Thallon Mole Group Pty Ltd v Morton - [2022] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:

Thallon Mole Group Pty Ltd v Morton [2022] QDC 224

PARTIES:

THALLON MOLE GROUP PTY LTD
ACN 104 671 801
(plaintiff)
v
LOUISE MORTON
(defendant)

FILE NO/S:

2695/19

DIVISION:

Civil - Commercial List

PROCEEDING:

Trial

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

7 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

25 - 28 May 2021; 1 - 4 June 2021; 6 - 10 September 2021; 13 - 16 September 2021; 10 & 11 February 2022;

Final submissions in reply 14 February 2022

JUDGE:

Muir DCJ

ORDER:

By 4.00pm Thursday 27 October 2022, the parties are to:

(a) Bring in Final Orders including relevant interest calculations and provision for the release of the Retention Monies consistent with my findings; and

(b) Exchange and deliver written submissions as to costs (if necessary), no longer than four pages.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where defendant entered into a contract with the plaintiff – where contract was for construction of a luxury residential property – where during the course of construction the contract was terminated by the defendant for breaches – where plaintiff claimed they were willing and able to continue performing the contract – where the defendant did not pay outstanding progress claims for works completed – where the plaintiff seeks payment for the works completed.

PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – COSTS – ISSUES AND COUNTERCLAIMS – where works performed under the contract were defective – where the defendant counterclaims for the cost of rectifying defective works – where there is dispute as to defects and the cost of rectification.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where specifications of the contract were not able to be met – where the contract price must be reduced to account for failure to meet conditions of the contract.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – TIME – where performance of the contract was delayed – where the plaintiff claimed entitlement to an extension of time – where the defendant claimed no entitlement to extension of time exists – where the defendant argued that delays were caused by the plaintiff, were foreseeable and no notice of an extension was given.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where the plaintiff claimed that works had reached practical completion – where the defendant argued that practical completion was not reached due to defective works.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT –CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS – where retention money was to be given to plaintiff after practical completion – where practical completion did not occur – where the contract stipulated that defendant had recourse to unpaid retention money if notice was given.

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where plaintiff argued it performed works under agreed changes to the contract – where the defendant argued the variations were not approved and written approval was not obtained for the work subject to variation – where plaintiff refused to pay for the work subject to variation – where the plaintiff argued quantum meruit regarding works subject to variation.

CONTRACTS – PARTICULAR PARTIES – PRINCIPLE AND AGENT – CREATION OF A RELATIONSHIP OF AGENCY – AGENCY BY ESTOPPEL – where the contract stipulated work be done in a particular way – where the plaintiff claimed that an agent for the defendant made a representation that work could be done in an alternate way – where no variation to the contract was made in writing – where the plaintiff claimed an absence of the written variation was overcome by estoppel – where the QBCC Act requires variations to be made in writing – whether estoppel stands in the face of a statute.

Uniform Civil Procedure Rules (UCPR) 1999 (Qld)
Queensland Building Services Authority Bill 1991 (Qld)
Sustainable Planning Act 2009 (Qld)
Building Act 1975 (Qld)

Queensland Building and Construction Commission Act 1991 (Qld)

CASES

Agricultural and Rural Finance Pty Limited vAtkinson [2010] NSWSC 1396
Allen v G Developments Pty Ltd & Ors [2019] QSC 107
Amricama Pty Ltd v Red Carpet Real Estate [2014] QSC 267
Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99
Australian Development Corporation v White Constructions Pty Ltd (1996) 12 BCL 317
Bakker v Chambri Pty Limited (1986) 4 BPR 9234
Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd (No. 2) [2013] NSWSC 1943
Bedrock Construction and Development Pty Ltd v Crea [2021] SASCA 66
Bellgrove v Eldridge (1954) 90 CLR 613
Birse Construction Ltd v Eastern Telegraph Co Ltd [2004] All ER (D) 92
BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2016] QSC 05
Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494
Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576
Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653
Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361
Civil Mining & Construction Pty Ltd vWiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85
Clyde Contractors P/L v Northern Beaches Developments P/L [2001] QCA 314
CMA Assets Pty Ltd vJohn Holland Pty Ltd [No. 6] [2015] WASC 217
Cochrane v Lees [2021] QCATA 74
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209
Danidale Pty Ltd vAbigroup Contractors Pty Ltd [2007] VSC 391
El Khoury v Harsany; Taouk v Assure (NSW) Pty Ltd [2018] NSWSC 1774
Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640
Fox v Percy (2003) 214 CLR 118
FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340
Grocon Constructions (Qld) Pty Ltd v Juniper Developer (No 2) Pty Ltd [2015] QCA 29
Hyder Consulting (Australia) Pty Ltd v Wilhelmsen Agency Pty Ltd [2001] NSWCA 313
Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26
JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393
Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313
Kok Hoong v Leong Cheong Kweng MinesLtd [1964] AC 993
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [No 3] [2013] VSC 435
Maritime Electric Co v General Dairies Ltd [1937] AC 610
Metro Edgley Pty Limited v MK & JA Roche Pty Limited & Ors [2007] NSWCA 160
Mortonv Elgin-Stuczynski [2008] VSCA 25.
Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104
Murphy Corporation Ltd v Acumen Design & Development (Qld) Pty Ltd & Hooper (1995) 11 BCL 274
Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Report 403
Opat Decorating Services (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 360
Oshlack v Richmond River Council (1998) 193 CLR 72
Owners – Strata Plan NO 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067
Pivovarova v Michelsen (2019) 2 QR 508
Port Jackson Stevedoring Pty Ltdv Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231
Roadshow Entertainment v (ACN 053 006 269) Pty Ltd (1997) NSWLR 462
Robinson v Harman (1848) 1 Exch 850,
Ruxley Electronics & Construction Ltd v Forsyth [1996] 1 AC 344
Saunders vNash [1991] VR 63
Southern Cross Constructions (NSW) Pty Ltd (Administrators Appointed) v Bucasia Pty Ltd [2012] NSWSC 1419
Stein v Torella HoldingsPty Ltd [2009] NSWSC 971
Stone v Chappel (2017) 128 SASR 165
Tabcorp Holdings LtdvBowen Investments Pty Ltd (2009) 236 CLR 272
TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130
TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130
Thornley v Tilley (1925) 36 CLR 1
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603
Walter Construction Group Ltd v Walker Corporation Ltd [2001] NSWSC 283
Willshee v Westcourt Ltd [2009] WASCA 87
Woo Nam Lee v Surfers Paradise Beach Resort Pty Ltd [2008] 2 Qd R 249
Wyong Shire Councilv Shirt (1980) 146 CLR 40

COUNSEL:

C.C Heyworth-Smith KC with N.J Derrington for the plaintiff

T. Sullivan KC with L.M Campbell for the defendant

SOLICITORS:

Robinson Locke Litigation Lawyers for the plaintiff

Thomson Geer for the defendant

Introduction...................................................................................................................... 9

Issues in Dispute............................................................................................................. 10

Credit Issues................................................................................................................... 10

Adjusted Contract Price................................................................................................. 11

The Schucco Sliding Doors and Related Issues......................................................... 12
Relevant Provisions of the Contract....................................................................... 26
Analysis.............................................................................................................. 29
Reasonable Rates or Prices under the Contract.................................................. 32
The $48,000 Quote or the Quantum Door Quote............................................... 33
Reasonable Rate or Price for the Two Doors..................................................... 34
Additional Claimed Reductions in the Contract Price............................................ 38
Window Tinting.................................................................................................. 38
Lift and Cranage................................................................................................. 39
Decal, Waterproofing and Drainage................................................................... 39
Waterproofing..................................................................................................... 40
The Cost of the Brandtman Determination............................................................. 41
Extension of Time Claims...................................................................................... 43
Approved Extension of Time Claim................................................................... 43
Delay Claim........................................................................................................ 44
Relevant Contract Provisions............................................................................. 45
Analysis.............................................................................................................. 47
Thallon Mole’s Liquidated Damages Claim...................................................... 52
Additional Reductions - Omitted Items...................................................................... 53
Bike Racks.............................................................................................................. 53
D08 Curtain and Blinds.......................................................................................... 54
Overall Conclusion re the Adjusted Contract Price.................................................... 54

Outstanding Progress Claims......................................................................................... 55

Relevant Contractual Provisions................................................................................. 55
Progress Claims 24 and 25......................................................................................... 60
Consequences of there being no Form 4 Attached to Progress Claims 24 & 25.... 61
Effect of the Notices of Dispute............................................................................. 62
Compound or Simple Interest under the Contract?.................................................... 63
Analysis.................................................................................................................. 64
Conclusion re: Interest............................................................................................ 65
Final Progress Claim 26.............................................................................................. 65
Relevant Background.............................................................................................. 65
Invalidity of Progress Claim 26 – Procedural Matters........................................... 69
Conclusion: Amounts of the Progress Claims Due and Payable by Mrs Morton..... 71
External Waterproofing.............................................................................................. 72
External Waterproofing Requirements Under the Contract....................................... 72
Did the Architect “Sign Off” on Use of Another Product?.................................... 77
Was Bituthene 3000 Suitable?................................................................................ 79
Relevant Facts......................................................................................................... 80
Was the Shalex Product Used by Thallon Mole an Appropriate Waterproofing Product for Use at the House?.................................................................................................................... 84
The Defects in the Waterproofing Installed................................................................ 88
Waterproofing of the Stone Cladded Wall at the Newbolt Street Side of the House 89
Waterproofing of the Pool Podium......................................................................... 90
The Coverage of Crystoflex on the Stairs............................................................... 94
Issues with the Application of Crystoflex.............................................................. 95
Delamination....................................................................................................... 95
Continuous Waterproofing Membrane System.................................................. 96
Was the Waterproofing Validly Certified?............................................................. 97
Costs of Rectifying the Waterproofing....................................................................... 98
The Test of “Unreasonableness”............................................................................ 99
Conclusion re Damages for Waterproofing.......................................................... 100

The Pool and Newbolt Street Balustrades.................................................................... 100

The Pool Balustrade (On Spigots)............................................................................ 100
Analysis................................................................................................................ 101
May 2017 Meeting............................................................................................ 102
Authority Issue.................................................................................................. 103
November 2018 Direction................................................................................ 104
Consequences of the Variation not Being in Writing....................................... 106
Breach of Contract............................................................................................ 111
Damages in the Alternative.............................................................................. 111
The Newbolt Street Balustrade................................................................................. 113
Breach................................................................................................................... 116
Quantum of Damages........................................................................................... 117

Practical Completion.................................................................................................... 117

Relevant Contractual Provisions............................................................................... 118
Practical Completion – Proper Construction of the Contract............................... 120
Documents Required for Practical Completion to be Achieved........................... 121
Did the Physical Works at the House Reach Practical Completion ?.................. 123
Waterproofing and Pool Balustrade Issues....................................................... 125
Timber Flooring................................................................................................ 125
The Lift............................................................................................................. 126
Driveway........................................................................................................... 127
Painting............................................................................................................. 127
Conclusion re Practical Completion..................................................................... 127

Termination of the Contract......................................................................................... 127

Was Mrs Morton in Breach of the Contract by Failing to Pay the Progress Claims 128
Was Mrs Morton’s Termination of the Contract on 10 April 2019 Valid?.............. 129

Thallon Mole’s Quantum Meruit Claim....................................................................... 129

Relevant Facts........................................................................................................... 130
Variation No. V033.............................................................................................. 130
Variation No. V059.............................................................................................. 134
Is a Quantum Meruit Claim Available?................................................................ 135

The Alleged Defects and Omissions............................................................................. 135

Part One: Work Yet to be Undertaken...................................................................... 135
A: Pool Fence and Newbolt Street Balustrade..................................................... 135
B: External Waterproofing................................................................................... 135
C & D: Miscellaneous Uncompleted Defect Work and Preliminaries................. 135
The Pool Box.................................................................................................... 136
Box Gutter Leak in Sump................................................................................. 136
Strip Drain........................................................................................................ 137
D: Preliminaries for Defects A to C..................................................................... 137
E: Kitchen Leak and Copper Cladding in Main Entry........................................ 137
Box Gutter Leak (North-west Corner).............................................................. 137
Internal Ceiling Rectification........................................................................... 138
Copper Cladding Treatment (Main Entry and Fire-place Flues)...................... 139
Preliminaries..................................................................................................... 141
Part Two: Works Carried Out................................................................................... 141
F: Epoxy and Painting.......................................................................................... 141
Epoxy Defects................................................................................................... 141

Painting............................................................................................................. 143
A & A Painters Invoices................................................................................... 149
G:Timber Flooring Issue....................................................................................... 152
Relevant Facts about the Installation of the Timber Flooring.......................... 154
Analysis................................................................................................................ 157
Timber Flooring – Quantum................................................................................. 159
H: Driveway.......................................................................................................... 160
Relevant Facts................................................................................................... 161
Reasonable Cost of Rectification...................................................................... 163
I: Joinery............................................................................................................... 165
BRC Cabinets................................................................................................... 166
Analysis of Evidence About Joinery Defects and Costs.................................. 167
Quantum Findings re Joinery............................................................................ 170
J: Sliding Doors.................................................................................................... 171
K: External Defects............................................................................................... 173
L: Electrical and Communications....................................................................... 177
SEQEL Invoice 3105........................................................................................ 178
SEQEL Invoice 3106........................................................................................ 179
SEQEL Invoice 3107........................................................................................ 179
SEQEL Invoice 3108........................................................................................ 179
SEQEL Invoice 3165 and 3192........................................................................ 179
KODA Invoices................................................................................................ 180
Labour Costs..................................................................................................... 181
Other Invoices................................................................................................... 181
Overall Amount Allowed for Electrical and Communications........................ 181
M: Tiling and Stonemasonry................................................................................ 181
N: Residual Labour Not Allocated To a Particular Claim.................................... 182
Analysis of the Residual Labour Claim............................................................ 184
Summary of Mrs Morton’s Defects and Omissions Claim...................................... 184

Overview of Claims that Emerge from my Findings.................................................... 185

Thallon Mole’s Claim........................................................................................... 185
Mrs Morton’s Claim............................................................................................. 185
Retention Monies.................................................................................................. 186

Costs............................................................................................................................. 187

Final Orders................................................................................................................. 188

Introduction

This is a commercial dispute over the construction of a family home. The plaintiff, Thallon Mole Group Pty Ltd is a high-end residential property building company. On 20 December 2016, it entered into a written Contract with the defendant, Louise Morton, to construct an architecturally designed house at 2 Otway Street, Holland Park for the lump sum Contract Price of $4,659,944.50.
Works under the Contract commenced in early 2017 and things were (apparently) progressing reasonably well until September that year, when issues arose over the unavailability of two large “Schucco” sliding glass doors that were to be installed at the house.[1] From that point on, the relationship between the parties disintegrated. In early 2019, Thallon Mole claimed it was finalising the Works and was entitled to payment of outstanding progress claims. Mrs Morton refused to pay these claims due to her concerns about the incorrect reduction of the Contract Price arising from issues with the sliding doors and defective work (particularly with the external waterproofing and the installation of the pool balustrade) at the house.
[1]The spelling of these doors varies throughout the evidence and submissions from “Schucco”, “schueco” (the spelling used on the company name) and “schuco”. I have used the former - capitalised for convenience.
Matters came to a head on 3 April 2019, when Thallon Mole gave written notice anticipating the achievement of Practical Completion on 8 April 2019 and issued its final progress claim on that same date. On 10 April 2019, Mrs Morton terminated the Contract and subsequently engaged Hutchinson Builders to complete the work at the house.
Against this background, Thallon Mole advanced three claims for payment of monies:[2]
(a)First, the sum of $638,634.35 as monies owing for unpaid works carried out pursuant to the Contract (comprising three unpaid progress claims totalling $381,292.76 (incl. GST), together with compounding monthly interest);
(b)Secondly, the sum of $21,770.65 (excl. GST) on a quantum meruit basis; and
(c)Thirdly, the sum of $17,300 for delay and disruption costs.
[2]Further amended statement of claim (FASOC) at [63]-[72]; The third claim is not reflected in the Prayer for Relief.
Mrs Morton denied liability to pay these (or any amounts) to Thallon Mole. She claims the sum of $16,100 as liquidated damages and counterclaims for damages in the sum $540,428.52. (incl. GST) for the cost of completing the defective and incomplete works at the house.[3]
[3]Second amended defence and counterclaim (SADCC).
What emerges from these Reasons is that this dispute morphed into an unnecessarily protracted, acrimonious and expensive personal battle between the parties. A battle surely not justified by the overall outcome.

Issues in Dispute

The extent of the unfortunate deep-seated acrimony and irretractable positioning between the parties in this case is well reflected in their inability to resolve even the most inconsequential of issues between them. Unfortunately, this blinkered approach has resulted in a precious waste of court resources and judicial time and has served only to hinder the just and expeditious resolution of the real issues in the proceeding at a minimum of expense.[4]
[4]Uniform Civil Procedure Rules (UCPR) 1999 (Qld) r. 5.
The parties eventually identified about 86 overall issues (although many of these raise a myriad of sub-issues) for the court’s determination.[5] Many of these issues are interconnected.
[5]Agreed List of Issues for Determination dated 2 September 2021 (MFI Z).
Ultimately, I have determined the issues in dispute under the following eight headings:[6]
(a)Adjusted Contract Price
(b)Progress Payment Claims
(c)External Waterproofing
(d)The Pool and Newbolt Street Balustrades
(e)Practical Completion
(f)Termination of The Contract
(g)Quantum Meruit Claim
(h)Defects and Omissions
[6]The extensive written submissions of the parties (570 pages) approached the resolution of the issues in different ways. My approach is a combination of both.
Before addressing the issues arising under these headings in turn, it is instructive to make some general observations about my approach to credit issues in this case.

Credit Issues

During the trial, Mrs Morton’s credit was identified by Senior Counsel for the plaintiff as a live issue. For example, the recording of the fiery exchange between Mrs Morton and Mr Bruce Mole (one of the directors of Thallon Mole) and others at the house on 10 April 2019, was said to be relevant to the issue of Thallon Mole being ready, willing and able to complete the Contract and to Mrs Morton’s credit “because it speaks to her motivations with respect to non-payment and the continuation of this dispute.”[7] But in closing submissions, Senior Counsel submitted that: “[y]our Honour does not need to make a credit finding against Louise Morton for the plaintiff to win”;[8] and “[i]t is not our submission that your Honour should write a judgment, with respect, that casts Mrs Morton as the most awful person that ever litigated in these courts” or that “she has lied”.[9] Although, Senior Counsel for Thallon Mole maintained that the court ought to look at Mrs Morton’s motives to determine issues such as reasonableness of conduct and whether or not the court should accept one version of events over another. My approach to resolving credit issues is set out in paragraphs 13 and 14 below. But in light of these submissions, it is relevant to observe at the outset, that the resolution of the myriad of issues in dispute in this case did not turn on some alleged vindictive motive on the part of Mrs Morton and that overall, I found her to be an honest and reliable witness. Although, as with many of the witnesses in this case, I have not accepted all of her evidence.
[7]T2-40, ll 27-29. The recording was ultimately made Exhibit 71.
[8]T18-51, ll 13-16.
[9]T18-51.
On the other hand, Mrs Morton submitted that this court would have serious concerns about the evidence of a number of Thallon Mole’s witnesses, most critically Mr Mole and the Project Manager on the job, Mr Rhys Cook. The submission about Mr Cook focused on his evidence about the installation of the Crystoflex waterproof membrane behind the rock wall along the Newbolt side of the house; and that this ought to be rejected as effectively a lie; and that his lack of credibility on this issue undermined all of his uncorroborated evidence in this case. I have dealt with Mr Cook and Mr Mole’s evidence where it relevantly arises during the course of these Reasons. As will emerge, whilst I am not satisfied that the waterproofing in the rock wall area was applied as Mr Cook said it was, I am not prepared to find that he (or Mr Mole) deliberately lied, nor that all their contentious or uncorroborated evidence should be rejected. As can be seen, I have accepted many aspects of their evidence.
Ultimately, the central issues for my determination in this case centre around a consideration of the obligations arising under the Contract. It follows that a careful consideration of that document is required although I accept that a careful assessment of the other evidence in this case is also necessary. This evidence includes the testimony of numerous lay and some expert witnesses. Ultimately, I am not satisfied that any of the witnesses in this case were dishonest or intentionally misrepresented the situation. They all told the truth as they saw it. But as these Reasons reveal and identify (where necessary), several witnesses’ recollections were distorted by the passage of time or perhaps altered by “unconscious bias, wishful thinking or by over much discussion of it with others”[10]
[10] Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Report 403, 431.
I have therefore assessed the evidence of the individual witnesses objectively having regard to all the evidence before the court – particularly the documentary evidence and upon a consideration of where the balance of probabilities lies based on that analysis.[11]
[11]Fox v Percy (2003) 214 CLR 118, 129 [31].

Adjusted Contract Price

The starting point in determining the adjusted Contract Price is to determine how much the Contract must be reduced on account of the Schucco Doors. In addressing this issue, it is convenient to also deal with a number of other issues that emerge from the dispute over the Schucco Doors.

The Schucco Sliding Doors and Related Issues

It is uncontroversial that the Contract provided expressly for two bespoke sliding Schucco doors to be installed at the house. These doors (and the house) were designed by Tim Stewart Architects (TSA).
The specification for the Schucco doors can be seen in the architect’s drawings including Drawing No. 700-01 Issue H as follows:[12]
(a)Item D07 referred to: Aluminium framed sliding door with aluminium glazed doors (XXXX) – integrated drainage below sill; Specialist manufacturer hardware (TBC); Fully concealed frame with in-line drainage below sill and Schucco; and
(b)Item D08 referred to: Aluminium framed sliding door with aluminium glazed doors (XXXX) – integrated drainage below sill; Specialist manufacturer hardware (TBC); Fully concealed frame with in-line drainage below sill and Schucco.[13]
[12]Exhibit 4 p. 220140; Exhibit 4 p. 220141, Drawing 700-02 Issue G, shows the doors.
[13]The Contract contained a report from a company Q-BEARS Pty Ltd dated 19 April 2016, which set out the energy efficiency needed to be met (Exhibit 4 p. 220141).
Two other relevant references to the Schucco doors are made in the Contract as follows:
(a)At Item T1.15 of a document entitled “Otway Street Tender Clarification Action Register – TMG” under a heading “ALUMINIUM DOORS + WINDOWS” the clarification request from Mrs Rhodes on 9 November 2016 (referred to in paragraph 34) is recorded. This item is recorded as closed by receipt of Thallon Mole's response (referring to Schucco being the supplier) on 16 November 2016 (referred to in paragraph 35 below);[14] and
(b)Behind the cover sheet of the Contract there is “Section 2” of the “Finishes and Selection Schedule”.[15] The relevant excerpt of Section 2 provides for the Schucco doors as follows: GLZo1; Glazing; Glazing selection/ procurement to meet all performance requirements; Clear Glass – no tint to be read in conjunction with energy efficiency requirements; Performance criteria relates to the overall door and window suite and not only the glazing.[16]
[14]Exhibit 4 p. 220053.
[15]Ibid p. 220067.
[16]Ibid p. 220072.
Thallon Mole’s case is that it quoted to perform the Work under the Contract, based (in part), on a final version quote for the two Schucco doors and all other aluminium and glass windows of $179,054.55 (excl. GST) that it obtained from Alliance Glass & Glazing Pty Ltd. It contends that the component of that quote that was attributable to the doors was $48,000 (excl. GST), so that is the value that should be attributed to the two doors. This is either because that price was factually part of the Contract Price, or because it reflects the market rate of the Schucco doors.
Mrs Morton’s case is that there is no specific component of the final total quote that can be attributable to the Schucco doors. She submitted therefore that the accurate reduction to be made is one based on a determination of market prices for large glass doors generally and that this resulted in an appropriate reduction of $140,013 (excl. GST) for the doors, plus further reductions related to work associated with the doors, totalling $190,032 (excl. GST) or $209,035 (incl. GST).
As the factual analysis below reveals, in April 2018, the two Schucco doors (D07) and (D08) were ultimately omitted from the contracted scope of works.
Relevant Facts
Mr Stewart (or TSA) was not a party to the proceeding, but Mr Stewart was called by Mrs Morton and gave evidence at the trial. The specification for the house provided for a four and five panel (or leaf) sliding door system. The five leafed door faced the pool. The four leafed door faced the back yard.
When the design of the house was being undertaken in October 2015, TSA communicated with Ian McFarlane, who was, at that time, a representative of Schucco Australia Pty Ltd (Schucco being a German brand) to obtain pricing for the two doors.[17]
[17]Exhibit 271.
On 30 October 2015, Mr McFarlane wrote to Mr Rhodes at TSA, and provided an estimate of $140,013 (excl. GST) (excluding the drainage system, low E and tinted glass, cranage, as well as fly, barrier and security screens) from Central Glass and Aluminium, for a four and five panel (or leaf) door system.[18] At the time, Mr McFarlane added the following proviso: [19]
“In order not to hold up cost estimating any further, we have also increased the number of panels by one for each set of doors – this is pending a request sent earlier this week to Schueco [sic] engineering to determine whether we can oversize the panels to 3.4m in width.” [Emphasis added]
[18]Exhibit 278 p. 20013.
[19]Ibid p. 20012.
Mr Rhode’s evidence in chief was that after receiving the email dated 30 October 2015, he had confidence that the doors could be delivered in the required configuration.[20] It is difficult to understand what instilled such confidence in Mr Rhodes at this point in time given that there is no evidence that he ever received an answer from Mr McFarlane about this “pending request”. But Mr Rhode’s confidence may be explained by other evidence (which I accept as a matter of common sense) – that is, he discussed the project in detail with the suppliers of Schucco doors during the design phase of the project. In these circumstances it is reasonable to assume (as I do) that Mr McFarlane told Mr Rhodes at some point during this phase that the doors TSA wanted could be delivered.
[20]T14-64, ll 42-45.
The tender process for the Contract closed on 31 October 2016. The Contract included a specification for two Schucco branded doors of four and five panels. On 5 October 2016, Scott Andrews (the Contracts Administrator of Thallon Mole), emailed Marc von Briel (the managing director of Schucco Australia), about the supply of the Schucco doors for the house.[21] Mr von Briel responded by email on the same day, stating that Schucco Australia had appointed Capral Aluminium as the exclusive distributor of the doors for Australia and that Mr McFarlane was now the Business Development Manager for Capral. In this email Mr von Briel also relevantly stated that:[22]
“In general though we (and Capral) do not supply finished products but have a network of qualified fabricators that can give you peace of mind and a complete supply and install price.” [Emphasis added]
[21]Exhibit 50 p. 20991.
[22]Ibid p. 20990.
Subsequently, on Wednesday 5 October 2016,[23] Mr Andrews spoke to Mr McFarlane asking him to forward his recommended Capral suppliers that could “service & deliver this size of project with both the Schuco [sic] items as well as the other Windows and Doors”.[24]
[23]Ibid. The email from Mr Andrews to Mr McFarlane on Friday 7 October 2016 refers to a conversation on “Wednesday”. It is reasonable to assume (as I do) that this is a reference to 5 October 2016.
[24]Ibid.
On 6 October 2016, Mr Andrews emailed Shaun Pendall from Alliance Glass attaching a link to the Hightail folder for the construction of the house requesting amongst other things that the quote for the Schucco doors allow for the following:[25]
·“Allow for all Schucco Aluminium Windows & Doors D07 & D08 in ALF01 – Powdercoat Dulux Duratec X15 ‘Zeus Black Matt – 9008870’ Finish as per the Drawing Sets via the Hightail Link below and the Schedule of Finishes & Energy Efficiency Report attached above. As discussed if you provide a separate price for the Integrated Stainless Steel Drainage Below Sill that would be appreciated
·Allow for onsite glazing if applicable
·Allow for Crainage [sic] in your quote
·Provide flashings as required
·Include delivery in your quote”
[25]Exhibit 50 p. 20988.

It follows that the quote for the two doors was not just the physical cost of the doors themselves, rather it included a number of items associated with their supply and installation.[26]
[26]This appeared to be relatively uncontroversial. See FASOC at [18]; Second Amended Defence and Counter Claim (SADCC) at [16].
On 17 October 2016, “Donna” from Alliance Glass sent an email to Mr McFarlane (following up on a call between Mr Pendall and Mr McFarlane that morning), requesting a quote “for schuco [sic] doors for the job we are quoting at 2 Otway Street Holland Park”.[27] On 18 October 2016, Mr McFarlane attached a “quotation, glass schedule and unit overview” for the house to a reply email. That quote was $35,420.04 (incl. GST).[28] Thallon Mole submitted (and I accept), that Schucco doors are a component door system (in that the componentry is supplied and then manufactured with the glass by a glazier) and the quote that Mr Pendall received from Mr McFarlane was for the componentry alone. At this time, Mr Pendall also handwrote on the quote that he obtained three prices for the glass required ($876, $1,320 and $2,786) and obtained a quotation for the drainage system for the doors (of $8,500).[29] He also wrote down a handwritten estimate which included prices as follows: windows and doors for $180,450; glass pool fencing and glass balustrades for $17,360; and a door drainage module for $8,500.[30] There is no explanation as to why this estimate was so much lower than the one of $140,013 Mr McFarlane provided to Mr Rhodes back in 2015.[31]
[27]Exhibit 175.
[28]Ibid p. 20020.
[29]Exhibit 176.
[30]Exhibit 175 p. 20025.
[31]Exhibit 278 p. 20012.
Mr Pendall’s evidence (which I accept) was that at the time of the pricing, Mr McFarlane told him that Capral had not tested the doors for certification in the four to five door configurations sought but that certification could be achieved by engaging a private engineer to certify and sign off on it.[32] As discussed below at paragraph 44 & 45 I am not satisfied that Mr Pendall passed this information on to Thallon Mole at the time he was providing the various quotes to Mr Andrews. But it is reasonable to assume that during the design phase, in assuring Mr Rhodes that the doors could be delivered in the required configuration, Mr McFarlane also told Mr Rhodes about the potential need for certification.
[32]T5-85 ll, 18-22.
Over the course of October to December 2016, Mr Pendall provided various revised versions of a quote numbered 00039310 to Thallon Mole for the supply of the Schucco doors (and the other aluminium windows and doors) at the house as follows:
(a)The first version of quote 00039310 was sent on 21 October 2016 and totalled $237,600 (incl. GST): comprising $198,550 (incl. GST) “for the supply and installation of aluminium window and doors including schuco [sic]”; $29,700 (incl. GST) for the supply and installation of the glass pool fencing; and $9,350 (incl. GST) for the supply and installation of drainage modules for the doors.[33]
(b)A revised version of quote 00039310, dated 21 October 2016 was sent on 24 October 2016.[34] This version did not change any of the prices but stated that the quote “included windows WO1-WO7H including any aneeta sashless windows and any flashings required” but “did not include DO3 as it is a timber frame”.
(c)A request for additions to the quote (to include a Clerestorey Louvre Window above W06) was made by Mr Andrews on 24 October 2016. A revised version of quote 00039310 (still dated 21 October 2016) was then sent to him on 25 October 2016. That quote increased the total quote to $239,910 (incl. GST) because the component for the supply and installation of aluminium windows and doors including Schucco included a louvre window to WO6, meaning the sum of $198,550 (incl. GST) increased to $200,860 (incl. GST).[35]
(d)Some further changes were then requested, which resulted in quote 00039310 (again dated 21 October 2016) totalling $236,010 (incl. GST). Relevantly, the quote now provided that “the supply and installation of aluminium windows and doors including schüco [sic] including louvre windows and revised changes” was $179,054.55 (excl. GST).
(e)A final version of quote 00039310 dated 21 October 2016 was requested and delivered on 13 December 2016. This quote was for $222,654.55 (excl. GST) or $244,920.01 (incl. GST) and included an additional price of $8,100 (excl. GST) for some Aneeta sashless windows. The price of everything else (in particular, the $179,054.55 for the windows and doors including the Schucco doors) remained the same.[36]
[33]Exhibit 50 pp. 20993-20994.
[34]Ibid pp. 20997-20998.
[35]Ibid pp. 20999-21003.
[36]Ibid pp. 21012-21016.
Thallon Mole submitted that “there cannot be any doubt” given the timeline, that Mr Pendall incorporated the quote for $35,420.04 (incl. GST)[37] into his total price for windows and doors of $179,054.55.[38] I reject this submission for three reasons. First, this “price” is obviously not for four and five panel doors. Secondly, even if I was to accept that it was subsumed in the total price figure, it does not cover each of the components required to be covered under the Schucco Doors Quote. Thirdly, Mr Pendall’s evidence, (which I accept), is that he never used the document for pricing – he “just went off the square metreage of the overall door”.[39] Consistent with this finding, the following points can be made from the evidence:[40]
(a)Even a plain reading of Exhibit 175 shows that the attached quote was not for the doors as specified in the Contract but for a “five and six panel door.” [41]
(b)The figures of $876, $1,320 and $2,786 appear in pencil at pages 20021 and 20022 next to single glass panels. Mr Pendall’s evidence was that this approximate amount of $5,000 was for the supply of glass. But it is clear that this price for the glass was not for glass which could actually be used in the size and configuration of doors which were contracted for.[42]
[37]Exhibit 175 p. 20020.
[38]Plaintiff’s Trial Submission at [94](h).
[39]T5-92, ll 37-38; T5-93 ll 1-25.
[40]Defendant’s Submission in Reply at [31]-[37].
[41]At p. 20023 of Exhibit 175, it can be seen that what was being ordered was one two track frame and one three track frame – a total of five tracks, and then at p.20024 two three track frames for a total of six tracks. This can also be seen from p. 20022 of the quote where details of the glass panel composition are set out with a bottom width of 263.63cm and 278.10cm respectively, which can be compared for instance with the bottom widths in the later Barnes & Associates Report dated 6 October 2017 (Exhibit 37) which used a nominal 3,400mm width for the door panels. The glass thickness was 6mm as compared to the thicker glass which would have been necessary for a four and five panel array. An example of this can be seen in the 12mm needed for the Vitrocsa glass thickness.
[42]The evidence (which I accept) as a matter of common sense is that as glass increases in terms of height, width and thickness, the price increases.
There is no evidence that any of the above quotes were provided to Mrs Morton or Mr Rhodes by Thallon Mole during the tender process, but on 9 November 2016 Mr Rhodes emailed Thallon Mole a pre-contract tender clarification request. This request sought confirmation on whether the tender was based on nominated suppliers and a detailed trade breakdown to be edited and finalised. It was also advised that “ideally it would be good to see these as percentages based on the line item totals”.[43]
[43]Exhibit 26 p. 20088.
On 16 November 2016, Mr Andrews responded with several of the costings requested. But relevantly no individual costings, rate or breakdown was given for the two Schucco doors (Item T1.15). All that was said about this item was as follows:[44]
“The Aluminium Window & Door Contractor has confirmed that they have allowed for DO7-DO8 are Schucco Doors including integrated Door Sill Drainage. They have also confirmed that they are using Aneeta Sashless Windows where specified.”
[Emphasis added]
[44]Ibid pp. 20086-20087.
On 15 December 2016, Thallon Mole provided a construction quote to Mrs Morton.[45] Relevantly, on the second page of that construction quote, Item 4 refers to a “Detailed Trade Breakdown.” Item 36 of that breakdown refers to “Windows Ext. Doors + Blinds” with a figure of $368,483.26 (inclusive of margin of 15 percent but excl. GST).[46] There is no individual breakdown of items.
[45]A copy of this document is reproduced in the Contract at Exhibit 4 p. 220040 but was not tendered separately.
[46]Exhibit 4 p. 220041.
The Contract was executed by the parties on 16 December 2016.[47] In Item 1 of the Contract Schedule: the Fixed Price Component is $4,234,937.50 (incl. GST); the Prime Cost Items are $98,307 (incl. GST); and the Provisional Sums are $326,700 (incl. GST).[48] The Contract Price is the cumulative addition of those three sums and is $4,659,944.51 (incl. GST).
[47]Ibid.
[48]Ibid p. 220020.
The construction quote from Thallon Mole has been initialled by the parties and is part of the signed contractual documents that were tendered as being the relevant Contract.[49] I am satisfied and find that the construction quote is incorporated into the Contract. But as stated earlier, the figure of $368,483.26 (inclusive of margin of 15 percent but exclusive of GST) is not broken down to individual items in this quote – nor anywhere else in the Contract.
[49]Ibid p. 220040.
Thallon Mole submitted that the final version of the Alliance Glass quote, which totalled $222,654.55 (excl. GST) formed a significant part of the $368,483.26 (excl. GST) total cost for Windows, Ext. Doors + Blinds. I accept that submission. The difference in these two figures (the sum of $145,828.71 (excl. GST)) relates to the blinds. But it is reasonable to infer (as I do) from the evidence, as to how the final version quote was elicited, that it contained an amount for the supply and installation of the Schucco doors and that it was used to calculate the total cost. It follows from this finding that I accept that an amount for the supply and installation of the Schucco doors forms part of the total cost for windows, external doors and blinds in the Contract.[50] But as per the analysis below under the heading “Applicable Rates or Prices in the Contract” - I am not satisfied what that amount was.
[50]MFI Z.
On 2 June 2017 (around the time the structural slab was poured), Thallon Mole sent a Works Order for the installation of the aluminium windows and door works at the house to Alliance Glass.[51] The window and door site check at the house was scheduled for Monday 7 August 2017 and the exterior window and door install for Tuesday 5 September 2017.[52] It is instructive to observe that this letter referred to Thallon Mole being a few weeks ahead of the program with the potential to pick up more time.
[51]Exhibit 110; Exhibit 51.
[52]Exhibit 51 p. 21017.
On 7 June 2017, Mr Mole and Mr Pendall signed a subcontract agreement dated 2 June 2017 for the “[s]upply & Installation of all Aluminium Windows and Doors including Schucco Doors, Aneeta Sashless Windows, Louvre Windows & Powered Clearstory Louvre Windows & any Flashings required” for a price of $179,054.55, (plus the Integrated Door Drainage Modules for all Doors Recessed into Floor) for a price of $8,500.[53] The total amount of this invoice was therefore $187,554.55 (excl. GST) or $206,310.01 (incl. GST). The version of this subcontract in evidence is initialled (apparently by Mr Pendall) at the bottom of each page including the appendix pages A to D. But most curiously, the version in evidence attaches an initialled version of the updated quotation (which itemised the Schucco doors as $48,000) which as discussed at paragraphs 87 to 93 below, was not created until 8 October 2017.[54] Mr Andrews accepted that the updated quote had at some date been electronically inserted into the subcontract agreement, and the original quote had been removed or written over.[55]
[53]Exhibit 27.
[54]When that updated quote was created on 8 October 2017 it did not bear the initials at the bottom of the page.
[55]The original construction contract that contained the final version quote without the separate pricing for the Schucco doors was called for but not produced at trial as it was no longer in Thallon Mole’s possession; T7-108, ll 25-46; T7-108, ll 20-26.
On any view, the subcontract agreement was reproduced to convince Mrs Morton that the known costs of the Schucco doors at the time of the tender process (and when the Contract and the subcontract agreement were entered into), was $48,000.
At the site check meeting in early September 2017, Mr Pendall and Mr McFarlane told Mr Mole that Capral could not supply a four and five panel door system, and that this had been explained to TSA previously. This was, according to Mr Mole, the first time Thallon Mole had any idea that there was an issue with the provision and installation of the two Schucco doors.[56] The written submissions on behalf of Mrs Morton suggest that Thallon Mole were aware of a potential issue and referred to some evidence of Mr Pendall to the effect that he told Mr Andrews (at the time the quotes were being prepared) that Capral or Schucco did not provide certification in Australia for the four and five door configurations.[57]
[56]T1-56, ll 45-46.
[57]T5-84, ll 20-25.
I reject this submission and accept Mr Mole’s evidence for three reasons:
(a)First, Mr Pendall’s evidence on this point was vague. When the proposition (that he told Mr Andrews at the time the quotes were prepared that Capral or Schucco did not provide certification) was put to him he simply said, “we had a discussion about it yes”. But he was not asked what that discussion was. For example, whether he spoke to Mr Andrews about the private certification.
(b)Secondly, later in his evidence Mr Pendall was adamant he could not remember exact dates, but he put the occasion he allegedly told Mr Andrews about the issue in the context of having had a conversation with Mr Stewart and Mr McFarlane at a site meeting when the slab went in.[58] That was well after the Contract was signed and the construction underway. This evidence is also supported by the (unchallenged) evidence in chief of Mr Mole (which I accept), that he first became aware that there was an issue with the use of Schucco doors being able to meet the design requirements in September 2017 when Thallon Mole went onsite with Mr McFarlane to measure.[59]
(c)Thirdly, there is no mention of there being any issue with the configuration (or for example as might be expected - of there being some additional certification costs associated with a private certification) in any of the correspondence between Mr Pendall, Mr Andrews and Thallon Mole at the time the quotes were being provided.
[58]T5-86, ll 33-35.
[59]T1-56, ll 45-48; T1-57, ll 15-22.
It follows that I accept Mr Andrews’ evidence that he was not told by Mr Pendall at the time he was liaising with him at the tender stage, that Capral did not have the ability to test or certify the four to five door configurations.[60] I therefore find that Thallon Mole was not aware of any potential issues with the two Schucco doors until early September 2017.
[60]T7-92, ll 26-46.
Subsequently, on 8 September 2017 Mr McFarlane sent an email to Mr Pendall (which was forwarded to Thallon Mole) explaining that Capral would not supply the system as there were issues with design approval (lack of Australian testing) for the configuration.[61]
[61]Exhibit 31.
Mr Rhodes’ evidence was that he only learnt that Capral had some technical issues regarding the Schucco doors following a conversation with Mr McFarlane in early September 2017.[62] Around this time, Mr Rhodes also spoke to Mr Mole and confirmed that there were issues related to the design approval for the Schucco doors.[63] Mr Rhodes then sent the following email to Mr Andrews on 12 September 2017:[64]
“I had a chat with Bruce regarding this yesterday.
I spoke to lan (Capral / Schucco rep) and voiced our disappointment that they are not able to meet the project requirements.
This is particularly disappointing considering we discussed the project in detail with them during the design phase. The design constraints seem to be changing weekly as well which is even more worrying.
The original design constraint for the maximum door leaf sizes was 9m2, which we are comfortable we can achieve with 5 door panels. This latest email communication and subsequent discussion seems to be a u-turn on the original and latest site discussions and now requires 7 panels. As discussed with Bruce 5 door panels is really important to the overall design intent, not to mention the impacts that more door panels will have on the outrigger frames and glazing above.
We are in the process of looking at alternative options for these doors as we believe that Schucco are now unable to provide a product fit for purpose and in line with the design intent.”
[Emphasis added]
[62]T14-69, ll 12-15.
[63]Exhibit 32.
[64]Ibid.
During his evidence in chief, Mr Rhodes emphasised (again) that his “immediate response was one of disappointment, having had spent so much time designing such a bespoke system for this house”.[65] It is understandable, and I accept as a matter of common sense, that Mr Rhodes was genuinely disappointed particularly given his evidence about the importance of these doors in the design intent of the house.[66] It is surprising that there was no evidence from Mr Rhodes about the discussions referred to in this correspondence. But it is reasonable to assume (as I do) that Mr Rhodes had discussions with Mr McFarlane (during the design phase) about the ability of Schucco to deliver the doors in the four to five panel configurations. Such a conclusion is consistent with Mr Rhodes’ acceptance of the proposition that it is reasonable to assume that if a product (such as the Schucco doors) is nominated in a tender and is expected to meet certain requirements - then the architect has worked through any necessary impediments during the design phase.[67] The necessity for discussions to have been had about the four and five door configuration is an obvious one given that Mr Rhodes knew in 2015 that Schucco had not tested such a configuration. That discussions were had is also consistent with Mr McFarlane’s evidence that he had previously told TSA about the potential issues. Exactly what these discussions were is far more difficult to discern on the evidence.
[65]T14-69, ll 35-45.
[66]T14-61, ll 12-26.
[67]T6-78, ll 45-48; T6-79, ll 1-7.
It is not apparent when the problem with the installation of the Schucco doors was first communicated to Mrs Morton. But there is evidence (which I accept) that it was at a site meeting on 28 September 2017. The progress report from Mr Mole following that meeting relevantly states as follows:[68]
“Windows – there is an issue with the large windows. Sucho [sic] cannot do the large sliders. Currently we have a Sky Frame price which is substantially higher than the current quote for the entire metal window price. This would be a variation somewhere around the vicinity of $180,000 + GST. Vitrocsa is pricing the window as well and I would expect that they will we substaincially [sic] more expensive than what we have allowed for. I cannot give you a figure of what this will be. [The next words are in red] Clients would like to see history from both architect and builder sides. Alliance Glass to provide history and info associated with the Sucho [sic] issue. Stating facts on what has happened, why and future costs. They would also like to understand what the actual costs of the original window was. Provide Vitrocsa price and the new Sucho [sic] cost.”
[Emphasis added]
[68]Exhibit 33.

Again, on 28 September 2017, Mrs Morton emailed Mr Stewart (copying in Mr Wright and Mr Mole) asking for a quick drawing of what the seven sliders would look like compared with the five and for an outline of the advantages of the costlier Sky Frame (other than the sizing). She also requested a breakdown of the contract sum for the windows, showing what the sliding windows were costing.[69]
[69]Exhibit 34 p. 20166.
At the same time various quotes for replacement doors were obtained by TSA.
On 4 October 2017, Vitrocsa provided quotes of $152,599.26 (excl. GST) or $167,859.19 (incl. GST) and $286,166 (excl. GST) or $314,782.60 (incl. GST) plus a cost for tinting of around $11,000 (excl. GST).[70] But these quotes were not suitable, as they did not meet the performance requirements of UV-4.3/SHGC-0.53.[71] An updated quote of $325,706.96 (excl. GST) or $358,277.66 (incl. GST) which addressed this issue was obtained from Vitrocsa on 11 October 2017.[72] It is instructive that Mr Andrews expressly stated in the email attaching this quote, that the price did not include crane and glass suckers etc. which would be necessary due to the door’s weight.
[70]Exhibit 35.
[71]Exhibit 36.
[72]Exhibit 36.
On 6 October 2017, (I assume at the request of Mr Mole), Alliance Glass obtained a report from Ian Barnes, a consultant engineer, to assess the design mode and the glazing requirements for the large panels in doors D07 and D08. This report concluded that the glass that would be used in a system supported by mullions would be capable of withstanding the requisite wind pressures, provided it was situated in framing that was sufficiently strong.[73] A Form 15 Compliance Certificate for Building Design or Specification signed by Mr Barnes, also dated 6 October 2017, was tendered during the trial.[74] This document was not tendered for the truth of its contents but rather on the basis that as a matter of a fact Mrs Morton was provided a copy of this certificate by Mr Mole in November 2017.[75] Mrs Morton submitted (and I accept) that this was not a Form 15 Compliance Certificate in relation to the overall Quantum doors as a doors system. It was only a certificate in relation to Mr Barnes’ report of 6 October 2017 which was limited to the glazing. No other Form 15 Compliance Certificate for Building Design or Specification, or individual report from Mr Barnes was produced in relation to the whole door system.[76]
[73]Exhibit 37.
[74]Exhibit 255.
[75]T11-88 to T11-90.
[76]It is instructive that the Plaintiff’s Trial Submissions and oral submission do not make any reference to this exhibit.
Subsequently, on 16 October 2017, Thallon Mole obtained a quote from Alliance Glass to reinforce the mullions on the Schucco sliding doors at a cost of $28,000 (excl. GST).[77] This amount (with a 15 percent mark-up) together with the updated quote of $48,000 became known as the Quantum Door Quote.[78] Thallon Mole contended that this proposal allowed the four and five panel Schucco doors to be used, provided they were reinforced.
[77]Exhibit 38.
[78]Exhibit 39 pp. 20160, 20167.
In the meantime, on 8 October 2017, Mr Andrews received an updated quote from Mr Pendall in response to his request for a breakdown of the amount for the Schucco doors in the final version quote, which was provided by Alliance Glass back in October 2016.[79] This document itemised the cost for the supply and installation of the doors at $48,000 plus GST.[80]
[79]That is, a breakdown of the figures in Exhibit 50 p. 21016.
[80]Exhibit 52.
Mr Mole accepted that at the time, he knew this updated quote was generated to be used as evidence to support Thallon Mole’s claim for a credit of $55,200 being the $48,000 plus a 15 percent margin for the two doors.[81] He denied that he (personally) asked Mr Pendall to provide “a suitably low price for the Schuco [sic] doors” so Thallon Mole would not lose too much money.[82] I accept Mr Mole’s evidence about this. The evidence was that it was Mr Andrews who dealt with Mr Pendall, and Mr Mole did not have any conversations with Mr Pendall about the Schucco doors either pre or post contract.[83]
[81]T3-28, l 28. Note this calculation is exclusive of GST.
[82]T3-45, ll 5-9.
[83]T3-41, ll 39-46.
It is not entirely clear when, but it is reasonable to infer (as I do) that this updated quote was provided to Mrs Morton shortly afterwards.
On 18 October 2017, two Vitrocsa quotes, as well as a quote from Skyframe, were provided to Mrs Morton.[84] The detail of that is set out in full in an email dated 18 October 2017 from Mr Mole to Mrs Morton and her father Greg Morton, which outlined all three options, but noted that there were potentially large lead times for both the Vitrocsa and Skyframe products.[85] That email proposed variations to the Contract for each proposed quote as follows:
(a)Variation No. V014, using Vitrocsa with an overall variation price of $351,299.30 (incl. GST); with an allowance for the previous Schucco doors of $55,200 (excl. GST), being the $48,000 (excl. GST) plus a 15 percent margin.
(b)Variation No. V015 using Skyframe with a price of $259,174.47 (incl. GST) with the same credit for the previous Schucco doors.
(c)Variation No. V016 using the Quantum doors with a price of $35,420 (incl. GST), based on the Alliance Glass proposal of 16 October 2017 for $32,200 (incl. GST).
[84]T2-7, ll 1-2.
[85]Exhibit 39.
On 25 October 2017, Mr Stewart (as Mrs Morton’s representative under the Contract) sent a response to Thallon Mole stating that Variation No. V016 was not accepted as a like for like solution under the Contract but Variation Nos. V014 and V015 were.[86]
[86]Exhibit 40. This letter also identified another acceptable Vitrocsa solution which would be deemed to be a like for like alternative and of a similar market value as the original specified door.
On 31 October 2017, a progress meeting was held at which the Quantum Door Quote was discussed.[87] Subsequently, on 2 November 2017, TSA sent a request for information.[88] On 14 November 2017, Thallon Mole provided Mrs Morton with a further engineering report from Ian Barnes (dated 13 November 2017), in respect of the Quantum Door Quote. This report gave an engineering assessment of the strength of the reinforced mullions against wind and assessed the vertical mullions as being sufficient to withstand the required wind loads.[89]
[87]Exhibit 41.
[88]Exhibit 42 p. 20190.
[89]Ibid pp. 20192-20195.
On 15 November 2017, Mrs Morton directed TSA to direct Thallon Mole to proceed with the installation of the Vitrocsa doors at no additional cost, on the basis that the Quantum Door Quote was not a “like for like” solution.[90]
[90]Exhibit 43; Exhibit 44.
On 19 December 2017, Thallon Mole sent Variation No. V025 for the Vitrocsa solution with a claimed variation in price of $154,873.02 (incl. GST) or $140,793.65 (excl. GST) to Mrs Morton.[91] This variation allowed a $55,200 (excl. GST) credit for the previous Schucco doors, comprising the updated quote amount of $48,000 (excl. GST) and a 15% percent markup. Additionally, costs were also given for craneage before building of $1,500 and for 3M Tinting of $16,330 (excl. GST).[92]
[91]Exhibit 45.
[92]This is as per Cooltone Tint Works Quote #10773 dated 20th October 2017 (before builder’s markup).
On 21 December 2017, Mrs Morton (through her solicitor) sent an email disputing the costs of the variation. It stated that if Thallon Mole was unable to appropriately substantiate its variation claim, then she would use Condition 21.13 of the Contract to engage a Quantity Surveyor to make a binding determination on the value of the Schucco doors.[93]
[93]Exhibit 46.
On 29 January 2018, Mrs Morton informed Thallon Mole that its refusal to comply with the instruction given in November 2017 to install the Vitrocsa doors would extend the construction period.[94]
[94]Exhibit 244; T11-4, l 44 to T11-5, l 9.
There was then a series of further communications in the new year. Most relevantly, on 13 February 2018, Mr Mole sent an email to Mr and Mrs Morton stating (among other things) as follows:[95]
“We have provided you with a cost of supply and installation of the newly selected Vitrosca [sic] doors. (I understand that this selection is a forced change). These doors were not part of the original contract scope and are substitution for what was specified. We have provided a number of options. We have no problem with your Vitrosca [sic] selection and supplying a Quantum door as an option was only provided as it was the most like for like. (actually identical). The fact that you do not agree with the value of our door quote is the problem. This was supplied during the tender phase is not up for debate. It is a quote, we have a contract for the supply and installation for this amount. The cost of these doors was spelled out during the VM stage, but nothing was raised when this suited that the price was reasonably cheap, and the overall cost of the bill was kept down.
We disagree that we are failing to accommodate a resolution. We do not believe that Clause 21.13 is applicable to this dispute as the door credit is the point of contention. We have a quote and contract for the doors and therefore its value does not need to be valued. We already know its value. However, in an effort to resolve the situation we are optimistic about an opportunity to resolve this. We have a meeting Wednesday to discuss a resolution. This was discussed on Tuesday (7/2) and Wednesday (8/2) last week with the QS. This was a request by Louise to Duncan Ellis under clause 21.13…”
[Emphasis added]
[95]Exhibit 47.
This email contained a number of factual assertions that were not accurate because at the time he wrote the email, Mr Mole well knew that:
(a)No quote of $48,000 for the Schucco doors was provided to Mrs Morton during the tender phase.
(b)Thallon Mole was not given a quote for the Schucco doors as a discrete individual item before the Contract was entered into.
(c)The cost of the Schucco doors was not spelled out during the Value Management stage. Further details of costs were sought by TSA during the Value Management including for the doors, but those details were not provided. Rather, all that was provided by Thallon Mole in the contract clarification was that the subcontractor had confirmed that the doors would be supplied.
(d)The original pre-contractual quote Thallon Mole had obtained from Alliance Glass did not contain a quote of $48,000 for the doors.
(e)The updated quote and the Contract with Alliance Glass (dated 7 June 2017) had been manipulated by Thallon Mole.
Subsequent discussions at Mr Stewart’s office did not resolve the issue.
On 15 February 2018, Mr Mole sent Mrs Morton an email as follows: [96]
“Louise, I am unsure if you are going to accept the meeting result yesterday, and in an attempt to be active pursuit of resolution we would be happy to use any of the guys from Mitchell Bradtman [sic].”
[96]Exhibit 242.
In February 2018, Thallon Mole submitted an extension of time claim (EOT No. 015) for 5 days, which was rejected by Mrs Morton on 5 March 2018. The correspondence of 5 March stated relevantly as follows:[97]
“If there is a critical delay, it has not been caused by us (the Owners). The lack of availability of the Schucco doors to be installed at DO7 and DO8 was not caused by either party. As there is no variation in place for the replacement of the Schucco doors at DO7 and DO8, TMG bears the risk to ensure that the critical path is not impacted by sourcing and installing the suitable replacement. TMG caused the delay through its conduct in the resolution of the dispute regarding DO7 and DO8. TMG has been aware of the lack of availability of the Schucco doors and our preference for the Vitrosca doors since at least October 2017.” [Emphasis added]
[97]Exhibit 245.
On 20 February 2018, Mrs Morton wrote to Gary Thompson at Mitchell Brandtman and requested that a valuation be provided of the proposed variation.[98]
[98]Exhibit 115.
On 5 April 2019, Thallon Mole wrote to Mrs Morton alleging the cause of the delay was Mrs Morton’s refusal to agree to the variation to the doors, ultimately removing those doors from Thallon Mole’s scope of work.[99]
[99]Exhibit 81.
On 6 April 2018, Mrs Morton formally appointed Mr Thompson to conduct a determination pursuant to condition 21 of the Contract.[100] Mr Thompson then produced a Condition 21.13 Determination in relation to Variation No. V025,[101] determining that the value of the Schucco doors should be treated as $140,013 (excl. GST). This sum did not take into account the tinting, or the lifting and craneage, as they were dealt with as separate items. If the work was to be undertaken by Thallon Mole, the determination was that Variation No. V025 ought to have been a net figure of $14,474.20 (excl. GST).
[100]Exhibit 116.
[101]Ibid p. 20865.
On 13 April 2018, Thallon Mole declined to perform the work in accordance with the Determination.[102]
[102]Exhibit 118.
On 16 April 2018, Mrs Morton deleted the scope of work from the Contract.[103]
[103]Exhibit 119.
On 20 April 2018, Mr Mole sent an email to Mr Thompson, Mr Stewart and Mrs Morton rejecting the Determination and stating relevantly as follows:[104]
“We have attached the signed contract with alliance glass which reflects the quoted amount. This amount was used in the contract along with timber windows/doors and blinds. The total of these amounts were itemized in the signed contract with the client (item 36 of the trade breakdown) we would be happy to provide the other subcontractors and purchase orders so you understand that these figures match our trade breakdown. The Alliance glass contract is almost complete except the doors in question.
As the clients have already agreed to the value of the specified doors in the Head contract, the value of these doors should be the nominated amount in the contract.”
[Emphasis added]
[104]Exhibit 117.
Again, this email contained some assertions that were not accurate because at the time he wrote the email, Mr Mole well knew that:
(a)He was attaching the Contract with Alliance Glass that had been reconstructed or manipulated since its execution on 7 June 2017 to include the updated quote that only came into existence on 8 October 2017; and
(b)Mrs Morton had not contractually agreed the value of the Schucco doors to be $48,000.

Relevant Provisions of the Contract

The following conditions of the Contract are relevant to the Schucco doors issue.[105]
[105]Exhibit 4.
GENERAL CONDITIONS OF QBCC New Home Construction Contract
GENERAL CONDITIONS
1              Definitions
1.1In this Contract, unless the context otherwise requires, words and expressions used have the meaning defined or explained below:
...
(cc)“work under this contract” means all that work necessary to build the Works in accordance with the Plans and Specifications and this Contract.
(dd)“Works” means the work described in Schedule Item 3 to be built in accordance with this Contract, including variations authorised under the Contract, and which by the Contract is to be handed over to the Owner.
...
(e)“Contract Price” means the total price of the Works stated in Schedule Item 1. Including the Fixed Price Component and any allowances for Prime Costs Items and Provision Sums, as adjusted under this Contract.
(l)“Fixed Price Component” means the sum stated in Schedule Item 1(a) of the Contract Price being the sum for which the Contractor must supply, in accordance with this Contract, everything necessary for the proper completion of the Works other than the allowances (if any) for Prime Costs Items or Provisional Sum.
(w)“Quantity Surveyor” means [insert details of agreed QS here] or such other person as the parties agree in writing shall be the Quantity Surveyor.
...
3.2The Contractor must, unless the Contract expressly provides otherwise, supply the Contractor’s costs and expense, everything necessary for the proper completion of the Works and for the performance of the work under this Contract.
…
21              Variations
21.1The work under this Contract may be varied by way of an increase, decrease or substitution of work under this Contract agreed between the Contractor and the Owner provided that, before work commences, the details of the variation are put in writing in a Variation Document signed by both parties and initialled as necessary by the Owner.
21.1ANotwithstanding Condition 21.1, the Owner may at any time direct a variation to omit any part of the Works. Such a variation will be documented in writing in a Variation Document signed by the Owner.
...
21.2The Variation Document may be a QBCC Form 5 - Variation Document, or other similar appropriate document, with the particulars completed in accordance with the requirements of Schedule 1B of the QBCC Act, signed by both parties and initialled as necessary by the Owner.
21.3The Variation Document complies with the requirements of Schedule 1B of the QBCC Act if it:
(a)     is readily legible; and
(b)     describes the variation, and
(c)states the date of the request for the variation; and
(d)if the variation will result in a delay affecting the subject work – states the Contractor’s reasonable estimate for the period of delay; and
(e)states the change to the Contract Price because of the variation, or the method for calculating the change to the Contract Price because of the variation; and
(f)if the variation results in an increase in the Contract Price – states when the increase is to be paid; and
(g)if the variation results in a decrease in the Contract Price – states when the decrease is to be accounted for.
21.3AIn addition to the information required by Condition 21.3, the Variation Document must also include a detailed breakdown of the value of the variation calculated in accordance with Condition 21.12.
…
PRICING FOR VARIATION
21.12All variations must be valued using the following order of precedence:
(a)prior agreement of the parties;
(b)applicable rates or prices in the Contract;
(c)reasonable rates or prices, which shall include a reasonable amount for profit and overheads, and any deduction shall include a reasonable amount for profit but not overheads.”
21.13Disputes
(a)Any disputes regarding the value of a variation will be determined by the Quantity Surveyor (whom may take into account quotes for the work from reputable contractors provided by the Owner).
(b)Within 2 business days of receiving the Quantity Surveyor’s determination of the value of the variation, the Contractor must notify the Owner if it is willing to perform the variation for the amount determined by the Quantity Surveyor.
(c)If the Contractor does not provide such notice within 2 Business Days, or indicates it is unwilling to perform the variation, the Owner may engage a third party to perform the variation (with not liability to compensate the Contractor). The Contractor is not responsible for work performed by any third party engaged by the Owner.
25              Dispute resolution
25.1If a dispute under the Contract arises between the parties, either party may give the other party a written notice of dispute adequately identifying and providing details of the dispute.
25.2…Subject to Condition 25.2A, if a dispute is not resolved within 10 business days of the receipt of the notice of dispute, either party may refer the matter to a dispute resolution process administered by the Queensland Building and Construction Commission.
25.2AIf the dispute is in relation to a progress claim submitted by the Contractor, either party may (instead of referring the matter to the dispute resolution process administered by the Queensland Building and Construction Commission, or following a determination under the dispute resolution process administered by the Queensland Building and Construction Commission) refer the matter to the Quantity Surveyor for a determination. Unless otherwise agreed by the parties, the cost of engaging the Quantity Surveyor will be borne by the Owner.
25.2BThe process referred to in Condition 25.2A may be used prior to or following the dispute resolution process administered by the Queensland Building and Construction Commission.
25.2CThe determination of the Quantity Surveyor will be binding upon the parties unless and until overturned by a decision of a court or tribunal of competent jurisdiction.
25.2DIf the Quantity Surveyor has made a determination on a disputed matter under subclause 25.2A, neither party shall be entitled to refer that matter to the dispute resolution process administered by the Queensland Building and Construction Commission unless both parties agree in writing to do so.
25.3A party will not commence any proceedings in respect of the dispute in any court or tribunal of competent jurisdiction until the dispute resolution process referred to in Condition 25.2 is at an end or the Quantity Surveyor has made a determination under subclause 25.2A.
25.4Where a dispute has arisen under or in connection with this Contract, including Condition 23.4, the Contractor must proceed diligently with the work under this Contract notwithstanding the existence of the dispute.

[835]For example, Mrs Morton’s reference to the Telstra pit to the southern end of the driveway being lowered (Defendant’s Trial Submissions at [864]) is not pleaded as part of the verge works nor is it clear why it is being categorised as such; other defects relied upon by Mrs Morton under this heading (for example 2.10, 2.17 and 2.18) are not pleaded.
[836]The submissions were confusing. Mrs Morton also submitted that was to complete landscaping work at the rear planter Item 66 (Defendant’s Trial Submissions at [873]).
[837]With reference to Item 3.5 of the Hutchinson Defect List and Item 58 of the Scott Schedule.
[838]Items 58(b)-(c) of the Scott Schedule.
[839]Exhibit 216 p. 260327.
[840]Exhibit 236. Photo 2.29.2 shows this defect, but I am not satisfied it is a pleaded defect.
[841]Item 64 of the Scott Schedule.

Damages for the external defects are therefore assessed as follows:

Item

Amount allowed

Labour

$4,547.34

Centenary Landscapes

$111.49

Boss Gardnescapes

$1,828.18

Mayfair Steel & Aluminium

$0.00

Paige Stainless

$950.00

Aussie Sheet Metal

$230.47

Stone Nation

$560.00

Bunnings

$388.71

Mahara

$0.00

Zaval Cleaning

$2,070.25

Margin

$1282.37

Total

$11,968.81

I therefore allow the sum of $13,165.69 (incl. GST) for defective external work.

L: Electrical and Communications

Mrs Morton submitted that various aspects of the electrical and communications work at the house were incomplete or defective. Mrs Morton (through Hutchinson Builders) engaged Thallon Mole’s electrical subcontractor (SEQEL) to return to site to carry out the required works. This work included not only the rectification of items of defective electrical works but also additional work consequent on repairing painting defects throughout the house and the supply of replacement lighting. SEQEL completed some rectification work at no cost but required payment for additional work for which it issued six invoices to Mrs Morton. Mrs Morton claims the sum of $30,500.90 (excl. GST) as damages under this heading.
Thallon Mole submitted that damages should be assessed at $8,274.60 (excl. GST).[842] In doing so, it relied extensively on the evidence of Gabriel Yates (the director of SEQEL) that the further invoices SEQEL issued were for work beyond its original scope.[843]
[842]This concession was made on the basis of a finding that the removal of the Timber Flooring was justified (which for the reasons discussed under that heading I have made). Otherwise, Thallon Mole submitted that the award is limited to $185.16.
[843]Mr Yates who was involved with the electrical work at the house. His statement is Exhibit 191.
The most convenient way to deal with this issue is with reference to the various invoices claimed under this head, cross referenced (when possible), to a pleaded defect in the Scott Schedule.

SEQEL Invoice 3105

Invoice 3105 for $3,738.78 (excl. GST) is for the work required to rewire the bedhead lights; and for the switching and installation of the power supply to the pool control box.
Mrs Morton submitted that this invoice related mainly to Item 67(a) but it obvious the work to the bedhead light is a reference to Item 67(b).[844]
[844]I am satisfied that Item 67(a) (the faulty electrical switch) was corrected by SEQEL without charge; Exhibit 191 [8]-[10](c). Item 67(b) refers to the reposition of bedside GPO’s and bedside lamps.
It is not in dispute that the bedside lights were installed at a height of only 650mm. Mrs Morton submitted, (and I accept) as a matter of common sense, that this did not allow for any bedside tables and was a completely impractical location for such lights. Thallon Mole was subsequently instructed to reinstall the lighting at a specified height of 1100 mm but refused without a signed variation to do so.[845]
[845]Thallon Mole issued a variation claim (V075) in March 2019 claiming that direction amounted to a variation. This variation included the cost of electrical works, plastering and for the painter to repaint the entire wall in each of the four bedrooms
On the other hand, Thallon Mole submitted that the bedside lights were installed in accordance with original plans and a direction from Mr Stewart[846] but for the reasons that follow, I reject that either of these contentions are supported by the evidence:
(a)First, Mr Cook was unable to identify any plan that specified the height for the bedside lighting.[847] Mr Yates referred to a specified height in the plans. But no such plan (or any plan with the height of the bedside lights) was adduced at trial – or it seems existed. Under cross examination, Mr Yates was not sure that such a plan existed; and
(b)Secondly, Mr Yates originally said that he was present at the house when Mr Stewart conducted a walk through but later admitted he was not with Mr Stewart at this time. Mr Stewart’s evidence which I accept was that he never gave any direction as to the height of the bedside lighting.[848]
[846]During a ‘rough-in walk around’ with Tim Stewart and personnel from SEQEL.
[847]T10-46, ll 1–16.
[848]T-14-26, ll 3-13; T14-21, ll 15-45.
On balance I am satisfied that SEQEL installed the reading lights and power points at a height of 650mm from the floor without a plan or confirmation from Mr Stewart or Thallon Mole. Common sense dictates that a competent contractor would have ensured that the height of the over-bed lights was such that they could be used for the purpose of night reading.
I am satisfied it was both reasonable and necessary for the height of the bedside lighting to be lifted to ensure the lights were able to be used.
Mrs Morton submitted that it follows that all this invoice should be allowed in full because the only other work in that invoice was the provision of a power supply to the pool control box which was “clearly necessary to deliver the pool specified in the Contract”.[849] But this work is not part of Mrs Morton’s pleaded case under this heading.
[849]Defendant’s Trial Submissions [at footnote 1045].
Mr Yate’s general but unchallenged evidence was that the further invoices he issued were for work outside the original scope of work. I am therefore not satisfied that the costs of for the installation of the power supply to the pool control box arise as part of any defective or incomplete work.
Accepting Invoice 3105 on its face, I will allow the sum of $1,869 (excl. GST) being half of the amount of the invoice.[850]

SEQEL Invoice 3106

[850]Exhibit 191pp. 260238-260239.

Item 67(c) concerned the removal of all light switches and GPO and reinstatement for the purpose of painting defect rectification. This was not part of SEQEL’s original scope of work, but Mrs Morton submitted that this invoice is justified if it is accepted that substantial repainting of the house was required as a consequence of removing the timber flooring.
Given my earlier findings,[851]I will therefore allow invoice 3106 in the sum of $2,779.20 (excl. GST) in full.[852]

SEQEL Invoice 3107

[851]Under heading “F: Epoxy and Painting”.

[852]Exhibit 191 pp. 260240-260241.

Invoice 3107 for $176.81 (excl. GST) relates to the work required to install a missing GPO in the gym and the connection of the phone outlet for lift services.[853]
[853]Exhibit 191 pp .260242-260243.
I will allow half of this invoice as it relates to the telephone for the lift, but the balance relates to an item that is not pleaded and for which I am otherwise not satisfied ought to be allowed.
I will therefore allow $88 for Invoice 3107.

SEQEL Invoice 3108

Invoice 3108 for $305.40 (excl. GST) is for the installation of a power outlet for the blind in living area.[854] This item is not pleaded nor is there any cogent evidence that this work arises from defective or incomplete work under the Contract. I will therefore not allow any amount for Invoice 3108.

SEQEL Invoice 3165 and 3192

[854]Exhibit 191 pp. 260244-260245.

Invoice 3165 for $2,375.32 (excl. GST) relates to various electrical works such as the pre-wire of light fittings and sensors to the entrance above the lift lobby, the installation and replacement of various light fittings and the supply and installation of a recessed C-BUS Passive Infrared motion detector.[855] The commission to the CBUS at the front gate is a pleaded defect.[856] But Thallon Mole submitted this commissioning was outside of the scope of work and that otherwise, this work included a supply of power not previously required under the Contract.[857] I am satisfied that CBUS was specified in the Contract for the control of external lighting and that the Contract required an access control system fully integrated with the intercom system and garage door control.[858]
[855]Exhibit 191 pp. 260246-260247.
[856]Item 67(d).
[857]Exhibit 191 [10](f).
[858]Note 81 of the Wildeisen & Associates Electrical Services Plan required Thallon Mole to fully test and commission the complete system; Exhibit 4 p. 220219 (Project Note 81).
On balance I am satisfied that the full amount of invoice 3165 ought to be allowed.
Invoice 3192 for $2,219 (excl. GST) relates to installation of wall lights, a CBUS sensor, investigating options for the back gates and the replacement of a faulty LED driver installation.[859] Apart from those relating to the front gate CBUS commissioning, I am not satisfied that the rest of this invoice relates to a pleaded defect or incomplete work under the Contract.
[859]Exhibit 191 pp 260248–260249.
I will therefore allow $555 being one quarter of invoice 3192.

KODA Invoices

Part of Mrs Morton’s pleaded case under this heading is that there was a defect with the pendant lighting to the master robe and stairway and track lighting to the stairs.[860] It is uncontroversial that a ‘halo’ ring was missing from each of two pendant lights (main stairwell and main walk-in robe); and that Mr White ordered additional halo rings from KODA lighting (at a cost of $2,192.66 (excl. GST) each and the pendant lights were repaired by SEQEL at no cost.[861]
[860]Item 67(e).
[861]Exhibit 296 [62].
Mrs Morton claimed the costs of the two KODAS invoices and for necessary scaffolding (the latter which she included under her Item 54 ( copper cladding) claim). For the reasons discussed under that heading earlier in these Reasons, I did not allow that claim. But I accept otherwise that under the Contract, the supply of light fittings and materials is a Prime Cost item and installation is not. So, it follows that any necessary cost of hiring scaffolding to carry out defective work should be allowed.
Thallon Mole submitted that the claim for the KODA invoices is misguided as the evidence is that Mrs Morton was never charged for the ring light that was required.[862] But this submission overlooks that Mr Mole conceded that Mrs Morton had already been billed by Thallon Mole for these lights.[863]
[862]Exhibit 216 [90], with reference to Mr Cook’s evidence.
[863]T4-92, l 7 to T4-93, l 2; Exhibit 82. The Contract allowed $169,456.84 for supply of electrical items. Progress Claim 26 claimed the remaining $3,000 of that total amount.
I will therefore allow the sum of $4,385.32 for the two KODA lighting invoices together with the sum of $505 (excl GST) for the cost of one day of scaffolding hire. I have made this allowance because it is reasonable to assume (as I do), that this is enough time for the defective work requiring scaffolding under this heading to have been undertaken.[864]
[864]This figure is calculated as one tenth of the scaffolding invoice at Exhibit 297 p. 270398.

Labour Costs

Mrs Morton also claimed the sum of $8,886.23 for the costs of Hutchinson Builder’s labour under this head. Thallon Mole submitted that if the removal of the timber flooring is found to be justified (as it has been) then allowance for half of this work would be appropriate. But it otherwise submitted that no allowance should be made in respect of these labour costs.
I accept Thallon Mole’s latter submission for two reasons:
(a)First, the electrical work was almost entirely undertaken by SEQEL; and
(b)Secondly, as my findings above reveal, I am not satisfied that all of the claims for damages relate to work pleaded as defective or incomplete or is work within the original scope of work under the Contract.
I am satisfied half of the full amount claimed being the sum of $4,443.12 ought to be allowed as the reasonable and necessary supervision costs under this heading.

Other Invoices

Invoices from Cuchi and Superior Electrical, in the sums of $560.45 and $1,260 are said to relate to blinds defects.[865] I am not satisfied that this work is part of any pleaded defect in the electrical section of the claim (or anywhere else). I am not satisfied that payment of the amounts of these invoices ought to be allowed.
[865]Exhibit 298 pp. 9-10.
Mrs Morton submitted that two invoices from Austep Lighting are submitted to be for the replacement of flickering SHX Downlights.[866] This is not a pleaded defect, and the referred item is the defective halo ring discussed under the previous heading. I am not satisfied that any amount ought to be allowed for these two invoices.
[866]Exhibit 298 p. 10. With reference to Item 1.69 of the Issman Internal Defects Report.

Overall Amount Allowed for Electrical and Communications

I therefore allow the sum of $21,039.21 (incl. GST) for electrical and communication defects.[867]
[867]That is $19,126.55 (excl. GST). This figure comprises the total of the invoices I have allowed under this heading plus an additional one from Bunnings (of $77.32 - conceded in the Plaintiff’s Trial Submissions at [544]) – totalling $17,077.28 plus the 12 percent builders margin (of $2,049.27) on that sum.

M: Tiling and Stonemasonry

Mrs Morton submitted that various aspects of the tiling and stonemasonry at the house were incomplete or defective. She claims the sum of $8,532.06 (excl. GST) as damages for these items. Thallon Mole conceded that aspect of the tiling and stonemasonry were defective but that damages should be assessed at $3,582.81 (excl. GST).
The main points of contention between the parties are the reasonable apportionment of the Hutchinson Labour costs claimed and the payment of two invoices for the supply of material.
The first contentious invoice is Six Star Tiling Inv. 131 for $1,728 (excl. GST). With reference to Mr White’s evidence, Mrs Morton submitted that this relates to the necessary tile replacement work performed for the powder room tile walls because of the leak in the ensuite. I reject this submission (and the claim). The evidence referenced does not sufficiently substantiate that claim and the necessity for replacement tiles in the powder room is not a pleaded defect.
The second is from Ace Stone Inv. 13955 for the supply of Bianco Statuario Venato 5mm polished tiles in the sum of $1320 (excl. GST). Thallon Mole submitted that this item was already supplied. Mrs Morton submitted that the stone has not been. There is insufficient evidence for me to resolve this impasse. The onus rests with Mrs Morton. I am therefore not satisfied that this claim should be allowed.
Thallon Mole conceded that some amount ought to be allowed for the Hutchinson Builder’s labour costs but submitted that the amount claimed should be reduced by 30 percent. Given my findings above and the number of defects admitted under this head (which although minor, were rectified by Hutchinson Builders), I am satisfied that 90 percent of the amount claimed [$4,569.91(excl. GST)] should be awarded.
I will therefore allow the sum of $5,067.11 (incl. GST) for Tiling and Stonemasonry defects.[868]
[868]Or $4,606.47 (excl. GST). This figure comprises the sum of $4,112.92 plus a 12 percent margin of $493.55.

N: Residual Labour Not Allocated To a Particular Claim

The final claim from Mrs Morton is an ambit claim for $73,229.30 (excl. GST) for unallocated labour costs.[869] This sum is alleged to comprise of the following:
(a)Hutchinson Builders Direct Labour in the amount of $52,887.43 (excl. GST); and
(b)Other Hire Labour in the amount of $20,341.97 (excl. GST).
[869]Including the 12 percent margin.
Alternatively, Mrs Morton submitted there is sufficient evidence for the Court to apportion these labour costs in accordance with the total amount of damages awarded to Mrs Morton in respect of the costs incurred (acknowledging such a method is inexact).[870]
[870]That is, excluding the claims in Parts A to E of the Scott Schedule.
Thallon Mole submitted that no amount should be allowed for these costs as they have not been proved and were otherwise not reasonably incurred.
The Evidence Supporting the Residual Labour Claim
The premise underpinning Mrs Morton’s claim is that these were labour costs that cannot be attributed to any particular defect but are recoverable because Mr White and Mr Diamond’s evidence is that they were reasonably incurred as part of the overall rectification work carried out at the house.[871] For example:
(a)The Hutchinson Builders direct labour claimed is on the basis of Mr White’s evidence that he was on-site full-time (five days a week, hours a day) and oversaw all of the remedial works as a supervisor; and that the total cost of his supervision was $34,894.84 (excl. GST);[872] together with Mr Steele’s supervision and site foreman services (in Mr White’s absence) of $14,497.69 (excl. GST);[873] and
(b)The hire labour not been allocated to any particular defect is claimed on the basis that there is “sufficient causal connection” between the widespread nature of the defects identified to support the award of these costs as damages.[874]
[871]Exhibit 296 [92]-[96]; Exhibit 305 pp. 270301-270310.
[872]This is the total of the amount of his costs claimed in respect of particular defects of $31,156.11 (excl. GST) plus the 12 percent margin of $3,738.73 (excl. GST).
[873]Including the 12 percent margin.
[874]Defendant’s Trial Submissions at [923].
The methodology for the calculation of this part of the claim (and indeed all of the labour costs claimed in this case) is premised on the following:
(a)First, Mr White making an estimate of the time that was spent by labourers on site on each category of defect by making an estimate of the time associated with performing all the major categories of work that was done;[875]
(b)Secondly, Mr Diamond then, by reference to the invoices that were issued, performed a mathematical exercise that simply multiplied out each invoice by that estimate;[876] and
(c)Thirdly, Mr Diamond then calculated a value for the labour that could not be allocated to a particular task.
[875]T16-85, ll 16-20.
[876]Exhibit 305.
The necessity and justification for such an approach is found in the evidence of Mr White as follows:
(a)He did not keep detailed records regarding the number of men who worked on what defect; and
(b)He cannot show with certainty the costs of each defect in terms of the Hutchinson direct labour and hire labour; and
(c)A key reason why not all labour costs were able to be allocated accurately to particular defect work was because a “time and motion” administrator was not engaged; and whilst that would have ensured detailed records of labour and what work had been carried out, it would have added significant cost to the work.
I accept that any exercise to calculate such costs will be imperfect. But the true extent of the unreliability of the broad-brush approach taken by Mr White and Mr Diamond was revealed when the following three matters came to light under their respective cross examinations: [877]
(a)First, not all of the time in respect of the three invoices to Mrs Morton can be accounted for;
(b)Secondly, even allowing for the allocation of the tiling invoices, only 50 percent of the labour invoiced on seven out of 58 invoices can be accounted for; and
(c)Thirdly, in total, half of the labour costs incurred by Hutchinson Builders cannot be accounted for.
[877]Under cross examination, a document reproducing the work that was done by Mr Diamond was shown to both Mr Diamond and Mr White (MFI-R). A slightly amended copy of that document, which allocates the invoices in respect of tiling and stonemasonry (which page was missing from a version of the affidavit), was attached to the Plaintiff’s Submissions in Reply.

Analysis of the Residual Labour Claim

It is well established that the lack of precision or difficulty in calculating damages does not nullify the right to damages or the Court's assessment of those damages.[878] In these circumstances a “broad brush approach” can be taken.[879]
[878]Fink v Fink (1946) 74 CLR 127, 143 (per Dixon and McTiernan JJ).
[879]Queensland Ice Supplies Pty Ltd v Anco Australasia Pty Ltd [2000] QSC 72, [26] (per Chesterman J) with reference to Commonwealth v Ammann Aviation Pty Ltd (1991) 174 CLR 64, 83, 102 ,125, 153.
But of course, there must be some evidentiary basis underpinning the claim so the court can be satisfied (on balance) that the amount claimed is substantiated. Despite some concern about the overall approach to the allocation of labour costs in this case, I accept there cannot be any great precision. And as my Reasons reveal elsewhere (under the relevant headings in the Alleged Defects and Omission section), despite the obvious weaknesses in the labour costs calculation, I have adopted a practical and reasonable approach by allowing some labour costs where defective work has been proven and shown to have been reasonable and necessary.
But the difficulty with all of the residual costs claimed is not necessarily a lack of precision but rather that because the costs are not allocated to a particular defect it is difficult to ascertain how they are all causally connected to the cost of rectification. This is particularly so when Mrs Morton has not been successful on all of her claims for defective work.
Overall, I am not satisfied to the requisite standard that there is sufficient direct (or indirect) cogent evidence to support Mrs Morton’s submission that “a large part” of the residual costs that have not been directly allocated to a particular defect claim were reasonably incurred in carrying out the rectification work.
Doing the best, I can, and adopting a broad-brush approach, I am satisfied that a small amount (five percent of the overall amount claimed) should be allowed for the various unaccounted supervisory roles and some minor unparticularised but general defects.
I therefore allow the sum of $4027.62 (incl. GST) for residual labour costs.[880]
[880]$3,661.47 (excl. GST)

Summary of Mrs Morton’s Defects and Omissions Claim

The table below summarises my findings under this section as follows:

Cost of Correcting Each Defect or Omission (incl. GST)[881]

A. Pool fence/balustrade (spigots) and Newbolt Street balustrade (cap handrail) $25,341.51[882]

B. External Waterproofing $54,505.68

C. Miscellaneous $nil

D. Preliminaries for A to C $18,244.23

E. Kitchen Leak/Copper Stain $4,296.87

F. Painting & Epoxy $34, 824.52

G. Timber Flooring $60,281.99

H. Driveway $27,330.93

I. Joinery $10,955.50

J. Sliding Doors $nil

K. External $13,165.69

L. Electrical & Communications $21,039.21

M. Tiling and Stone Masonry $5,067.11

N. Residual Labour $4,027.62
[881]These figures include any builder’s margin claimed and allowed.
[882]Claim for Newbolt Street balustrade only allowed.

I therefore assess Mrs Morton’s claim for defective and incomplete work at $279,080.86 (incl. GST).

Overview of Claims that Emerge from my Findings

Thallon Mole’s Claim

Thallon Mole is entitled to payment of the following amounts under the Contract:
(a)First, the sum of $55,517.74 (incl. GST) together with simple interest under Condition 20.1 of the Contract from 29 March 2019 until the date of the Final Orders; and
(b)Secondly, the sum of $2,390.85 (incl. GST) for variation VO59, together with simple interest calculated under Condition 20.1 of the Contract, from the date payment of this invoice was due until the date of the Final Orders.

Mrs Morton’s Claim

Mrs Morton is entitled to payment of the following amounts under the Contract:
(a)First: liquidated damages in the sum of $5,100;[883] and
(b)Secondly: damages for incomplete and defective work in the sum of $279,080.86 (incl. GST) together with interest pursuant to s 58 of the Civil Proceedings Act from the date the various invoices comprising this figure became due and payable until the date of the Final Orders[884] less the sum of $220,997.66 being the notional unpaid balance of the Contract Price.
[883]This is the sum of $16,100 less the amount of $11,000 allowed for Thallon Mole’s liquidated damages claim.
[884]The applicable pre-judgment rate is the nationally uniform rate prescribed under District Court of Queensland Practice Direction Number 6 of 2013. The parties agreed that these interest calculations could be undertaken by them after the delivery of Reasons
I have arrived at the figure of $220,997.66 as the relevant “notional unpaid balance of the Contract Price” by deducting the undisputed amount of Progress Claim 25 ($55,517.74) that I have found due and owing to Thallon Mole from the unpaid balance of the Contract Price as I have found it to be ($276,515.40 ).[885]
[885]For obvious reasons, it is not necessary to include the amount I have allowed for VO59 in these calculations (as it would lead to the same balance of $220,997.66) because it would be added to the unpaid balance – and to the amount I have found to be due and owing.
In bringing in the Final Orders it is relevant to note that under Condition 26.1(c) of the Contract, Mrs Morton is entitled to set off any payment she is found to owe Thallon Mole against any amounts assessed as being owed to her following Termination.
I am satisfied that the notional unpaid balance of the Contract Price must be deducted from the amount of $277,080.86, for two reasons:
(a)First, the measure of damages in Contract is to put the claimant in the position as if the Contract was performed as far as money can do.[886] If the Contract was performed in this case, Thallon Mole would have completed the house and Mrs Morton would have paid the Contract Price;[887] and
(b)Mrs Morton cannot have both the reduction in the Contract Price and have Thallon Mole pay for the works she had completed and or rectified by someone else (being work she had not paid Thallon Mole for). That is, (as Thallon Mole submitted) - effectively double dipping.
[886]Mrs Morton accepted this as the appropriate measure of damages: Defendant’s Closing Reply Submissions at [299].
[887]Robinson v Harman (1848) 1 Exch 850, 866; Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [13].

Retention Monies

Mrs Morton has a right of recourse to the retention moneys to pay amounts due to her including to meet any damages for defective works as set out in the “MORTON ADDITIONAL CONTRACT CONDITIONS” as follows:
RETENTION MONEYS
1.1   Purpose
Retention moneys are for ensuring the due and proper performance of the Contract.
1.4   Recourse to Retention Moneys
The Owner may have recourse to retention moneys where –
(a)     the Owner has become entitled to exercise a right under the Contract in respect of the retention moneys; and
(b)     the Owner has given the Contractor 5 day's written notice of the Owner's intention to have recourse to the retention moneys; and
(c)     days have elapsed since the notice was given.
1.6 Recourse for Unpaid Moneys
Where, the Contractor fails to pay the Owner an amount which the Owner assesses to be due and payable under the Contract, the Owner may have recourse to retention moneys, if any, and, if those moneys are insufficient, any deficiency remaining may be recovered by the Owner as a debt due and payable.
Mrs Morton has established various contractual rights to damages which are due and owing. I am satisfied that her pleading acts as a notice of her intention to have recourse to the retention moneys and that this right survived termination.[888] I am satisfied that Mrs Morton is entitled to recourse to the retention moneys to satisfy the amount assessed as due and payable under the Contract (to be calculated in accordance with paragraph 775 above). This will leave a balance of retention moneys sitting in trust.
[888]Southern Cross Constructions (NSW) Pty Ltd (Administrators Appointed) v Bucasia Pty Ltd [2012] NSWSC 1419, [5], [22], [27].
Condition 1.5 of the Contract proved that “within 6 months of the date of Practical Completion, the Owner will release to the Contractor any balance retention moneys, if any, then held by the Owner.”
In the present case I have found that Practical Completion was not achieved by Thallon Mole. Mrs Morton appeared to suggest that in such a case Thallon Mole has no entitlement to any of the withheld retention moneys. If that is her submission, I reject it as it is inconsistent with the natural and ordinary reading of the Contract a whole. Additional Condition 1 does not deal with the situation where Practical Completion has not been achieved. But the purpose of the clause is expressly stated to be to ensure the due and proper performance of the Contract – with Condition 1.6 expressly providing the circumstances in which Mrs Morton may have recourse to the retention monies. That is to cover amounts found to be due and payable under the Contract. It does not contemplate Mrs Morton having recourse to the balance of the retention monies once this exercise has been undertaken. The Contract contemplates that the balance remaining should then be released to Thallon Mole. An alternative reading would lead to an absurd result with Mrs Morton receiving a windfall. This conclusion is consistent with the fact that parties included the amount of retention monies as part of the monies paid under the Contract.

Costs

Under s. 15 of the Civil Proceedings Act and UCPR r 681, costs are in the discretion of the court, but follow the event, unless the court orders otherwise. The authorities establish that “the event” is not determined merely by reference to the overall result or outcome but is to be determined by reference to “the events or issues, if more than one, arising in the proceedings.”[889] Of course, the purpose of an order for costs is not to punish the party against whom it is made. It is to compensate the successful party for the expense that it has incurred in bringing or defending the proceeding.[890]
[889]Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26, 60; See too the observations of Muir JA in Alborn v Stephens [2010] QCA 58, [8].
[890]Oshlack v Richmond River Council (1998) 193 CLR 72.
With these principles in mind, I urge the parties to attempt to agree the appropriate costs orders that follow from: the relevant legal principles applied in the context of my findings; and bearing in mind that on any view they have both enjoyed some success and encountered some defeat with aspects of their case; and that the costs expended in this case are disproportionate to the value of their respective claims in a number of instances.
These factors suggest that the appropriate order as to costs is that each party bear their own costs. However, there may be other factors that warrant another order being made. I will therefore allow further submissions to be delivered addressing this issue.

Final Orders

By 4.00pm Thursday 26 October 2022, I direct that the parties:[891]
[891]These documents are to be emailed to my Associate.
(a)Bring in Final Orders including relevant interest calculations and provision for the release of the Retention Monies consistent with my findings;[892] and
[892]These orders should include an order that Thallon Mole’s quantum meruit claim is dismissed and that that Mrs Morton’s claim for specific performance is dismissed. Mrs Morton sought specific performance of obligations to provide certificates and “as built “drawings for the mechanical, gas, and hydraulics services, but she did not press for any order for specific performance. The evidence was that the BCC plumbing certificate was eventually provided to Mrs Morton (Exhibit 292); and a compliant Form 16 was tendered by Mrs Morton at trial (Exhibit 293).
(b)Exchange and deliver written submissions as to costs (if necessary), no longer than four pages.

CITATION:	Thallon Mole Group Pty Ltd v Morton [2022] QDC 224
PARTIES:	THALLON MOLE GROUP PTY LTD ACN 104 671 801 (plaintiff) v LOUISE MORTON (defendant)
FILE NO/S:	2695/19
DIVISION:	Civil - Commercial List
PROCEEDING:	Trial
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	7 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	25 - 28 May 2021; 1 - 4 June 2021; 6 - 10 September 2021; 13 - 16 September 2021; 10 & 11 February 2022; Final submissions in reply 14 February 2022
JUDGE:	Muir DCJ
ORDER:	By 4.00pm Thursday 27 October 2022, the parties are to: (a) Bring in Final Orders including relevant interest calculations and provision for the release of the Retention Monies consistent with my findings; and (b) Exchange and deliver written submissions as to costs (if necessary), no longer than four pages.
CATCHWORDS:	CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – PROGRESS PAYMENTS – where defendant entered into a contract with the plaintiff – where contract was for construction of a luxury residential property – where during the course of construction the contract was terminated by the defendant for breaches – where plaintiff claimed they were willing and able to continue performing the contract – where the defendant did not pay outstanding progress claims for works completed – where the plaintiff seeks payment for the works completed. PROCEDURE – CIVIL PROCEDURE IN STATE AND TERRITORY COURTS – COSTS – ISSUES AND COUNTERCLAIMS – where works performed under the contract were defective – where the defendant counterclaims for the cost of rectifying defective works – where there is dispute as to defects and the cost of rectification. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where specifications of the contract were not able to be met – where the contract price must be reduced to account for failure to meet conditions of the contract. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – TIME – where performance of the contract was delayed – where the plaintiff claimed entitlement to an extension of time – where the defendant claimed no entitlement to extension of time exists – where the defendant argued that delays were caused by the plaintiff, were foreseeable and no notice of an extension was given. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – PERFORMANCE OF WORK – GENERAL – where the plaintiff claimed that works had reached practical completion – where the defendant argued that practical completion was not reached due to defective works. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT –CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – SECURITY AND RETENTION FUNDS – where retention money was to be given to plaintiff after practical completion – where practical completion did not occur – where the contract stipulated that defendant had recourse to unpaid retention money if notice was given. CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – RECOVERY ON QUANTUM MERUIT – IN GENERAL – where plaintiff argued it performed works under agreed changes to the contract – where the defendant argued the variations were not approved and written approval was not obtained for the work subject to variation – where plaintiff refused to pay for the work subject to variation – where the plaintiff argued quantum meruit regarding works subject to variation. CONTRACTS – PARTICULAR PARTIES – PRINCIPLE AND AGENT – CREATION OF A RELATIONSHIP OF AGENCY – AGENCY BY ESTOPPEL – where the contract stipulated work be done in a particular way – where the plaintiff claimed that an agent for the defendant made a representation that work could be done in an alternate way – where no variation to the contract was made in writing – where the plaintiff claimed an absence of the written variation was overcome by estoppel – where the QBCC Act requires variations to be made in writing – whether estoppel stands in the face of a statute. Uniform Civil Procedure Rules (UCPR) 1999 (Qld) Queensland Building Services Authority Bill 1991 (Qld) Sustainable Planning Act 2009 (Qld) Building Act 1975 (Qld) Queensland Building and Construction Commission Act 1991 (Qld)
CASES	Agricultural and Rural Finance Pty Limited vAtkinson [2010] NSWSC 1396 Allen v G Developments Pty Ltd & Ors [2019] QSC 107 Amricama Pty Ltd v Red Carpet Real Estate [2014] QSC 267 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Australian Development Corporation v White Constructions Pty Ltd (1996) 12 BCL 317 Bakker v Chambri Pty Limited (1986) 4 BPR 9234 Bannister & Hunter Pty Ltd v Transition Resort Holdings Pty Ltd (No. 2) [2013] NSWSC 1943 Bedrock Construction and Development Pty Ltd v Crea [2021] SASCA 66 Bellgrove v Eldridge (1954) 90 CLR 613 Birse Construction Ltd v Eastern Telegraph Co Ltd [2004] All ER (D) 92 BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd [2016] QSC 05 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (2008) 166 FCR 494 Brewarrina Shire Council v Beckhaus Civil Pty Ltd (2003) 56 NSWLR 576 Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653 Casbee Properties Pty Ltd v Patoka Pty Ltd [2003] NSWCA 361 Civil Mining & Construction Pty Ltd vWiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 Clyde Contractors P/L v Northern Beaches Developments P/L [2001] QCA 314 CMA Assets Pty Ltd vJohn Holland Pty Ltd [No. 6] [2015] WASC 217 Cochrane v Lees [2021] QCATA 74 Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 Danidale Pty Ltd vAbigroup Contractors Pty Ltd [2007] VSC 391 El Khoury v Harsany; Taouk v Assure (NSW) Pty Ltd [2018] NSWSC 1774 Electricity Generation Corporation (t/as Verve Energy) v Woodside Energy Ltd (2014) 251 CLR 640 Fox v Percy (2003) 214 CLR 118 FPM Constructions Pty Ltd v Council of the City of Blue Mountains [2005] NSWCA 340 Grocon Constructions (Qld) Pty Ltd v Juniper Developer (No 2) Pty Ltd [2015] QCA 29 Hyder Consulting (Australia) Pty Ltd v Wilhelmsen Agency Pty Ltd [2001] NSWCA 313 Interchase Corporation Ltd (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 3) [2003] 1 Qd R 26 JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393 Karacominakis v Big Country Developments Pty Ltd [2000] NSWCA 313 Kok Hoong v Leong Cheong Kweng MinesLtd [1964] AC 993 Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [No 3] [2013] VSC 435 Maritime Electric Co v General Dairies Ltd [1937] AC 610 Metro Edgley Pty Limited v MK & JA Roche Pty Limited & Ors [2007] NSWCA 160 Mortonv Elgin-Stuczynski [2008] VSCA 25. Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Murphy Corporation Ltd v Acumen Design & Development (Qld) Pty Ltd & Hooper (1995) 11 BCL 274 Onassis & Calogeropoulos v Vergottis [1968] 2 Lloyd’s Report 403 Opat Decorating Services (Aust) Pty Ltd v Hansen Yuncken (SA) Pty Ltd (1994) 11 BCL 360 Oshlack v Richmond River Council (1998) 193 CLR 72 Owners – Strata Plan NO 76674 v Di Blasio Constructions Pty Ltd [2014] NSWSC 1067 Pivovarova v Michelsen (2019) 2 QR 508 Port Jackson Stevedoring Pty Ltdv Salmond and Spraggon (Aust) Pty Ltd (1978) 139 CLR 231 Roadshow Entertainment v (ACN 053 006 269) Pty Ltd (1997) NSWLR 462 Robinson v Harman (1848) 1 Exch 850, Ruxley Electronics & Construction Ltd v Forsyth [1996] 1 AC 344 Saunders vNash [1991] VR 63 Southern Cross Constructions (NSW) Pty Ltd (Administrators Appointed) v Bucasia Pty Ltd [2012] NSWSC 1419 Stein v Torella HoldingsPty Ltd [2009] NSWSC 971 Stone v Chappel (2017) 128 SASR 165 Tabcorp Holdings LtdvBowen Investments Pty Ltd (2009) 236 CLR 272 TC Industrial Plant Pty Ltd v Robert’s Queensland Pty Ltd (1963) 180 CLR 130 TCN Channel 9 Pty Ltd v Hayden Enterprises Pty Ltd (1989) 16 NSWLR 130 Thornley v Tilley (1925) 36 CLR 1 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 Walter Construction Group Ltd v Walker Corporation Ltd [2001] NSWSC 283 Willshee v Westcourt Ltd [2009] WASCA 87 Woo Nam Lee v Surfers Paradise Beach Resort Pty Ltd [2008] 2 Qd R 249 Wyong Shire Councilv Shirt (1980) 146 CLR 40
COUNSEL:	C.C Heyworth-Smith KC with N.J Derrington for the plaintiff T. Sullivan KC with L.M Campbell for the defendant
SOLICITORS:	Robinson Locke Litigation Lawyers for the plaintiff Thomson Geer for the defendant

Item	Amount allowed
Labour	$4,547.34
Centenary Landscapes	$111.49
Boss Gardnescapes	$1,828.18
Mayfair Steel & Aluminium	$0.00
Paige Stainless	$950.00
Aussie Sheet Metal	$230.47
Stone Nation	$560.00
Bunnings	$388.71
Mahara	$0.00
Zaval Cleaning	$2,070.25
Margin	$1282.37
Total	$11,968.81

Cost of Correcting Each Defect or Omission (incl. GST)[881]
A. Pool fence/balustrade (spigots) and Newbolt Street balustrade (cap handrail)	$25,341.51[882]
B. External Waterproofing	$54,505.68
C. Miscellaneous	$nil
D. Preliminaries for A to C	$18,244.23
E. Kitchen Leak/Copper Stain	$4,296.87
F. Painting & Epoxy	$34, 824.52
G. Timber Flooring	$60,281.99
H. Driveway	$27,330.93
I. Joinery	$10,955.50
J. Sliding Doors	$nil
K. External	$13,165.69
L. Electrical & Communications	$21,039.21
M. Tiling and Stone Masonry	$5,067.11
N. Residual Labour	$4,027.62