Forrest v Abbott Builders (Qld) Pty Ltd [No. 2] - [2022] QCAT 164

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Forrest & Anor v Abbott Builders (Qld) Pty Ltd [No. 2] [2022] QCAT 164

PARTIES:

PHILLIP FORREST

(applicant)

JAN FORREST

(applicants)

v

ABBOTT BUILDERS (QLD) PTY LTD

(respondent)

APPLICATION NO/S:

BDL280-19

MATTER TYPE:

Building matters

DELIVERED ON:

4 May 2022

HEARING DATES:

14 December 2021
15 December 2021

16 December 2021

HEARD AT:

Brisbane

DECISION OF:

A/Member Sammon

ORDERS:

1. The respondent Abbott Builders (Qld) Pty Ltd must pay the applicants the amount of $42,425.50 in respect of their application.

2. Costs are awarded to the applicants in the amount $6,535.80.of

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – contract for construction of a house – claim for liquidated damages for delay in completion – claim by owner against builder for items not constructed in accordance with contract

Building Act 1975 (Qld), s 99

Building Regulation 2006 (Qld), s 31, s 32, s 46
Building Regulation 2021 (Qld), s 73
Queensland Building and Construction Act 1991 (Qld), s 67AZN, s 77, schedule 1B
Queensland Building and Construction Regulation 2018 (Qld), s 54
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 100, s 102, s 107

Queensland Civil and Administrative Tribunal Regulation 2019 (Qld), s 8(2)(c)

Lyons v Dreamstarter Pty Ltd [2012] QCATA 071

APPEARANCES & REPRESENTATION:

Applicants:

Self represented

Respondent:

Mr Wayne Abbott (Director) and Mr R Paterson (employee of respondent)

REASONS FOR DECISION

Introduction

The applicants (the Forrests) have filed an application in the Tribunal against the respondent (Abbott) for damages payable under a contract[1] between the parties in which Abbott contracted to build a home for the Forrests.
[1]Terms defined in the contract (by clause 38 of the General Conditions) are identified in the contract by italicised text. When I refer to a term defined in the contract for the first time, I will do so in italicised text.
In summary, the claim by the Forrests consists of a claim for liquidated damages for delay in completion of the contract, and secondly for alleged failures by Abbott to carry out work as required by the contract.
The contract, dated 5 December 2016 is in evidence before the Tribunal, in exhibit 18, (first statement of Phillip Forrest, dated 26 July 2020, attachment PF1). It is a Housing Industry Association, Queensland Plain Language New Home Construction Contract.[2]
[2]QC1 (2015).

Summary of issues in the Forrests’ claim

A summary of the claims made by the Forrests, taken from their written submissions, filed on 6 January 2022, adopting the item numbers and alphabetic identifiers used by the Forests is as follows:
(a)Item A - late completion damages;
(b)Item 1 - certification fees;
(c)Item 2 - RW2 (retaining wall 2);
(d)Item 3 - clerestory window;
(e)Items 4, 7, 10, 15 and 17;
(f)Items 5, 6, 14 and 20;
(g)Item 8 - ensuite shower wall;
(h)Item 9 - lower-level fridge stud wall;
(i)Item 11 - void cladding not painted;
(j)Item 12 - termite protection;
(k)Item 13 - wardrobe in bedroom 4;
(l)Item 19 - internal staircase timber colour.
I will consider each claim individually.

An early problem - difficulties with the site

There was an early problem with construction under the contract at the particular site at Ferny Grove. The block is awkward. It faces north, and according to the survey plan[3] included in the contract documents supplied by the Forrests, the block slopes rising from the left to the right if someone was to look at the site from the street in front of the block.
[3]Contained in attachment PF2 to the first statement of Phillip Forrest which is exhibit 18.
This caused problems early in the life of the contract which appear to have permeated several aspects of the construction, and have an effect on some of the claims made by the Forrests which are the subject of this proceeding.
Abbott engaged Professional Certification Group (PCG) to carry out certification under the contract. By 14 December 2016, only nine days after the contract was signed, PCG send an information request to Abbott in particular asking for an amended site plan detailing ‘setbacks to all boundaries and existing buildings (if applicable) measured to the Outermost Projection’.
The architect’s plans for the house were included in the contract documents supplied by the Forrests. Clause 13.1 of the General Conditions provides that the owner warrants the accuracy of the contract documents supplied by the owner. Clause 13.2 provides that if either party becomes aware of any error, ambiguity or inconsistency in or between the contract documents, that party must, within five working days of becoming aware of any such issue, give the other party written notice detailing the problem.
Clause 13.3 then provides that the owner must, within five working days of becoming aware of such a problem, give to the builder such written instructions as necessary to enable the builder to proceed with the works. Clause 13.4 provides that if the owner does not give written instructions as required by clause 13.3 the owner is deemed to have instructed that the builder carry out the works using the order of precedence listed in clause 13.6.
Clause 13.5 provides that if compliance with the owner’s instructions involves more or less cost than a reasonable builder would have anticipated on the signing of the contract and the problem is not solely caused by the documents provided by the builder, the owner is deemed to have also asked for a variation for the builder to comply with those instructions, and clause 20[4] applies.
[4]Clause 20 deals with the process and liabilities for a variation to the contract.
The chronology is taken up by the statement of Mr Ron Paterson,[5] the Construction Manager for Abbott, and the project manager for construction of the house for the Forrests in the early stages of the contract. He said that as the Forrests provided all plans and engineering design, they were responsible for all amendments and changes required by the certifier. Abbott then forwarded the information request to the Forrests to provide amended drawings. Mr Paterson says that Mr Phillip Forrest then provided his response confirming amendments to the plans. That part of the chronology is verified by an email exchange between Mr Wayne Abbott, Director of Abbott, and Mr Forrest on 16 December 2016, which is attached to exhibit 23 as attachment 2.
[5]Exhibit 23.
Mr Paterson then says that those drawings were forwarded to PCG for processing. He says the final plans were approved for construction and then used as construction drawings for all construction works.
Mr Paterson’s statement continues that he had a meeting with Mr Forrest at his then home directly across the road from the new home site, to explain the additional excavation works, as the cut into the block to accommodate the new home ‘did not match the plan elevations’. Mr Paterson says that Mr Forrest then decided to arrange his own surveyor to provide completed heights in order to clarify the elevations for the building. Mr Forrest advised that the pad of the house was to be installed 500mm lower than the contract document had provided, meaning that all works were 500mm lower than as originally planned.
Mr Paterson says that a checking of the Brisbane City Council amended drawing which Mr Forrest provided revealed that his architects had incorrectly provided to Mr Forrest, drawings which look identical but had the finished heights altered by 500mm. Abbott provided the drawing to the certifier which were approved and returned for construction to take place. Mr Paterson says that the lowering of the finished pad, required additional material to be removed from the site and higher and wider retaining walls to be installed. The change in the cut height also meant that the start and finish points in the retaining walls moved slightly due to the gradient on the block.
The chronology of events given by Mr Paterson about the change in height of the house was not challenged by the Forrests in their written statements admitted into evidence in the hearing. In oral evidence to the Tribunal, Ms Jan Forrest generally agreed with the problem on the difference of height of the pad of the building as explained by Mr Paterson. She added that the footprint of the building did not change due to the change of height of the building on the site by 500mm, only the location on the site. She said that a precise location was fixed in the plan sent by the Forrests to Abbott.
When he was cross-examined at the hearing, Mr Forrest also agreed that there was a difference in the height of the building described by the original plans due to the change in height for the pad for the house. He agreed that the end result was that the house was 500mm lower than as had been described in the original plans. I find as a fact that due to an error in the contract documents originally supplied by the Forests to Abbott, the height of the house had to change in that the pad of the house had to be lowered by 500mm. This caused ongoing problems with performance of the contract, which I will describe below.

Item A - late completion damages

The basis for the claim under the contract

The Forrests’ claim for this item[6] is for an amount of $12,000 together with interest to the first day of the hearing, 14 December 2021 ($2,006.40), a total of $14,006.40.
[6]Paragraph 9 of the Forrests’ written submissions.
The basis of the claim is that handover of the home from Abbott to the Forrests as owners occurred 240 days past the contract completion date/expiration of the building period under the contract.[7] The rate is at $50 per day under Schedule 1 to the contract.
[7]Paragraph 8(d) of the Forrest’s written submissions.
The relevant clause of the General Conditions of the contract which provides for late payment completion damages to the Forrest is clause 32 which is as follows:[8]
[8]In the contract, defined terms are indicated by italicised text.
LATE COMPLETION DAMAGES
32.1 If the works do not reach practical completion by the end of the building period the owner is entitled to liquidated damages in the sum specified in item 15 for each day after the end of the building period to and including the earlier of:
(a) the date of practical completion;
(b)the date this contract is ended; and
(c)the date that the owner takes control of, possession of, or use of the site or any part of the site.
32.2 The owner may set-off or deduct its claim for liquidated damages under clause 32.1 from the final claim payment to the builder.
All references in the General Conditions of the contract to ‘items’ are to the items contained in Schedule 1 (Particulars of contract). Item 17 provides that the works must reach practical completion within 270 days after commencement, subject to clause 17. In summary, clause 17 entitles Abbott as the ‘builder' to a reasonable extension of time if the works are delayed by a ‘claimable delay’ in clause 17.2. Item 15 specifies the late completion damages for the purposes of clause 32 to be $50 per day.
The Forrest’s basis for calculation of the 240 day period for the delay claim is based on the date that Abbott claimed as the date of reaching practical completion, of 20 June 2018, as 240 days past the ‘contract completion date’.[9] That expression in quotation marks is not a defined term in the contract. In the context, and given the interchangeable description used by the Forrests as described in paragraph [19] of these reasons, it is likely that they mean the end of the ‘building period’ which is a defined term in the contract. It is defined in the interpretation clause (clause 38) of the General Conditions as the number of days stated in item 13, as extended by clause 17. The number of days stated in clause 17 is 270 days after ‘commencement’, subject to clause 17.
[9]Paragraph 31 of the Forrest’s written submissions.
‘Commencement’ is defined in clause 38 of the General Conditions relevantly to mean when the builder commences physical construction on the ‘site’ of the footing, slab or drainage system. On the other hand, clause 2 of the General Conditions describes when that ‘commencement’ is to take place, which is on or before the ‘anticipated start date’ stated in item 14 or within 20 working days from the date that a number of listed possible events could occur, relevantly in paragraph (e), when the owner gives the builder possession of the site under clause 10, whichever is the later of the events that occurs.
The Forrests contend that Abbott did not issue a ‘commencement notice’ as required by clause 2 of the General Conditions.[10] However, Abbott as builder was not automatically required to do so under clause 2, but may (that is, as a discretionary matter) have issued a notice to the Forrests as owners if none of the required circumstances to begin ‘commencement’ under clause 2.1 are satisfied by the anticipated start date. However, given that the Forrests are prepared to accept:
(a)the ‘final handover date’ as nominated by Abbott of 24 October 2017 as the end of the ‘building period’;[11] and
(b)the date of practical completion as 20 June 2018,
for the basis of the delay claim, nothing turns on this.
[10]Forrest’s submissions at paragraph 31.
[11]Email dated 26 May 2017 from Abbott to the Forrests which is attachment PF8 to the first statement of Mr Forrest which is exhibit 18.
The email dated 26 May 2017 from Abbott to the Forrests also adds additional time to the handover date of 24 October 2017 for ‘variation extras’ at five days per variation as a total of 15 days extra time, resulting in what is described as a ‘Final handover date’ of 14 November 2017. In exhibit 18, paragraph 8, Mr Forrest says that there were no agreed variations that added additional days for delays. In cross-examination, Mr Paterson admitted that Abbott did not apply for an extension of time in which to reach practical completion. He explained that Abbott had week-to-week meetings with Mr Forrest, to explain progress on the contract.
There is some contention, in the case presented by the Forrests, that practical completion was indeed achieved by 20 June 2018, being the date claimed by Abbott as the date of practical completion. However, given that the Forrest’s delay claim is based on the house reaching practical completion on 20 June 2018, it is not necessary for me to determine that practical completion indeed occurred, as defined under the contract, on that date for the purposes of calculating the period for which the delay claim is made. A date for practical completion of the contract as relied on by the Forrests is substantiated by a certificate on practical completion signed on behalf of each party on 20 June 2018 which is attachment PF9 to exhibit 18.
The Forrests submit that Abbott did not seek any extension of time under the procedures required in clause 17, which requires Abbott as builder to give a notice for an extension of time to the Forrests. That factual matter was not contested by Abbott in the hearing or in its submissions.
In its case, Abbott offer a number of reasons why the delay occurred between the contract completion date and practical completion. They put these reasons forward as reasons why there was a ‘claimable delay’ as that term is defined in clause 17.2 of the General Conditions. However, my interpretation of clause 17 is that if a builder wants to claim that a ‘claimable delay’ entitles the builder to an extension of time for the building period, then the builder is to give a written notice of the extension of time to the owner.[12] My interpretation that the requirement to give a notice is a mandatory aspect of obtaining an extension to the completion date is because the written notice is the trigger to the procedures set out in clause 17 that allow the owner to either accept the written notice or to contest it, which can lead to a dispute over the extension of time sought, triggering the dispute resolution clause in clause 37 of the General Conditions. Failure to give a written notice of the extension of time sought is not a mere ‘paperwork error’: it is an important trigger to the respective rights of each party about an extension of time for completion of the contract.
[12] See clause 17.3.

The position of the parties on the claim for delay payment

In its response document[13] Abbot relies on clause 25.7 of the contract to resist the delay claim. That clause is as follows:
The owner’s payment of the final claim is conclusive evidence of the builder’s satisfaction, and discharge, of the builder’s obligations in connection with the subject matter of this contract except for:
(a)      fraud, dishonesty or fraudulent concealment relating to the works;
(b)      the builder’s liability under clause 27.1;[14] and
(c)      the builder's liability under a statutory warranty set out in clause 36.
[13]Dated 21 May 2021, paragraph 9.
[14]Clause 27 concerns the ‘defects liability period’ under the contract which provides that the liability period for any non-structural defects is 12 calendar months from the date of practical completion.
Clause 25.3 provides that subject to clause 25.4, the owner must, within 5 working days of receiving the final claim, pay the amount of the final claim to the builder. The Forrests do not deny making the final payment for the contract, on 20 June 2018,[15] but submit that Abbott should not be able to rely on clause 25.7 because:
(a)Abbott was dishonest in its conduct in requiring the Forrests to make the payment of the final claim before giving possession of the house to the Forrests;
(b)In the alternative, clause 25.7 should be declared by the Tribunal to be of no effect under s 77 of the Queensland Building and Construction Act 1991 (Qld) (the QBCC Act).
[15]Paragraph 41 of their written submissions.
Clause 25 of the contract is headed ‘Practical completion’. That term is defined in clause 38 of the contract to have the same meaning as in Schedule 2 of the contract. That definition is that practical completion:
means the day when the subject work is completed-
(a)      in compliance with the contract, including all plans and specifications for the work and all statutory requirements applying to the work; and
(b)      without any defects or omissions, other than minor defects or minor omissions that will not unreasonably affect occupation; and
(c)      if the building owner claims there are minor defects or minor omissions - the building contractor gives the building owner a defects document for the minor defects or minor omissions.
The provisions of clause 25 which precede clause 25.7 describe the process leading to practical completion. That process works on the basis of the builder's opinion on when practical completion has been achieved. Clause 25.2 provides that when the builder believes the works have been completed, the builder must give the owner a ‘defects document’,[16] and a notice of practical completion stating the builder's opinion of the date of practical completion, and the ‘final claim’.[17]
[16]That lists minor defects and minor omissions that are (i) agreed to exist and when those items will be completed or rectified, (ii) that the owner claims to exist but the builder does not agree with, and (iii) that is signed by the builder.
[17]For payment that the builder contends is then owing.
Clause 25. 4 provides that if the owner believes that practical completion has not been reached, the owner must, within five working days of receiving the notice of practical completion, give the builder a written notice stating the owner’s requirements for the works to reach practical completion and the provisions of the contract that relate to each requirement.

Clause 25.5 states that the builder must, on receiving the owner’s notice (under clause 25.4) complete those requirements that, in the builder’s opinion, are necessary to reach practical completion.

The Forrests’ contentions of dishonesty

There are several aspects to the Forrest's contention on this issue which they say points to dishonesty in Abbott requiring payment of the final claim at practical completion as a condition for handover of possession to the Forrest's.
Firstly, the Forrests say that Abbott acted dishonestly in preparing the invoice for the final claim without deducting the late completion claim. The Forrests say that Abbott was well aware of the delay claim at the time that the invoice for the final claim was prepared by Abbott. The evidence that the Forrests rely on includes the contents of Jan Forrest's ‘statement in response’[18] in exhibit 4 that ‘late completion damages were discussed many times with the site supervisor’ who by the relevant time was Karl Bell. In his statement in response (exhibit 19),[19] Phillip Forrest says:
... late damages were discussed on several occasions and that we were left in no doubt that if we did not pay the full amount of the final invoice (without deducting the late fees) we would not achieve handover and obtain the keys.
[18]Filed 25 November 2020, paragraph 3.
[19]Paragraph 9.
Mr Bell was not called to give evidence at the hearing by Abbott, and therefore was no available to the Forrests for cross-examination on this point. Nor was a statement filed by him in the proceeding. Similarly, Mr Wayne Abbott, a director of Abbott also did not file a statement or give oral evidence and was therefore also not available to the Forrests for cross examination. I find as a fact that Abbott was aware of a claim by the Forrest for late completion when the invoice for the final claim was prepared by Abbott.
Having said that, I do not think that there was any contractual obligation on Abbott to complete an invoice for the final claim recognising any deduction for late completion. In my opinion, under clause 32 of the contract (as set out above), the onus is on the Forests as the owner to formalise any claim for late completion damages.
On the other hand, in the written submissions by Abbott, it submits that:[20]
The HIA contract states upon receiving the practical completion tax invoice any offsets i.e., Damages are to be tabled for offset. This clearly was not done and upon taking possession there cannot be any additional claims with standing items 27.1 and 36 in the general conditions.
[20]Page 3.
Clause 32.2 does not require the owner to offset a claim for late completion damages from the final claim: The clause uses the word ‘may’ meaning a discretion to do so on the part of the owner, and does not use the word ‘must’ which would connote a requirement to do so.
Secondly, the Forrests submit that Abbott dishonestly required the Forrests to pay the invoice for the final claim in circumstances where Mr Bell would not hand over possession of the house unless the payment in full was made by the Forrests without deduction for the late completion claim.
In their submissions,[21] the Forrests refer to evidence given by Phillip Forrest at the hearing that Abbott had notified the Forrests of six completion dates for the completion of the house and failed to make five. Mr Forrest's evidence was that the fifth date was 19 June 2018, one day prior to actual handover. Mr Forrest testified that he flew back from work in Canberra specifically to attend the handover, and it was cancelled on that day without warning by Abbott.
[21]Paragraph 42.
This meant that Jan Forrest had to attend the handover on 20 June 2018 on her own with Mr Bell. Mr Forrest's evidence was that it was made clear that Mr Bell would not hand over the house until Abbott had been sent evidence of the final payment. Only after Mr Bell received a phone call did the handover commence and by that time it was dark. That version of events is corroborated by attachment PF31 to the first statement of Mr Forrest (exhibit 18) which refers to an email from him to Abbott dated 20 June 2018 at 5:35pm, attached to which was a copy of the money transfer for the final payment of $20,000.
I find as a fact that Abbott insisted on payment of the invoice for the final claim, without deduction for any late completion claim, as a condition for handover of possession to the house on 20 June 2018. Clause 25.3 of the contract allows the owner five working days from receipt of the final claim to pay it to the builder. By insisting on payment of the final claim in full as a condition of handover, which is not a contractual entitlement in favour of Abbott, Abbott deprived the Forrests of the period of five days to make payment of the final claim and also to avail themselves of the opportunity to set off the claim for liquidated damages for late completion under clause 32.2. That conduct also set up, on the face of it, the reliance by Abbott on clause 25.7.
In those circumstances, I find that the conduct on behalf of Abbott in insisting on full payment of the final claim, without deduction for late completion damages, or even giving the Forrests the opportunity to make a claim of that kind by setoff, as a prerequisite for handover, triggering what would otherwise be application of clause 25.7 was dishonest, relating to completion of the works. In those circumstances, I find that cause 25.7 does not prevent the Forrests from a successful claim under clause 32.
The third main point made by the Forrests[22] is that Abbott had acted dishonestly in procuring payment of the final claim, was that Abbott acted dishonestly in claiming that the house had reached practical completion when Abbott knew that:
(a)the house was not certified as required; and
(b)Abbott had not completed the works in compliance with all statutory requirements.
[22] Paragraphs 45-54.
In view of the findings I have made about the second basis upon which the Forrests submit that clause 25.7 is inapplicable because of dishonesty in the way Abbott procured payment of the final client, it is not necessary for me to decide the third point relied on by the Forrests.

Application of s 77 of the QBCC Act

Section 77(1) of the QBCC Act allows a person involved in a building dispute to apply to the Tribunal to have the Tribunal decide the dispute. Section 77(3)(e) relevantly relied upon by the Forrests allows the Tribunal to exercise the following power:
(e) declare any misleading, deceptive or otherwise unjust contractual term to be of no effect, or otherwise vary a contract to avoid injustice.
In case I am wrong in my conclusion that Abbott was dishonest in its approach to procuring payment of the final claim so as to defeat the Forrests’ claim for late completion liquidated damages, I would in the alternative declare that clause 25.7 is of no effect in defeating the Forrest’s claim for liquidated damages, on the basis that its application to defeat that claim is unjust in the circumstances of this case.
My basis for doing so is essentially my findings in deciding that Abbott was dishonest in its approach to procuring payment of the final claim as set out above. I would also add further reasoning on application of s 77(3)(e).
Abbott may argue that the causes of the delay in completing the contract were ‘claimable delays’ as described in clause 17.2, in being due to ‘a cause beyond the builder’s sole control that was not reasonably foreseeable at the time the builder entered into the contract.’ If that is so, then Abbott’s remedy was to give the Forrests a written notice of the extension of time required under clause 17.3 of the contract, which, depending on the Forrests’ response, could lead to an extension of the ‘building period’.
Abbott did not do so. Instead, Abbott sought to take advantage of its conduct in procuring payment of the final claim, and in doing so seeking to deny the opportunity to the Forrests to make a late payment claim, or offset a late payment claim against payment of the final claim, as the Forrests were otherwise able to do under the contract within five working days under a combination of clause 25.3 and clause 32.2 of the contract. That conduct would have the effect of excusing the failure by Abbott to give written notices of extension of time under clause 17.
Clause 25.7 is clearly to the benefit of a ‘builder’ under this type of contract. It was a contract in the form prepared by the Housing Industry Association. It has the effect, on the view submitted by Abbott, of defeating any claim accrued by the ‘owner’ in connection with the ‘subject matter of the contract' except for the specific exceptions. I think there is some ambiguity in the words of clause 25.7, following the effect of the owner’s payment of a final claim that the payment is:
conclusive evidence of the builder’s satisfaction, and discharge, of the builder's obligations in connection with the subject matter of this contract ...
The clause does not say that the payment of the final claim is conclusive evidence of satisfaction of the builder’s obligations under the contract (subject to the specific listed exceptions), which would cover the builder’s obligation to construct the house, as well as any accrued contractual obligation under the contract. Instead, the clause uses the words ‘the subject matter of this contract’. What is the ‘subject matter of this contract’? On one view, it may be the construction of the house, and therefore, does not immunise the builder from obligations about liability under the contract for liquidated damages for delay in completion of the contract in the ‘building period’, as something separate from the obligations about construction of the house itself.
In my view, there is room for application of the ‘contra proferentum’ rule of interpretation of contracts that if a term of a contract is ambiguous, it should be construed against the party by whom, or in whose interest, it was formulated or included.[23] That would have the effect I have indicated, of the immunisation from further obligations of the builder, for construction of the house itself (subject to the specified exceptions) rather than extending to an accrued liability under the contract, for example, for liquidated damages for late completion. However, in view of my alternative basis for decision, on application of s 77(3)(e) of the QBCC Act, it is not necessary for me to decide this point.
[23]Seddon NC and Ellinghaus MP, Cheshire and Fifoot's Law of Contract, (9th Australian edition, 2008), LexisNexis Butterworths, Sydney, 10.33.
In my view, the reliance by Abbott on clause 25.7 is unjust in the circumstances of this case.
I allow the delay claim in the amount claimed by the Forrests, of $12,000.
Claim for interest
The Forrests have also claimed interest on this amount to the first date of the hearing, 14 December 2021 in the amount of $2,006.40.
Section 77(3)(c) of the QBCC Act gives the Tribunal power to award interest on damages at the rate, and calculated in the way, prescribed under a regulation. Section 54 of the Queensland Building and Construction CommissionRegulation 2018 (Qld) allows for award of interest as follows:
54 Interest—Act, s 77
(1) For section 77(3)(c) of the Act, interest is payable on the amount of damages awarded—
(a)if the parties have entered into a contract—at the rate provided under the contract; or
(b)at the rate agreed between the parties; or
(c)otherwise—at the rate of 10%.
(2) The interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid.
The contract does contain an interest rate for default interest for late payments by an owner to the builder, under clause 33.1 read with item 8 of Schedule 1, as a default rate of 18% per year. There is no rate for default interest payable on claims by an owner against the builder.[24] In that case, the applicable interest rate is 10% per year.
[24]Another example of how the contract is written in favour of the builder, rather than the owner.
The Forrests have supported their claim for interest with a calculation attached to their written submissions using the Queensland Courts interest calculator, from 20 June 2018 to 14 December 2021, but at the rate of 4% per year, apparently based on the Reserve Bank of Australia rate. At the correct interest rate of 10%, interest for that period amounts to $4,185.21. I award that amount of interest to the Forrests.

Item 1 - certification fees

The basis of the Forrests’ claim on this item is a refund for building certification services they paid to Abbott and which they claim Abbott did not provide. The claim amounts to $1,990.80. Abbott refutes this claim and submits that it has done all it was required to do under the contract in terms of certification.
Evidence filed by the Forrests proves that Abbott invoiced for obtaining the certification and the invoice was paid by the Forrests[25] in July 2016, which was before the contract was signed, on 5 December 2016.
[25]First statement of Phillip Forrest (exhibit 18), attachments PF12 and PF13.
The obligations of the parties under the contract start with clause 2.3 of the General Conditions which provides that the party named in item 10 of Schedule 1is responsible for obtaining:
any planning approval, building permits and/or statutory consent that is required for the contract works. The party obtaining such approvals must take all reasonable steps to do so by the anticipated start date.
Item 10 of Schedule 1 provides as follows:
The person to obtain and pay for all planning and building approvals, consent or approval required by a statutory or other authority (clause 2).
Building certification by builder.
There is common ground between the parties that Abbott engaged an organisation called Professional Certification Group (PCG) to provide those services. There is also common ground that PCG provided a form 21certificate, and that that the form 21 was defective. The form 21 certificate is in in evidence before the Tribunal as attachment PF73 to the second statement by Mr Forrest (exhibit 19) and also separately as a stand-alone exhibit, exhibit 7.
An explanation of the certificates concerned will assist understanding of this part of these reasons. The purpose of form 21 ‘Final Inspection Certificate' is to implement s 99 of the Building Act 1975 (Qld). That section provides that if at the inspection by a building certifier at the final stage of the building work, the certifier is satisfied that the work complies with the building development approval, the certifier must issue a final inspection certificate to the building owner.
The explanatory information contained on the appendix to the form[26] states that the building certifier is required to attach to form 21, all relevant inspection documentation that has been relied on by the certifier to certify the building work complies with the building development approval. ‘Inspection documentation’ is defined in the explanatory information to mean a list of documents, relevantly including a compliance certificate, a certificate about an inspection under the Building Act and a certificate relating to the inspection of the building work relied on by the certifier.
[26]available on the website of the Queensland Department of Housing and Public Works.
Currently, form 15 is headed ‘Compliance certificate for building design or specification’. Currently, it implements s 73 of the Building Regulation 2021 (Qld), which requires that a ‘competent person’ (design-specification) may, for an aspect of building work, give a building certifier a design-specification certificate that states that a building design or specification will, if installed or carried out under the certificate, comply with the ‘building assessment provisions’. Of course, the regulation under the Building Act in force on 20 June 2018 when the form 21 was issued[27] was the Building Regulation 2006 (Qld). However, s 46 of the Building Regulation 2006 is to the same effect as s 73 of the 2021 regulation.
[27]See attachment PF16 attached to Mr Forrest’s first statement (exhibit 18), paragraph 5(g).
Form 16, headed ‘Inspection certificate’ currently implements s 53 of the Building Regulation 2021. Section 32 of the Building Regulation 2006, was to the same effect, which provided that an ‘inspecting person’ must give the builder for the work a certificate of inspection for the stage of the work concerned, but only if the inspecting person had complied with s 31 of the Building Regulation 2006. Section 31 provided that if an inspecting person inspects a stage of ‘assessable building work’, the inspecting person must inspect the work to ensure the person is satisfied all relevant aspects of the stage under the building development approval have been completed and comply with the approval.
In Mr Forrest’s first statement[28] (exhibit 18), he says that on 22 October 2018, he received a copy of an email from the PCG certifier to Abbott asking Abbott for the forms 15 and 16 for decks (as components of the house). Mr Forrest goes on to say that he has never received those forms.
[28]Paragraph 22.
He says[29] that in November 2018, the Forrests filed a complaint to the Queensland Building and Construction Commission (QBCC) against the certifier about his issuing of the form 21 without being accompanied by the required other forms. The outcome was that on 12 February 2020, the QBCC found that the certifier had engaged in unsatisfactory conduct in that he issued the form 21 despite there not being:
(a)a form 16 for deck 1;
(b)a form 16 for deck 2;
(c)a form 15 or form 16 for deck 3;
(d)a termite certificate;
(e)a form 15 or form 16 for a sandstone boulder wall.
[29]Paragraph 23.
Mr Forrest attached the QBCC report to his statement.[30] It confirms failure of the certifier to obtain the forms and certificates required for completion of the form 21.[31] I adopt the reasoning and findings of the QBCC that the relevant forms and certificate was not obtained by the certifier in issuing the form 21.
[30]Attachment PF16.
[31]Section 8 (a)-(kkk).
In their submissions, the Forrests say that four forms are still outstanding and that Abbott has never provided the four certificates for the decks, consisting of a form 15 and form 16 for the rear deck, a form 16 for the upper front deck and a form 16 for the lower front deck.[32]
[32]Written submissions, paragraph 82.
For its part, Abbott submits that it has provided all certificates required under the contract excluding the engineering design and certification that was to be provided by the Forrests’ consulting engineer. The submissions continue that the Forrests were claiming missing certificates ‘not works not certified’ and all works have been certified excluding the engineer’s form 16.[33]
[33]Written submissions, page 4.
To be sure, the contract documents for the contract include the ‘engineering design drawing F15011’. Schedule 4 lists items excluded from the contract pursuant to clause 22 of the General Conditions, for which those items are excluded from the contract works. Included in Schedule 4 is:
No allowance for drawings, engineers inspections. All items above are at owner’s expense.
It seems clear that the missing form 16s were to be provided by the engineer, who was originally engaged by the Forrests, and who prepared the engineering design included in the 'contract documents', Mr Lachlan McLean. Mr Paterson says in exhibit 23 that Abbott finally received advice from Mr McLean that he required approximately $1,800 to document and approve the changes made to the decking. It seems clear that this amount was not paid to Mr McLean by either party, and he therefore did not conduct an inspection and the form 16s not provided by him.

There is therefore something of a conflict in the requirements of the contract between the requirement on Abbott as builder to provide certification, and that the contract makes no allowance for engineer’s inspections and they are to be at the expense of the Forrests. The sequence of events leading to a certification does depend, for the decks concerned, on an engineer’s inspection taking place first.
Ms Forrest said in her oral evidence that she only found out about the additional cost that Mr McLean would charge for further inspection in approximately November 2018. In her statement in reply[34] (exhibit 4), Ms Forrest refers to attachment 7 to Mr Paterson's statement (exhibit 23) which is an email from Mr Paterson to Mr Abbott dated 22 October 2018. That email refers to a copy of a document for signing off on the front decks and that had been sent to Mr McLean on two previous occasions. The email says that Mr McLean was prolonging the process and advising that new drawings were required with a fee of $1,800. Ms Forrest notes that although the email starts with the words 'Hi Jan’, she was not included as an addressee to that email and that she did not receive it.
[34]Paragraph 11.
However, it is clear that by 22 October 2018, Ms Forrest was aware of Mr McLean's requirements for the engineering certification. On that date, Ms Forrest sent an email[35] to Mr Abbott and Mr Paterson amongst other things, saying that she had contacted Mr McLean as requested on behalf of Abbott, and Mr McLean specified to her what had to be provided and the cost for the additional service. In that same email, Ms Forrest states that it is the responsibility of Abbott to provide the appropriate certifications for the work that was completed by Abbott.
[35]Attachment 7 to Mr Paterson's statement, exhibit 23.
There is dispute between the parties about the need for alteration to the rear deck. For its part, Abbott contends that the reason for the change came about because of the difference in the height of the house as designed, and as had to be constructed in the end because of the change of the pad located on the block.[36] The Forrests contend in response that the change amounted to a variation to the contract that did not follow the correct procedure for variations under the contract.
[36]Mr Paterson's statement (exhibit 23), page 3.
Abbott does not contend that a formal variation was prepared for the change to the rear deck, but Mr Paterson says in his statement that the change of position was minor and also that Mr Forrest agreed to the change to the rear deck at a site meeting during construction. Mr Paterson seeks to verify that factual position by referring to attachment 7 to his statement. That is of course the email dated 22 October 2018 from Mr Paterson to Mr Abbott, which although commencing with the words 'Hi Jan’, Ms Forrest says that she did not receive. However, the email at least verifies Mr Paterson's understanding as of 22 October 2018 that Mr Forrest had agreed to the change to the construction to the deck. Mr Forrest does not refute the fact of that agreement on the site.
The Forrests also submit[37] that one of the outcomes of the alterations that were made to the rear deck from the design to construction included Abbott saying that there would be no additional cost because of those changes, and that extends to being no additional cost for an engineer to provide the form 16 for the rear deck.
[37]Paragraph 72 of the Forrests’ written submissions.
The Forrests rely on an email from Mr Paterson to Mr Forrest dated 4 October 2017.[38] Relevantly that says:
Please find attached amended rear patio deck showing the deletion of the Bed 1 Walk way and the reconnection to the living deck ramp. As discussed on site[39] there is no extra charge as we have only reconfigured the existing deck area. Can you please confirm the shape change to the deck.
[38]Mr Forrest’s statement in response (exhibit 19), attachment PF62.
[39]That also tends to confirm Mr Paterson’s statement that Mr Forrest agreed to the alteration to the rear deck.
I think that correctly, Mr Paterson's email should be considered in context, which was about the changes that Abbott was going to make to the construction of the deck and that there would be no increased charge by Abbott for the change. I do not think that it can fairly be said that Mr Paterson was representing that there would be no charge of any kind arising out of the change, including the cost of an engineering inspection as excluded from the builder’s obligations under Schedule 4.
In the final analysis, I do not consider that it is necessary for me to decide the cause for the change in the rear deck from the construction plans. I do infer from the fact that Abbott considered that it had to change from the construction plan was due to the change in height of the pad. I consider that it is unlikely that a builder would depart from the plan for the construction unless there was a good reason to do so. Whatever the practical cause for the change, there was a need for an engineer to inspect the work and issue a form 16 certificate.
Clearly, Abbott was responsible for certification for the works. However, a prerequisite is that any necessary drawings and engineer’s inspections were required for the form 16 for the decks. For that, there is a specific exclusion for drawings and engineer’s inspections which are to be at the owner's expense because of the exclusions in Schedule 4. The Forrests were not prepared to pay for the further inspections by Mr McLean, as a prerequisite for Abbott to provide the certification for that part of the work.
Between the obligation on Abbott as builder to provide certification under item 10 of Schedule 1, and the exclusion for drawings and engineer’s inspections in schedule 4, neither is higher than the other in the order of precedence contained in the contract in clause 13.6. Those respective obligations are of equal contractual standing. However, in my view, the exclusion for drawings and engineer’s inspections is more specific than the general obligation on the contractor to provide certification. That tends to support my finding that before the builder is required to provide certification relevantly accompanying form 21, it may be necessary for the owner to provide a form 16 as a result of an engineer’s inspection and any further drawings.
My finding on this item of the Forrest’s claim is to reject it, because the four missing certificates are the form 15s or form 16s for the decks, and the reason why they were not provided is because an engineer had not inspected the relevant work or had access to further drawings, which were the responsibility of the Forrests to provide under the contract.

Item 2 - retaining wall 2

The basis of the Forrests’ claim is that the retaining wall (RW2) as drawn in the contract plans was 3.7m long. Abbott did not construct RW2 as specified in those plans and built it at 1.4m long. The claim is for the cost saving to Abbott for not constructing the remaining 2.3m as calculated by the quantity surveyor engaged by the Forrests, Mr Paul Burgess, amounting to $2,190.46.
The Forrests say that the relevant north face of RW2 does not directly support the house (and therefore does not have that type of structural purpose). They say it is primarily a retaining wall for landscaping purposes and to provide greater access in and around the front stairs and under the office.[40] The Forrests say that Abbott did not consult or notify them about changing the length of RW2 and there is no variation relating to that change.
[40] Paragraph 93 of the Forrests’ written submissions.
Abbott does not dispute the facts of the work that it did, in these contentions. It does say[41] that the reason for the change in the length of RW2 was because of the change in height of the building as against the elevation (meaning the natural ground level in relation to the building). However, the designer only changed the height and not the elevation, so the elevation shown in the plans does not give a true representation of what was actually approved in the approved plans.
[41]Abbott written submissions, page 4.
Mr Forrest’s first statement (exhibit 18) records that he drew the issue to Mr Paterson's attention in his email dated 23 July 2017 (attachment PF20 to that statement) which was almost a year before practical completion.
Mr Paterson elaborates on Abbott’s position in his statement (exhibit 23), in paragraph 11 on page 4. There he says that a drop in the designated height for the slab moves the junction of the slab (with the surrounding ground) which is unavoidable. I agree with that proposition.
He illustrates this in attachments 8 and 9 to his statement. Attachment 8 is the northern elevation of the house prepared by the Forrests’ architect, with a line drawn on it by Mr Paterson indicating how the slab level of the house moved down 500mm. Attachment 9 is a floor plan (bird’s eye or aerial view) of the 'granny flat' level of the house drawn by the Forrests’ architect. Mr Paterson has drawn a 'new point' line to illustrate where lowering of the house, and also matched with it, RW2 would reach a lower contour drawn on the floor plan. It appears that the purpose of this is to show that the retaining wall was relocated to meet the lower contour, meaning that the retaining wall need not be the full length as designed, because the shorter length will marry up with the ground reached at the lower contour. During Mr Paterson's cross- examination of Mr Forrest, Mr Paterson described that as the 'break point' where the ground level intersects with the level of the pad.
However, that presumes rather than understands the purpose RW2 was intended to achieve. Abbott would have gained that understanding if it had submitted a variation document to the Forrests under clause 20 of the contract.
It must have been possible for the retaining wall to be built to the full design length, since the Forrests say they incurred considerable cost constructing block walls to retain ground that otherwise would have been removed during construction or retained by RW2.[42]
[42]Forrest's written submissions at paragraph 94.
I propose to allow the claim made by the Forrests for the difference between what the contract required, which was a length of 3.7m compared to what was built which was 1.4m. Ms Forrest gave evidence at the hearing that while the contract documents did not provide a specific dimension for the length of RW2, she arrived at the length contracted for by means of scaling the length from the plans. I accept that as a valid method of calculating the length contracted for.
The quantity surveyor who gave evidence for the Forrests, Mr Burgess, calculated an amount of $2,190.96 for the shortfall of RW2.[43] In his comments on this item, Mr Burgess records that the owner instructed him to allow for the costs of RW2 only and not any costs relating to redesign of landscaping, or support to the upper level driveway including additional landscape walls. That appears to me to be an appropriate basis to calculate the shortfall. I will allow this amount as part of the claim by the Forrests.
[43]Exhibit 1, attachment C, item 2.

Item 3 - clerestory window

The Forrests’ claim for this item is that the contract documents specified installation of a motorised clerestory window in the main bathroom, but Abbott did not supply and install a motorised window.[44]
[44]Forrest's written submissions at paragraph 104.
The Forrests’ claim for damages is for the cost estimate of removing the existing window and supply and installation of a motorised window in accordance with the contract documents. Mr Burgess’ estimate for this item in exhibit 1 is $3,228.47.
During the hearing, Abbott agreed that it did not supply and install the motorised window and admitted liability for this item. Abbott also agreed to the cost estimated by Mr Burgess. I therefore allow this item of the Forrest's claim in the amount of $3,228.47.

Items 4, 7, 10, 15 and 17

This aspect of the Forrests’ claim is put on the basis that Abbott was, under the contract, obliged to supply and install the following items, but did not:
(a)Item 4 - external tap;
(b)Item 7 - exhaust fans;
(c)Item 10 - metal toe flashing;
(d)Item 15 - washing machine platform;
(e)Item 17 - security bolts.
The Forrests’ claim is for the amount calculated by Mr Burgess needed to put the Forrests in the position they would have been, had Abbott provided those items.

Item 4 - external tap

The claim made for this item is for $561.44. In their written submissions, the Forrests say that during the hearing, Abbott agreed that it did not supply those items.[45] That is not so, at least concerning the external tap. Instead, the evidence which emerged at the hearing was that the tap was installed, but in what the Forrests said was the wrong place. The same point is asserted in the Forrests’ written submissions.[46]
[45]Paragraph 112.
[46]Paragraph 118.
There was agreement in the evidence at least that the tap was installed, next to the hot water system. In his statement (exhibit 23), Mr Paterson said that the reason for the tap being placed where it was, again was due to the change in the location of the house on the block. He said that as a result, there was very little access to the rear of the dwelling and Mr Forrest advised to move the hot water system to an alternative position. The plumbing pipes were accordingly moved to that position and the plumber installed the tap relative to the new position of the hot water system. The written submissions by Abbott, state that this location was ‘as detailed on the plan’.[47]
[47]Written submissions, page 5.
The Forrests’ written submissions do not contest the evidence that Mr Forrest agreed to the relocation of the hot water system. However, that is not the same as evidence that Mr Forrest also agreed to the relocation of the rear external tap. The Forrests’ case was that an external tap at the rear was required for the bushfire plan for the house. In those circumstances, I allow the claim of $561.44.

Item 7- exhaust fans

It was common ground at the hearing that Abbott did not supply the exhaust fans required by the contract for each of three bathrooms. The only issue, then, is about the quantum of the claim which should be allowed for this item.
The original claim made for this item was for $4,971.01 but reduced at the hearing by $1,200, resulting in a final claim for $3,771.01.
In his report (exhibit 1) Mr Burgess made an allowance of $499 for each exhaust fan of a specified brand. At the hearing, the Forrests acknowledged that no specific brand had been nominated in the finishing schedule as part of the contract documents. Mr Paterson said that Abbott could supply an exhaust fan for $100 per fan. Accordingly, the Forests agreed with that amount and the reduction in the claim of the fans were to be fitted.
The evidence given on behalf of Abbott for this item is contained in attachment 22 to the statement of Mr Paterson (exhibit 23). That is a pricing from an electrician for $825 plus tax, consisting of three external vents, flexi duct, connections and cable, all to be switched from the existing light switches. Abbott supported that pricing with an email dated 10 May 2021[48] from Mr Jordan Rogers of GRC Quantity Surveyors, who describes himself in that email as a ’Junior Quantity Surveyor’. Mr Paterson asked Mr Rogers to review a number of quotes supplied to Abbott ‘from our normal contractors and are at normal industry rates’ for several items which were part of the claim made by the Forrests.
[48]Attachment 27 to Mr Paterson’s statement (exhibit 23).
Mr Burgess’ report (exhibit 1) contains an itemised and costed breakdown for this item. He would allow an hour’s labour to cut out the ceiling in each bathroom, three hours for each bathroom to ‘chase out wall’ electrical supply, assuming the most direct route and allowing a combination of plasterboard and tile finishes. He would also allow two hours per bathroom for electrical labour to replace these switches to suit both lighting and exhaust fan, including running cabling, but in addition to that, would allow four hours labour for each bathroom to install the fans and flexi duct in the ceiling void, to the external walls. He would also allow three hours labour for each bathroom to ‘make good ceiling and walls including paint and tile replacement’.
There is therefore a conflict in the evidence of what is a fair and reasonable amount for this item.
For their part, the Forrests submit[49] that Mr Burgess spent four hours on the site assessing the scope of works (required overall in preparing his report, not confined to the exhaust fans, but other items of work which the Forrests claim was not completed as part of the contract work).
[49]Paragraph 114 of the Forrests’ written submissions.
The Forrests also submit that Mr Rogers is a ’junior quantity surveyor’ and had not been to the site. The latter fact was confirmed in oral evidence when Mr Paterson was cross-examined. They submit that Mr Rogers’ email[50] only says that he considered the quotes provided by Mr Paterson as fair and reasonable. The Forrests submit that for each of the quotes reviewed by Mr Rogers, the person providing a quote does not indicate that they had any appreciation for the scope of works involved, including the site aspect or the bushfire requirements. Finally, the Forrests note that Mr Rogers was not available for cross-examination
[50]Meaning the email dated 10 May 2021, attachment 27 to exhibit 23.
Generally, for the reasons submitted by the Forrests, I prefer the evidence of Mr Burgess over that of Mr Rogers. That does not mean that I should accept the evidence of Mr Burgess in an unquestioning way, where other objective facts or considerations apply. For example, Mr Burgess allowed an amount of $499 for each of the exhaust fans, where the Forrests, quite properly, accepted that no specific exhaust fan had been selected in the specification and a $100 exhaust fan would suffice. That does tend to suggest some extravagance on Mr Burgess’ part, at least in respect of the item concerning the exhaust fans.
In oral evidence, Mr Burgess said he considered all costs in installing the exhaust fans, including that the house was rated for Bushfire Attack Level (BAL) 29, which had an effect on openings to external walls which would be required to install the exhaust fans.
In his report, Mr Burgess said he based the rates he used on industry publications ‘Cordell’ and ‘Rawlinsons’, as well as a rate methodology developed in his firm. He said that his preference is to use Cordell. His evidence was that like all publications, it can be faulted, but its extensive circulation, wide publishing base and regularity of issue make a compelling case for its use. I would accept the rates applied by Mr Burgess in his report.
On the other hand, I think the hours adopted by Mr Burgess to install the exhaust fans is another matter. He would allow a total of 39 hours labour to install three exhaust fans. He would allow one hour for each bathroom to cut a hole in the ceiling. That seems to me excessive. As well as an allowance to cut out the ceiling and ‘chase out’ the wall in each case, he also would allow a total of six hours labour to replace the switches and a further 12 hours labour to install the fans and duct to the external wall.
Overall, the hours of labour allowed by Mr Burgess do appear to me to be extravagant, perhaps in keeping with his adoption of $500 per exhaust fan when the Forrests accepted that $100 was fair and reasonable.
Even allowing for the additional complexity of ensuring the house complies with the BAL rating, I would allow half the hours allocated by Mr Burgess, as being fair and reasonable to install the three ceiling fans. Using the rates allowed by Mr Burgess, I would deduct an amount of $1,463.88 for labour from the original claim made by the Forrests, as well as the deduction conceded by the Forrests of $1,200. I allow a total of $2,307.13 for item 7 of the Forrests’ claim, to install three exhaust fans.

For the items in Table 2, I have allowed a total of $18,233.59. For those items to be carried out as rectification works by a subcontractor, the total is $16,083.59.[71] To that amount is to be added the claim for the preliminary allowance of $1,500, a total of $17,583.59. I then add an amount of $1,758.35 for margin/overhead at the rate of 10%, leaving a total of $19,341.94.
[71]Excluding item 20 which the Forrests arranged to be carried out themselves as described by Mr Burgess in paragraph 6 of his report, and for which he says does not attract a claim for margin/overheads, and contingency/risk.
I am satisfied that GST at the rate of 10% should be added to that amount, on the principle that damages should be awarded for a breach of contract as if the contract had been performed, meaning the Forrests would have to pay GST on those amounts, to reach the position as if Abbott had performed the contract. That makes a total of $21,276.13.
The total of the amounts I allow in respect of Tables 1 and 2 is a total of $42,425.50.

Claim for costs

The Forrests claim the costs of filing their application in the Tribunal together with the cost of Mr Burgess’ report and him giving evidence.
Unlike the law applicable to costs in other jurisdictions, where costs ‘follow the event’, where the successful party to a dispute is ordinarily entitled to an order for costs, the starting position for costs in the Tribunal under s 100 of the QCAT Act, is that relevantly other than as provided under the Act ‘or an enabling Act’, each party to a proceeding must bear the party’s own costs of for the proceeding.
In Lyons v Dreamstarter Pty Ltd,[72] the then President of the Tribunal, A Wilson J decided that the QBCC Act was an enabling Act that gave the Tribunal jurisdiction to hear and determine a ‘building dispute’. Further, he decided that what was then s 77(2)(h) of the QBCC Act[73] giving the Tribunal the power to ‘award costs’, was a provision that indicates that the question of costs for building disputes for which jurisdiction on the Tribunal is conferred by the QBCC Act indicates that the question of costs is to be addressed in markedly different terms from s 100 of the QCAT Act.[74]
[72][2012] QCATA 071.
[73]Now s 77(3)(h) of that Act.
[74]Paragraph [10] of Lyons.
A Wilson J considered that the discretion to be exercised under what is now s 77(3)(h) of the QBCC Act start with the proposition that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.[75] He awarded costs to the party who was successful in that case.
[75]Paragraph [11].

Neither party in the present case has addressed the specific criteria of s 100 of the QCAT Act or s 77(3)(h) of the QBCC Act in their submissions. However, in addressing the relative strengths and success of each party’s case, the Forrests have been substantially, but not completely, successful in their claims.
The costs claimed by the Forrests for the filing fee to commence this proceeding in the Tribunal, and the costs for Mr Burgess in preparing his report and giving evidence. In my view, it was necessary for the Forrests to incur those expenses in commencing this proceeding and obtaining the substantial success which they have achieved. I have not accepted all of Mr Burgess calculations on rectification, but I have substantially accepted his evidence. It would have been necessary for the Forrests to engage Mr Burgess to prepare the report and to give evidence for them in order to succeed in their application to the extent that they have.
For these reasons, I grant the application by the Forrests for the filing fees, and preparation of Mr Burgess’ report as far as it concerns this application and for him to give evidence.
Section 107(1) of the QCAT Act provides that if the Tribunal makes a costs order, the Tribunal must fix the costs if possible. The application filing fees are simple enough to determine, since they are prescribed under s 8(2)(c) of the Queensland Civil and Administrative Tribunal Regulation 2019. However, when the Forrests filed their application, the fee, as recorded on the application were $345.80, and not $358.00 as claimed by the Forrests in their written submissions. I allow $345.80 for the filing fees.
The most significant element of the claim for costs is for the fees for Mr Burgess to prepare his report, in the amount of $5390.00. In their written submissions in chief, the Forrests say that for Mr Burgess’ fees. ‘see attachment to application’. His invoice for those fees was attached, not to the original application filed in 2019, but to an ‘Amended Application for domestic building disputes’ filed on 27 August 2020.
That invoice, dated 30 June 2020 contains Mr Burgess’ invoice for total labour of 24.50 hours at the rate of $200 per hour. That amounts to $4,900 to which GST is added of $490, leaving a total of $5,390. I find that hourly rate to be reasonable. As to the hours, I have already referred to the evidence from Mr Burgess that he spent four hours at the site inspecting the claimed defects. That leaves 20.5 hours to consult the documents he refers to in his report including the architectural drawings, finishes specification, engineering drawings and other contractual documents, then to consult the building industry reference material he referred to in his evidence, carry out the relevant calculations and prepare his report. 20.5 hours seems generous for that work, but not excessive. I allow the costs for the report in the amount of $5,390.
The Forrests claim $800 for the costs of Mr Burgess giving evidence, comprising four hours at $200 per hour. In an email dated 26 August 2020[76] from him to the Forrests, he describes his rate for giving evidence also to be $200 per hour and that he would typically need an hour or so for preparation beforehand. Mr Burgess gave evidence at the hearing for a little over an hour. However, added to that would also have to be the cost of travel to and from the Tribunal. I find four hours to be a reasonable allowance for giving evidence and I allow the Forrest’s claim for Mr Burgess to give evidence at $800.
[76]Also attached to the Amended Application filed on 27 August 2020.
I allow the Forrest’s costs in the total amount of $6,535.80.

Order

The formal orders will be that Abbott must pay the Forrests the amount of $42,425.50 for their claim, and $6,535.80 for costs.