Lightweight Structures Pty Ltd v See

CITATION:

Lightweight Structures Pty Ltd v See [2016] QCAT 442

PARTIES:	Lightweight Structures Pty Ltd (Applicant/Appellant)
v
PATRICK And JULIE SEE (Respondent)

APPLICATION NUMBER:

BDL182-14

MATTER TYPE:

Building matter

HEARING DATES:

13 and 14 July 2015 and 19 May 2016.

HEARD AT:

Brisbane

DECISION OF:

Member R F King-Scott

DELIVERED ON:

19 September 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

1. I allow the Applicant’s claim in the sum of $40,832.90;

2. I direct that the sum of $40,832.90 held in the Master Builders Trust Account, be paid out with accretions, if any, to the Applicant; and

3. I dismiss the Respondents’ counter application;

4. I reserve the question of interest and costs for further written submissions if any, to be filed by the Applicant by 3 October 2016 and by the Respondents by 17 October 2016.

CATCHWORDS:

Building contract – collateral warranty – contract negotiated on the basis of conceptual images – certified plans and specification provided after contract signed – whether plans match conceptual images – vagueness of terms – claim of defective work - structure demolished – builder denied access to site to rectify – failure to mitigate loss.

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr S Taylor of Counsel instructed by the Applicant.

RESPONDENT:

Mr A See of Counsel instructed by the Repondents on 13 and 14 July 2015 and on 19 May 2016 Mr K Fleming of Queens Counsel instructed by Tobin King Lateef Lawyers

REASONS FOR DECISION

Introduction

Rolling Surf Resort is situated at Kings Beach, Caloundra. It comprises 74 units located in 3 towers. To the north is Wickham Tower, to the south is the Moreton Tower and to the rear is the Poolside Tower. Some units are owner-occupied, many are let out to holiday tenants.
In 2011, the existing shade sails on the rooftop units were dismantled on the direction of the Body Corporate. It appears that this was done in controversial circumstances as they were allegedly unsafe. It is not necessary for me to go into the detail for the reasons behind the decision.
For some time, units with rooftops had no shading. An Extraordinary General Meeting of the Body Corporate was held on 21 April 2012. At that meeting, the following resolution was passed:
Resolved that, by ordinary resolution, each of the owners of Lots 12 to 15, 28 to 31 and 64 to 74 be authorised to install on their Lot, at their own cost, a rooftop structure. (24 votes for, 15 against, nil abstained).
The owners of the rooftop units in the Moreton Tower proceeded with construction of their shade structures in 2012. That work was carried out by Tension Structures, each owner entering into an individual contract with that company.
The Respondents, Dr and Mrs See, are the owners of unit 15 which is a penthouse in the Wickham Tower.
The dispute, which is the subject of these proceedings, related to the shade structures constructed and installed by the Applicant in unit 15.
Proceedings were commenced by the Applicant, Lightweight Structures Pty Ltd, on 23 July 2014 for release of the sum of $36.534.70 held in the Master Builders’ Trust Account for stages 2 and 3, payments which it was claimed were due on 3 July 2014. Dr and Mrs See alleged that it was disputed that the work had been completed in accordance with the contract, conceptual design and engineering documentation submitted for building approval.
The parties entered into a Master Builders’ ‘Minor Works Contract Residential’ contract (MWC-IR 07/12). The description of works was ‘supply and installation of weatherproof structure over rooftop entertaining area 88 square metres’. Fabric to canopy Ferrari 1002T PVC vinyl white steel frames coated with Dulux ‘weathermax paint system’. When signed by the Respondents on 10 March 2014, no final drawings had been provided. Certified drawings were provided subsequent to the contract’s execution. Engineering specifications were subsequently approved by the local authority and forwarded to the Respondents.
It seems that most discussions in relation to the pre-contractual negotiations and subsequent discussions in relation to the works were conducted by a Ms Karen Burke or Mrs See.
Ms Karen Burke owned a roof top unit in the complex and was a member of the Body Corporate Committee. She assumed responsibility to liaise with the Applicant and the individual roof top unit holders. There is no doubt that she was authorised to act on behalf of the Dr and Mrs See in relation to the shade structure for Unit 15.[1]
[1]Transcript 1.96 ll 1-40 1.97 ll1-31, 2-40 ll 10-20
Mrs See’s case is that when she and her husband signed the contract, they were of the view that the conceptual 3D images they had been shown was what they were ‘signing up for’.
The crux of the dispute between the parties is that the structure installed did not comply with the conceptual 3D images, but it did comply, with some minor variation, with the engineering drawings. The respect in which it is alleged that the structure did not comply with the conceptual 3D images is that it was not similar to the structure on the Moreton Tower, was too high, and impeded the view of the residents of the Poolside Tower.
Mrs See was not inexperienced in building work.[2] She knew the difference between conceptual drawings and engineering drawings.[3] She was aware at the time she signed the contract that there were no engineering drawings included.[4] She accepts that she saw the engineering drawings some time after 25 May 2014.[5] Dr See was also familiar with the difference between conceptual images and plans or drawings.[6]
[2]Transcript 1.120, l.15.
[3]Transcript 1.98, ll.30-35.
[4]Transcript 1.117, l.35.
[5]Transcript 1.118, l.14.
[6]Transcript 2.44 7-15.
I consider Mrs See was quite evasive when questioned about the difference between conceptual images and the need for final drawings.[7] The final drawings, initially, were provided to Ms Burke a member of the Body Corporate Committee who had undertaken the supervision of the matter on behalf of the roof top owners.[8]
[7]Transcript 1.120, ll.30-45.
[8]Transcript 1.96, l.5.
The Respondents’ case as set out in response to the Applicant’s claim is as follows:
14.The Respondents entered into a ‘Residential Minor Works Contract’ with the Applicant on or around 7 March 2013.
15.At the time of contract, the contractor did not have prepared relevant engineering specifications, though it was agreed between the parties that the works needed to ensure the following essential terms:
(i)that the curved beams of the structure needed to be symmetrical and share the same curves as an adjacent Moreton building structure;
(ii)that the height of the structure could not impede the views of surrounding and adjoining residents and must not go above the height restriction of 16 metres;
(iii)that the height of the structure needed to be the same as the adjacent Moreton building and the membrane structures for the adjoining units 13 and 14 (so as to ensure consistency and to maximise views for other residents);
(iv)the steel structure of the Lot must sit low on the sauna roof, and atrium, as in the Moreton building; and
(v)the structure and surrounding canopy must be low to maximise protection from sun, wind and rain.
16.At all times the Respondents relied on the honesty, integrity and warranties of the contractor, that the works would comply with these specific requirements and the essential terms of the contract were met.
17.The Respondents were induced by the Applicant into paying the total amount of the minor works contract into the Holding Account of the Queensland Master Builders, despite there being no lawful requirement to do so.
18.The Respondents relied on the representations made by the contractor when entering into the contract. These representations included that he would complete the work in a skilled and professional manner and in strict conformity with the specifications provided to them by the Respondents.
19.The Respondents anticipated that works would be performed in accordance with the specific instructions given by them.
20.The Respondents did not view any engineering or design specifications prior to contract. While the contractor indicated on the contract document that these had been supplied by the contractor, up until at least 28 May no such specification had been provided.
21.The specifications were indirectly forwarded to the Respondents, but given their technical nature, these were not assessed by any third party to ensure that they had conformed with the specific requirements made clear to the contractor. The Respondents had relied on the representations made by the Applicant in relation to its skills, experience and qualifications that the specifications would be drawn and completed consistent with their requirements.
It is not disputed that the Applicant provided the Respondents, particularly Mrs See, with computer-generated images, hereafter described as concept images, of the final product.
The initial meeting occurred at a Body Corporate Committee Meeting in October 2013 when Trevor Scott, a principal of the Applicant, attended as a subcontractor for another contractor, Made4Shade.
A further meeting was arranged with the rooftop unit owners on Sunday 17 November 2013 at Dr See’s offices at West End with Made4Shade and a competitor, Tension Span. The latter company had constructed the shade structures for the Moreton Tower in 2012. Although, initially, it was alleged that Trevor Scott attended this meeting, it now seems to be conceded that he was not in attendance as he was in Auckland, New Zealand at the time.
The Applicant was not represented at the meeting and it did not produce any concept images at that time.
In December 2013, Karen Burke telephoned Mr Scott requesting that he submit proposals to the rooftop unit holders for the construction of appropriate shade structures. Mr Scott’s involvement arose as a consequence of the untimely death of one of the proprietors of Made4Shade.
By an email dated 15 January 2013, Ms Burke provided information to the Applicant to enable the Applicant to provide a quotation. In particular, regarding the Wickham Tower, she said:
Wickham – units 12, 13, 14, 15
It would be appreciated if the design for the front building, Wickham, is similar in design to the membrane already installed on Moreton rooftop.
The owner of unit 15 can liaise with you so that the design installed in Moreton can be changed to suit their individual needs. Rain blows into the main bedroom, which is directly below the stairs leading down from the rooftop to their next level, and they are hoping to change the placement of columns further forward and also further back to give greater coverage of membrane, and prevent this from occurring. Having no cover over these stairs, makes it very unsafe, and their internal carpets and furniture have suffered previously in wet weather.
On 20 January 2013, Mr Scott emailed Karen Burke two concept images of the proposed design for the Poolside Tower structure. He requested feedback on the design. Mr Scott received the following text message:
John Burke onsite manager at Rolling Surf. John is expecting your call. Whilst at the resort can you please check out the design possibilities to cover the outdoor stairs on unit 15. Have spoken to chairman who loves the Poolside design but wishes to receive preliminary design for Wickham before showing rooftop owners new design, for approval/input to go ahead and quote.
A site inspection was carried out on 24 January 2014 with the Resort Manager, Mr Scott, and a member of his staff. The week or so before, and on the day of the inspection, Mr Scott had spoken to Mrs See and discussed the water damage issues and the need for coverage of the spiral staircase leading to the rooftop area.
On 29 January 2014, the Applicant forwarded by email to Karen Burke the 6 pages of concept images of their first proposed design for the Wickham Tower.[9]
[9]Exhibits 7 and 10.
Ms Burke, in response to receiving the concept images, telephoned Mr Scott, suggesting design changes including lowering of the curvature of the structures to achieve a less dramatic form and removal of the centre columns for units 13 and 14 and extension and enlargement of the canopy for unit 15 towards the beachfront. Ms Burke alleges that she requested that it be symmetrical and that it not impede the views from the Poolside Units.[10] This alleged request occurred in the course of a telephone conversation. There is no written confirmation in any of the emails of any request that the Poolside Unit holders view not be impeded.
[10]See Ms Burke’s unsworn and undated statement.
Mr Scott made the changes as requested and emailed them to Ms Burke on 30 January 2015.[11] Mr Scott says that because of the increased coverage required by unit 15, that resulted in an increased height and curvature, not because of aesthetic reasons but as an engineering necessity to accommodate the separation of the membrane canopies for units 14 and 15 and to increase stability and wind resistance of the canopy during prevailing winds and to minimise the possibility of water ponding on the canopy during significant rain periods.
[11]Attachment 17 Affidavit of Mr Scott 4 December 2014.
Ms Burke emailed Mr Scott on 31 January 2013[12] in response with some further information but made no comment about the revised conceptual images.
[12]Attachment 18 Affidavit of Mr Scott 4 December 2014.
On 5 February 2014, the Applicant emailed[13] Karen Burke a quotation including specifications and agreed design concept images for the construction of the rooftop shade structures for units 13, 14, 15 and 64 to 74. Ms Burke responded by email the same day[14] advising that she would forward the plans to the owners within the next day. Again no mention was made about the plans that were attached to the quotation.
[13]Attachment 19 Affidavit of Mr Scott 4 December 2014.
[14]Attachment 20 Affidavit of Mr Scott 4 December 2014.
On 16 February 2014, a further meeting of the rooftop owners was held at West End at Dr See’s offices. Mr Scott spoke about the design. The meeting was recorded and a transcript of the recording was admitted into evidence.[15] Mr Scott spoke to his concept design provided on 30 January 2014, the owners specifications as requested in Ms Burke’s email of 15 January 2014 as well as to the quotation which was provided on 5 February 2014.
[15]Exhibit 3.
It is the Respondents’ case that at this meeting it was emphasised that the shade structure on the Wickham Tower should not impede the view of the ocean of the units in the Poolside Tower. It is conceded that the tape contains no reference as to such a requirement being discussed. There is discussion that the height of the structure was not to exceed 16 metres. That requirement has been complied with. There was also discussion that the Wickham Tower should, from the beach level, look similar to that of the Moreton Tower. Mr Scott says on the recording that the two structures would look quite similar, at the same time stating that he wanted to have a more exaggerated shape which appeared to be a theme of his barrel vault type design. Mrs Burke, in her affidavit, deposed at paragraph 16:
All owners who attended emphatically stated that the design must be changed to be symmetrical and be the same architectural appearance as Morton. The applicant was advised to lower the arches to match Morton. He advised that owing to copyright issues he could lower them further. The canopies would look the same from outside the lot but the steel structure would not be the same as Morton.
Mr Trevor Scott denies that any request to change it was made or that any such conversation took place and it does not appear on the audio tape.
Mr Devencort who recorded the meeting said they all sat around a boardroom table. He had a recollection that the issue of impeded views was mentioned by a female co-owner of Unit 70, who was outspoken and her statements overshadowed other comments that were made. Her views were that her view should not be impeded but he cannot recall whether Mr Scott was in attendance when the statement was made. I assume that as she sat next to Mr Devencort she was near the recorder.[16] There is no evidence that the recording is not an accurate record of the meeting other than the fact that it commenced some 15 minutes after everyone arrived and when Mr Scott commenced his presentation.
[16]Transcript 2-101 ll 5-45
I am satisfied that no mention of any requirement that the Poolside views not be impaired was ever discussed in Mr Scott’s presence. The only concern was that the structure be consistent with Moreton Tower and not exceed the 16 metre height limitation, which it does not.[17]
[17]Transcript 2-102 ll 25
On 18 February 2014 a meeting was held on site at the rooftop of unit 15. Present were Mr Scott, Ms Burke and Mrs See. Mr Scott does not have a full recollection of this meeting but it was his usual procedure to identify where columns would be situated etc. It is alleged by Ms Burke that at this meeting Mr Scott was told that Lot 15's membrane had to look exactly the same as Lot 28's membrane owing to the EGM approval that could not be changed. She alleges she told him that the structure could not impede the view from the Poolside Units. When cross-examined on this issue she was unable to refer to any documentation relating to the matter. She attempted, somewhat ingenuously, to rely upon an email dated 4 March 2014, which was clearly unrelated to the rooftop units but concerned the structure at the front office. Mrs See also relied upon this document.[18]
[18]Attachment 14 Affidavit of Julie See dated 10 March 2015.
Mr Scott recalls at this meeting making it clear to Mrs See that it would not be a mirror image of unit 28 on the Moreton Tower. To do so would amount to a copyright infringement. It does not seem to be disputed, that were the Applicant to copy the Moreton Tower design he could be said to be in breach of copyright.
The Master Builders’ contract was emailed to the Respondents and copied to Karen Burke on behalf of the owners on 9 March 2014. The signed contracts were returned by Dr and Mrs See with a holding account deposit form on 10 March 2014 with no further comment.[19]
[19]Attachments 34 and 35 of Affidavit of Trevor Scott.
The Body Corporate approved the roof structure of unit 15 by email dated 14 March 2014.[20] It was noted that the construction was to be on the unit holder’s own Lot and not on the Body Corporate property.
[20]Attachment 37 of Affidavit of Trevor Scott.
The Respondents requested to install lighting, cabling for music and blinds on the west and eastern side of the structure. To install the blinds, Mr Scott added a non-structural column and brace beam which would have required Body Corporate approval. At the time, Mrs See was Secretary of the Body Corporate and Mr Scott was under the impression, wrongly as it appears, that approval had been sought and been given.
On 8 May 2014, Mr Scott submitted all required documents for the Building Application to a Building Certifier for a Building Permit for the works.
Brett England, Building Certifier, approved the submitted documents which were emailed to the respective rooftop unit holders on 28 May 2014. Karen Burke, as representative of the Body Corporate, gave authority on behalf of the unit holders to proceed with the manufacture and installation of the structures.
Construction commenced on 11 June 2014. On 12 June 2014, Karen Burke phoned to request whether work could first commence on unit 15. Mr Scott advised that was not possible as the structural steelwork was not due to be delivered until 18 June 2014. On 16 June 2014, Mrs See contacted Mr Scott with a request that the awning over the stairs be constructed at a later date. She was told that they could not be separated and that could not be achieved.

Construction commenced on unit 15 rooftop structures on 18 June 2014. Installation commenced on 21 June 2014 and continued through to 26 June 2014.
On 23 June 2014, Karen Burke emailed Trevor Scott with the subject line: ‘Disaster’. She complained that the structure on unit 15 did not comply with the conceptual images that she and Mrs See had agreed to. Mrs See was asked by Mr Scott to inspect the structure on 23 June 2014, but refused to do so until it was finished. The work was completed on 27 June 2014.
Mr Devencort was Chairman of the Body Corporate at the time of these events. He attended some of the meetings referred to. His recollection of the Applicant's brief was that the structure on the Wickham Tower should be consistent with the structure on the Moreton Tower. The process he recalls was that some conceptual images were prepared as a first step, the rooftop owners then entered into contracts and would seek approval from the body corporate for the structures to be put in place.[21] He recalled that price was an issue in the selection of the Applicant in preference to Tension Span.[22] This was denied by Dr and Mrs See. I find it was a relevant consideration.
[21]Transcript 2-86 ll15.
[22]Transcript 2-89 ll10.
Mr Devoncort received the conceptual images but did not apply his mind to whether it complied with the 2012 EGM as it was not an architectural sketch.[23] On looking at Exhibit 7, which were the conceptual images provided, through Ms Burke, to the respondents he commented that the structure looked consistently different from the Moreton Tower and significantly different from the approval provided in 2012.[24] He considered the structure and one of the images had a very substantial bow.[25] Further, he stated but there was always an expectation that the structure would be different from the Morton Tower because of the issue of intellectual property, but it would not be significantly different.[26] Interestingly, Mr Devoncort stated that when the previous shade sails and been removed the owners of unit 70 had a much more improved and unimpeded view of the ocean. So any structure going up was going to impede their view.[27]
[23]Transcript 2-92 ll 15.
[24]Transcript 2-93 ll15 – 25.
[25]Transcript 2-95 ll3 2-96 ll17 2-97 ll5-10.
[26]Transcript 2-99 ll25.
[27]Transcript 2-101 ll30.
I found Mr Devencort an honest and frank witness. I have no hesitation in accepting his evidence.
Ms Burke voluntarily, and no doubt, with good intentions, undertook to act on behalf of the rooftop owners in attempting to restore their shade structures. She was required to liaise with those roof top owners that wanted shade structures installed and the Applicant. It was not an easy task. She had to identify their needs and wishes and pass them on to the Applicant. When drawings and quotations were provided by the Applicant she had to pass them on to the owners. Any changes or additional requirements or specifications were also communicated to the Applicant. She says that she did this, not as a member of the committee of the Body Corporate, but as a rooftop owner. In what ever capacity she thought she was acting, I find that she was acting as agent for Dr and Mrs See.
I find that the specifications required by the rooftop owners in their brief to the applicant were that the structures were not to exceed 16 m in height and that it was to be similar an appearance to the Moreton structure. In respect to this latter requirement various descriptions have been used. The following are some of the descriptors, “a very similar architectural appearance”, “symmetrical with[28]”, “be similar in appearance with that structure[29]”, “should be consistent with the structure on the Moreton building[30]” and ”had to reflect the design of the Moreton building [31]”. The vagueness of this requirement does render the term uncertain, it is a value judgement on which minds might differ. Interestingly, though Dr and Mrs See and Ms Burke thought the concept images were similar to the Moreton Tower but Mr Devencort did not.[32] There has to be a fair degree of latitude on what might be considered "consistent", "similar" or "symmetrical". In any event, what is meant by impede the views? Was it any view or a view of the ocean? There lies the uncertainty in the use of those terms.
[28]Ms Burke’s statement.
[29]Affidavit of Mrs See 10 March 2015.
[30]Mr Devencort Transcript 2-87 ll10.
[31]Dr See Transcript 2-49 ll13.
[32]Transcript 2-93 ll 15 to 43.
I find that the alleged requirement that the structure not impede the ocean views of the Poolside Units was not a specification. As stated earlier there is no documentary evidence to support such a term and I do not accept that Ms Burke, in her conversations with Mr Scott, ever mentioned it as being a requirement, if at all. It may be that it was mentioned by the owners of Unit 70 at the meeting on 16 February 2014 but no heed, at the time, was paid to it. The only clear specification in respect of the height of the structure was that it was not to exceed 16 meters. Mrs See was probably closer to the truth when she said that in her discussions with Mr Scott on 18 February 2014 it was implied that it would not impede other resident’s views.[33]
[33]Affidavit of Julie See dated 14 September 2014 paragraph 36.
My impression is that when the structure was built and complaints were made, by those whose views were impeded, Ms Burke, in her own mind, promoted what may have been a request from the owners of Unit 70 to a specification. I am sure, in doing so that, she had no intention of misleading the Tribunal. Perhaps, being the person responsible for negotiations, she was embarrassed by the outcome.
Mrs See was not a reliable witness. Her affidavits were argumentative and contained much material that was inadmissible and irrelevant. In her oral evidence she was evasive and nonresponsive in the course of cross-examination. Unless supported by other independent testimony or corroborative documents I do not accept her evidence.

The Contract

The Residential Minor Works Contract was executed by the Respondents on 10 March 2014. Although it was raised in the course of hearing from time to time that the Respondent was intended to be Celestial Investments Pty Ltd, it is not and never was a party to the written contract.
The description of works was ‘supply and installation of weatherproof structure over rooftop entertaining area 88 square metres’. Fabric to canopy Ferrari 1002T PVC vinyl white steel frames coated with Dulux ‘weathermax paint system’.
The contract provided in item 5 under contract documents that plans and specifications were prepared and supplied by the Applicant. The Applicant warranted in clause 2.1(a) that it would carry out the works in accordance with the plans and specifications.
At the time of execution of the contract, no plans other than the conceptual images and no specifications had been prepared or provided. However, it was clear from the pre-contractual negotiations that working drawings with engineering certification and site surveys would be forthcoming. In the final quotation of 7 March 2014 a breakup of the fees for site survey, private certifying, engineering drawings, engineering certification and Form 15 for each of the 15 units was provided to Karen Burke.[34] The contract information document attached to the contract contained a statement that the owner, before signing the contract, should check, inter alia, that the plans and specifications are included and available and accurately represent the agreed work.
[34]See Attachment 33, Affidavit of T Scott.
Mr Scott deposed that ‘the working drawings for the manufacture of the steelwork usually do not commence until the granting of building approval. Consequently, without any design revisions requested by Karen Burke or any other party, on 8/05/2014 I submitted all required documents for the building application to Brett England Building Certification (BEBC) to gain a building permit for construction’.
On 28 May 2014, Brett England Building Certification approved the submitted documents (engineering drawings and Form 15) and this was emailed the same day to all rooftop unit owners who wanted building shade structures, including unit 15. Mrs See acknowledged receipt of the drawings.[35]
[35]Affidavit of Julie 10 zmarch 2015 paragraph 33.
There was further communication with Karen Burke who gave her approval to proceed with the installation of the structures. At the time, she was a Committee Member of the Body Corporate and clearly had ostensible authority of the Body Corporate to give that approval.
Mrs See was Secretary of the Body Corporate, at the time, and was aware of the building approval, having forwarded the approval to another rooftop owner (unit 64).[36] In any event, she admitted receiving the drawings from Brett England Building Certification.[37]
[36]See Attachment 58, Affidavit of T Scott.
[37]Transcript 1-118, l.20.
Dr See admits to receiving the plans on or about 28 May 2014.[38] Dr See did not inspect them as he expected they would reflect the conceptual images provided earlier.
[38]Transcript 2-47, l.26.
The parties executed the contract on 10 March 2014. There were no plans provided at the time. The parties were well aware that the drawings were to be provided at a later date with the appropriate Building Approval.
I am satisfied that Mrs See was aware that the plans were not attached to the contract and that they were to be supplied at a later date.[39]
[39]Transcript 1-117 to 1-118.
Counsel for the Applicant submits that situation here falls within either the first category of the three categories discussed in the decision of Masters v Cameron (1954) 91 CLR353 at 360-62 or the further category considered in G. R. Securities v Baulkham Hills Private Hospital Pty Ltd (1986) 40 NSW LR 631. In my opinion, it falls within the latter category. McHugh JA (as he then was, and with whom the other members of the Court agreed) said at 634:
However, the decisive issue is always the intention of the parties which must be objectively ascertained from the terms of the document when read in the light of surrounding circumstances: Godecke v Kiran (1973) 129 CLR 629 at 638; Air Great Lakes Pty Ltd v K S Easter Holdings Pty Ltd (1985) 2 NSWLR 309 at 332 - 334, 337. The terms of the document indicate that the parties intended to be bound immediately, the effect must be given to that intention irrespective of the subject matter, magnitude or complexity of the transaction
Even when a document recording the terms of the parties' agreement specifically refers to the execution of a formal contract, the parties may be immediately bound. On the proper construction of the document, it may sufficiently appear that "the parties were content to be bound immediately and exclusively by the terms which they had agreed upon whilst expecting to make a further contract in substitution for the first contract, containing, by consent, additional terms”: Sinclair, Scott & Co v Naughton (1929) 43 CLR 310 at 317.
In Branir Pty Ltd (supra) Allsop J (with whom Drummond and Mansfield JJ agreed) said at paragraph [369] speaking of the contemporary approach to identifying the existence of a contract:
There was in fact a clear crystallization of intent. The contract arose from the prior conduct and communications of the parties, in particular around mid-December. [Counsel] called this a "springing contract" and something not known to the law. On the contrary, a number of authorities discuss the need not to constrict ones thinking in the formation of contract to mechanical notions of offer and acceptance. Contracts often, and perhaps generally do, arise in that way. They can also arise with business people speak and act and order their affairs in a way without necessarily stopping for the formalities of dotting "i"s and crossing "t"s or where they think they have done so. Here, the "i"s were not dotted and the "t"s were not crossed… In such circumstances, even in the absence of clear offer and acceptance, and even without being able to identify precisely when the contract arose, if it can be stated with confidence that by a certain point the parties mutually assented to a sufficiently clear regime which must, in the circumstances, had been intended to be binding, the court will recognise the existence of the contract. Sometimes this is said to be a process of inference or implication. For my part, I would see it as the inferring of a real intention expressed through, or to be found in, the body of conduct, including, sometimes, communications, even if it be the case that the parties did not consciously advert to, or discuss, some aspect of the relationship and say: "we hereby agree to be bound" in this or that respect. The essential question in such cases is whether the parties' conduct, including what was said and not said and including the evident commercial lines and expectations of the parties, reveals an understanding or agreement or, as sometimes expressed, a manifestation of mutual assent, which bespeaks an intention to be legally bound to the essential elements of a contract. (Citations omitted)
I am satisfied that the Respondents signed the contract based on conceptual drawings that had been amended according to the Respondents’ instructions. They did so on the understanding that more detailed drawings would be provided at a later date and that the detailed drawings would conform to the conceptual images. Bearing in mind the vagueness of the specifications it would be difficult to argue that the drawings do not replicate the conceptual images. I find that they do.
The plans when delivered superseded the conceptual images and were accepted by the conduct of Ms Burke in authorising the Applicant to proceed with the works. At that point, any entitlement to rely upon the representation comprising the conceptual images ceased. They cannot claim they were induced to enter into the contract on the representation of the conceptual images when they accepted the drawings as part of contract.
The Respondents in the response allege that there were certain essential terms agreed upon. I will set them out seriatim with my findings.

a)That the curved beams of the structure needed to be symmetrical and share the same curves as an adjacent Moreton building structure. There was no evidence any such term being imposed or discussed in that detail. I find it was not a term.
b)That the height of the structure could not impede views of the surrounding adjoining residents a must not go above the height restriction of 16 m. I have already found this was not a term other than for the fact that there was a 16 m height restriction which had been adhered to.
c)That the height of the structure needed to be the same as the adjacent Moreton building and the membrane structures for the adjoining units 13 and 14 (so as to ensure consistency and to maximise use of the other residents). There was no evidence of any such term other than a requirement that it be similar, consistent with or symmetrical to the Moreton building.
d)The steel structure of Lot 15 sit low on the sauna roof, and atrium as in the Moreton building. I find that this was not a term, and indeed, there is no evidence of it being discussed.
e)The structure and the surrounding canopy must be low to maximise protection from sun, wind and rain. I find that this was not a term of the contract.

Collateral warranty

The Respondents have advanced a case of collateral warranty. The Respondent's allege that the evidence of a collateral warranty arises from conversations that Mr Scott had with Ms Burke and Mrs See. The following passages in Ms Burke’s evidence is relied upon:
It had to be symmetrical with that. And he did say that it would look the same, although he virtually (sic) didn't say that. Mr Scott said it's boring. He said, "that's boring, I can do better than that." And we both said we didn't want better than that, we wanted to be symmetrical with that – with that small cover over the stairs at the front. And he said well he could do it, but the steel would be different underneath. It would look the same from the outside, but underneath the steel would be a different configuration.[40]
The Respondents rely upon Mrs See’s evidence where she said:
… and I requested that Trevor Scott took a photograph of it so that he had for he and his design team exact photographs so that he knew exactly how to replicate it here on our rooftop, and he said that he would do that, because we wanted it low and flat. The building must look symmetrical, and that he would make it look like that. He was concerned about copyright, and I said, "Well, if you are concerned about copyright, what can we do to change that?" And he said, "Well make the poles underneath a bigger size, and then it not the same rooftop as there is over on Mr Hobbs’ unit". We went out the back and had a look. These are down here. (sic) At the rooves out the back, all of these are also Mr Scott's clients, every single one of them, and I said that I didn't want this structure to impede the view. We could see Mr Hobbs’ as rooftop. We could see how it wasn't impeding on any of the peoples views out the back, and I didn't want to cause anybody any trouble. These people here can see the ocean from the units.[41]
[40]Transcript 2-80 ll1-6.
[41]transcript 1-130 ll 14 – 26.
Mr Scott agrees that he attended a rooftop meeting with Ms Burke and Mrs See, however, he denies there was any discussion about views being impeded. He went on to say that had that been part of the brief he would have incorporated a line of sight for the structures and would have taken photographs from the Poolside Units.[42] He concedes it may have been said that the structure should be "similar". He also concedes he described the structure on Morton as "boring".[43] I have already found that there was no discussion about views being impeded. I accept Mr Scott's evidence in preference to the evidence of Mrs See and Ms Burke.
[42]Transcript 1-15 ll10 – 20.
[43]Transcript 1-16 ll15.
According to the High Court[44] a collateral warranty requires the following elements:
a)    there had to be a statement or representation made, that was promissory (i.e. as opposed to a mere expression of opinion or mere representation);
b)    the promise must have been expressed either as an assurance, guarantee, promise or otherwise as a prerequisite to entering the contract: and
c)    it must have been relied upon by the party alleging the existence of the warranty.
[44]J J Savage & Sons v Blakney(1970) 119 CLR 435 at 442.
It is tolerably clear that the evidence relied upon by the Respondents cannot be said to satisfy those requirements. I find that there is no collateral warranty.

Breaches of the Domestic Building Contracts Act 1995 (repealed) (“DBCA”)

The DBCA was repealed on 1 July 2015 however it continues to apply to domestic building contracts entered into before that date.[45]
[45]Section 62 of Schedule 1 Queensland Building and Construction Commission Act 1991.
The Respondents rely on several alleged breaches of the DBCA. However, they do not assert what are the consequences of the alleged breaches.
It is alleged that section 27 (2) (f) has not been complied with, in that, a regulated contract complies with the formal requirements if it, inter alia, includes any plans and specifications for the subject work. Failure to comply with the section exposes the building contract or to a penalty. However pursuant to section 92 DBCA a failure by a building contractor to comply with the requirement of the Act does not make the contract illegal, void or unenforceable. See also Dover Beach Pty Ltd & Anor v Geiftine [2008] VSCA 24.

Depending upon when the contract was formed the Applicant may be in breach of this provision of the DBCA. The Applicant did not provide a satisfactory explanation for the omission of the plans at the time the contract was executed. His explanation was that "Within our industry we never, ever supply plans at point of contract."[46] I can see no reason why plans could not have been provided at that time, although, Mr Scott was put under significant pressure from Ms Burke and others to produce contracts for the various owners. However, having said that I do not think that the outcome would have been any different as no one bothered to look at the plans.
[46]Transcript 1-18 ll5-10.
Nevertheless, the failure to comply with this provision does not render the contract void or unenforceable.
The second alleged breach was of section 64 DBCA which was a requirement at the building contractor should not demand or receive a deposit under a contract of less than the stipulated percentage of the contract price. The Applicant in this case required the Respondents to pay the full amount of the contract into the Master Builders’ trust account. The monies remain in that account. It is arguable that, as the amount was paid to a stakeholder and cannot be paid out to either party without the consent of both, that the section has not been breached, although, clearly, a demand was made for the monies to be paid. In any event, for reasons articulated above, if there has been a breach of the Act, it does not render the contract void or unenforceable but may expose the Applicant to a penalty.[47]
[47]Keith v Wide Bay Stumping [2011] QCAT 623.
The third alleged breach relates to variations that it is said are not in writing. It is alleged but the Applicant change the position of some posts without consulting the Respondents. In doing so it is alleged but it did not comply with the requirements of section 79 DBCA by obtaining the written consent of the owner. Again, penalties apply in respect of this breach and the Applicant may not the able to recover the costs of any variation. However, the Applicant has not sought any additional payment. Mr See, Counsel for the Respondents submitted that an explanation for why the variation took place was not important as the structure would be taken down in any event. [48] I allowed Mr Scott to give an explanation which was to the effect that to make the structure symmetrical with the adjacent structure it was necessary to change the position of some posts. In the end nothing seems to turn on this though a considerable amount of time was consumed in the Tribunal agitating the issue.
[48]Transcript 1-71,1-72 and 1-73.

First notification of a dispute

The first notification of the the dispute was an email from Karen Burke to Trevor Scott on 23 June 2014.[49] In the commentary on photographs attached to the email Ms Burke appears to acknowledge that most of the problems seem to arise from the extra coverage that was requested by the Respondents.
[49]Affidavit of Trevor Scott attachment 61.
By an email dated 2 July 2014 the Applicants sought payment for stages two and three of the contract.[50]
[50]Attachment 63 to affidavit of Trevor Scott.
A meeting was held on 15 July 2014 between the Applicant and the Respondents. The meeting took place on the rooftop of unit 15 on that date and was attended by Mr John Groom a building expert retained by the Respondents. He prepared a report dated 31 July 2014 which was critical of the structure principally because of the placement of sewer ventilation pipes and other vents; an issue that was not agitated, subsequently or, at the hearing before this Tribunal.
It should be noted that at that time no complaint of defective work had been made by the Respondents or Ms Burke.
Following this meeting the Applicant put forward a series of options which were contained in a letter dated 18 July 2014.[51]
[51]Attachment 68 to affidavit of Trevor Scott.
The first option was to move column 6 and carry out ancillary work at no extra cost. Option two was to lift the canopy at an additional cost of $16,896 including GST. Option three was to remove the structure at a cost of $7,640. Option four was to provide a rebate of $1,000. At this stage no complaint had been made about the defective work.
The Respondents commissioned a report from Mr Groom which followed a further inspection on 4 September 2014. It appears that it was at this inspection the extent of potential defects was explored by Mr Groom. It was his report of 7 September 2014 that assumed the paint finish to be powder coating.
By an email dated 20 November 2014 the Applicant sought access to the building site in order to complete touchup paint work within the scope of the works. It is apparent that the Applicant was speaking of the damaged paintwork caused during the installation. The Applicant thought eight working days would be required for its specialist painter to complete the work and prevent further development of rust.
Mr Andrew See of counsel acting on behalf of the Respondents replied to the request as follows: –
I have communicated your request to the Sees and want to provide you with their views in relation to this request.
Firstly, the structure needs to be removed. It is too high and obstructing the common property views of other unit holders, who have made very strong complaints both to my clients and the body corporate.
The structure is also affixed to common property. The Sees had no permission to do that and don't believe that your firm did either.
My clients believe that the height of the structure is not in accordance with the terms of the contract. That the height not impede the views of others, was an essential term of contract. That is a legal issue that will need to be determined by a third party.
In addition, the Sees are in possession of various advices both written and oral, indicating that the structure should be removed and either repaired off site or replaced entirely. One major concern relates to the manner in which it has been affixed to the roof top floor. Another relates to possible exposure now caused as a consequence of the works, to water ingress to the unit below. You are also aware of the issues within the Groom Report.
As you know the structure does not cover the stairs and it provides no rain or sun cover for the stairs to the lower level, which again was regarded as an essential feature of any structure. The fact that there has been no provisioning for lighting and sound systems, despite being requested prior to the commencement of works, is again another concern.
So unfortunately while what you propose seems quite simple, it really will not address and resolve the issues in dispute. If the structure needs to be removed, the issues that you now raise can perhaps very well be attended to at that later time.
If you have another proposal, that may address all of these issues, I am more than happy to put it to my clients.[52]
[52]Attachment 71 to Affidavit of Trevor Scott.
The Applicant again by email the same day and, despite the matters referred to in the above email, sought permission to access the site to carry out the paintwork. Permission was again refused.

Repudiation of the contract

The Applicant was excluded from the site on 26 June 2014. It has never attempted to rescind the contract. However, as the structure has now been demolished and performance of the contract is now impossible the Applicant has no option but to treat the contract as at an end.

Body Corporate Approval

The Applicant's case is that the Respondent, with Mrs Burke as their agent, requested changes to the initial design of their sail structure by increasing the cover by 30% with an awning on the side. Whereas changes (decreasing the size of the sail) to unit 64 did have to go to the Body Corporate for approval and, was in fact, refused, the changes requested by the Respondents were not considered by the Body Corporate until after the erection of the unit 15 sail structure. The Body Corporate has taken objection to the structure on unit 15. Indeed, there have been several applications to the Queensland Body Corporate and Community Management Commissioner to prevent the installation of the structure. The applications were made by a Mr Richard Downing a member of the Body Corporate.
Mr Downing made an application for an interim injunction on 12 May 2014 which was dismissed by the Commissioner on 29 May 2014, a date before the installation of the sails on unit 15. The basis of the dismissal was that the balance of convenience favoured the Respondents as they had entered into a contract and paid for the installation. However, the Adjudicator put the Respondents on notice that if they were to fail in the application they may be required to remove the installation.
I, initially, heard this matter on 13 and 14 July 2015. I reserved my decision. The parties were to submit written submissions in accordance with a timetable the final submissions to be provided by 21 September 2015. The parties complied with the time limits. A request for leave to make further submissions was made by the Applicant at a time thereafter. That was formalised by an Application filed on 5 November 2015. It related to the removal of the shade structure on unit 15, the subject of this litigation, which allegedly occurred on 3 November 2015.
The Respondent countered with a cross application on 13 November 2015 with a request to reopen the case to lead further evidence of latent defective building work discovered by them on removal of the structure on 3 November 2015. They also applied to amend their claim for a claim of total failure of consideration.
I heard the applications on 17 December 2015 and listed the matter for further hearing in February 2016 but, for the convenience of counsel, it, ultimately, did not come on for hearing until 19 May 2016. At that time, Mr Ken Fleming QC instructed by Tobin King Lateef Lawyers, appeared for the Respondents in place of Mr A See of counsel.
On 14 April 2016 the Applicant filed a further application for disclosure by the Body Corporate of Rolling Surf Resort of documents in their possession and/or control relating to the building and/or removal of the rooftop structure. In addition, it sought leave to call further evidence from Mr Richard Dowling a member of the Body Corporate. It also sought leave to adduce further evidence in the form of the decisions of the Queensland Body Corporate and Community Management Commission. Although I gave directions for disclosure by the Body Corporate Managers, by the time of hearing it had not been complied with. It had been submitted by the Body Corporate Manager that there were a large number of documents and they required further time to comply. I determined to proceed with the further hearing in the absence of the disclosure.
The decisions of the Commission's Adjudicators are dated 29 May 2015, 11 and 17 March 2015. The dates are relevant as they precede the dates of the hearing of this matter but, at the time, their existence appeared to be unknown to the Applicant and, certainly, to the Tribunal.
The crux of the Applicant's submission in relation to these matters is that the structure was removed not because it was not built in accordance with the agreed design or collateral warranty or because it was defective but rather because it was not approved by the Body Corporate and in all likelihood would have been ordered to be removed by the Body Corporate or the Commissioner.

Claim for defective work

After several failed attempts an Experts Conclave was held on 13 May 2015 pursuant to a direction of the Tribunal. The joint experts comprised Jason Lindsay, Brian Wooldridge and John Groom. In their report dated 9 June 2015 the experts agreed that the shade structure as built was consistent with the private certified approved plans. The experts also agreed that the shade structure did not match the Respondents list of variations which they identified as follows:-
a)the sail does not match the profile of the shade structure constructed to unit/Lot 28;
b)the sail does have an overall area larger than that for unit/Lot 28;
c)the sail does not give adequate protection to the stairs from the weather;
d)the sail does have provisions for an extension of the canopy down to the top of the blockwork walls to the top kitchen/BBQ and that these extensions have not yet been fitted in place;
e)that the sail has provisions (for installation of blinds) to provide protection from the western sun which has not been installed;
f)the sail does not have provisions for electric lights or sound speakers;
g)that the shade sail is symmetrical but the profile does not match the profile on the Moreton building;
h)that the shade sail as built impedes the view of more than one built to Lot 28 sail height as a of (sic) the unit 15 structure being approximately 600 mm higher on the sail of Lot 28;
i)in regard to common property, there is one column which is attached to the top of the blockwork wall.
In respect of defects and incomplete matters the experts agreed on the following: –
a)During the installation of the shade sail there was damage done to the paint system used resulting corrosion to the structural components of the support structure and steel connections to the sail. The experts agree that due to the damage and quality control issues these repairs will require removal of the sails to an off-site location, repair and recoating of the members and reinstallation of the structure and sails;
b)the John Groom report refers to the columns being fixed to the suspended concrete roof deck without the removal of the tiles as opposed to a direct fixing and provision of a grout pad under the tiles. The experts agree that rectification requires removal of the columns and tiles and the adhesive used to bed the tiles, checking of the waterproofing membrane and reinstating the membrane that is not intact, confirming that the existing chemical anchors are structurally adequate and if not replacement of the anchors, reinstallation of the columns using grout pads and making good the tiles surrounding the columns;
c)the experts agree with the John Groom report that there is still works required to be finished in accordance with the plans;
d)the experts agree with the John Groom report that tiles removed during installation of the sails are to be replaced;
QCAT Practice Direction No 4 of 2009 provides, inter alia,
(20)Except with the tribunal's leave an expert may not, whether in a statement of evidence or in oral evidence:
(a) contradict, depart from all qualify an opinion about an issue the subject of an agreement in the joint report; or
(b) raise a matter not already mentioned in the joint report.
Unfortunately, the Joint Report of the experts conclave contained a fundamental error which did not become apparent until after the Joint Report had been filed in the Tribunal. That error was that the structure had been powder coated, when, in fact, it had been painted. An unedifying dispute erupted between the experts as to who was responsible for this error and and who misled whom on the subject. It is not necessary for me to determine this issue. I gave leave to the parties to call further evidence, even though the effect of such evidence might be to depart from the initial opinion of the Joint Report.
It is apparent from the contract specifications that the coating specification required a “Delux Weathermax Paint System”.
John Groom is a Qualified Building Certifier with 30 years experience in the building industry. He was one of the joint experts. At the request of the Respondents carried out an inspection of the sail structure on unit 15 on 4 September 2014. He was asked to inspect the shade sail installation and identify any defects. He found the following defects: –

a)Rust at connections. Rust had occurred at connection points due to significant damage to the powder coating due to lack of care during installation of the fixings. Powder coating around these points were significantly damaged and chipped away from the actual structure. Mr Groom was unable to determine the thickness of the powder coating and requested that the builder be requested to provide those details. It was his opinion that the damage could not be touched up. He did not consider the powder coating system had been installed in a manner that complied with the Building Code of Australia or National Construction Code standards. [Comment: It is now established that the structure was not powder coated but painted.]
b)Broken tiles. Mr Groom opined that structural columns had been installed correctly on top of 12-14 mm tiles. The tiles he alleges are cracking under the weight of the columns. He says the column should have been cemented directly to the concrete slab and not have tiles run under the columns which are supported on tile adhesive. [Comment: It appears that only one tile has cracked because it was drummy.]
c)Incomplete works Mr Groom says that the Applicant has failed to install the small pieces of shade sale to infill the ends of the shade sail openings around the core of the building adjacent to the unit. [Comment: Mr Scott says the fabric skirting was a separate component to the canopy. The site measurements were completed on 30 June 2014 and the skirting was manufactured on 7 July 2014.[53] The skirting has not been installed due to fact that the Respondents have not allowed the Applicant access to the building site since 2 July 2014.]
d)Broken and detached tiles there are skirting tiles on the eastern side of the deck which have been removed to install a column which is attached to the floor but, according to the plans, should have been connected to the top of the parapet wall.
e)Poor powder coating to the whole of the structure was described by Mr Groom as uneven and not finished in a tradesman like manner. Mr Groom is of the opinion that the structure needs to be removed and re-powder coated. [Comment: The specifications contained in the Masters Builders contract is "Dulux Weathermax paint system". It clearly was not powder coating and it is surprising that Mr Groom did not ascertain that on inspection let alone from a perusal of the contract.]
f)Washers not installed to some connections in some instances and others are said to be undersized. This has contributed to the mechanical damage that has occurred to the connections. [Comment: Mr Scott says the 60 mm and 20 mm stainless steel washers used for the connections are the standard size washers for M16 bolts and nuts and M20 bolts and nuts. He notes that Mr Groom refers to AS1170 which contains, according to Mr Scott, no reference to the methodology of connections of structural components and the fixings used on structural components.]
[53] Affidavit of Trevor Scott paragraph 152.

The Respondents obtained a report from an engineer Mr John Van de Hoef of N J A Consulting. He carried out an inspection of the dismantled sail structure. Although his report deals with matters including the design of the structure and contractual issues I only admitted the report in respect of the defective work issues, in accordance with my earlier directions.
It should be noted that Mr Van de Hoef did not inspect the sail structure in situ. His examination of the structure took place at the rear of a factory shed at Moffat Beach where the remains of the structure had been stored. It also should be noted that it had been there since it was dismantled on 3 November 2015. The inspection took place on 5 January 2016.[54] The Applicants were excluded from the site on 26 June 2014 and no touchup or repairs had been carried out since then.
[54]Transcript 1-83 line 35.
Mr Van de Hoef relied on photos of the structure in situ to comment on the extent of corrosion at the time. He opined that a significant proportion of the corrosion present at his inspection was present in the photos.

Mr Van de Hoef noted that the majority of locations where corrosion was occurring was at the steel and plates and bolted connections. He opined that during the erection process the plate treatment around the edges and internal sections of the steel cleats have been damaged which had led to the corrosion of the exposed steel components. He was of the opinion that it would be impossible to adequately repair the paint system of the complete structure without completely dismantling it.
Subsequently, in the report, Mr Van de Hoef conceded that it would be technically feasible to dismantle the structure and carry out rectification work on site. A matter that he conceded during cross-examination as well.[55] However, the opinion was given in the context that the structure was too high and would be required to be lowered by cutting and then butt welding the structural beams. Mr Van de Hoef considered this issue as well and I feel that this additional rectification was a matter that influenced his opinion that the defects with the structure should be rectified off site.
[55]Transcript 1-90 line 30.
A further issue was the cracking of the tiles at the base of one of the installed columns. Mr Van de Hoef was critical of the workmanship in installing a column on a drummy tile but conceded that the tile would have had the strength to support the column.
He was also critical of the method of column installation which involved the drilling of holes and installation of chemical anchors that perforated waterproof membrane. He considered that the waterproof membranes would also require repair.
One of the joint experts, Mr Jason Lindsay, submitted a subsequent report dated 9 July 2015 wherein he opined that he considered the coating complied with the contract specifications, that the structure did not need to be removed and that the corrosion could be rectified on site and in place.
Lindsay Consulting Pty Ltd considered the total cost of rectification to be $12,089 plus GST. Included in that sum was a component of $4,785 for Action Corrosion, a specialist in repairs of this type, to repair the corrosion on site.[56] Mr Lindsay said that he was misled as to the paint thickness and the absence of an anticorrosion layer by the report from Caneland. A subsequent report by DeCon which measured the various levels of paint thickness showed that there was compliance with the specifications and that the coatings complied with the Australian Standard 2312 (Guide to the protection of structural steel against atmospheric corrosion by the use of protective coatings).
[56]Report Lindsay Consulting Pty Ltd 9 July 2015.
Mr Howard Sharp, a coatings inspector, gave evidence that in his opinion the protective paint system applied was satisfactory and complied with the specification.[57] He did not consider the it necessary to take the structure down.[58] I was impressed with Mr Sharp as an expert, I accept his evidence in matters in which he was qualified to comment in preference to Mr Van de Hoef, particularly Mr Sharp’s observations on the integrity of the surface coating, the extent of existing and potential corrosion and its causes.
[57]Transcript 1-22 line 30.
[58]Transcript 1-23 line 40.
Mr Jeremy Hunter of Accord Design Pty Ltd, a qualified engineer provided a report dated 18 July 2014. Although Mr Hunter acknowledged his obligation as an expert to be independent and impartial he failed to observe in his report, nor did he volunteer, that he was responsible for the design of the very structure he was being asked to advise on. I, therefore, have disregarded his evidence as an expert.
Mr Jade Padgett gave evidence as to the state of the tile. On inspection he found only the one tile under Column D was drummy and cracked. He found one other tile that was also drummy and expressed the opinion that it would probably crack in due course. He thought the tiles could be cut out around the column base plate and replaced with another tile.[59]
[59]Transcript 1-38 line 25.
I make the following findings arising from the expert evidence:-
a)    The structure was painted and not powder coated;
b)    It was not necessary to dismantle the structure to rectify the defects;
c)    Only one tile was cracked and needed to be replaced;
d)    The structure could be installed on the existing tiles;
e)    The paint system complied with the specifications and was adequate for the prevailing conditions.

Always intended to pull it down

On the first day of hearing Mr A See counsel for the Respondents stated that the structure has to come down as it was impeding the view of other unit holders and no rectification of defective work was going to change that.[60] Later on he said Well, it is going to be taken down. So its not a matter of whether it has to be.[61] Mrs See was adamant that no rectification work could make the structure acceptable, as far as she was concerned it had to come down.[62]
[60]Transcript 1- 71 line 30.
[61]Transcript 1-72 line 40.
[62]Transcript 1-124 to 1-125.
It was put to Mrs See that she was desperate to have the structure removed because it did not comply with the 2012 EGM. Mrs See denied the suggestion saying "I'm absolutely not desperate to have it removed for any other reason except it's extended height…"[63] Later, when asked to assume that it could be lowered she rejected such a solution because it was defective.[64]
[63]Transcript 1-124 lines 1 to 10.
[64]Transcript 1-125 line 27.
The Respondents had decided to remove the structure irrespective of the outcome of this litigation or any other attempt to keep it in place. It is not necessary for me to determine whether the Body Corporate or a third party would have been successful in ordering the dismantling of the shade structure. However, I find that the threat of such action and the opposition to the structure by other members of the Body Corporate caused them to do so.

The effect of demolishing the structures

The Respondents were entitled to have the structure erected in accordance with the plans and specifications. For the moment, I put aside the dispute as to the terms of the agreement. If the structure was not completed in accordance with plans and specifications or was in some way defective the Respondents were entitled to have the structure reinstated so that it complied with the plans of and specifications and were entitled to have the defects rectified.
In some cases, it may not be possible to reinstate the building so that it does conform to the plans and specifications. In another case the remedial work may require its complete demolition. However, that will only occur if that is a reasonable course to adopt.[65] A reasonable method in dealing with the owners loss would be to award damages for the diminution in value produced by the builders departure from the plans and specifications.
[65]Bellgrove v Eldridge (1954) 90 CLR 613.
Where rectification is required it is generally accepted that the builder must be given a reasonable opportunity carrying out that work. That is not only a requirement of the duty to mitigate but has the practical consequence that the cost to the builder in carrying out the repairs are likely to be less than another builder would charge.
Where an owner refuses to allow the builder an opportunity to rectify defects that may amount to a failure to mitigate the losses.[66] The Applicant here had made a reasonable offer to complete the works that it considered defective at the time of the offer at no additional cost to the Respondents. It was refused access to the site.
[66]Woodlands Oak Ltd v Conwell [2011] EWACA Civ 254.
Because shade structure has now been dismantled and removed it is now out of the parties’ and the Tribunal’s power for the defects in the sail structure to be rectified. I am satisfied that the rectifications could have been carried out on site and would have been carried out at no additional cost to the Respondents.
It follows that the Applicant’s claim should be allowed and the Respondents’ counter application is dismissed.
The Applicant had been paid its deposit of $2,149.10. This dispute arose when it sought payment of the second and third stages being $25,789.20 and $10,745.50 respectively. The final payment was for practical completion and was $4,298.20. In my opinion, the Applicant is entitled to the payment of the full amount outstanding of $40,832.90.
That sum is held in trust in the Master Builders Trust Account. I direct that it be paid out to the Applicant with accretions if any.
I invite the parties to file written submissions in relation to the Applicant’s entitlement to interest, the applicable rate and costs. Such submissions, if any, to be filed by the Applicant by 3 October 2016 and by the Respondents by 17 October 2016.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established