic area as being the minimum requirement for timber frame design and the construction must comply with those mentioned manuals to comply with the Building Code of Australia.
[12] Exhibit 9.
[13] Exhibit 19.
Mr Fox observed that the trusses had been designed and constructed in accordance with a proprietary computer program, MiTek 20/20, the details of which were not ordinarily available. However, in Mr Fox’s experience, the structural models are based on physical tests and computer modelling. He noted that there appeared to be no suggestion of any problem with the trusses, and on inspection none was revealed.
In respect of the outrigger members, Mr Fox on his analysis considered them to be adequate. He also relied on the certificate of the MiTek engineer, Mr Sunil Narsey. I will refer to that certificate later in these reasons.
On inspection of the house, Mr Fox observed no structural failure or significant structural distress, but he did observe some signs of “out of line” or unexpected deflections. He detailed these in his report, and I will refer to them later.
Mr Hills in his report of September 2009[14] stated that a site inspection revealed that the rafter overhangs in many areas around the dwelling were sagging and were out of alignment. The extent of the sag, he stated, exceeded 50 mm.
[14] Exhibit 19.
Mr Hills, in his commentary report of 13 September 2010,[15] summed up the issue between them. It is this. Mr Hills contends that the roof structure does not comply with the requirements of the Building Code of Australia Volume 2 (BCA 2) with specific reference to AS 1684.1 and 1684.2 as the structure is not adequate to comply with allowable maximum deflection under design loads for overhang of 10 mm as stated in AS 1684.1. Mr Fox on the other hand, contends that AS 1684.1 does not apply, and that the roof structure complied with AS 1720.
[15] Exhibit 22.
A subsidiary issue is whether a top chord of a truss, which is what has been constructed in this house, is a “rafter” for the purposes of interpreting AS 1684.1. The design criteria of AS 1684.1 refers to rafters, and there is no reference to a chord of a truss being referred to as a rafter in that Australian Standard.
Applying the tolerances set out in AS 1684.2 for rafter overhangs, Mr Hills expresses the opinion that timber members comprising the truss overhang in this case being 90 x 35 mm softwood are undersized, and F 27 hardwood top chord of 120 mm x 35 mm would comply with the defection limits for the overhang length constructed. Mr Hills then states that the construction does not comply with the requirements of the BCA 2.
In my opinion, there is a significant structural difference between a rafter overhang and a truss overhang. The former largely operating in isolation of the other members, the latter being, to use Mr Fox’s words, is “inextricably part of the assemblage”. I note that Mr Fox did in an earlier report refer to the top chord as a rafter but he did so not in circumstances of loading and I place no weight on that discrepancy.
AS 1684.2 does not consider truss overhangs, but AS 4440.2004 Installation of Nail Plated Timber Roof Trusses refers to AS 1684. Mr Fox[16] in his report of 4 December 2007 states:–
With respect to design elements within timber trusses, such as the truss overhangs that are used extensively in the subject residence to form the horizontal upper and lower eaves, AS 4440 Installation of Nail Plated Timber Roof Trusses advises,
“AS 1720.1 provides for the design of timber elements within nail plated timber trusses”.
It is not appropriate to analyse truss overhangs in accordance with AS 1684.2 as suggested by (Mr Hills).[16] At page 12 of Exhibit 10.
The conclave of experts agreed that the “architectural design of the house is such that it includes long flat sections of sloped roof and unusually large overhangs.”
Mr Fox has observed that AS 1684.2 is not an engineering standard, but rather a standard for the building industry for traditional timber framed houses. Mr Fox says that for this house, because of the unusually large overhangs, some allowance must be made for an alternative engineering solution.
Much discussion centred around the correct interpretation of BCA 2. The starting point is Clause 1.04 that a building solution will comply with the BCA if it satisfies the Performance Requirements.
Compliance with the Performance Requirements can be achieved by:–
a) complying with a Deemed-to-Satisfy Provision; or
b) formulating an Alternative Solution which:
i.complies with the Performance Requirements; or
ii.is shown to be at least equivalent to the Deemed-to-Satisfy Provisions; or
c) a combination of (a) and (b).
Any Alternative Solution has to comply with the Performance Requirements which are set out in Part 2.1, namely:-
“(a) a building or structure, to the degree necessary, must -
(i) remain stable and not collapse; and
(ii) prevent progressive collapse; and
(i)minimise local damage and loss of amenity through excessive deformation, vibration or degradation; and
(ii)avoid causing damage to other properties;”
The Builder’s case is that the overhang can be designed under AS 1720.1. In those circumstances, deflection limits shall be determined by elastic analysis method. The determination of acceptable deflection limits is said to be part of the design process performed by the design engineer. Guidance is provided by Appendix B.
I note that AS 1684.1 Design Criteria is not referred to in BCA 2.
It seems tolerably clear to me that a design of overhangs in compliance with AS 1720.1 would be quite acceptable. I prefer the evidence of Mr Fox in this regard. He had a wealth of experience of and involvement in the formulation of some of these standards.
Mr Hills asserted that any overhang would have to comply with AS 1684.1. In my opinion, the rigidity of that view was incompatible with the purpose of AS 1720 Design criteria which allowed a more innovative design provided the engineer complied with the alternative solution under the BCA 2.
Mr Hills had conducted some onsite testing. He placed a load on the roof and measured the degree of deflection. The results revealed a deflection ranging between 13 mm and 19 mm. Putting aside the criticism of Mr Fox as to the inappropriateness of such testing, it became apparent during the course of cross-examination that the only situation that would give rise to a live load being present on the roof (it being acknowledged that it is a non-trafficable area) would be the rare occasion when workmen would be required to work there. It was suggested by Mr Hills that that gave rise to a safety issue and fell within the requirement of a loss of amenity. As a 10 mm deflection was permitted, a differential of 3 mm to 9 mm would appear to be insignificant as the cause of any potential fall. In fact, under the Workplace Health and Safety Requirements, any workmen would be required to be protected by a safety rail and scaffolding, or at least harnesses. Scaffolding, incidentally, is apparent in photograph Exhibit 18. This example of the alleged loss of amenity relating to the roof was raised for the first time at the hearing and, in my opinion, is of little weight. In my opinion, it is not a shortfall in the Performance Requirement of the design.
I note that Mr Fox states in his report of 4 December 2009[17] that he is unable to state with certainty that the design of the overhang members complies with AS 1720.1 because it is the product of the MiTek program, the internal workings to which Mr Fox is not privy. However, that company gave a certificate by its detailer and later a further examination and design check analysis was conducted by its Senior State Design Engineer, Mr Sunil Narsey, who certified that the design was within the Australian Design Codes and Building Codes of Australia. Although Mr Fox was critical of the way the certificate was worded, he noted that the MiTek programme design criteria complied with AS 1720 and that the reference to AS 1684 in the certificate was made because of the allegation that it did not comply with that requirement. I accept conclusiveness of that certificate and the Form 15 Compliance and Certificate of Currumbin Roof Trusses[18] and the separate certificate of Currumbin Roof Truss by David Lee of 21 June 2007[19].
[17] Exhibit 10.
[18] Exhibit 6 page 317.
[19] Exhibit 6 page 302.
The Counterclaim
Before the completion date, the Owner was becoming anxious about the delay in completion of the house. There were a series of emails that passed between him and the Builder’s management team, with the Owner questioning the reasons for the apparent delay.
On 27 March 2008, he commissioned an independent building inspection by Mr Hills’ firm. He did not notify the Builder of his intentions. Mr Hills’ representative, Blair Ripley, was admitted to the house site after hours and without the knowledge or consent of the Builder. It was suggested by the Owner that he had the Builder’s permission to enter the site without being accompanied by the Builder and without obtaining prior permission on each occasion. This was strenuously denied by the Builder. It is not necessary for me to determine this matter as it has little significance in respect of the matters in issue.
More importantly, is what weight do I give to the inspection and subsequent report of Mr Ripley? A report of Jeffery Hills and Associates Pty Ltd, under the authorship of Mr Ripley dated 1 April 2008, set out a number of alleged defects. Over the following weeks, some of these alleged defects were brought to the attention of the Builder.
Counsel for the Builder submitted that the scheme of the contract did not provide any opportunity for the Owner to direct the Builder, prior to practical completion being claimed by the Builder, to rectify defects, to require the Builder to complete work in a particular order, or to interfere, at an interim stage, with the conduct of the works. The capacity to direct, he submitted, was limited to the specification of provisional sums and variations.
Counsel further submitted that any notifications, requests and/or instructions to rectify defective and/or incomplete work prior to the formal Notice of Practical Completion on 6 June 2008 as a matter of construction, is of no effect. I agree with that submission.
Nevertheless, a number of defects have been identified in the completed house. Some have been conceded by the Builder as defects; others are disputed. A Scott Schedule was tendered in evidence[20], and evidence was given by a number of experts in respect of the cost of rectification.
[20] Exhibit 4.
In this regard, it is necessary for the Tribunal to determine the value of rectifying the defects as to whether it is to be the cost incurred by the Builder had the contract not been terminated, or the cost the experts have assessed for rectifying the items. If it is the former, then the Builder submits that in some instances where it was a subcontractor’s responsibility and as a consequence of the Owner’s breach of contract, the Builder’s opportunity to have the subcontractor attend and rectify the matter has been lost. In those circumstances, where the subcontractor has been paid out, the cost should be assessed as nil.
In relation to the cost to the Builder, Mr Riewoldt, a director of the Builder, has given his estimate[21]. The Builder has also obtained an independent assessment[22] from a Mr Des Salmon, who is a Queensland licensed Builder and building inspector.
[21] Exhibit 7.
[22] Exhibit 36.
The Owner relies upon an assessment made by Mr Hills.
It is not necessary for me to make findings of credit in respect of the Owners’ representative, Mr Russell, and the Builder’s representative, Mr Riewoldt. Mr Russell was in the witness box for a very short time. It would be unfair of me to form any impression as to his truthfulness in those circumstances. I did note that he kept fairly good records during the whole of the construction period. Mr Riewoldt gave evidence for a longer period, and other than a reluctance to concede any points adverse to his company’s case, I make no further observations about his evidence. Mr Holland, the building supervisor, was asked about conversations he had with Mr Russell. I was not convinced that his recollections were very accurate, and where there was conflict between what he said and what Mr Russell said, I would prefer Mr Russell’s recollection.
In assessing the cost of rectification, I have been provided with estimates from Mr Hills who, in addition to being a professional engineer, also holds a Queensland Building Services license. His qualifications as a Builder were explored in some detail in the course of the hearing. I accept his qualifications. The initial inspections were carried out by Mr Hills’ employee, Mr Blair Ripley. Mr Hills gave evidence that he did inspect the site on several occasions and verified Mr Ripley’s findings. Nevertheless, I gained the impression that there was more input to the report by Mr Ripley on the defects issue than by Mr Hills. Mr Ripley did not give evidence.
For the Builder, Mr Salmon was asked to assess the cost of rectifying the defects. Mr Salmon was an experienced Builder who had been in business on his own as a Builder for many years, but lately in the more specialised area of building inspections. I found him to be competent and I accepted his evidence that although he did not personally inspect this house, he was more than qualified to make the assessments from the photographs and reports provided. He informed the Tribunal that he does so on a regular basis for the Building Services Authority.
I formed the opinion during the course of the hearing that Mr Hills’ approach was one of counsel perfection. Some of his assessments of the cost of rectification work were greatly disproportionate to the advantage to be gained. I much preferred Mr Salmon’s assessment where the two assessments differed. I have, to a large degree, ignored the costs assessed by Mr Riewoldt, as such costs are costs to the Builder and to a large degree are irrelevant so far as the disputed items are concerned.
I would now deal with each of the items starting with those items conceded by the Builder as defective or incomplete.
Items Conceded as Defective or Incomplete
| 1. Entry Portico Two downpipes were not installed. The Builder says that its subcontractor failed to attend to this item. Had the Owner not repudiated the contract, it, the Builder, would have picked this item up and had it rectified by the subcontractor before he was paid. He has since been paid for his services. Incidentally, I note it was asserted by Mr Riewoldt that the Owner did not want the downpipes installed as he intended to have a dropping chain feature instead of a downpipe. However, I note there is no written variation of the contract to omit this item. Mr Riewoldt states in his costing report[23] that the Builder has already paid the subcontractor. I note that the Builder had difficulty getting this subcontractor back on site to attend to defects before practical completion. Although the Builder has paid the subcontractor, it is my opinion unreasonable that it must meet the cost of rectification which, in this instance, on Mr Salmon’s evidence, was $106.40. I allow the sum subject to the comments I make at the end of these conceded items. | $106.40 | |
| 3. Entry Portico Some bolts were not painted. Mr Salmon assessed the cost at $25.00 and I would allow that. | $25.00 | |
| 9. Airconditioning Pipes Not Fully Sealed | $30.00 | |
| 10. Spa Pump & Pipe Works | $180.00 | |
| 11. Paint Finishes to Shed | $300.00 | |
| 18. Foam Feature Hood in Bedroom 4 – Wall Line | $80.00 | |
| 20. Non-sealed External Control Joint | $30.00 | |
| 22-28. Holes, Gaps in Wall Cladding | $430.00 | |
| 29. Guttering Ponding Water and Not Straight | $55.00 | |
| 30. Missing Downpipes to Alfresco Area | $37.50 | |
| 31. Render Finishes | $25.00 | |
| 35. Downpipes Not Painted | $35.00 | |
| 42. Downpipes Not Painted | $35.00 | |
| 43. Verandah Post Bolt Fixings | $70.00 | |
| 44. Install Missing Downpipe | $160.00 | |
| 46. Complete Render/Paint Finishes | $120.00 | |
| 47. Fascias/Barge Board and Soffits | $130.00 | |
| 51. Damage to Sliding Door Frame | $160.00 | |
| 52. Air Conditioning System | $70.00 | |
| 53. Downpipes Not Painted | $35.00 | |
| 55 – 57, 59 & 61. Roof Sheeting/Flashings | $240.00 | |
| 72. Paint Finishes, Roofing Gable Cladding | $55.00 | |
| 75. Roof/Eaves and Soffits | $35.00 | |
| 78. Entry Portico | $600.00 | |
| 81. Roof Flashings | $60.00 | |
| 87. Roof Sheeting/Flashings | $70.00 | |
| 91-98. Roof Truss Modification to the Alfresco Area | $2,470.00 | |
| 101. Office Toilet | $27.00 | |
| 103. Office Toilet | $80.00 | |
| 108. Water Leaks to Lounge Room | $50.00 | |
| 109. Internal Plaster Board Setting Angles | $245.00 | |
| 121. Wall/Cornice Alignment | $110.00 | |
| 122. Clean Tiles | $45.00 | |
| 125. Linen Cupboard | $14.50 | |
| 126. Plasterboard Finishes | $25.00 | |
| 127. Water Leaks into Ceiling and Area Adjacent to Kitchen | $50.00 | |
| 132. Paint Finishes | $55.00 | |
| 133. Plasterboard Finishes | $25.00 | |
| 136. Paint Finishes | $55.00 | |
| 137. Paint Finishes | $25.00 | |
| 138. Doors and Door Furniture | $35.00 | |
| 142. Door and Door Furniture Between Powder Room and Bedroom | $85.00 | |
| 144. Door and Door Frames | $52.50 | |
| 145. Plasterboard Finishes in Living Room Ceiling | $50.00 | |
| 147. Water Leaks in Hallway Between Living Room and Bedroom | $50.00 | |
| 150. Door Paint Finishes | $30.00 | |
| 161. Cleaning Wall Tiles | $70.00 | |
| 162. Roof Ventilation | $113.40 | |
| 163. Cleaning Wall Tiles | $70.00 | |
| 164. Sealant Jointing to Tiles External WC. I allow Mr Salmon’s assessment of $70.00. | $70.00 | |
| $7,076.30 | ||
[23] Exhibit 8 page 1.
It is the Builder’s case that most of these items could have been attended to during the defects period at no cost to the Builder, either because the relevant subcontractor had an obligation to do so, or, if it was a matter for which the Builder was responsible, it had workmen onsite and available to do so at a lesser cost than engaging independent Builders. There is merit in this submission. However, I am not convinced that all defects would have been attended to in this way or at all. For this reason I propose to discount the cost as assessed by me (other than the roof truss defects Items 90 to 98) by 50% to take account of this contingency. That is $7,076.30 - $2,470.00 = $4,606.30. That amounts to $2,303.15. I award the sum of $4,773.15 ($2,303.15 + $2,470.00).
Disputed items
| Item 2 – Front Entry Door Colours | $200.00 |
| Item 4 – Termite Barriers | |
| Item 5 – Fascia/ Media Bargeboard to Lounge/ Room | $245.00 |
| Item 6 – Downpipe Not Fixed to Wall | |
| Item 7 – Render Finishes | |
| Item 12 – Damage to Shed Walls | |
| Item 13 – Shed Area Concrete Floor Slab | |
| Item 14 – Render Finish to Rear Elevation Wall | |
| Item 15 – Fascia Board to Shed Area | $40.00 |
| Item 16 – Fascia/Barge to Bedroom 4 Roof Line | $40.00 |
| Item 17 – Foam Feature Hood to Bedrooms 2, 3 and 4 Wall Line | $75.00 |
| Item 18 – Foam Feature Hood to Bedroom 4 Wall Line | |
| Item 19 – Timber Post/Columns to Bedrooms 2, 3 & 4 | $225.00 |
| Item 21 – Termite Barriers to Columns/Posts of Bedroom 2, 3 and 4 | |
| Item 27 – Holes and Gaps to Wall Cladding | $50.00 |
| Item 32 – Masonry Wall Finishes | $230.00 |
| Item 33 – External Concreting | |
| Item 34 – Fascia/Barge Board and Soffits to Alfresco Area | |
| Item 36 – Incomplete Drainage/Field Gully | $100.00 |
| Item 37 – Gaps to Gutters/Fascia Line at Junction to Cladding | $120.00 |
| Item 38 – Cladding Installation | |
| Item 39 – Linea Board Cladding | |
| Item 40 – Complete Render/Paint Finishes | $120.00 |
| Item 41 – Complete Render/Paint Finishes in Access Panels | $120.00 |
| Item 45 – Fascia Barge to Roof Line above Bedroom 1 | |
| Item 48 – Gaps to Apron Flashing/Boards | $30.00 |
| Item 49 – Hot water System | |
| Item 50 – Sagging Deflection of Soffits | $65.00 |
| Item 54 – Roof Sheets/Flashing Connections | $65.00 |
| Item 58 – Roof Sheeting/Flashings | |
| Item 60 – Roof Sheeting/Flashing | $65.00 |
| Item 62 – Roof Sheeting/Flashing | |
| Item 63 – Roof Sheeting/Flashings | $65.00 |
| Item 64 – Roof Sheeting/Flashing | $390.00 |
| Item 65 – Roof Sheeting/Flashings | $120.00 |
| Item 66 – Roof Sheeting/Flashing | $300.00 |
| Item 67 – Roof Sheeting/Flashing | $120.00 |
| Item 68 – Roof Sheeting/Flashings | $100.00 |
| Item 69 – Roof Sheeting/Flashings | $60.00 |
| Item 70 – Roof Sheeting/Gutters | |
| Item 71 – Roof Sheeting/Flashings | $180.00 |
| Item 73 – Roof/Eaves Soffits | $240.00 |
| Item 74 – Valley Tray Joints | $75.00 |
| Item 76 – Roof Sheeting/Gutters | |
| Item 77- Roof Sheeting/Flashing | $120.00 |
| Item 79 – Roof Sheeting/Flashings | $90.00 |
| Item 80 – Roof Sheeting/Flashings | $200.00 |
| Item 82 – Roof Sheeting/Flashings | $240.00 |
| Item 83 – Roof Flashings |
| Item 84 –Valley Tray | |
| Item 85 – Roof Sheeting/Flashings | $160.00 |
| Item 86 – Roof Sheeting/Flashings | $25.00 |
| Item 99 – Garage Storeroom | |
| Item 100 – Office Toilet (WC) | $80.00 |
| Item 102 – Office Toilet (WC) | |
| Item 104 – Office Internal Entry Doors from Study | |
| Item 105- Entry Foyer Setout The aesthetic impact of this defect is readily apparent from photographs of the entry foyer. Photograph 148 in Mr Hills’ report of 14 October 2009[28] and Mr Bottcher’s report of 7 August 2009[29] clearly show the discrepancy. The disproportionate width of the left and right columns and the discrepancy in width between the door opening and the bulkheads are readily apparent. The Owner supplied the drawings. I am satisfied that the drawings are defective as demonstrated by Mr Bottcher. I note that Clause 11.11 of the General Conditions contains a warranty that the plans are accurate and it is reasonable for the Builder to rely upon them. I also note that where a discrepancy was found in the contract (which includes the plans) the party must notify the other and then consult in an attempt to resolve the discrepancy. See Clause 3 of the General Conditions Exhibit 1. On the outside no discrepancy appears. The walls on each side of the portico are symmetrical. Mr Hills opines that the Builder has altered the internal timber framework to match the incorrectly positioned external entry portico structure. Such is apparent from the position of the masonry brickwork on the left side which extends well beyond the internal timber framework, but is flush on the right side. See photograph at page 156 of Exhibit 20. That photograph was taken by the Owner in the course of construction. It must have been apparent to the Builder at an early stage that such a discrepancy existed. However, it was never brought to the attention of the Owner until it was too late. The cost of rectification as assessed by Mr Hills is $23,000. It is argued by the Builder that the cost of rectification is grossly disproportionate to the alleged defect which is of aesthetic value only. However, the defect is so apparent and in such an obvious position in the house at the main entry that it would have a significant impact on the value of the house. Mr Riewoldt has suggested to centre the doors internally and move the internal wall including column towards the door. It would decrease the foyer width by 70 mm. The bulkheads would remain the same. That would still leave the discrepancy in the width of the bulkhead. The cost of that rectification work to the Builder would have been $5,100. Unfortunately, Mr Salmon has provided no estimate of the cost of rectification. Mr Riewoldt’s solution is assessed on the basis of the cost to the Builder, that is Chelbrooke Homes’ costs, and I suspect the actual cost would be significantly more if it were carried out by an independent contractor. Mr Riewoldt stated that the discrepancy would have become apparent when the front doors were put on. He is not sure whether temporary doors were fitted or the actual doors at the time of lockup stage. Nevertheless, he says it would have been at that time. The “enclosed stage” was reached on 11 May 2007[30] as appears in the Progress Claim Certificate. Mr Russell, the Owner, says he was not made aware until March 2008. Mr Riewoldt says there were discussions before then with Mr Wheatley. When Mr Wheatley was cross-examined he referred to a conversation between Mr Russell and Paul, the carpenter, to which he was not a party. I am of the opinion that the Builder well knew of the discrepancy early in the construction period, at least by May 2007. I am not persuaded that the discrepancy was brought to the attention of the Owner at all. I find that he discovered the discrepancy in March 2008 and brought it to the attention of Mr Wheatley on 18 March 2008. I also accept that at that time, in the course of that conversation, it was obvious that Mr Wheatley was already aware of the discrepancy and had been aware of it for some time. In that conversation Mr Wheatley advised Mr Russell that a decision had been made with the carpenter at frame stage to adjust the internal measurements. The discrepancy would also have been obvious at the frame stage as appears in the photograph referred to earlier, and the fact that he had to pack it out to bring the frame up to the level of the masonry works. Had the discrepancy been brought to the attention of the Builder at an earlier stage there would have been additional costs incurred for which the Owner would have had to indemnify the Builder. Counsel for the Builder submits that there is no evidence of the cost of rectification and therefore the claim must fail. Counsel also submits, in the alternative, that the Tribunal could apportion the damage equally between the parties. That I propose to do, but with Mr Hills’ estimate of $23,000. I, therefore, allow $11,500.00 for this item. | $11,500.00 |
| Item 106 – Entry Foyer Bulkheads | |
| Item 107 – Entry Foyer Doors Warping | |
| Item 110 – Air Conditioning Units I find that the misalignment of the air conditioning vents and lights is not a defect and I do not propose to make any allowance for this item. | |
| Item 111 – Plasterboard Finishes | |
| Item 112 – Plasterboard Finishes | |
| Item 113 – Plasterboard Finishes | |
| Item 114 – Light Fittings Installation | $157.50 |
| Item 115 – Plasterboard Finishes | $25.00 |
| Item 116 – Plasterboard Finishes | $25.00 |
| Item 117 – Plasterboard Finishes | $25.00 |
| Item 118 – Powder Room Vanity Mirror | $250.00 |
| Item 119 – Plasterboard Finishes | |
| Item 120 – Toilet Door Adjacent to Main Bathroom | $110.00 |
| Item 123 – Main Bathroom Shower Screen | |
| Item 124 – Floor Waste | |
| Item 128 – Bi-Fold Doorframes to Meals Area | |
| Item 130 – Windows Mr Salmon says it is a matter for the manufacturer to attend to under warranty. I consider this is an Owner’s maintenance problem and I make no allowance. | |
| Item 131 – Cornices | $150.00 |
| Item 134 – Doors to Computer Nook | |
| Item 135 – Stone Bench tops to Kitchen | |
| Item 139 – Powder Room Toilet Door | $110.00 |
| Item 140 – Floor Waste | |
| Item 141 – Tiling Works | $70.00 |
| Item 143 – Tile/Wall Finishes | $100.00 |
| Item 146 – Plasterboard Finishes | $50.00 |
| Item 148 – Wardrobe Shelving | |
| Item 149 – Door Furniture | $12.80 |
| Item 151 – Cracking Separation of Plasterboard in Bedroom 1 Hallway Area | $30.00 |
| Item 152 – Hallway Areas to Wall Line Above Entry Doors Have Poor/Rough Plaster Setting at Ceiling/Wall Line | $30.00 |
| Item 153 – Plasterboard Finishes | $30.00 |
| Item 154 – Door Frames Bedroom 1 | |
| Item 155 – Sliding Door Frames to Bedroom 1 | |
| Item 156 – Toilet Door Bedroom 1 Suite | |
| Item 157 – Floor Waste | |
| Item 158 – Tile Wall Finishes | $157.00 |
| Item 159 – Sealant Joint In my opinion that is a reasonable inference to be drawn, particularly as it is not rebutted by the Owner. I make no allowance for this defect. | |
| Item 160 – Plasterboard Finishes to Bulkhead Bedroom 1 ensuite bulkheads above vanity area has a visual evidence of bulkhead soffits being out of level in excess of 10 mm in a 500 mm width of bulkhead. According to Mr Bottcher the bulkhead rake is due to a large cornice setting and is a consequence of the materials used and is not a defect. Mr Salmon says it is caused by a metal corner angle installed to the underside of the head which is standard building practice to protect corner. He assessed the cost of rectification at $150.00. He does not consider it a defect. I make no allowance for this item. | |
| $17,507.30 |
[24] Exhibit 1 page 50.
[25] Exhibit 8.
[26] Exhibit 6 page 642.
[27] Exhibit 10.
[28] Exhibit 20.
[29] Exhibit 30 page 40.
[30] See Exhibit 6 page 289.
[31] Exhibit 6 page 162 – 162.
The total cost of rectification of the defects I have allowed amounts to $22,280.45. I allow the counterclaim in that amount.
In conclusion, I find that the contract was terminated on 10 June 2008, as a consequence of the Applicant’s acceptance of the Respondent’s wrongful termination. The amount of damages flowing from the Respondents’ breach of contract is the amount owing under the contract of $88,839.00 less the balance of the liquidated damages owing of $1,660.00 leaving a balance of
$82,746.72$87,179.00. The Respondent has been partially successful in their counterclaim and I assess the cost of defects at $22,280.45.
The balance owing to the Applicant I assess at
$60,466.27$64,898.55 with interest of 15% compounding daily (as provided for in the contract)[32], which on my calculations amounts to$29,965.90$32,434.14. I order the Respondents pay the Applicant the sum of$90,432.17$97,332.69 by 4.00 pm on 10 June 2011.
[32] Clause 11.9 and Schedule 19 Exhibit 1.
I will receive written submissions in respect to costs. Such submissions, if any, to be filed by the Applicant by 9 May 2011 and the Respondents by 16 May 2011, otherwise I will make no order as to costs.
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