Katiza v Murphy Builders Qld Pty Ltd t/as Murphy Homes - [2024] QCAT 609

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Katiza v Murphy Builders Qld Pty Ltd t/as Murphy Homes [2024] QCAT 609

PARTIES:

SARAH REBECCA KATIZA

(applicant)

v

MURPHY BUILDERS QLD PTY LTD TRADING AS AS MURPHY HOMES

(respondent)

APPLICATION NO/S:

BDL277-20

MATTER TYPE:

Building matters

DELIVERED ON:

25 November 2024

HEARING DATE:

22 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Carrigan

ORDERS:

1.     The Tribunal orders that;

(a)     The Builder is to rectify defective work for the excavation of the northern and southern batters on the Applicant’s property in the State of Queensland in accordance with the “Expert Geotechnical Engineering Report” dated 19 December 2022 from Andrew Middleton, Principal Geotechnical Engineer of Core Consultants Pty Ltd; and

(b)     The parties are to file in the Tribunal submissions as to any additional orders the Tribunal should make to give effect to, or for the carrying out of, the Orders in 1(a) above including, but not limited to,

(i)        the commencement date and the completion date of any such rectification works to rectify the northern and southern batters;

(ii)      the identity of the persons, contractors or others responsible for carrying out that rectification work in that period;

(iii)     that the person, contractors or others responsible for carrying out that rectification have the permission and authority of the Applicant to enter onto the Applicant’s land and to carry out the rectification work for the above period including cooperation from the Applicant to ensure the persons, contractors or others responsible for the carrying out the rectification work will be able to do so without any interference or impediments; and

(iv)      any other orders necessary to enable the rectification work to be undertaken and completed on or before;

4.00 pm on Friday, 20 December 2024.

2.     The Builder is to rectify defective work for:

(a)     Item 30 in the Scott Schedule to rectify external architraves with splitting corners; and

(b)     Item 31 in the Scott Schedule to rectify cracking at window corner junction (living room).

(c)     The parties are to file in the Tribunal submissions as to any additional orders the Tribunal should make to give effect to, or for the carrying out of, the Orders in 2(a) and (b) above including, but not limited to,

(i)        the commencement date and the completion date of any such rectification works to rectify Items 30 and 31;

(ii)      the identity of the persons, contractors or others responsible for carrying out that rectification work in that period,

(iii)     that the person, contractors or others responsible for carrying out that rectification have the permission and authority of the Applicant to enter onto the Applicant’s land and to carry out the rectification work for the above period including cooperation from the Applicant to ensure the persons, contractors or others responsible for the carrying out the rectification work will be able to do so without any interference or impediments; and

(iv)      any other orders necessary to enable the rectification work to be undertaken and completed on or before:

4.00 pm on Friday, 20 December 2024.

3. The Tribunal will determine what further orders, if any, should be made upon receipt of the submissions, if any, made in accordance with orders 1 and 2 above on the papers pursuant to s 32 on the QCAT Act without an oral hearing.

4.     The parties have liberty to apply to the Tribunal for further directions in respect of the working out of the orders in 1 and 2 above on giving seven (7) days notice in writing to the other party.

5.     Murphy Builders Qld Pty Ltd trading as Murphy Homes is to pay to Sarah Rebecca Katiza $8,390.00 (plus GST) on or before 4.00 pm on Friday, 20 December 2024.

6.     Any party intending to apply for costs;

(a) is to file in the Tribunal two (2) copies and is to give to the other party one (1) copy of their submissions for costs, and any statement of evidence, which evidence should include an itemised list of all costs claimed, the date each cost was incurred, a description of the nature of all work or services provided for each cost, any retainer agreement or similar document relating to costs, and should also deal with why the Tribunal should depart from the general rule on costs in s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), and all other relevant matters that party intends to rely on in s 102 of the QCAT Act including any Scale of Costs relied upon by the party on or before:

4.00 pm on Friday, 20 December 2024.

(b)     any party who receives submissions, and any statement of evidence from another party intending to seek costs is to file in the Tribunal two (2) copies and is to give to the other party one (1) copy of their submissions in reply on costs, including any statement of evidence, on or before:

4.00 pm on Friday, 7 February 2025.

(c) Unless any party makes a written request for an oral hearing by the Tribunal to award costs by 4.00 pm on Friday, 14 February 2025, the issue of costs will be determined by the Tribunal on the papers pursuant to s 32 of the QCAT Act without an oral hearing.

7.     Otherwise than as ordered above, the Application for a building dispute filed on 16 November 2020 is adjourned for the Tribunal to make further orders on receipt of submissions referred to in orders 1 and 2 above.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – REMEDIES FOR BREACH OF CONTRACT – DAMAGES – DOMESTIC BUILDING DISPUTE – whether works defective – reasonable costs of necessary rectification work – rectifying defective building work

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9

Queensland Building and Construction Commission Act 1991 (Qld), s 77(1), s 77(3), Schedule 2 Dictionary

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Mr Favell of Counsel instructed by Ms R Gray of Bathersby Legal

REASONS FOR DECISION

Sarah Rebecca Katiza (‘the Applicant’) is the registered proprietor of a property in the State of Queensland.
On 25 October 2018 the Applicant entered into a contract with Murphy Builders Qld Pty Ltd trading as Murphy Homes (‘the Builder’) to construct a domestic residence on the land at Mount Mellum.
Construction commenced on 21 May 2019 and the Builder said practical completion occurred on 11 December 2019 when the Applicant took possession of the site and the domestic residence from the Builder. The contract contained a defects liability period for a further 12 months after practical completion.
Following complaints on 2 February 2020 by the Applicant to the Queensland Building and Construction Commission (‘QBCC’) about building defects, the parties have remained in dispute about various defects alleged in the construction of the domestic residence.
On 16 November 2020 the Applicant filed an Application for domestic building dispute in the Tribunal seeking damages and rectification of alleged outstanding defects and omissions in the construction of that residence.
The issues raised by that Application are:
(a)whether there are geotechnical defects relating to the batter of excavated slopes adjacent to the building site of the residence;
(b)whether a “damp proof membrane” (‘DPM’) was installed underneath the concrete slab of the residence; and
(c)whether there are a number of other building defects as set out in the Scott Schedule.

Background Facts

On 25 October 2018 the Applicant and the Builder entered into a HIA Queensland New Homes Construction Contract (QC1) (‘the contract’) for the construction of the Applicants new residence. The contract price was $470,049.00 consisting of a fixed price component of $340,670.00 and a provisional sum allowance of $129,379.00. The contract was subject to finance. The contract works were described as:
Lowset dwelling, lightweight construction with custom orb cladding and pool;
Essentials Range Inclusions & Construction Tender Dated 24 October 2018;
Tender Exclusions & Clarifications Dated 22 October 2018;
Arkihomes Construction Issue Plans Revision A Dated 7 September 2018.
Clause 16 of the contract identified additional documents that were part of the contract terms. Progress payments were to be made in accordance with Schedule 2 and prime cost and provisional sum items and allowances are contained in Schedule 3. The contract also contained a number of General Conditions to which reference, where required, will be made below.
The builder commenced work for the construction of the residence on 25 May 2019.
By 11 November 2019 the Applicant had supplied a list of alleged defects of works to the builder.
On 11 December 2019 the construction of the residence reached Practical Completion according to the evidence from the Builder. The Applicants evidence disputes this date and asserts that practical completion did not occur until April 2020.However, at the commencement of the hearing in response to questions from the Tribunal the Applicants representative, Mr L Katiza, and the Builders representative, its barrister Mr D Favell of Counsel, both stated that 11 December, 2019 was the agreed date for practical completion. The hearing was then conducted on the basis that it was common ground between the parties the date of practical completion occurred on 11 December 2019. The liability period for any non-structural defects (except for minor settlement or minor shrinkage) commenced on 11 December 2019 for a 12 month period pursuant to clause 27 of the General Conditions of the contract.
Also, on 11 December 2019 the Builder handed over possession of the residence to the Applicant who then commenced to occupy the new residence.
Subsequently, the Applicant compiled a list of approximately 53 alleged defects in the residence.[1] The list of alleged defects was apparently not remedied to the satisfaction of the Applicant who on 2 February 2020 lodged a complaint with the QBCC.
[1]Defects Report dated 7 November 2020 at paragraph 3.1.2 referring to Exhibit 015. This is said to be the original defect register prior to the QBCC complaint.
On 25 May 2020 an Inspector from QBCC carried out an inspection of the defects referred to in the Applicant’s complaint.
An Inspection Report dated 4 June 2020 was prepared by the QBCC Inspector referring to 41 complaints that were the subject of the earlier inspection. The Inspection Report said that 36 of the complaints were not defective work. The remaining 5 complaints were defective as set out below:
(a)Item 12 – door collecting rain and no longer opening properly near the storeroom. The complaint was considered to be a non-structural settling-in period defect. For the reasons set out in the Report, QBCC determined that it would not be reasonable to direct the contractor to rectify the complaint item;
(b)Item 30 – architraves have splitting corners. The complaint was considered to be a non-structural settling-in period type defect. For the reasons set out in the Report, QBCC determined that it would not be reasonable to direct the contractor to rectify the complaint item;
(c)Item 31 – crack at window corner junction (living room) to be addressed. The complaint was considered to be a non-structural settling-in period type defect. For the reasons set out in the Report, QBCC determined that it would not be reasonable to direct the contractor to rectify the complaint item;
(d)Item 38 – floor tiles peeling off in the study. It was said that the resultant water damage in the study was a non-structural defect. For the reasons set out in the Report, QBCC determined that it would not be reasonable to direct the contractor to rectify the complaint item;
(e)Item 40 – pool edge finishes and painting erratic. This complaint was considered to be a non-structural defect. For the reasons set out in the Report, QBCC determined that it would not be reasonable to direct the contractor to rectify the complaint item.
On 5 June 2020 QBCC sent the Applicant a copy of the Inspection Report and also a case closure letter.
On 16 November 2020 the Applicant filed in the Tribunal an Application for a domestic building dispute which contained the defects and the Damages Register containing 53 alleged defects. These defects were the same as had been considered by the QBCC in the Inspection Report.

Tribunal’s Jurisdiction

The Applicant and the builder reside in Queensland.
The contract to construct the residence was made in Queensland.
The Tribunal’s jurisdiction to deal with matters is conferred by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) or by an “enabling Act”.[2]
[2]QCAT Act s 9.
A person involved in a building dispute may apply to the Tribunal for the Tribunal to decide the dispute.[3] The definition of “building dispute” includes a domestic building dispute.[4] Domestic building dispute means a dispute between a building owner and a building contractor relating to the performance of reviewable domestic work or a contract for the performance of the reviewable domestic work.[5]
[3]Queensland Building and Construction Commission Act 1991 (Qld) s 77(1) (‘QBCC Act').
[4]QBCC Act, Schedule 2 Dictionary.
[5]QBCC Act, Schedule 2 Dictionary.
In these proceedings the Applicant has unsuccessfully sought to have complaints about defective building work resolved by the QBCC. The dispute relates to a contract for the performance of reviewable domestic building work. Accordingly, the Tribunal has jurisdiction in these proceedings to hear and determine the dispute. The QBCC Act is, for the purposes of these proceedings, the “enabling Act”.
The Tribunal has extensive powers to resolve this dispute including ordering the payment of an amount found to be owing, awarding damages, ordering restitution and other remedies.[6]
[6]QBCC Act, s 77(3) and in particular s 77(3)(g).
The issues in this building dispute have been set out above and the Tribunal will now consider each of those issues.

Geotechnical Issues (Items 3, 4, 15, 23, 25, & 47 in the Scott Schedule)

This issue relates to operational works on the Applicant’s land (excavation and earthworks).
The Applicant considered that there were a number of building defects in the construction of the home. While the majority of the alleged defects came within the expertise of the building experts, the building experts agreed that six (6) items in the Scott Schedule (Items 3, 4, 15, 23, 25, and 47) were more accurately within the expertise of the Geotechnical Engineering experts. The builders left those nominated Items to those Geotechnical Engineering experts for comment and opinion.
Both parties retained expert Geotechnical Engineers in relation to geotechnical issues arising in connection with the building site of the residential premises. The engineers retained by the parties were:
(a)for the Applicant, Amanda Lane, Associate Geotechnical Engineer of SLR Consulting Australia Pty Ltd and who provided a Geotechnical Engineer’s Report dated 24 January 2023;
(b)for the Builder, Andrew Middleton, Principal Geotechnical Engineer of Core Consultants Pty Ltd and who provided his “Expert Geotechnical Engineering Report” dated 19 December 2022.
The Applicant’s husband, Lawson Katiza, is a registered Architect (non-practising) and Engineer (non-practising). He has provided several Defect Reports which he says are “supplementary” to the Expert’s Reports.
In preparation for the Hearing, the Tribunal on several occasions made Directions for the preparation of a Scott Schedule and for the Geotechnical Engineers to attend an Experts Conclave.[7] In accordance with Directions of the Tribunal made on 21 December 2022 the Geotechnical Engineers attended an Experts Conclave on 7 February 2023. (A Direction was also made that Lawson Katiza must not attend the Experts Conclave on 7 February 2023.)[8] The following Direction was made:
if the experts prepare a joint report, that report will be the expert’s evidence in chief. An expert may only submit a further report on issues of disagreement recorded in the joint report.
[7]Tribunal Directions dated 11 June 2021, 16 June 2022, 7 September 2022, 12 October 2022, 7 November 2022 and 21 December 2022.
[8]Tribunal Directions dated 6 February 2023 at Direction 1.
The Geotechnical Engineers prepared a Joint Experts Report (‘Engineers JER’) on 14 February 2023 and filed that report that day in the Tribunal. Pursuant to the Tribunal’s earlier Direction that Engineers’ JER became those experts’ evidence in chief.
The Engineers JER records that both Geotechnical Engineers agreed that the placement and construction of the northern and southern embankment adjacent to the house site is non-compliant with the recommendations of the Geotechnical Soils Stability Report and is unacceptable in that the slope was too steep. Both experts agreed that the existing slope was of the order of 1 in 2 rather than 1 in 3 as required by the Geotechnical Soils Stability Report. The Geotechnical Experts agree with the remediation proposed by Mr Middleton as follows:
Under the site circumstances observed it is considered that the constructed fill batters at the northern and southern ends of the building pad should be reprofiled to 1V:3H by firstly stripping the grass and any other soil that is unsuitable as fill, and then cutting ground from the upper slope and filling at the toe the slope with fill compacted using a wheel compactor. The slope should finally be topsoiled and grassed on completion of the earthworks.
The Geotechnical Engineers considered that the resolution of the northern and southern batter will resolve the other remaining geotechnical issues pertaining to the remaining geotechnical issues, including site drainage, rainwater tanks, septic tank, effluent disposal area and driveway.
Both experts inspected the northern and southern batter some considerable time after construction in about 2019. Andrew Middleton inspected the site on 19 August 2022 and Amanda Lane inspected the site on 2 November 2022. These inspections occurred approximately 2.5 to 3 years following the hand over of the home by the Builder to the Applicant. It was suggested in the Hearing on behalf of the Builder that the batter could have been correctly constructed and that subsequent erosion has now produced a batter which both experts regarded as being too steep. The Builder submitted that the non-compliance of the northern and southern batters, while needing to be remedied, was not caused by any construction undertaken by the Builder.[9] The Builder submitted that the Geotechnical Experts agreed that:
the site upon which the house is built (and the surrounding area) is inherently susceptible to landslide slips;
the area has, in recent years, experienced significant levels of rainfall;
the site was a difficult one - there were lots of cattle hoof prints in evidence;
the failure to install “stone pitching” or approved the vegetation, would likely exacerbate any erosion or scarring that had occurred to the batters, which in turn leads to increase in the gradient of the slope.
[9]Respondent's Submissions filed 23 March 2023 at paragraph 89.
The Builder also sought to rely on the suggestion that the Applicant had undertaken operational works (i.e. excavation or landscape works) after the practical completion had occurred.
The Builder also submitted that following a complaint in 2020 to QBCC by the Applicant, the following inspection included items such as “Fall away from tanks concentrated and batters not compacted. Water damming up or eroding” that the Applicant (or rather her representative at the inspection) confirmed to the QBCC Inspector that this complaint had been addressed. The Builder submits this defect has been remedied.

Finally, it was submitted that if the Tribunal concluded that the noncompliant construction of the northern and southern batters was attributable to the Builder, this claim should nevertheless fail as there is no evidence before the Tribunal what exactly would be involved in remedying the batters or the cost of doing so.
The response by the Applicant in her submissions refers to the Geotechnical experts’ opinion that the northern and southern batters are noncompliant as the slope exceeds 1V:3H. The submission is made that the cause of the problems was triggered by extensive scour erosion and subsequent slumping of the embankment. The Applicant submits that this was “a design and construct contract” with the Builder. The Applicant also submits that the Builder is incorrect in asserting that further operational works were undertaken after the claimed practical completion date as there is no evidence to that effect. The Applicant is also critical of the QBCC Report and relies upon the submissions whether to issue a direction to rectify is a very different question to determining whether defective or incomplete works amount to a breach of contract. The Applicant also refers to the fact that the QBCC Inspector was not called as a witness and was not available for cross examination at the Hearing. The Applicant also points out that problems relating to the embankments and earthworks had been brought to the notice of the Builder at an early stage. For instance, the Applicant refers to:
(a)extensive scarring and damage to the embankments and earthworks had occurred prior to and immediately after the claimed practical completion.[10]
(b)these matters were also raised with the Respondent at the time.[11]
[10]The Applicant refers to the evidence of photographs in the statement of Lawson Katiza dated 20 April 2022 at pages 21, 39, 54 & 55 of 165.
[11]The Applicant refers to the email exchange of 23 January 2020 and Exhibit 001 to the 144 Mt Mellun Defects Report dated 7 November 2020 (filed 16 November 2020). Item 16 and 17 of the email from Mr Katiza refers to the absence of ground fall way from the house and no compaction to the North batter and "everything washing away”.
The Applicant’s submissions also state that any requirement for landscaping by the Applicants is of no consequence and the problems with the earthworks carried out by the Builder were already well underway.[12]
[12]Applicant’s Submissions filed 5 May 2023 at paragraphs 5 and 13-16.
The Applicant seeks an order pursuant to s 77(3)(g) of the QBCC Act directing the Builder to rectify the problems identified in the Engineers JER.
The issue to be determined relates to when the geotechnical problem with the northern and southern batters first occurred. The Builder says that it undertook the works and that the geotechnical problem arose subsequently by causes unrelated to the construction by the Builder. The Applicant disagrees and contends that this was always a defect. The evidence from the Builder’s Geotechnical engineer is as follows:[13]
The works appear not to comply with the Geotechnical Soils stability report with respect to the placement of fill at the northern end of the building pad and then batters slopes of fill placed at the northern and southern end of the building platform…
[13]Engineers JER at page 3, item (b).
The Applicant’s Geotechnical engineer states the following;
We consider that the placement and construction of the embankment is generally non-compliant to the recommendations of the Geotechnical Soils stability report…
Both Geotechnical Engineers evidence refers to the “placement (of fill) and construction of the embankment” being non-compliant.
The evidence before the Tribunal also includes the following:
(a)a complaint from the Applicants on 15 November 2019 to QBCC relating to the “Driveway” that;
(i) Batter drain should cut across entire batter (including the driveway ramp) and discharge to both North and South East in accordance with the Geotech report (refer Section 5.4) and Structural Engineering Specification (Section 3).
A further complaint from the Applicant in April/May 2020 to QBCC which included the following item:
fall away from tanks concentrated and batters not compacted. Water damming up or eroding.
It is noted in the subsequent Report dated 6 June 2020 from the QBCC Inspector the following statement is made in relation to this item:
The Claimant Lawson Katiza confirmed that this complaint item had been addressed prior to the QBCC Inspection.
Notwithstanding the contents of the Report of 6 June 2020, the Applicant persisted with the claim in relation to the excavations relating to the embankment and the batters.
The Applicant’s submissions have also identified evidence in email exchanges[14] from January 2020 and also in photographs from 20 April 2020[15] relating to lack of fall away from the home and lack of compacting relating to the excavation.
[14]The Applicant refers to the evidence of photographs in the statement of Lawson Katiza dated 20 April 2022 at pages 21, 39, 54 & 55 of 165.
[15]The Applicant refers to the email exchange of 23 January 2020 and Exhibit 001 to the property in Queensland Defects Report dated 7 November 2020 (filed 16 November 2020). Item 16 and 17 of the email from Mr Katiza refers to the absence of ground fall way from the house and no compaction to the North batter and "everything washing away”.
The Tribunal accepts the evidence of both Geotechnical Engineers in the Engineers JER. The Tribunal also accepts the contemporaneous evidence of complaints made in 2019 and 2020 referred to about drainage, discharge to the north and south, the placement of fill, construction of the embankments and batters.
The Tribunal is satisfied that there is evidence establishing there were sufficient concerns with the extent of excavation and the compaction of earthworks surrounding the home to establish that the defects identified in the Engineers JER had their origins as early as 2019. The Tribunal is satisfied that on the above evidence the excavation of the northern and southern batters resulted in the placement of fill, and construction of both those embankments being non-compliant with the recommendations of the Geotechnical Soils Stability Report. The Tribunal is satisfied that the construction by the Builder of the fall on the northern and southern batters was steeper than V1:3H so as to make the building work undertaken by the Builder defective. The Tribunal rejects the submissions of the Builder relating to this issue and accepts the submissions of the Applicant.
The Tribunal finds that the northern and southern batter of the excavated slope adjacent to the site of the residence are non-compliant with the requirement for a slope with a gradient of 1 in 3. The Tribunal also finds that that it was the contractual obligation of the builder to construct the batter in accordance with a gradient of 1 in 3 in accordance with the Geotechnical Soils Stability Report.
The Tribunal is therefore satisfied that the Builder’s excavation of the northern and southern batters was defective building work in accordance with the findings referred to above in the Engineers JER. The Builder will be required to remedy that defective building work and the parties will be directed to make submissions as to the formal orders the Tribunal should make to rectify and give effect to the finding of defective building work to the northern and southern batters.

Footing and Slab System – Damp Proof Membrane- Item 39 Scott Schedule

The Applicant contends that no moisture barrier was installed under the foundations and concrete slab of the residential premises.
The absence of the moisture barrier claimed by the Applicant is reflected in Item 39 of the Scott Schedule and is in these terms:[16]
No moisture barrier to entire foundation and footings not installed in accordance……….
[16]Scott Schedule, Item 39, column 2.
The cost of remedying the alleged lack of a damp course under the slab is said to be $554,700.00 (incl GST) and includes provisional sums but excludes retrospective design and certification justification by the Builder and other costs. The remediation costs are also subject to the selection of specific quoted items. A component of this cost is for management “by Applicant” for defects management, coordination, annual leave days costing $50,400.00 (excl. GST).
The Applicant’s evidence is that Mr L Katiza, after construction of the footings and concrete slab, investigated whether a moisture barrier had been installed by excavating the ground surrounding the concrete perimeter beam and did not locate the existence of such a barrier. The Applicant’s submissions state that a damp proof membrane was to be installed beneath the slab in accordance with the approved design for the footings and slab system.
The Builder maintains that a damp proof membrane was installed and that an engineer inspected that construction on 1 July 2019 and signed off on the relevant Form 16 certifying compliance with foundations requirements including the provision of a damp course under the floor slab.
Both parties engaged Civil Engineers to provide expert reports whether a damp course had been constructed beneath the slab of the residential premises. Mr Chanson (for the Applicant) and Mr Cromar (for the Builder) provided individual expert Engineering Reports on this issue.
Both Civil Engineers did not attend an Experts Conclave and did not provide a Joint Experts Report (JER) at the Hearing. Both Engineers were called as witnesses and gave their evidence and were cross examined simultaneously during the Hearing.
Mr Chanson, a Structural Engineer, has experience in structural design and delivery of projects across multiple sectors locally and internationally. He has provided a Report dated 17 April 2022 relating to whether a moisture barrier has been installed in the foundation and concrete slab of the home. Mr Chanson said his Report was:
in the context of Mr Katiza’s reported omission of the damp proof membrane (DPM) below the ground slab of the newly built domestic building … sought my advice in the above matter requesting my assessment of the matter in relation to industry practice, guidance of all Australian codes and standards…
Mr Chanson’s Report then proceeded to discuss the DPM by reference to the National Construction Code, the structural drawing (S01, Note 5.15), and the HR designs General Engineering Foundation Conditions calling for the requirement of a moisture barrier below the slab. He also referred to the Murphy Homes Finishes Specifications referring to engineering drawings under sections entitled “Footings/Slab and flooring system”. His Report then proceeded to state that he assisted Mr Katiza with an assessment of possible options with an acceptable solution depending on
if it was confirmed that a DPM had been omitted from the slab dwelling in question…
The Report then continued by responding to specific comments made in a report from Mr Carpenter (a building expert to which reference will be made below) and evidence from Mr Berry (Managing Director and Secretary of the Builder) by stating:[17]
I agree with both Mr Bloomer and Mr Carpenter that there is no moisture barrier present. The visual evidence provided by the Applicants representative shows there does not appear to be moisture barrier present after the formwork, reinforcement and piles have been positioned ready for the concrete pour. It would be expected on this type of installation that the moisture barrier would not only be visible through the reinforcement (which it did not appear to be) but also extend laterally outside the formwork…
[17]Respondent’s Bundle of Documents, Vol 1 at page 24 paragraph 7.
The report of Mr Carpenter appears to cast doubt on the methodology adopted by Mr Bloomer to verify whether a DPM was present by stating:
This ‘invasive investigation’ does not verify or refute the presence of membrane under the ‘entire slab’. It is not clear from Bloomer’s report who carried out the invasive inspection. I assume that if the photos were supplied by the owner, the owner carried out the invasive inspection and Bloomer is conveying in his report what the owner instructed.
Mr Cromar is a qualified senior engineer with 22 years experience in consulting engineering and management, including providing geotechnical investigation and structural engineering design, documentation and construction supervision. In his opinion the preparation of the slab and footings at the Applicant’s property met the requirements of the Engineering Certification, the applicable Australian Standards and the Building Code of Australia and the damp proof membrane was installed under the slab at the Applicant’s property pursuant to the Engineering Certification, applicable Australian Standards and the Building Code of Australia.
At the Hearing the Applicant’s representative, Mr L Katiza, cross-examined Mr Cromar relating to his professional working relationship with the Builder. Mr Cromar said that he had been involved as an Engineer on a number of projects undertaken by the Builder over the last five or six years. He said however that he had also worked with other builders and in general terms had projects for the construction of approximately a thousand waffle pads each year. He was also questioned by Mr L Katiza as to whether there was a change of design with the footings once the Builder had struck rock on the site. Mr Cromar explained that rock was encountered on site but it was not necessary to obtain the certifier’s approval to the change in the footings as the change was related to methodology rather than a change in structural design. (Mr Chanson, for the Applicant, in his evidence also agreed that the change related to methodology rather than a change in structural design.) Mr Cromar was also questioned about the difference between a vapour barrier and a damp course and said that in effect these were “one and the same”. He was also questioned about compliance with the National Construction Code requiring the damp course to be wrapped externally around the foundation beams to avoid any moisture penetration. He did not agree that this was necessary and that the damp course could be terminated internally and adjoining the interior face of the foundation beams which was supported by Australian Standard 2870 and the by local practice. Mr Cromar was then cross-examined about the absence of a damp course said to be demonstrated by a number of photographs[18] taken by Mr L Katiza. In those photographs Mr Cromar said that he was able to identify the existence of the “black plastic” damp course used in the course of construction of the slab and which was located under the waffle pods.
[18]The photographs are in Exhibit 6 at pages 30, 33, 40, 41, 43, 44, 45.
The evidence before the Tribunal was that the home was to be constructed on a concrete slab with waffle pods supported by a number of piers. During construction it became apparent that excavation of the piers to the depth specified in the structural drawings was not possible because rock was encountered. As a consequence, an alternative solution was required and Mr Cromar designed an alternative method of constructing the slab consisting of an external concrete beam around the slab perimeter to a depth of 600 mm. The Builder then constructed the perimeter beam to a depth of 600 mm. The internal concrete slab was then constructed in the internal area of the perimeter using the waffle pads and reinforcing. Prior to pouring of the concrete slab on 1 July 2019 Mr Cromar’s evidence is he inspected the site and the preparation for the pouring of concrete and said the requirements of the Engineering Certification, the applicable Australian Standards and the Building Code of Australia had been complied with. He said that he inspected the DPM which was installed under the waffle ponds and saw that it is extended through to the interior face of the concrete perimeter beam. He said that in any areas where the DPM was not to the internal face of the perimeter beam, tape was used to ensure that it was attached to the interior face of that beam. He said he was satisfied that the DPM complied with the Engineering Certification, applicable Australian Standards and the Building Code of Australia. Mr Cromar said at the time of this inspection he completed a checklist[19] where he “ticked off” a list of items confirming the existence of the DPM and that it was intact at the time of inspection.
[19]Exhibit 7.
Mr L Katiza also made visits/inspections at the building works during this stage (and other stages) of construction and has taken many photographs which are in evidence. The photographs are controversial in the sense that Mr Katiza says the photos show there is no DPM used under the waffle pods and reinforcing steel whereas Mr Cromar says, in his cross-examination, that the DPM is visible to in those photographs.
The controversy whether the photographs show a DPM or not is not necessarily resolved by reference to just the evidence provided by what Mr L Katiza says, on the one hand, and what Mr Cromar says, on the other hand, about those photographs. Other evidence shows that Mr L Katiza and Mr Cromar were both at the site prior to pouring the concrete slab for the Applicant’s home. The Applicant has not drawn to the Tribunal’s notice any evidence at the stage of preparing to pour the concrete slab that Mr L Katiza observed and drew the attention of the Builder, or on-site representatives, to the absence of a DPM. Nor has there been any evidence drawn to the Tribunal’s notice that at the time of the construction of the concrete perimeter beam of 600 mm that Mr Katiza drew to the attention of the Builder, or its on-site representatives, the absence of a DPM across the ground area of the slab and under the beam so as to be visible on the exterior surface or outside of the beam. The evidence is left on the basis that while Mr L Katiza, a licensed Architect and Engineer in Queensland, observed the preparations and construction of the perimeter beam, the waffle ponds and reinforcing and pouring of the concrete slab, he did not alert anyone to the absence of the DPM. This appears rather extraordinary given the interest level demonstrated by Mr L Katiza in the construction process and his professional background as an architect and engineer. The evidence provided to the Tribunal demonstrates that the earliest occasion when a complaint was made about the absence of a DPM was either late 2019 or early in 2020 when the Applicant’s complaints were made to the QBCC. This late discovery by Applicant is consistent with the evidence of Mr L Katiza that following occupation of the home in 2020 he investigated whether the DPM existed by removing/excavating soil from the external face of the concrete perimeter beam and could not locate the existence of the DPM. Had Mr L Katiza asked the Builder whether a DPM was visible on the exterior side of the concrete perimeter beam, he would have been advised that the DPM did not extend to the exterior of that beam.
There is other evidence before the Tribunal relating to the DPM. Firstly, there is contemporaneous documentary evidence. This evidence consists of the Form 16 Inspection Certificate issued by Mr Cromar in July 2019 which, while not directly referring to a DPM, says the basis of the certification is in accordance with AS 2870, AS 3600 and the foundation drawings SO1 – SO3 relating to HR Design Job 18-0685. Secondly, there is the inspection “Checklist” of Mr Cromar of 1 July 2019 which states that the DPM had been installed. Both of those documents should be read together. The evidence relating to the making of the documents establishes that they are contemporaneous documents. While the Applicant’s case suggested that there was some impropriety (which impropriety is not established to the satisfaction of the Tribunal) between the Builder and Mr Cromar it is not suggested, nor is it proved, that the Form 16 and the “Checklist” are in some way documents which were issued fraudulently or otherwise to suggest that the documents could not be relied upon as being accurate. The Tribunal rejects any suggestion that those documents are not accurate as to their contents and finds that they were made contemporaneously with the inspection by Mr Cromar. Thirdly, there was evidence before the Tribunal of moisture readings taken by Mr Carpenter in February 2020 which did not demonstrate that there was any evidence of rising damp in the concrete slab of the Applicant’s home. The engineers, Mr Chanson and Mr Cromar, both concurred that if a DPM was missing it could be expected there would be evidence of rising damp by February 2022. The absence of any relevant moisture readings supports the contention that there is a DPM under the concrete slab.

The Applicant also contends that the lack of a DPM through to the external face of the concrete perimeter beam is not compliant with AS 2870. This contention is answered by Mr Cromar relying on the words in AS 2870 which states for the installation of a DPM that the waterproof membrane:
where justified by satisfactory local experience, a vapour barrier may be terminated at the internal face of external beams as shown on Figure 5.2(a).
The evidence from Mr Cromar is that the DPM terminates on the internal face and that is in accordance with local practice. The Applicant challenges the evidence of Mr Cromar by asserting there is no evidence whether there was any “local practice” relied upon by the Builder and Mr Cromar. However, the Applicant relied on evidence by her expert engineer, Mr Chanson, who says that he is familiar with industry practice. The Applicants could have challenged the contention of “local practice” with their own evidence contradicting the assertion that a DPM may be terminated at the internal face of an external beam. No sufficient, or adequate, challenge was made to Mr Cromar’s contention in cross-examination or in the Applicant’s own expert evidence.
The Tribunal is persuaded by the above discussion of evidence from both parties and, on the basis of that evidence, accepts the evidence of Mr Cromar that the Builder did install a DPM under the concrete slab of the Applicant’s home. While Mr Chanson’s evidence is primarily based upon the assertion by Mr L Katiza that a DPM is absent, his report primarily deals with any rectification and remediation that would be required assuming Mr L Katiza’s statement is correct. However, the above finding establishes the statement made by Mr Katiza is not factual and cannot be relied upon as at all material times a DPM had been installed under the slab of the Applicant’s home.
The Tribunal is satisfied on the above evidence that a DPM was installed under the slab in the course of constructing the Applicant’s residence. The Tribunal accepts the evidence of Mr Cromar and Mr Carpenter ahead of that provided by the Applicants witnesses, Mr Chanson and Mr Bloomer. The Tribunal accepts the submissions of the Builder on this issue and rejects the Applicant’s submissions. The Tribunal makes a finding of fact that a DPM was installed under the concrete slab of the Applicant’s residence which complied with the Engineering Certification, applicable Australian Standards and the Building Code of Australia.
The Tribunal is not satisfied that the Applicant has established there is a building defect in relation to Item 39 of the Scott Schedule involving the allegation that no DPM was used under the concrete slab of the Applicant’s residence. The Tribunal rejects the claim this Item is a building defect and dismisses the claim.

Scott Schedule Defects

The material before the Tribunal at the Hearing contained a number of versions of the Scott Schedule. However, the parties agreed that the final revised Scott Schedule was dated 31 January 2023.[20]
[20]Bundle of Documents provided by the Builder, Vol 5 at pages 1072 to 1079.
The Scott Schedule contained 55 alleged defects (some of which had been withdrawn before the Hearing) in a document of 45 pages. These defects dealt with the remaining issue raised by the parties, namely, whether there were building defects identified in the Scott Schedule other than the geotechnical works involving excavation and whether a DPM was installed underneath the concrete slab as has already been referred to above.

Building defects in the Scott Schedule

The parties engaged their own building experts in relation to the building defects. The Applicant engaged Mr Bloomer.[21] The Builder engaged Mr Carpenter.[22] The Applicant’s husband, Mr L Katiza, who was her representative in the Hearing, also filed statements of evidence to which further reference will be made below.
[21]Mr Bloomer’s report dated 11 November 2021, 20 April 2022 and he participated in an Expert’s Conclave and produced the Builders’ Expert Report.
[22]Mr Carpenter's report is dated 16 March 2022, 30 January 2023 and he participated in an Expert’s Conclave and produced the Builders’ Expert Report.
Mr Bloomer, expert for the Applicant, says he is a qualified residential and commercial builder (open licence) and building inspector registered with the QBCC. He has held a building licence since 1989 and has extensive experience covering all facets of building construction methods including project management, drafting, interpretation and plans and engineering drawings, organisation of labour and safety work methods including elements relating to Certificate IV Occupational Health and Safety.
Mr Carpenter, expert for the Builder, says he is a licensed qualified building inspector with 49 years construction industry experience. He says he has extensive expertise in the construction of new work, renovations and rectification of defective building work in high rise and low rise construction in residential, commercial, industrial and civil projects. He conducted an inspection of the alleged building defects in the Scott Schedule on 7 February 2022 in company with the Applicant’s representative and the Builder’s representatives. He says that inspection occurred some considerable time after completion of the contract. In summary he says:
it appears that many of the issues raised by the Applicant in the evidence provided to me are not supported by independent expert opinion;
items described in the Scott Schedule and supporting evidence appeared to describe and depict conditions at the house at the time it was completed approximately two years and two months prior to my inspection;
grassed yards have been established around the house in the time period which appear in stark contrast to the emotive images of water scouring and muddy puddles of water reproduced and relied upon in the Bloomer Report; and
there was no evidence in the Chanson letter to support the allegation that the damp proof membrane (“DPM”) has been omitted from the slab of the property. Further, Mr Chanson has not provided any evidence to support his assertions in relation to the three (3) opinions contained in the Chanson letter.
Mr Bloomer in a subsequent statement of evidence dated 20 April 2022 says that he was retained by the Applicant to “assess and form an opinion on the responses listed by Gary Carpenter” and to “provide a response to specific items listed in the Scott Report identified by the Applicant’s representative, Mr L Katiza. He concludes his report by stating:[23]
At no stage has it been suggested that the defects fall under the builders warranty requirement.
It should be noted that some defects appear to be ongoing due to poor design or installation after they have been rectified by the builder within the non-structural defects maintenance period.
These defects are listed in this response to the Carpenter report, and I have added my response in the sections requested of me from the Applicant.
An overall conclusion of all building issues and any repairs or documentation required could not be formed without acquiring additional information from the qualified specialists and/or industry experts where I have responded to Carpenters numbered statements.
Without additional information a complete overview of any rectification works, and associated costs could not be determined.
[23]Report dated 20 April 2022 at paragraph 212.
Mr L Katiza has also provided his own statement of evidence commenting upon the evidence of Mr Carpenter. While Mr Katiza is a registered engineer and architect (non-practising), the Applicant has nominated Mr Bloomer as her expert in relation to alleged building defects in the Scott Schedule. Also, at the Tribunal hearing the Builder’s legal representatives requested Mr L Katiza to be available for cross-examination on his evidence but he refused to be available and did not go into the witness box for cross-examination purposes. As a consequence the weight which the Tribunal might ordinarily give to Mr L Katiza’s evidence is reduced by his refusal to go into the witness box for the purpose of cross-examination by the Builder’s legal representatives. The Tribunal will attach more weight to the evidence of the Applicants building expert, Mr Bloomer, than it does to the evidence of Mr L Katiza. Secondly, the Applicant chose to have her own building expert, Mr Bloomer, give evidence in relation to these issues. Mr L Katiza also sought to give his professional opinion about these matters including providing evidence commenting on the evidence of Mr Carpenter. As such, Mr L Katiza was holding himself as an expert also in relation to these matters. This approach is contrary to the Tribunal’s Practice Direction No 4 of 2009 which prohibits parties having more than one expert for a particular area of expertise. For these reasons, the Tribunal will place greater weight on the evidence of Mr Bloomer rather than the evidence of Mr Katiza.
The Tribunal required the building experts, Mr Bloomer and Mr Carpenter, to participate in an experts’ conclave and to prepare a Joint Experts Report. (‘Builders JER’) Those experts conferred in an experts’ conclave and provided the Builders JER to the Tribunal for the Hearing.[24]
[24]Respondent’s Bundle of Documents, Tab 14 page 1072 – 1079.
Both experts gave their evidence jointly in the witness box during the hearing and were the subject of cross-examination. That oral evidence was supplementary to the written evidence of each expert set out in the Builders JER. As a result the experts provided the following evidence in relation to the building defects referred to in the in the following Item numbers of the Builders JER.
Not all items in the Scott Schedule were addressed by the Builder’s experts. Some items were more appropriately dealt with by the Geotechnical experts (to which reference has already been made above) and the DPM which also has already been discussed above. The remaining items in the Scott Schedule relating to building defects to be addressed by the building experts are to be discussed below.[25]
[25]Respondent’s Submissions filed 23 March 2023 at paragraph 31 which identified the following items 3, 4, 6, 8, 9, 12, 15, 16, 17, 19, 22, 23, 24, 25, 30, 31, 33, 34, 35, 38, 39, 40, 43, 44, 45, 47, 49, and 54. However items 3, 4, 15, 23, 25 and 47 were said to be more accurately within the expert teas of geotechnical experts. Item 39 was more appropriately to be dealt with by engineering experts. The Applicants submissions filed 5 May 2023 at paragraphs – 47 referred to item 8, 9, 12, 16, 17, 19, 30, 31, 33, 34, 35, 33, 44, 45, 46, 49, and 54.

Items 3 and 4 – Rainwater emerging from below ground after rain

The building experts, while providing their comments in the Builders JER, were not required to address this issue in their oral evidence. The Tribunal was informed at the hearing by the Builders Counsel, and with no objection from the Applicant’s representative, that the Geotechnical experts say there is no issue with these items and that “this issue goes away”.
Based on the evidence of the Geotechnical engineers (as already referred to above), that the northern and southern batters are non-compliant and remediation of those batterswill address all of the other issues referred to, both of these Items are dismissed.

Item 6 – Water not going into gutter & drenching fascia and CCTV camera

In the Builders JER Mr Bloomer says he is unaware and had not been informed of any ongoing issue. Mr Carpenter says there is no defect evident.
At the hearing both of the Builder’s experts said there was “no issue”, with Mr Bloomer adding that he had not been informed that this was an issue.
Based on this evidence before the Tribunal this alleged building defect is dismissed.

Item 8 – Wrong tile colour installed

At the commencement of the hearing the Builder made the concession that it was contractually liable for this Item as it had installed the wrong type of tile. The Applicant seeks $8,390.00 (plus GST) to remedy the breach and that amount is accepted by the Builder
Based upon the Builder’s concessions which are accepted by the Tribunal, a finding is made that the Builder supplied the wrong colour tiles and that the damage/compensation claimed by the Applicant of $8,390.00 (plus GST) is to be paid by the Builder to the Applicant

Item 9 - Sensor light does not activate on motion

The Applicants submissions are that this item arose during the defects liability period (‘DLP’) and remains to be rectified.[26]
[26]Applicant’s Submissions filed 5 May 2023 paragraph 26.
The Builder’s submissions are that this item was confirmed to have been rectified in the QBCC Report. The submission is also made that both building experts did not find this was a building defect. It is further submitted that if there is a problem, it could be addressed by altering the settings on the product.[27]
[27]Builder’s Submissions filed 23 March 2023 paragraph 33-35.
In the Builders JER Mr Bloomer said the sensor and installation specifications would need to be assessed by the party supplying the unit to confirm the location of the sensor to determine if a defect exists and any error in operation should be rectified by the installer. Mr Carpenter considered the issue is not related to the electrical installation. He says the issue is the type and quality of product and the way it has been set up.
At the hearing Mr Bloomer gave evidence that he had not seen whether the light activated. He felt installation under the roof could be better but if the location was accepted by the Applicant, then it was not an issue. He said there was no evidence that it does or does not work. He did not see it as a building defect. Mr Carpenter said that it was “no problem”. He also noted that the Queensland Building and Construction Commission Report of 5 June 2020 said that this issue was accepted by Mr L Katiza.
In view of the evidence of the Builder’s experts, which is accepted by the Tribunal, the finding is made that the evidence is insufficient to establish that this item is a building defect. This item is dismissed.

Item 12 – Door collecting rain and no longer opening

The Applicant submits that there are clear problems with the location of the rainwater head close to the door and the inability of flashing to protect the door. It is also submitted that the damage was caused by water splashing from the rainwater head on the door. The Builder should be directed to rectify the issue.[28]
[28]Applicant’s Submissions filed 5 May 2023 paragraph 37.
The Builder submits that the experts agree that the particular door has experienced water damage. The cause of that damage is the subject of disagreement between the building experts. One building expert considered it a maintenance issue whereas the other building expert said the issue could have been avoided if it had been designed differently. The Builder submits that what needs to be shown is that the installation was not fit for purpose or the design is deficient which is not established on the evidence. This Item should be rejected.[29]
[29]Will Submissions filed 23 March 2023 paragraphs 37-38.
In the Building JER Mr Bloomer explains that “it appears that there is a discrepancy in the specification description of the doors”. There is disagreement about the flashing across the opening of the door and whether the flashing is to protect the doors or to sufficiently protect the door opening. He says that he considers the location of the rainwater head is a contributing factor increasing moisture in the area and that can have an adverse effect on the door/doors particularly the one closest to the rainwater head. He further states that the approved plan does not show a rainwater head located in the area adjacent to the door. Mr Carpenter considered there was no building defect evident but there does appear to be a homeowner maintenance issue. He considers that water spraying from the adjacent screens on the rainwater head is an issue that can only be managed by the Applicant. In his opinion any consequential damage from water splashing from the rainwater hopper screen is not defective building work. He also states:
Mr Bloomer’s opinion is not correct regarding the position of the downpipe on the “approved plan” both the PURE Building Approvals stamped architectural plans and the Applicants signed copy of the construction plans and elevations show the downpipe in position as constructed.
In oral evidence at the hearing Mr Bloomer said that this was a design issue that caused a building defect. He said in heavy rain conditions with that type of screen on the rain head could cause the building defect. He said he had seen the approved plans and the “location (of the rain head) is not acceptable”. However, he had not seen any water discharge from the rain head. In Mr Carpenter’s oral evidence he said this item was not a building defect and the construction was in accordance with the approved plans. He said “a factor” in the door’s deterioration was the “dark colour” of the paint used which contributed to the deterioration of the door. He also said that the door was exposed to a north easterly aspect.
The Applicant alleges that this item is a building defect and has the onus of proof. That onus is to be satisfied on the “balance of probabilities”. At best, Mr Bloomer refers to a discrepancy in the specification description of the doors and to a rainwater head directly above or adjacent to the door as a contributing factor. He regards this as a design issue. There is controversy between the building experts as to whether the rainwater head is located in accordance with the approved plans. Mr Carpenter has seen the approved plans and gives evidence that the downpipes are in the position specified in those plans. Based upon the evidence referred to above on the experts, the Tribunal is not satisfied that the Applicant has satisfied the onus of proof of establishing on the balance of probabilities that there is a building defect. Further, this item even on the evidence of Mr Bloomer relates to a design issue and also the discrepancy in the specification description of the doors. The Tribunal is not satisfied that this item is a building defect.
The Tribunal accepts the evidence of Mr Carpenter that the deterioration of the door is a maintenance issue for the Applicant. The Tribunal rejects the claim that this item is a building defect and dismisses that claim.

Item 15 – Ground fall away from tanks concentrated and batters not compacted.

At the hearing the Tribunal was informed that the decision on this Item was dependent upon the Geotechnical evidence of the experts (which has been considered already) and was not a matter for the building experts’ evidence.
The Geotechnical experts evidence is that remediation of the non compliant batters will remedy the Item. The Tribunal will order the remediation of those batters which will then remedy this Item.

Item 16 - Roof and downpipes at storeroom – coming down walls and side of roof

The Applicant submits that this item also relates to Item 12. It is submitted that as the rainwater head adjacent to the stormwater doors allows water to be splashed onto those doors with consequential damage, the Builder should be directed to rectify this issue.[30]
[30]Applicant’s Submissions filed 5 May 2023 paragraph 28.
The Builder also agrees this item is like Item 12. It submits that even though Mr L Katiza calls for all rainwater heads to be replaced, given the photographs in the Builders JER it is not clear whether all heads would need replacing.[31]
[31]Builder’s Submissions filed 23 March 2023 paragraph 40.
Both building experts commented on this item in the Builders JER.
However, further explanation was provided by oral evidence of the Building experts. Mr Bloomer said that he was “not asked to deal with this issue”. He said he attended the site on 31 May 2021 (first report) and again on 22 March 2022. When asked to respond to this item (he was asked to respond to Mr Carpenter) in the Builders JER, his evidence was to the following effect:
What is sought in the item is a “betterment” than what was sought in the specification. Rainwater head is open to the choice of product, not method of the installation, and the rainwater head is a contributing factor.

Costs

Both parties in their submissions to the Tribunal sought an award of costs.
The Builder submitted that it was appropriate the Applicant pay costs should the Applicant only receive the amount of agreed damages for the defective work associated with supplied incorrect tiles.
The Applicant submitted that no decision should be made on the question of costs until the matter had been decided by the Tribunal and the Applicant afforded an opportunity to make submissions.
The Tribunal will, in these circumstances, make directions to the effect that if either party seeks an order for costs then they must do so in accordance with the requirements of those directions and within the strict time limits provided. Otherwise, the general rule that each party bears their own costs as set out in s 100 of the QCAT Act will apply.