Trubenbacher v O'Brien - [2024] QCAT 291

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Trubenbacher v O’Brien [2024] QCAT 291

PARTIES:

THEA TRUBENBACHER

(applicant)

v

PATRICK LACHLAN O’BRIEN

(respondent)

APPLICATION NO:

BDL028-23

MATTER TYPE:

Building matters

DELIVERED ON:

25 July 2024

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDER:

Thea Trubenbacher’s application is dismissed.

CATCHWORDS:

CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – THE CONTRACT – CONSTRUCTION OF PARTICULAR CONTRACTS AND IMPLIED CONDITIONS – OTHER MATTERS – where minimal evidence of contract – whether terms inferred

DAMAGES – ASSESSMENT OF DAMAGES FOR BREACH OF CONTRACT – GENERALLY – where breach alleged – whether breach committed

Queensland Building and Construction Commission Act 1991 (Qld), s 77, s 78, s 79

APPEARANCES & REPRESENTATION:

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Introduction

Ms Trubenbacher seeks $50,000 in damages against Mr O'Brien, a building inspector. In 2021, when Ms Trubenbacher was purchasing her home in Castaways Beach, she engaged Mr O'Brien to conduct an inspection. Ms Trubenbacher lived interstate and was unable to visit the property because of Covid restrictions. She contends that Mr O'Brien failed to identify several defects. She says:
Had Patrick O’Brien’s report been accurate and a true account of the condition of the property, I could have negotiated a deduction on the sales price of $2,050,000 to reflect the necessary repair costs and if that were not accepted by the seller, nullified the Contract of Sale.[1]
[1]Ms Trubenbacher’s application filed 3 February 2023, 7.
In response, Mr O'Brien contends that his inspection report was accurate. Further, he contends that even if fault were established, Ms Trubenbacher has not proven that the seller would have agreed to lower the price or that Ms Trubenbacher has suffered a loss by not terminating the contract, having regard to market trends in the area.

Background

The sale contract was dated 25 June 2021. It was conditional upon the buyer obtaining a building report on terms satisfactory to the buyer. The buyer could terminate within 14 days of the contract date if they had not obtained a satisfactory building report.
Mr O'Brien inspected the house on 1 July 2021. His report is dated 2 July 2021. The only ‘major defect’ noted was that cupboards in the main bedroom did not close properly. Various ‘minor defects’ were noted. For example, several photographs were captioned ‘some exposed elements surface rusting, due to coastal exposure, monitor and treat as required’ or ‘some external timber elements require maintenance/resealing/filling to prolong lifespan’.[2] The report said no evidence was found of serious safety hazards.
[2]Mr O'Brien’s report, 14.
Ms Trubenbacher moved into the house on 17 December 2021. This is when she first saw the property in person. She subsequently made a complaint to the Queensland Building and Construction Commission about the quality of Mr O'Brien’s inspection and report. QBCC inspector Christopher Smallwood inspected the property on 5 December 2022. He prepared a report dated 5 January 2023, which Ms Trubenbacher has provided to the tribunal.
Mr O'Brien has provided two pest inspection reports by Christopher Kenward: one dated 18 December 2020 prepared for the previous owner, and one dated 25 March 2022 prepared for Ms Trubenbacher. The inspections were done on the dates of the reports. Ms Trubenbacher has also provided a copy of the later report.
In her Application for domestic building disputes filed on 3 February 2023, Ms Trubenbacher contended that Mr O'Brien had failed in his report to identify:
… issues relating to the operation of windows
… issues relating to the rusted structural steel bracing sets
… advanced rust to steel posts supporting the roof
… deteriorating sub flooring in bathroom
… unsafe balustrades.[3]
[3]Ms Trubenbacher’s application filed 3 February 2023, 7.
Ms Trubenbacher sought compensation to cover the costs of engaging a qualified person to fix these problems. She estimated the amount of compensation sought at $75,000 but said she was awaiting quotations.
The tribunal then issued directions to the effect that the matter would proceed as a commercial (rather than a domestic) building dispute; that Ms Trubenbacher must advise in writing whether the amount claimed exceeded $50,000; if it did, that Ms Trubenbacher must file submissions addressing whether the claim is a major commercial building dispute; and, if so, why her application should not be dismissed in the absence of consent by Mr O'Brien to the tribunal determining such a dispute.
The context here is that the tribunal can decide a ‘major commercial building dispute’ – one involving a claim exceeding $50,000 – only if the respondent consents. On the other hand, the tribunal can decide a ‘minor commercial building dispute’ regardless of such consent.
Ms Trubenbacher then said in a letter dated 23 February 2023:
… the amount claimed by me in this dispute will not exceed $50,000.
I am doing so in order to resolve this dispute quickly and with the least disruption to both parties.
The tribunal then made a direction that:
Thea Trubenbacher, having limited the amount claimed to $50,000.000, the application for domestic building disputes filed 3 February 2023 will proceed as an application for minor commercial building dispute.
The tribunal later made directions for the dispute to be heard on the papers.
Ms Trubenbacher relies on a bill of quantities prepared by Total Estimating Services dated 7 March 2023. It puts the cost of fixing the problems at $80,016.06. Ms Trubenbacher used figures from the bill of quantities to then prepare a summary of costs of repairs totalling $68,645.71. She relies on this figure to quantify her loss, but caps her claim at $50,000 to remain within the tribunal’s jurisdiction.
Mr O'Brien contends (or, at least, has contended) that the tribunal lacks jurisdiction to determine the dispute because of the $50,000 limit.

Issues

Ms Trubenbacher expresses her case in lay rather than legal terms. However, I infer that she contends, in substance, that there was a contract between herself and Mr O'Brien which he breached, and that she should be awarded damages for a loss that flowed from the breach.
The issues to be considered are:
(a)does the tribunal have jurisdiction to determine the dispute?
(b)if it does, what contract, if any, existed between Ms Trubenbacher and Mr O'Brien?
(c)did Mr O'Brien breach contract?
(d)if there was breach, what loss, if any, did Ms Trubenbacher suffer?
(e)if there was loss, what damages, if any, should the tribunal award?

Documents

I have taken into account the following documents filed by Ms Trubenbacher:
(a)application filed 3 February 2023, and the attachments:
(i) letter from QBCC to Ms Trubenbacher dated 25 January 2023;
(ii)      Mr Smallwood’s report;
(iii)     email from Ms Trubenbacher to Mr O'Brien dated 17 April 2022;
(iv)     email from Mr O'Brien to Ms Trubenbacher dated 27 April 2022; and
(v)      Mr O'Brien’s report;
(b)letter dated 23 February 2023 addressed to Mr O'Brien advising that Ms Trubenbacher would not claim more than $50,000;
(c)document headed ‘Further supporting documents for Case Number: BDL028-23’ dated 9 March 2023 (filed 10 March 2023) and attachment:
(i)      Total Estimating Services report dated 7 March 2023 containing the bill of quantities;
(d)statement of Ms Trubenbacher dated 30 March 2023 (filed 31 March 2023, attaching another copy of the Total Estimating Services report containing the bill of quantities);
(e)statement of Ms Trubenbacher dated 10 May 2023 (filed on 11 May 2023) and attachments:
(i)      summary of costs totalling $68,645.71; and
(ii)      curriculum vitae of Mr Arndt from Total Estimating Services;
(f)statement of Ms Trubenbacher dated 4 July 2023 and attachments:
(i)      contract for the sale of the house dated 25 June 2021; and
(ii)      Total Estimating Services’ invoice dated 9 March 2023; and
(g)document headed ‘Final statement …’ dated 10 August 2023 and document headed ‘Applicant’s response to Further evidence …’ dated 10 August 2023.
However, I have not taken into account attachments filed by Ms Trubenbacher with her 10 August 2023 documents namely correspondence concerning settlement offers on various dates from lawyers Colin Biggers & Paisley on behalf of Mr O'Brien to Ms Trubenbacher. I accept what Colin Biggers & Paisley say in their email to the tribunal’s registry dated 11 August 2023 that ‘privilege over these documents has not been waived nor has there been any consent to their disclosure’.
I have taken into account the following documents filed by Mr O'Brien:
(a)response filed 15 March 2023 and the attachments namely Mr Kenward’s two reports;
(b)document headed ‘Respondent’s response to material served by Applicant on 30 March 2023’ filed 11 April 2023 (attached to a Form 42 application to extend or shorten a time limit or for waiver of compliance with procedural requirement); and
(c)document headed ‘Further evidence …’ dated 28 July 2023 (filed on 31 July 2023).

Does the tribunal have jurisdiction to determine the dispute?

This question requires consideration of several provisions in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’).
‘The inspection of a completed building’ is a type of ‘tribunal work’ listed in section 75(1). That section defines ‘central terms’[4] in the part of the Act that deals with the jurisdiction of the tribunal.
[4]See heading of Division 1 in Part 7 of the Act.
The tribunal may decide a ‘building dispute’ provided the applicant has first complied with a process established by the QBCC to resolve the dispute: section 77. Here, Ms Trubenbacher followed that process. She made a complaint to the QBCC. It conducted an investigation in the course of which Mr Smallwood’s report was produced.
The Act distinguishes between domestic and commercial building disputes. ‘Domestic building dispute’ is defined in Schedule 2 to the Act in various ways, each involving ‘reviewable domestic work’. ‘Reviewable domestic work’ is defined as ‘domestic building work under Schedule 1B, section 4’ subject to some exceptions.[5] ‘Domestic building work’ is defined in section 4 of Schedule 1B to the QBCC Act by listing types of domestic building work in section 4(1):
(a)     the erection or construction of a detached dwelling;
(b)     the renovation, alteration, extension, improvement or repair of a home;
(c)     removal or resiting work for a detached dwelling;
(d)     the installation of a kit home at a building site.
[5]QBCC Act, Schedule 2, definition of ‘reviewable domestic work’.
It can be seen that this list does not include the inspection of a completed building. It follows that the dispute between Ms Trubenbacher and Mr O'Brien is not a domestic building dispute as defined, even though it relates to a house. It must therefore be a commercial building dispute for the purposes of the Act.
‘Minor commercial building dispute’ is ‘a commercial building dispute where neither the claim nor the counterclaim exceeds $50,000.[6] (There is no counterclaim in the present case). ‘Major commercial building dispute’ is ‘a commercial building dispute where either the claim or the counterclaim exceeds $50,000’.[7]
[6]Ibid, definition of ‘minor commercial building dispute’.
[7]Ibid, definition of ‘major commercial building dispute’.
The following provisions deal with major commercial building disputes:
78 When major commercial building dispute may be heard by tribunal
A major commercial building dispute may be decided by the tribunal only if the tribunal is satisfied all parties to the dispute consent to it doing so.
79 Procedure to decide whether all parties consent
(1)An application to start a proceeding for a major commercial building dispute must be accompanied by the written consent of all parties to the dispute.
…
I have earlier outlined the procedural history of the present case. Ms Trubenbacher started the proceeding using the application form for a domestic building dispute. In effect, she framed the matter, incorrectly, as a domestic building dispute. The tribunal then directed that the matter would proceed as a commercial building dispute, and called upon Ms Trubenbacher to advise whether her claim exceeded $50,000. She then filed her letter capping her claim at $50,000. The tribunal then directed, on 28 April 2023, that the matter would proceed as an application for a minor commercial building dispute.
Mr O'Brien has not specifically challenged that direction in subsequent documents. However, in his ‘Further evidence’ document filed dated 28 July 2023, he said that he relies ‘on the submissions and responses that have been lodged with QCAT to date’.[8] I therefore take him as maintaining the objection to jurisdiction articulated in his response filed on 15 March 2023. In that document, he said:
In the event that the applicant serves evidence to support that her loss exceeds $50,000, QCAT does not have jurisdiction to hear the matter and consent has not been sought to extend the jurisdiction and allow QCAT to hear the matter.[9]
[8]Mr O'Brien’s ‘Further evidence’ document dated 28 July 2023, [5].
[9]Mr O'Brien’s response filed 15 March 2023, Jurisdictional Issues, [5].
However, I consider that the procedural history indicates that Ms Trubenbacher started a domestic building dispute proceeding and later, in substance, abandoned that proceeding and instead started the current proceeding, which is a minor commercial building dispute because she has capped her claim at $50,000. Accordingly, I am satisfied that the tribunal has jurisdiction to decide the dispute.
The tribunal has power to award damages.[10]
[10]QBCC Act, s 77(3)(c).

What contract, if any, existed between Ms Trubenbacher and Mr O'Brien?

On 15 February 2023 the tribunal directed Ms Trubenbacher to file by 1 March 2023 a ‘copy of the contract in respect of the building inspection the subject of the building dispute’. It appears that Ms Trubenbacher did not file any document in response to that direction, as Mr O'Brien later pointed out. Ms Trubenbacher then responded that ‘the Contract in relation to this matter is your Building and Pest Inspector’s Pre-Purchase Property and Timber Report 1/07/21’.[11] She also said ‘the original agreement for engagement is to be found on pages 1-3 of Patrick O’Brien’s Pre-Purchase Standard Property & Timber Pest Report’.[12]
[11]Applicant’s statement dated 4 July 2023, 3.
[12]Ms Trubenbacher’s ‘Applicant’s response’ document filed dated 10 August 2023, [7].
Ms Trubenbacher was referring to Mr O'Brien’s report dated 2 July 2021. I assume she was actually referring to pages numbered 2 to4, as the first page is just a title page with a photograph of the property. Pages 2 to 4 contain a description of the service and set out terms and definitions.
However, the insertion of terms by a building inspector in their report does not make them terms of the contract. By that stage, the contract is performed or at least partly performed. The terms of a contract are established when the contract is formed: before it is performed.
According to Mr Smallwood’s report, it is a requirement of the relevant Australian Standard that an inspection agreement must be entered into prior to the inspection taking place. The agreement must be in writing, signed by the parties, and define the purpose and scope of the inspection.
There is very limited information in the material about how Ms Trubenbacher engaged Mr O'Brien. They were in different states. His report says ‘as requested and agreed with the Client, the inspection carried out by the Building Consultant and Timber Pest Detection Consultant is a Standard Property & Timber Pest Report …’.[13]
[13]Mr O'Brien’s report, 2.
It seems likely that Ms Trubenbacher and Mr O'Brien would have entered into a contract online for him to conduct an inspection and provide a report on his standard terms in return for a fee. The requirements for electronic signing in the Electronic Transactions (Queensland) Act 2001 (Qld) were presumably met. I assume that the description of the service and the terms and definitions set out in Mr O'Brien’s report reflected what the parties agreed when they entered into the contract. Accordingly, I find that the following were terms of the contract:
PURPOSE OF INSPECTION The purpose of this inspection is to provide advice to the Client regarding the condition of the Building & Site at the time of inspection.
SCOPE OF INSPECTION This Report only covers or deals with any evidence of: Structural Damage; Conditions Conducive to Structural Damage; any Major Defect in the condition of Secondary Elements and Finishing Elements; collective (but not individual) Minor Defects; and any Serious Safety Hazard discernible at the time of inspection. The inspection is limited to the Readily Accessible Areas of the Building and Site (see Note below) …[14]
[14]Ibid.
I infer that the contract obliged Mr O'Brien to report to Ms Trubenbacher any major and minor defects and any serious safety hazards that were discernible in the readily accessible areas of the building and site.

Did Mr O'Brien breach contract?

Additional background

Ms Trubenbacher says that within a few weeks of moving in on 17 December 2021, ‘it became apparent that there were significant unreported problems’.[15] She says that an architect helped her to identify the issues, and then she lodged a complaint with the QBCC on 1 May 2022. I note that meanwhile she had obtained the March 2022 report by Mr Kenward. Ms Trubenbacher says that she provided ‘photographic evidence of the state of the house’[16] to QBCC with her complaint on 1 May 2022. However, she has not submitted those photographs in her evidence to the tribunal, apart from a copy of one photograph in her ‘Applicant’s response’ document dated 10 August 2023.
[15]Ms Trubenbacher’s ‘Final statement’ document dated 10 August 2023, 3.
[16]Ms Trubenbacher’s ‘Applicant’s response’ document dated 10 August 2023, 1.
Mr Smallwood in his report refers to a period of ‘approximately 5.5 months from Pre Purchase Report being produced to the time of the home owner occupying the dwelling and noticing the issues that form the complaint items’.[17] I note, however, that Ms Trubenbacher’s evidence to the tribunal is to the effect that it took her a little longer to notice the issues, and that she required some professional help in identifying issues.
[17]Mr Smallwood’s report under heading Complainants Submission.
Mr Smallwood also comments:
It should be noted that the previous home owners were aware of several issues relating to water ingress, rust patching and other issues and have undertaken temporary repairs prior to marketing the dwelling for sale. Due to the repairs being of a temporary nature several [issues] may not have been visible at the time of the Pre Purchase inspection and have now reappeared.[18]
[18]Mr Smallwood’s report at item number 1.
Taking that factor into account, Mr Smallwood concluded that several complaint items were not established. However, Mr Smallwood made adverse findings against Mr O'Brien in respect of the items pressed by Ms Trubenbacher in the tribunal proceeding. Mr Smallwood concluded that, accordingly, Mr O'Brien’s report was not satisfactory.
While I have taken into account Mr Smallwood’s opinions, I am not bound to accept his opinions or findings.
Mr O'Brien says there was a significant amount of rainfall, 2,355.7 mm, in the period 1 July 2021 to 5 January 2023, and that this would have acerated rusting. I accept this. He also says, and I accept, that the house ‘is located within close proximity to the coast and is subjected to harsh weather conditions’.[19] Mr O'Brien says:
The amount of rain together with the proximity of the property to the coast and the architectural nature of the build needs to be factored into the condition of the house and surrounds at the various inspections.[20]
[19]Attachment to Mr O'Brien’s response, 2.
[20]Mr O'Brien’s ‘Further evidence’ document dated 28 July 2023, 1.

However, Mr O'Brien does not explain, and it is not apparent, how the architectural nature of the build is relevant.
Each of Mr Kenward’s reports is titled ‘Visual Timber Pest Inspection and Report in Accordance with AS 4394.3-2010’ and the purpose is stated to be to ‘give advice about the condition of the property with regard to timber pests’.[21] The reports say ‘we claim no expertise in building’.[22] Nonetheless, the reports include some photographs and comments relating to the state of the building, especially signs of water damage to timber or rust in metal. One of the topics addressed in each report is ‘subfloor conditions’. Presumably Mr Kenward paid attention to these aspects because he explains in the reports that moist conditions increase the risk of termite attack.
[21]Page 1 of each report.
[22]For example in Mr Kenward’s report dated 18 December 2020, 5.

Windows

Mr O'Brien’s report did not identify defects in the windows apart from noting that a bay window was not to current standards because there is no restriction on how far it opens.
In her application filed on 3 February 2023, Ms Trubenbacher contends that Mr O'Brien failed to ‘identify issues relating to the operation of windows’.[23] She seeks an order that Mr O'Brien:
… compensate me for the costs relating to fixing the windows (to have them opening and closing successfully) and rotted window surrounds (repaired / replaced to stop leakage).[24]
[23]Ms Trubenbacher’s application filed 3 February 2023, 7.
[24]Ibid, inserted page.
However, Ms Trubenbacher later withdrew the part of the claim relating to rotted window surrounds.[25]
[25]Ms Trubenbacher’s statement dated 10 May 2023.
Ms Trubenbacher says that Mr O'Brien ‘did not make any mention of how poorly the windows and doors were, one window in BRM2 permanently open and missing the handrail’.[26] She says in her summary of costs: ‘Whole house – Doors and windows needing servicing to open and close’.[27]
[26]Ms Trubenbacher’s statement dated 30 March 2023, [3].
[27]Ms Trubenbacher’s summary of costs, 1.
Mr Smallwood in his report says he inspected ‘bedroom and living room windows and doors’.[28] He says ‘several of the double hung windows … were unable to be opened and locks were damaged’.[29] Mr Smallwood’s opinion is that this problem would have existed at the time of Mr O'Brien’s inspection.
[28]Mr Smallwood’s report at item number 2.
[29]Ibid.
Mr Smallwood’s report does not say how many windows were defective. It can be inferred that it was more than one or two but not all.
Total Estimating Services’ bill of quantities allows for ‘whole house window and door service’,[30] covering 30 items. This does not help to establish how many windows were defective in the ways contended by Ms Trubenbacher because it does not clearly assert that all windows and doors were defective (as at March 2023).
[30]Bill of quantities, second page.
In his response, Mr O'Brien says that the problems did not exist or were not evident at the time of his inspection. He notes that the problems were not identified in either of Mr Kenward’s reports. However, that is immaterial in my view. The focus of Mr Kenward’s reports was on elements relevant to infestation by pests and vulnerability to pest infestation. Mr Kenward did not purport to carry out a general building inspection.
It can be seen from the summary above that the evidence is vague about how many windows were unable to open and close and how many had missing or defective elements at the time when Ms Trubenbacher moved in (five and a half months after Mr O'Brien’s inspection), or at the time when Mr Smallwood inspected (17 months after Mr O'Brien’s inspection), or at the time when Total Estimating Services visited (20 months after Mr O'Brien’s inspection). It can also be assumed that there may have been deterioration since the time of Mr O'Brien’s inspection. On such vague evidence, I am not persuaded on the balance of probabilities that there were window defects discernible at the time of Mr O'Brien’s inspection apart from the one that he reported.
Accordingly, I find that there was no breach of contract by Mr O'Brien in respect of this part of the claim.

Steel bracing sets

This refers to under-floor bracing.
Mr O'Brien’s report noted, as ‘minor defects’, ‘some exposed elements surface rusting, due to coastal exposure, monitor and treat as required’.[31] This was the caption to eight photographs, one of which depicted under-floor bracing.
[31]Mr O'Brien’s report, 14.
In her application filed on 3 February 2023, Ms Trubenbacher contends that Mr O'Brien failed to ‘identify issues relating to the rusted structural steel bracing sets’.[32]
[32]Ms Trubenbacher’s application filed 3 February 2023, 7.
Mr Smallwood’s report contains photographs captioned ‘turn buckle rusted through’ and ‘advanced rust to bracing sets’.[33] He says:
There was evidence of major rust to the steel bracing sets to the underside of the dwelling.
The rust viewed by the inspector is well advanced and would not have occurred over 5.5 [months] since the inspection undertaken by [Mr O'Brien].[34]
[33]Mr Smallwood’s report at item number 9.
[34]Ibid.
This somewhat compresses the timeframe, in my view, as Ms Trubenbacher has not contended, explicitly at least, that the rusting in bracing was something she noticed immediately upon moving in. It is also important to note that the state of the bracing observed and photographed by Mr Smallwood was as at 17 months after Mr O'Brien’s inspection. It has to be assumed there would have been progressive deterioration in a rainy, coastal setting.
Mr O'Brien says that the ‘photographs’[35] included in his report were an accurate reflection of the bracing at the time of his inspection. However, I note that only one photograph depicted bracing. Mr O'Brien also draws attention to the comments about bracing in Mr Kenward’s reports. Mr Kenward commented on under-floor bracing in his second report, in March 2022. He included two photographs captioned, consecutively:
Rusting to the cross bracing turn buckles is evident and several will need to be replaced as they are a structural part of the building.
As previous photo and caption. The turn backers and bracing rods will need to be replaced to prevent failure.[36]
[35]Attachment to Mr O'Brien’s response, 1.
[36]Mr Kenward’s report dated 25 March 2022, 12.
Significantly, in my view, there were no similar photographs or comments in Mr Kenward’s first report, in December 2020. It can be assumed that if there had been evident defects in the bracing in December 2020, Mr Kenward would have noted them. While Mr Kenward’s task did not involve a general building inspection, it is apparent from the reports that he was alert to moisture-related issues such as rust.
Mr O'Brien’s inspection occurred in July 2021, about midway between when Mr Kenward inspected in December 2020 and did not report any rusted bracing and when Mr Kenward inspected again in March 2022 and reported significant rusting in the bracing.
On the available evidence, I am not persuaded that the extent of rusting in the under-floor bracing at the time of Mr O'Brien’s inspection in July 2021 exceeded the surface rusting that he reported. Accordingly, I find that there was no breach of contract by Mr O'Brien in respect of this part of the claim.

Steel posts supporting the roof

Although Ms Trubenbacher listed this item as ‘failure to identify advanced rust to steel posts supporting the roof’,[37] she also refers to beams: ‘rusted posts and beams supporting the roof’.[38]
[37]Ms Trubenbacher’s claim filed 3 February 2023, 7.
[38]Ms Trubenbacher’s ‘Final statement’ dated 10 August 2023, 3.
Mr O'Brien’s report noted as minor defects ‘some exposed elements surface rusting, due to coastal exposure …’, and ‘some patching and sealing of metal elements, both under and on top of the roof. Looks as though previous moisture on deck wall the reason …’.[39]
[39]Mr O'Brien’s report, 14-15.
In her application filed on 3 February 2023, Ms Trubenbacher seeks an order that Mr O'Brien compensate her ‘for the cost of replacing / partial replacement / repair and rustproofing of the upper portions of the structural beams supporting the roof in all 4 corners of the decks where rust is pervasive and advanced’.[40]
[40]Ms Trubenbacher’s claim filed 3 February 2023, inserted page.
Mr Smallwood in his report refers to ‘steel posts to the deck off the main living area’.[41] Mr Smallwood comments:
There was evidence of flaking rust to the steel posts and beams.
The rust viewed by the inspector is well advanced and would not have occurred over 5.5 [months] since the inspection undertaken by [Mr O'Brien].[42]
[41]Mr Smallwood’s report, at item number 8.
[42]Ibid.
Mr O'Brien stands by his report. He also points out that the issue was not identified in Mr Kenward’s reports. I place some weight on this: although Mr Kenward was not purporting to carry out a general building inspection, he did see fit to comment in his second report on overhead elements including rot in arbour timbers. He also commented on guttering, saying for example ‘guttering flashing to the patio roof has tapped over rust in multiple areas and will require replacing’.[43] Notably, no such comments were contained in Mr Kenward’s earlier report.
[43]Mr Kenward’ report dated 25 March 2022, 12.
As earlier discussed, Mr O'Brien’s inspection occurred approximately midway between Mr Kenward’s inspections. It can be inferred that there must have been significant deterioration between December 2020, when Mr Kenward first inspected, and March 2022, when he next inspected. Further, I do not accept the implication in Mr Smallwood’s opinion that the rust he photographed in December 2022 was necessarily the same as what Ms Trubenbacher observed when she moved in.
I am not persuaded on the balance of probabilities, on the available evidence, that there was rust in the posts and beams in question, or rust beyond surface rusting, discernible at the time of Mr O'Brien’s inspection. Accordingly, I find that there was no breach of contract by Mr O'Brien in respect of this part of the claim.

Sub flooring in bathroom

Mr O'Brien’s report did not identify any defects in the bathroom sub flooring.
In her application filed on 3 February 2023, Ms Trubenbacher contends that Mr O'Brien failed to ‘identify deteriorating sub flooring in bathroom’.[44]
[44]Ms Trubenbacher’s application filed 3 February 2023, 7.
Mr Smallwood said in his report:
A visual inspection to the subfloor frame directly below the bathroom area noted water staining from an unknown source to the floor sheeting in the location of plumbing penetrations, and an area of badly rotted flooring that is clearly visible and there are no issues restricting access to this area.[45]
[45]Mr Smallwood’s report at item number 3.
Mr Smallwood says this issue would have existed at the time of Mr O'Brien’s inspection.
Mr O'Brien says the defect cannot have been present at the time of his inspection: if it had been, he would have reported it. He comments that the previous owner had undertaken temporary repairs, as noted in Mr Smallwood’s report. However, it is not readily apparent, to me at least, how such a problem might have been convincingly obscured, particularly if the floor was badly rotted.
Mr Kenward in his March 2022 report included a photograph which appears to show the same patch of rotted bathroom flooring shown in a photograph in Mr Smallwood’s report. Mr Kenward captioned his photograph ‘rear right corner flooring under bathroom fixed glass window is delaminated and damaged’.[46] Notably, no such photograph or observation appeared in Mr Kenward’s December 2020 report. He commented on water damage to other areas of flooring in the December 2020 report. It is highly likely he would have commented on water damage to the bathroom floor if it had been evident.
[46]Mr Kenward’s report dated 25 March 2022, 10.
I infer that the staining and rotting in the bathroom floor became apparent some time between December 2020 and March 2022. I am not persuaded on the balance of probabilities that it must have been discernible as at July 2021 when Mr O'Brien inspected. Accordingly, I find that there was no breach of contract by Mr O'Brien in respect of this part of the claim.

Balustrades

This refers to balustrading on a deck or decks. From photographs, it appears that the balustrading consists of timber posts and timber top rails, with approximately a dozen horizontal wires running along the spaces between the floor and the top rails.
Mr O'Brien did not identify any issues with the balustrading in his report.
In her application filed on 3 February 2023, Ms Trubenbacher contends that Mr O'Brien failed to ‘identify unsafe balustrades’.[47] She said that Mr O'Brien should compensate her for ‘the cost of repairing, re-tensioning and reattaching balustrade wires on both decks to conform with Australian Building Code standards’.[48]
[47]Ms Trubenbacher’s application filed 3 February 2023, 7.
[48]Ibid, inserted page.
Mr Smallwood in his report says he inspected balustrading on one deck namely ‘the main deck off the living area’.[49] Mr Smallwood says that his inspection revealed ‘the horizontal wire balustrades were loose and exceeded the maximum permissible deflection of 7mm’[50] set in the relevant building code. Mr Smallwood says this problem would have existed at the time of Mr O'Brien’s inspection.
[49]Mr Smallwood’s report, at item number 7.
[50]Ibid.
Mr O'Brien in his response says he admits ‘Allegation 5 failure to identify unsafe balustrades’, adding ‘I accept that the loose wiring on the balustrades was not addressed in the Report’.[51] He adds that Mr Kenward did not identify loose wiring in either of his reports. However, I place no weight on that because the state of the wiring would not have been relevant for Mr Kenward’s purposes.
[51]Mr O'Brien’s response, 3.
Mr O'Brien says in his response that the rectification cost is nominal and proposes an order than he pay $500 in compensation. From later documents, however, it emerges that Mr O'Brien has since denied fault. He now denies that the wiring was sub- standard at the time of his inspection. He points to the interval between his inspection and Mr Smallwood’s. He says ‘wiring does loosen over time and needs to be periodically tested’.[52]
[52]Mr O'Brien’s ‘Further evidence’ document dated 28 July 2023, 2.
Ms Trubenbacher in her documents dated 10 August 2023 has effectively sought to expand her claim to include the state of the upright posts, contending that the balustrade problem is not confined to the wiring issue but also:
to the fact that the balustrades were disconnected from the deck causing a Serious Safety Hazard.
…
From the QBCC report: “Balustrades are UNSAFE and need to be re-tensioned and attached.” All balustrades on both balconies are unattached. “The inspector is of the opinion that this issue would have existed at the time of inspection undertaken by Patrick O’Brien”.[53]
[53]Ms Trubenbacher’s ‘Applicant’s response’ document dated 10 August 2023, 4.
Ms Trubenbacher inserts in her 10 August 2023 ‘Applicant’s response’ document a photograph depicting a post which is detached, or semi-detached at least, from the floor. She says this photograph was taken on 5 April 2022, and provided to the QBCC with her complaint on 1 May 2022.
Ms Trubenbacher has not accurately quoted Mr Smallwood’s report, in that she has deleted a word and added emphasis. The relevant part of Mr Smallwood’s report says:
COMPLAINT ITEMS
Item Number 7
External – Balustrade wires are unsafe and need to be re tensioned and attached
Comment
The QBCC inspector was directed to the wire balustrade to the main deck off the living area.
A visual inspection revealed the following.
The horizontal wire balustrades were loose and exceeded the maximum permissible deflection of 7 mm …[54]
[54]Mr Smallwood’s report at item number 7.
It is important to note firstly that complaint item 7, as set out by Mr Smallwood, refers to balustrade wires, and secondly, that it is apparent from the structure of the report as a whole that the passage ‘External – Balustrade wires are unsafe and need to be re tensioned and attached’ is Mr Smallwood’s summary of the complaint item rather than his own commentary.
So, I do not accept that Mr Smallwood made any finding about the attachment or detachment of posts. The opinion he expressed related to the wiring on one deck.
I also note that Mr O'Brien has not had the opportunity to respond to Ms Trubenbacher’s contention that posts were detached. In any event, Ms Trubenbacher has not stated how many, if any, posts were detached at the time she moved in. She has provided a single photograph of a defective post, taken in April 2022. The evidence overall does not persuade me, on the balance of probabilities, that posts must have been detached as at July 2021. Further, I am not satisfied on the balance of probabilities that wires must have been loose to an extent that breached the relevant code in July 2021, in circumstances where the only known assessment of their tautness occurred 17 months later when Mr Smallwood visited the property.
Accordingly, I find that there was no breach of contract by Mr O'Brien in respect of this part of the claim.

Conclusion

As I have found that Ms Trubenbacher has not established any breaches of contract by Mr O'Brien, it is unnecessary to consider the other issues. Ms Trubenbacher’s application is dismissed.

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Citations

Trubenbacher v O'Brien [2024] QCAT 291

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