Currie v Wright [2025] QCAT 529

Queensland Building and Construction Commission Regulation 2018 (Qld), s 54

BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086

Cochrane v Lees [2021] QCATA 74

County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193

Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174

Mann v Paterson Constructions Pty Ltd [2019] HCA 32

McDonald v Dennys Lascelles Ltd [1933] HCA 25

Miller v Lida Build Pty Ltd [2015] QCATA 137

Mousa v Vukobratich Enterprises Pty Ltd [2019] QSC 49

Munro v Camdun Pty Ltd t/as Asset Carpentry & Building Supplies [2024] QCAT 452

Perri v Coolangatta Investments Pty Ltd [1982] HCA 29

Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50

Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Ltd v Hardingham [2022] HCA 39

Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359

Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132

• [1] Mr and Mrs Wright (jointly 'the respondents') owned a home and wished to renovate it. They signed a HIA Renovation Construction Contract (Edition January 2003) on 23 August 2021 with Mr Currie as contractor ('Mr Currie'). The parties were known to each other.
• [2] Mr Currie prepared the contract. The construction work was described at item 4 of the first schedule to the contract ('the schedule') as:

High Set Brick, 3 Bedrooms Upstairs, 1 Bathroom Upstairs.

Renovate to extend Deck and re-roof to match existing roof line, install new roofing section to allow for height along veranda, install new entrance and veranda along front of house, render entire outer of house, Replace roof tiles with Tin, Install second bathroom upstairs, Reconfigure existing bedrooms upstairs to include walk in robe and ensuite, remove fireplace and install bi-fold doors, sheet ceiling of Kitchen and Lounge areas, reconfigure recreational areas under house, install concrete slab and shed.

• [3] The contract price was fixed at $279,544 (including GST).
• [4] Practical completion was due 120 days after commencement, but in the course of the build the parties agreed to extend the date for completion to 28 February 2022.
• [5] The contract utilised Part B payment table for progress payments as follows:

1. Deposit 5% $13,977.20
2. Demo and wall changes downstairs 20% $55,908.80
3. Plaster, fix, tiling downstairs 20% $55,908.80
4. Verandahs and roof frame 20% $55,908.80
5. New roof, windows and render 15% $41,931.60
6. Painting fit-offs 15% $41,931.60
7. Completion Balance (5%) $13,977.20

• [6] The respondents paid for the first 5 stages of work.
• [7] Mr Currie invoiced the respondents for Stage 6 on 5 April 2022 in the sum of $41,861.02 with date for payment noted due on 11 April 2022.
• [8] Mr Currie invoiced the respondents for Stage 7, practical completion, on 13 April 2022 in the sum of $13,953.67 with date for payment noted due on 15 April 2022.
• [9] Mr Wright principally engaged with Mr Currie during the build. Mr Wright refused to pay either claim or pay for additional variation work claimed to have been done by Mr Currie.
• [10] Mr Currie commenced proceedings in the Magistrates Court at Maroochydore on 6 June 2022 claiming $55,814.67[1] for unpaid progress payments 6 and 7 plus $20,293.75 for unpaid variations.
• [11] The respondent counterclaimed $61,550 for the cost of rectification of defective work, $15,000 for the cost of completing work and late completion damages of $1,965 plus an additional $15 per day from 10 July 2022 (to an unspecified date).
• [12] The matter was listed for hearing in the Magistrates Court, but shortly before hearing it was transferred to the Tribunal by consent of the parties.

• [13] The issues in dispute, broadly agreed between the parties, are as follows:

(a) Was the builder entitled to claim progress payment 6?

(b) Was the builder entitled to claim progress payment 7?

(c) Did the builder perform additional variation work and if so is the builder entitled to claim for it?

(d) Is the owner entitled to claim late completion (liquidated) damages?

(e) Are the owners entitled to claim costs for rectification of defective or incomplete work or both?

• [14] It is unclear why a 2003 HIA QC1 Renovation Construction Contract was signed by the parties on 23 August 2021 given the existence of later editions.
• [15] There is a great deal of uncertainty about the matter however. The parties have failed to explain their cases by filing statements of evidence. There is no meaningful chronology of significant steps, events or significant documents put in evidence.
• [16] The applicant tendered two statements of evidence in affidavit form. The first consisted of nine pages in the form of a response to the complaints about defective work set out in a Scott Schedule prepared by Mr Wright in support of the respondents' counter application.
• [17] The second statement of evidence appended details of his much reduced costings of rectification of the claimed defective work and attached six very short statements of evidence by various of his subcontractors also disputing Mr Wright's cost estimates for rectification of defective work listed in Mr Wright's Scott Schedule.
• [18] In closing submissions Counsel for Mr Currie said reliance was also placed on Mr Currie's evidence given at hearing. That evidence was limited to answers given in cross-examination, rarely a productive vehicle for eliciting evidence in chief.
• [19] Mr Wright had no statements of evidence save he relied on three emails[2] that he had forwarded to Mr Currie in course of the build. There was also an affidavit by an electrician quoting on costs of rectification of electrical items listed in the Scott Schedule.
• [20] I note a two volume hearing book was prepared for the Magistrates Court, but the contents were not put into evidence in the Tribunal proceedings.
• [21] Also in the Magistrates Court, and then in the Tribunal, only the 4 schedules to the contract, an index (only) of the general conditions and the builder's pre-contract quotation was tendered as the contract documents. The conditions themselves were missing.
• [22] By item 12 of the schedule it was provided:
  1. Other contract documents (Clauses 13 and 38)
     1. Engineered drawings of deck
     2. Detailed quotation
     3. Council approvals as required

These documents are documents that form part of this contract and are in addition to any special conditions, these general conditions, the specifications and the plans.

• [23] The schedules make extensive reference to the general conditions. At page 10 of the schedule above the signatures of the parties the respondents as owners acknowledge receiving the schedules and the general conditions.
• [24] A copy of plans for the deck approved 15 February 2022, nearly six months after execution of the contract, were filed in the Tribunal on 23 February 2023. It is not clear what engineered drawings of the deck are referred to in item 12 of the schedule set out above. Documents coming into existence after a contract is formed usually form no part of the contract.[3]
• [25] The absence of the general conditions, which expressly formed part of the contract, was raised with the legal representatives at the commencement of hearing. The legal representatives advised they had made enquiries, but had been unable to locate, the original 2003 general conditions. Counsel suggested that the version of the general conditions applicable at the time of execution of the contract might apply by default. It is unclear whether Counsel was referring to the original conditions published in 2003 or the conditions published as at date of signing of the contract, 23 August 2021.
• [26] A copy of generic HIA general conditions was supplied by the Tribunal for consideration of the legal representatives. The legal representatives agreed that, subject to a copy of the "original conditions" not being obtained before close of hearing, the generic general conditions supplied by the Tribunal[4] would be adopted as conditions of the contract, with the parties entitled to make submissions, if necessary, concerning them in closing. I note no original conditions were tendered before close of hearing and no submissions about adoption of the general conditions were made in final submissions.
• [27] There are no specifications to the contract, only the 'detailed quotation" referred to in item 12 of the schedule. The quotation is broad brush, lacks detail and sensible objective interpretation difficult given it contains such references as "remove weird part of roof outside and make look right" and "allowance to make saggy deck good."
• [28] In Mr Wright's email of 6 December 2021 he complains about the vagueness and lack of detail of the document causing confusion between the parties.
• [29] The Tribunal is asked to make findings about the parties rights, obligations and entitlements under the building contract. To do that, the terms and conditions of contract, express and implied, must first be ascertained.
• [30] It became clear as the hearing progressed that there was significant oral discussion between the parties leading up to and at time of contract and oral terms of contract agreed had not been reduced to writing. Unfortunately there is scant primary evidence adduced concerning the oral terms of contract.
• [31] There are numerous comments made in the three email statements of evidence of Mr Wright and the further evidence given by the parties in cross-examination at hearing referring to claimed oral terms of the scope of work.
• [32] Where the contract terms are express, either written or oral, the task is to interpret them.
• [33] Where the terms are not written or oral however, the exercise is to determine what the subject matter of the contract is, which is a fact finding task as explained in Realestate.com.au Pty Ltd v Hardingham; RP Data Pty Ltd v Hardingham [2022] HCA 39, [44]-[45] per Gordon J ('Hardingham'):

[44] As this Court held in Toll, a person who signs a contractual document conveys a representation to a reasonable reader of that document that the person has read and approved its terms or is willing to take the chance of being bound by its contents. If the document on its face appears to be a complete contract, it will contain the whole of the contractual terms. Extrinsic evidence cannot be adduced to subtract from, add to, vary or contradict those terms, except in limited circumstances. And a term will be implied only if, among other things, it is necessary to make the contract work.

[45] The approach differs when a court is confronted with an informal contract. The first task is to consider the evidence and to find the relevant terms of the contract. Ascertaining the terms is a question of fact. The issue is not one of interpretation, because there are no definitive words to interpret; "we are here concerned not with construing a contract but with evidence as to what the terms of a contract were". The issue is one of fact and substance, not mere form: what did the parties - here H/REMA and each of the agencies - agree?[5]

(footnotes omitted)

• [34] Hardingham concerned an entirely oral agreement. In County Securities Pty Limited v Challenger Group Holdings Pty Limited & Anor [2008] NSWCA 193 the Court was dealing with a contract partly in writing, partly oral and partly to be inferred from conduct, as in the matter at hand. Spigelman CJ observed:

[7] A need to identify the particular subject matter of the contract has often arisen, even in the case of a written agreement where there is a form of words to be interpreted. In the present case, the subject matter and the concomitant terms of the contract must be inferred from a combination of surrounding circumstances including conversations, documents and conduct none of which provide a definitive form of words. The issue is not one of interpretation, because there are no words to interpret. The issue is one of fact: what did the parties agree?

[8] In the absence of a written document or a conversation constituting the Transfer Agreement in the relevant respect, it is necessary for the Court to consider the full range of relevant surrounding circumstances when determining the subject matter and terms of the contract. Principles of law based on the parol evidence rule are not applicable.

...

[17] In the case of an oral contract, when the issue is not interpreting words but determining the subject matter of the contract as a fact .... The relevant surrounding circumstances extend to both pre-contractual and post contractual conduct.

...

[20] Where what is in issue is the identification of the subject matter of the contract, or the identification of necessary terms which were not the subject of express provision in a contract not reduced to writing, then consideration of post contractual conduct does not contravene the reasons underlying the principle.

[21] ... In my opinion, subsequent conduct, especially how a contract for purchase and sale was settled, is relevant, on an objective basis, to the identification of the subject matter of the contract or the determination of necessary terms, as distinct from deciding the meaning of words.

...

[24] ... Where, as here, the issue is the identification, as a matter of fact, of the subject matter of the contract, as distinct from the interpretation of the contract, subsequent conduct ... is, in my opinion, entitled to significant weight.

• [35] It is not a matter of finding out what the subjective intention of a party or the parties was, but the objective intention discernible:

The ultimate question is what reasonable people with knowledge of the background circumstances then known to both parties would be taken by their words and conduct to have agreed.[6]

• [36] In BH Australia Constructions Pty Ltd v Kapeller [2019] NSWSC 1086 Leeming JA said:

It is clear that in the case of a contract which is partly written and partly oral, regard may be had to the whole of the circumstances. The parol evidence rule applies only to contracts which are wholly in writing: see Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; 261 ALR 382 at [90(3)]. The non-written components of a contract which is not wholly in writing give rise to questions of primary fact, which are capable of being proven in the usual way, including by conduct after the event which bears upon those matters. In particular, an admission after the event may be powerful evidence supportive of a particular aspect of a contract. Indeed, Stephenson LJ said for the Court of Appeal in Mears v Safecar Security Ltd [1983] QB 54 at 77 that:

"Common sense suggests that [the parties'] subsequent conduct is the best evidence of what they had agreed orally but not reduced to writing, though it is not evidence of what any written terms mean... ."

• [37] I turn to consider the first issue for determination.

Was the builder entitled to claim progress payment 6?

• [38] Completion of stage 6 "painting fit-offs", entitled the builder to claim $41,931.60.
• [39] The meaning of painting is readily understood and clear and there is no controversy raised about its meaning under the contract.
• [40] The word fit-off is a well-known construction term. It commonly refers to finishing work towards the end of the job when such things as light switches, taps, door handles and toilet pedestals are added.
• [41] At hearing the applicant said stage 6 "painting fit-offs" referred to painting and both plumbing and electrical fit-offs. There was no challenge to that from Mr Wright.
• [42] As at end December 2021 much but not all of the deck work had been completed. The work was put on hold because the deck extension approval from Council had not been obtained. Mr Wright was responsible for obtaining that approval.
• [43] In an email from Mr Wright to Mr Currie dated 30 December 2021 Mr Wright said in the email that the outstanding deck work would now be included in the stage 6 work.
• [44] If the scope of work of stage 6 was to be changed in the course of construction, that required a variation agreed to by both parties. The definition of variation in clause 38.1 of the general conditions includes a change in the manner of carrying out the work. That extends in my opinion to a change in the scope of work for a stage of work, and the value of the work to be done in the stage.
• [45] There is no evidence that Mr Currie agreed to add the outstanding verandah work to the stage 6 work. There is no evidence that the matter was discussed between the parties prior to Mr Wright's unilateral decision about it communicated by the email. I find the stage 6 work did not change and was at all relevant times limited to painting and fit-offs only.
• [46] Accordingly Mr Currie was entitled to claim the 6 stage payment on completion of painting and fit offs. He was not obliged to wait until all the deck work was completed. That Mr Wright voluntarily paid the entire claim for stage 4, verandahs and roof frame, with some of that work left incomplete, has no effect on the entitlement of the builder to claim the stage 6 payment for completing painting and fit-offs.
• [47] By clause 4.5 of the general conditions, Mr Wright was required to pay a progress claim within five working days of receiving it.
• [48] By clause 4.9, save for a claim for liquidated damages in respect of the final claim, Mr Wright was not entitled to set off against or reduce any progress payment amount to cover the cost of rectification of claimed defects or the cost of claimed omitted work. Any payment made by Mr Wright for a stage of work was paid on account only and final reconciliation was to be made on the final claim being made (clause 4.8).
• [49] The question to be answered is, did Mr Currie complete the stage 6 painting and fit-off work?
• [50] In Thompson Residential Pty Ltd v Hart & Anor [2014] QDC 132 McGill DCJ gave careful consideration to the issue whether strict compliance with the definition of 'enclosed stage' was necessary, or whether substantial performance was sufficient. His Honour considered a number of earlier decisions on the subject, not all building cases, and determined the doctrine of substantial performance did not apply to stage payments. A failure to complete a stage of work did not amount to breach of the contract. The only requirement under the contract was to achieve practical completion.
• [51] He noted that the starting point to determining whether a stage had been completed was the definition for the stage of work found in the contract. That holds true in most standard form contracts, where standard stages of work of Table A apply. However where the parties agree on Table B, non-standard stages of work, there are usually no definitions available. That is the situation in the case at hand.
• [52] McGill DCJ also had a HIA contract before him, the clauses apparently on all fours with the generic general conditions adopted here. His Honour said:

[68] It seems to me that the approach of Samuels JA is applicable in the case of the clause in this contract governing progress payments, clause 4. Clause 4.1 provides that the owner "must pay the contract price adjusted by any addition or deductions made under this contract progressively at each stage." Clause 28.2(a) provides that the owner is in substantial breach of this contract if the owner does not pay progress payments as required by cl 4. Accordingly cl 4 is a significant term of the contract, but it does not in terms impose upon the builder a specific obligation to complete each stage of the works. The obligation on the builder to complete the works is in clause 3.1, which obliges the builder to complete the works (as a whole) on or before the end of the building period stated in item 10, as extended under cl 17. Breach of that obligation is not a substantial breach of the contract: cl 28.1. Indeed, cl 32.1 provides expressly for liquidated damages in the event of the works not reaching practical completion by the end of the building period.

[69] The question therefore is whether the contract is to be construed as one where completion of a particular stage of the work is a condition precedent to payment of the progress payment in relation to that stage, or is one where a failure to complete is seen as a breach of a non-essential term not disentitling the builder to contractual payment. In circumstances where there is no separate obligation on the builder to complete the work required for each particular stage, a failure to do so cannot be characterised as a breach of a non-essential term: it is not a breach of a term at all. The position is simply that the contract provides that, if the builder does X, the owner is obliged to make a specific payment. In these circumstances, I cannot see how the doctrine of substantial performance can apply. Unless the builder does X, the obligation to make the payment does not arise.

...

[72] ... The practical question is not whether what has been done can properly be described as a completion of "the enclosed stage", but whether what has in fact been done can be said to constitute satisfaction of the definition of "enclosed stage" in the contract. Commercial contracts are usually to be interpreted in a commonsense practical way, and building contracts in particular need to be interpreted in a practical and workable fashion. But I do not think that justifies any substantial difference between what has occurred and what is required. Obviously the difference between what has occurred and what is required might be so slight or trivial that it could be said that in a practical sense the definition had been satisfied. Thus, if the owner could find one loose tile on the roof I do not think that it could be said that that in itself meant that it was not correct to say that the roof covering was fixed.

[73] ...On the whole, it seems to me that the test is whether the omissions are slight or trivial. Another way would be to describe the disparity between what was done and what was required as coming within the maxim: de minimis non curat lex.

(footnotes omitted)

• [53] The maxim de minimis non curat lex translates as the law does not take account of trifles.
• [54] His Honour did not need to go further.
• [55] The maxim de minimis non curat should perhaps not be given too much weight or relied on in isolation as the determinative factor in deciding whether a stage of work has been finished.
• [56] His Honour did not refer to the expression minor defect or minor omission in his judgment. Those words appear in the general conditions at hand. Whilst the contract adopted Table B non-standard stages of work, Table A makes express reference to minor defects and minor omissions in the definition of practical completion which is the stage when the works:

(a) have been completed in accordance with this contract and all relevant statutory requirements apart from minor defects or minor omissions; and

(b) are reasonably suitable for habitation.

• [57] By the definition provision, clause 38, practical completion for the contract has the meaning used in Table A, which means the definition applies whether Table A or B is used for practical completion stage.
• [58] By clause 25, when the builder believes the works have been completed the builder must give the owner a defects document listing minor defects and minor omissions and stating when they will be completed or remedied. There is no suggestion that the minor defects and minor omissions might not arise at any of the stages of work.
• [59] Practical completion stage contemplates that there will remain work to be done during the completion stage and also potentially various minor defects and minor omissions.
• [60] By clause 25 all the work under the contract, including minor defects and minor omissions, must be completed or remedied at a time agreeable to the parties in order for the builder to earn the final payment. The final payment is not made on account (clause 4.8) as previous stage payments, but is available to reconcile all the work done, outstanding minor defects and minor omissions remedied and full price for the contract work payable. There is no obligation on the owner to pay it absent that reconciliation.
• [61] The issue therefore, at any stage of work, where a claim is made for the stage payment and an owner disputes the work has been done or done properly, is not necessarily whether the defect or omission amounts to a mere trifle, but whether it is more than a minor defect or minor omission which should disentitle the builder from its payment until the defective work is remedied or the omitted work completed.
• [62] According to the Macquarie Dictionary[7] minor means, in context here, "lesser, as in size, extent, or importance, or being the lesser of two." Identifying something as a minor defect or omission therefore entails measuring or balancing its significance against the stage work completed whilst bearing in mind that the general conditions contemplates final management of minor defects and omissions at practical completion stage.
• [63] There come to mind a number of factors that might usefully assist. Whether the defect or omission is easily rectified or could be finished at a later date or at practical completion; whether a failure to rectify or complete the defect or omission would hinder subsequent work; whether the defect or omission is a matter of aesthetics only; what the value or cost of rectification is weighed against the value and extent of the stage work performed; whether the defect or omission is so lacking in importance that it cannot be said to be fair to withhold payment; whether the practical completion stage payment might be inadequate to cover both the final work to be done at practical completion stage and the cost of rectification of outstanding minor defects and omissions.
• [64] I turn to consider the defects which Mr Wright makes complaint about and might contend precludes Mr Currie from claiming completion of the stage 6 work.

• [65] Mr Wright engaged a building expert, Mr Carpenter, in 2024, to give a report. Mr Carpenter says in his report his instructions were to assess a list of issues in a Queensland Building and Construction Commission ('QBCC') inspection report prepared consequent on a complaint made by Mr Wright about the work on site.
• [66] Mr Carpenter attended on site for an inspection with Mr Wright. He states he was provided with nine sets of documents, including an undated deck scope of works drawn by Mr Wright, drawings and approvals and inspection reports by certifiers as well as the QBCC inspection report dated 28 June 2023, a QBCC review dated 6 July 2023, a copy of the contract (absent general conditions) and Tribunal Directions.
• [67] He was not provided with any of Mr Currie's material.
• [68] Mr Wright produced a Scott Schedule leading up to hearing which lists items of defective work and notes costs of rectification based on figures provided by Mr Carpenter.
• [69] Concerning stage 6 work, the Scott Schedule records[8] one complaint about painting as mentioned in the QBCC report (complaint 19). The complaint to the QBCC was "Painting has one coat in many places, runs and drips, and has already started wearing days after project finish. Location of defect: Entire House."
• [70] In the QBCC report the inspector recorded only areas in a bedroom off a hallway with plaster patches that had not been sanded which were visible from a normal viewing position of 1.5m and other areas around the dwelling bearing minor paint drips.
• [71] Mr Carpenter adopted the comments made by the inspector. He calculated the cost of rectification at $688.50. That cost was based on a new contractor being engaged to perform the work.
• [72] Mr Currie calculated rectification would cost only $200. That was his cost as builder on site fixing the problem.
• [73] The complaint made by Mr Wright seems greatly exaggerated. There is only one small area in one bedroom to be sanded and repainted in what otherwise appears to be a fairly substantial renovation area.
• [74] Mr Currie's cost of $200 was not challenged at hearing. Mr Carpenter agreed that Mr Currie's costs as builder on site would be cheaper than engaging an independent third party contractor.
• [75] I determine the problem would be easily and commonly remedied during the defects liability period in most builds, or finalised at practical completion stage.
• [76] I find this is a minor defect that does not preclude Mr Currie claiming he had completed the stage 6 work.

• [77] Mr Wright identified three lighting fit-off defects in his Scott Schedule.
• [78] First there is a complaint that "Lighting in the kitchen is not installed evenly, and the switching is not structured. This was raised and not rectified (as per item 15 in QBCC report)".
• [79] None of the electrical complaints were accepted by QBCC, on the basis such work was not within its statutory remit.
• [80] Mr Wright says a down light should be moved and the light switching rectified so that the lights are switched "in a conventional manner as per contract". The estimated cost of that based on a quotation from an independent electrician is $16,449.13.
• [81] There is nothing in the quotation to assist and no primary evidence adduced to support the claim that the current wiring is not conventional or the down light installed in the wrong place.
• [82] Mr Currie had engaged Mr Knott, an electrician, as sub-contractor to do some of the electrical work. Mr Knott gave evidence. He said there was no plan or drawings available to him showing where the electrical components were to be located. Instead Mr Wright had walked around the site with him pointing out the various locations for switches and lights and Mr Knott had made notes about that. Mr Knott said he subsequently wired everything as instructed by Mr Wright.
• [83] It was put to him that he was instructed to wire the downlights in a straight line across the ceiling but that one downlight near the main entry was out of line. Mr Knott was adamant that he had positioned the lights and wired the switches as directed by Mr Wright.
• [84] Mr Wright said he had no recollection of walking around the site with Mr Knott, or indeed meeting him or ever talking to him about the project.
• [85] There is no evidence that there was ever any electrical plan detailing positioning of lights or particular switching requirements.
• [86] Absent a siting plan, if one accepts Mr Wright's evidence that he did not engage with Mr Knott, the inference to be drawn is that there was an implied term of the contract that the siting and switching of the electrical components would be left to the discretion of the installing electrician or Mr Currie as builder.
• [87] If one accepts Mr Knott's evidence, again in the absence of any siting plan, Mr Wright advised him where the electrical components should be sited and he acted accordingly.
• [88] Mr Knott gave evidence by telephone. He is an independent contractor. He said in giving his evidence that he had walked the site with Mr Wright and whilst doing so he had written the instructions down on a piece of paper. He was straight forward in giving his evidence and maintained that the work he did accorded with the instructions given by Mr Wright.
• [89] Regardless of whether I accept the evidence of Mr Knott, and I do accept his evidence that he was given directions by Mr Wright where to site lights and acted accordingly, Mr Wright's complaints about this must fail.
• [90] In Mr Wright's three emails detailing defects and omissions found on site, it is only in the last email of 1 February 2022 that he mentions giving instructions about the positioning of lights and the instructions being ignored. He also complains that the strip lighting is not on a separate switch "as discussed and agreed with the electrician". Mr Currie had engaged two electricians to do the work, Mr Knott first, then after him Mr Pearce.
• [91] Mr Wright does not identify which electrician he was referring to in his email of 1 February 2022. Given his evidence was that he had never spoken to Mr Knott, any such discussion must have been with the second electrician, Mr Pearce.
• [92] Mr Currie said at hearing that Mr Knott had finished his work before Christmas 2021.[9] That was why he had engaged Mr Pearce, to finish the electrical work. That was not challenged and I find Mr Knott had finished his work before Christmas 2021.
• [93] Mr Knott's work included wiring for new downlights in the dining and kitchen area. The quotation referred to work in the main areas of the house, which I take to mean the dining and kitchen area. The quotation provided for battening the ceiling for new down lights, for new VJ boards between the rafters and painting and gapping the new ceiling. It made no reference however to any strip lighting being installed, let alone on a separate line and switch.
• [94] It was too late after the wiring was run for downlights and the ceiling fitted to ask the electrician, whether Mr Knott or Mr Pearce, to run another cable for strip lighting and the strip lighting separately switched. Judging from photographs attached to Mr Wright's email of 6 December 2021 the wiring and the new VJ board ceiling was already finished by that date. Running an extra line at that point in time would have required significant additional work removing the ceiling and running another cable and then doing the ceiling work again, most probably with new replacement VJ boards. It would have required a variation to the contract which, according to Mr Currie, Mr Wright adamantly refused to countenance.
• [95] I find that it was no term of the scope of work under the contract that the strip lighting be installed with a separate electrical line with a separate switch to the other lights.
• [96] With respect to the one downlight said to be misaligned, whilst there was an implied term of the contract that the siting and switching of the electrical components would be left to the discretion of the installing electrician or Mr Currie as builder, I find that Mr Wright in any case gave directions to Mr Knott as to the positioning of lights and that Mr Knott acted in accordance with those directions as understood by Mr Knott.

• [97] Then there is a complaint concerning a solar hot water switch not being moved "as discussed". Again there is no evidence about the circumstances of that discussion, when it occurred, who was spoken to nor what was said.
• [98] The quotation to the contract notes "Turn upstairs laundry into main bathroom". The amount allowed for that work was $12,992 plus GST. There is an item appearing beneath that "allowance for electrician including moveing (sic) sola (sic) hot water over ride switch". There is no particular cost allowance for that.
• [99] I have found that there was no siting plan for electrical components. Mr Currie said at hearing that the old hot water switch had been moved out from a cupboard.
• [100] In Mr Wright's email of 6 December 2021 there is a photograph of wires hanging from a hole in plasterboard and an area indicated above that, perhaps a distance of 300 or 400 mm away with the caption "Move hot water booster switch to top corner as discussed, we note it has been fitted off since discussing this." That suggests the new wiring for a hot water switch outside the cupboard had been run, and given the date of the email, done by Mr Knott, though Mr Knott said he did not recall doing it. At hearing Mr Currie said Mr Pearce the second electrician had done the work. It is not clear whether Mr Currie was referring to running the cabling, fitting the switch or both.
• [101] In Mr Wright's email of 30 December 2021 there are two photographs showing a hot water booster switch fitted to the wall with the caption "Hot Water booster switch not moved, and holes on either side of installed switch. Cover to go on."
• [102] Mr Wright's complaint appears to be that the switch had not been moved further up the wall as mentioned in the email of 6 December 2021.
• [103] Absent any siting plans for electrical components, I find the positioning of the switch was at the electrician's discretion or Mr Currie. Therefore there was no breach of the scope of work of the contract with respect to this item.
• [104] Power point and aerial cables on deck
• [105] Item 17 in the Scott Schedule is a complaint that a power point and aerial cables were installed in the wrong position on the deck. The Scott Schedule adds that the rectification work required is to move the power point and aerial outlet to a location "as per drawings issued, as per contract."
• [106] Mr Currie said at hearing that there were no plans available for the deck until February 2022. The plans available in February 2022 are not in evidence. In the email of 6 December 2021 there is a photograph of part of the deck with the caption:

Deck complete to existing Eastern end. Including treated/stained, bifold, lights, power points, roof, handrails and stainless-steel wire.

• Power points can be 1 for where TV going above bifold, and below on wall.

• [107] The respondents' defence filed in the Magistrates Court and appended to the Response filed in the Tribunal the Respondent notes:
  1. Outlet for TV and Aerial cable not installed as per plan

The location of the power outlet and the aerial outlet was supplied to the plaintiff by the defendants and marked on the wall. The outlet remained in the position it was, and the aerial cable has no outlet, it just hangs on the wall. This was discussed by the defendants with the plaintiff on several occasions, and at a meeting at the house on 14 April 2022.

Cost or rectification $750

• [108] The email of 6 December 2021 suggests the power points had already been installed, and as found above, they would have been installed by Mr Knott without benefit of a plan. The implied term of the contract allowed the electrician or Mr Currie discretion as to siting.
• [109] To move the power point after fitted required a variation and there was no variation agreed.
• [110] As to the missing outlet plate referred to in the Response document, there is no evidence of the cost of that, but I determine it would be a very minimal cost and the absence of the plate constitutes a minor omission which does not prevent Mr Currie from claiming the stage 6 payment.

• [111] Finally there is mention made of cabling under the deck missing mechanical protection. That seems to have been raised by the electrician engaged by Mr Wright to quote on cost of rectification work. There is no mention of it in the Scott Schedule.
• [112] Mr Knott was asked at hearing if he had run the cabling and he said he had not. He said it was no part of his work. Mr Pearce, not available at hearing, was apparently on site in January 2022 but the deck was not finished until the end of February 2022 and there is no evidence that the cabling under the deck was run before the deck was finished.
• [113] Indeed there is no evidence from Mr Wright addressing when the cabling was run at all, under what part of the deck it was run, who ran it and what the cabling was for.
• [114] In the circumstances I am not prepared to find that the unprotected cabling was work done by Mr Currie or the electricians engaged by him as part of the electrical fit-off work under the contract.

• [115] I find Mr Currie had completed the stage 6 work, save for minor defects and minor omissions, when he issued progress claim 6 on Tuesday 5 April 2022 claiming $41,861.02. By clause 4.5 of the general conditions payment was due within five working days of receipt, on or about Tuesday 12 April 2022.
• [116] It is not in issue that Mr Wright refused to pay the progress claim. That refusal was a clear repudiation of the respondents' obligations under the contract and entitled Mr Currie to terminate the contract.
• [117] By clause 28.2(a) of the general conditions, an owner is in substantial breach of the contract if the owner fails to pay a progress payment as required by clause 4.
• [118] Clause 28 goes on to permit the builder to issue a notice to remedy breach if the owner is in substantial breach of the contract and then, if the breach is not rectified, to issue notice of termination of contract.
• [119] Mr Currie did not use the contract process however, and there was no obligation on him to do so to effectively terminate the contract: Mousa v Vukobratich Enterprises Pty Ltd [2019] QSC 49, [194].
• [120] Clause 28.8 provides that if a party breaches the contract nothing in the contract detracts from the right of the other party to exercise any other right or remedy. Any other right or remedy extends to termination under the general law.[10]
• [121] Mr Currie commenced proceedings in the Magistrates Court at Maroochydore on 1 June 2022 for recovery of progress payment 6 and for other monies claimed owing. I find that commencement of those proceedings constituted effective notice of election to terminate the contract given to the respondents: Perri v Coolangatta Investments Pty Ltd [1982] HCA 29, [17]; Queensland Vedic Cultural Centre Pty Ltd v Lal [2022] QCATA 50, [24].
• [122] Termination may be valid on any sufficient ground existing as at date of termination, even if that ground was not known to the party terminating in reliance on another, incorrect ground: Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359 per Starke J:

The fact that the appellant's misconduct was unknown to the respondent at the time of the termination of the agreement is quite immaterial. If there were, in fact, any circumstances in existence at the time of the termination of the agreement which could have justified the respondent in so terminating it, then it may justify the termination by subsequent proof of those circumstances....

• [123] Mr Currie is entitled to recover the sum of $41,861.02 for stage 6 work as a payment accrued due under the contract as at date of termination: Mann v Paterson Constructions Pty Ltd [2019] HCA 32.
• [124] The respondents' repudiated the contract. They are not entitled to pursue a claim for breach of the contract they repudiated. Where a party not in breach of a contract elects to treat the contract as ended either because that is permitted under the contract or there is an entitlement to terminate under the general law, the party in breach is not entitled to claim damages for breach of contract against the party not in breach. The following statement by Dixon J in McDonald v Dennys Lascelles Ltd [1933] HCA 25[11] is to point:

When a party to a simple contract, upon a breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired.

• [125] Mr Currie's entitlement to claim progress claim 6 was unconditionally acquired before termination and is recoverable by him against the respondents. The respondents' claims for liquidated damages, defective and omitted work and breaches of warranties implied into the contract by Divisions 2 and 3 of Schedule 1B of the Queensland Building and Construction Commission Act 1991 (Qld) ('QBCC Act'), are all claims pursuant to the contract, do not amount to unconditionally accrued rights earned prior to termination and they do not survive termination of the contract.
• [126] In so far as the respondents appear to suggest that Mr Currie's failure to achieve practical completion on 28 February 2022 meant Mr Currie was also in breach of the contract, given the contract provides for liquidated damages for delay, as with most standard form construction contracts, time was never of the essence of the contract. To make it of the essence notice of that had to be given, usually by notice of breach and requiring the breach to be remedied within a reasonable period, which was not done here.

Was the builder entitled to claim progress payment 7?

• [127] Mr Currie was entitled to claim the stage 7 payment on achieving practical completion.
• [128] Under the general conditions of contract, there were a number of steps required to be taken before being able to claim practical completion was achieved. A failure to adhere to those steps may disqualify a builder from claiming the practical completion payment: Cochrane v Lees [2021] QCATA 74, [84]-[85]:

[84] What accrued rights had the builder as at date of termination? He had performed and completed the various stages of work and been paid for them save for the final, practical completion stage. It appears that he had performed most of the physical work necessary for the stage, but what he had not done was to obtain final certification and perform those steps necessary and stipulated to be done by clause 28.2. That was no small thing, as referred to above.

[85] By clause 28.5, only when Mr Lees had satisfied all the obligations under clause 28.2 were the Cochranes required to immediately pay him the progress claim for the Practical Completion stage. Mr Lees did not do that and accordingly he was not entitled to recover the Practical Completion stage payment.

• [129] There is mention made in the Magistrates Court pleadings (which are just that, pleadings, not evidence) filed by Mr Currie about a Builder Project Completion Advice Form having been given to Mr Wright on 11 April 2022. The form is not in evidence however.
• [130] Mr Currie said at hearing that Mr Wright had provided a defects list when he attended on site for a walk around the site, apparently on 11 April 2022. That defect list has also not been put into evidence.
• [131] The Certifier was not called and did not provide a statement of evidence. Mr Currie maintains practical completion was achieved. Mr Wright disagrees because no Form 21 was forthcoming from the certifier (engaged by the respondents). The Form 21 was apparently issued sometime later, after Mr Currie claimed practical completion had been achieved. That absence at minimum prevented Mr Currie from claiming practical completion had been achieved.
• [132] The work to extend the deck was scheduled for stage 4 of the works. The parties agreed that it could not be completed in that stage because there was no approval in place. Approval was given on or about 15 February 2022.
• [133] The completion of the stage 4 deck work therefore occurred during practical completion stage.
• [134] Mr Carpenter for Mr Wright identifies significant defective work done on the deck. His estimate of the cost of rectification is $11,693.
• [135] Mr Carpenter referenced and agreed with the QBCC report in making his observations and estimates. The QBCC report found the deck to be constructed 20mm out of square and the decking boards laid inconsistently and overhanging the deck by different measurements. The gaps between boards ranged between 1.5mm and 6mm whereas a Timber Qld technical data sheet called for a minimum of 3mm gaps. The effect was an unsightly finish. The QBCC inspector found the work had not been completed in a tradesman like manner.
• [136] Mr Currie does not challenge the claim that the decking work was unsatisfactory. However he does challenge Mr Carpenter's estimate of the cost of rectification, particularly such things as Mr Carpenter's inclusion of $4,800 for lightweight scaffolding during rectification.
• [137] Leaving that aside, the work involved is significant. The deck boards must be taken up and according to Mr Carpenter the balustrade posts must also be removed to allow the decking boards beneath to be lifted and repositioned.
• [138] Mr Carpenter says 1m of decking for a length of 10m must be removed and replaced with new boards before replacing the balustrade posts. He estimates the cost of replacement boards will be $544, the cost of lifting the boards $1,346.20 and similarly the cost of fixing new boards is another $1,346.20.
• [139] Mr Currie's estimate of the cost of rectification is $475 for "all issues with this item and item 10" and another $90 for materials. That seems very low, given Mr Carpenter's estimate for the decking timbers alone is $544. Mr Currie appears to be suggesting the existing decking boards be lifted, nails removed and then re-nailed in place.
• [140] I determine that at minimum, new decking boards are necessary. By s 20(1)(b) Schedule 1B of the QBCC Act the contractor warrants that all materials supplied for use in the work will be new unless otherwise stated in the contract.
• [141] Nor does Mr Currie explain why scaffolding will not be necessary. Mr Carpenter points out the height of the deck requires it. Indeed Mr Currie used scaffolding when constructing the deck.
• [142] Attached to Mr Currie's closing written submissions was a fresh statement of evidence addressing the work he says he will do in rectifying the deck. It comes too late to be taken into account. Mr Wright has not been provided with an opportunity, perhaps through Mr Carpenter, to challenge the evidence. Taking it into account would amount to a breach of natural justice, and natural justice must be observed in the Tribunal.[12]
• [143] Based on the evidence appropriately before me, I determine the final deck work was necessarily finished during stage 7, the practical completion stage of work. It had to be done at practical completion stage because it was an outstanding aspect of the scope of work under the contract and stage 7 was the last stage. The deck work suffered from significant defects which cannot be described as minor or trivial. As such, practical completion stage was not achieved and the stage payment for that stage was not earned as at 11 April 2022 when that claim was made, nor thereafter before termination.
• [144] The only claim that might be mounted by Mr Currie for any payment in respect of work done during practical completion stage is one in quantum meruit. But Mr Currie had already been paid for all the deck work in the stage 4 payment. There was nothing more to be claimed for the remainder of the deck at practical completion stage. A builder not in default and not entitled to a progress claim is entitled to pursue a claim in quantum meruit for the value of the work, but the value of the work cannot exceed the amount otherwise due under the contract for the work concerned: Mann v Paterson Constructions Pty Ltd [2019] HCA 32, [105] per Gageler J (as His Honour then was).
• [145] Mr Currie is not entitled to any part of the stage 7 progress payment for practical completion.

Did the builder perform extra work and if so is the builder entitled to claim for it?

• [146] By s 40(2) Schedule 1B of the QBCC Act a contractor must give a building owner a copy of a proposed variation in writing before either five days elapse from the time parties agree to the variation or any domestic building work the subject of the variation is done.
• [147] There were no variations in writing here. Mr Currie maintained that he performed extra work outside the agreed scope of work of the contract but Mr Wright refused to accept the work as variations.
• [148] Mr Currie's evidence at hearing about extra work was vague and at times confusing. He seemed to concede that some of his claims were for unanticipated extra costs performing the agreed work:

And there was no discussion about a variation?‑‑‑Well, I - there was discussions, but Brendan always just said that he wasn't paying any variations, and for me to complete the job, I just had to wear it.

Was there a discussion between you ­ ­ ­?‑‑‑Yeah.

­ ­ ­ orally about a variation, say, for item 1, plumbing to roof?‑‑‑Yeah. There was discussions about variations, yeah.

And do you say there was an agreement, orally, for you to perform additional work?‑‑‑No. There wasn't additional work, it was just the cost that it ended up being.[13]

• [149] Given the contract price was fixed, any extra cost of the agreed work had to be borne by the builder.
• [150] The only material made available by Mr Currie were particulars in the original Statement of Claim filed in the Magistrates Court on 6 June 2022. The particulars are not evidence. There are no supporting invoices from suppliers of product, nor evidence of the time taken by Mr Currie or his employees performing the work claimed done, or wages paid.
• [151] Mr Wright disputes that any of the claimed extra work is extra work. Neither party made an effort to clarify what the original scope of work entailed and how the extra work done was different.
• [152] There is one item of claim explored in cross examination of Mr Currie that calls for different consideration however, a claim for the cost of extra tiling work.
• [153] Mr Currie claims for 22m2 extra tiling work in the ensuite done at the request of Mr Wright. Mr Currie claims an additional $3,437.50 for that. At hearing the following exchange occurred between Mr Currie and Counsel for Mr Wright:

MR WHITE: Then we come to item 3, "extra tiling to the ensuite"?‑‑‑Yep.

I'd suggest that this item did actually require an extra 10.12 square metres worth of tiling on the ensuite, but not the 22 square metres that you've claimed for there?‑‑‑So the tiling in the ensuite was exactly the same as the tiling in the other bathroom. So tile to ceiling in shower, skirting tile everywhere else.

But you didn't do the tile to ceiling ­ ­ ­?‑‑‑Tile to ceiling everywhere in that ensuite, every wall.

Where was it that you didn't do the tiling to the celling, do you say?‑‑‑Was - that was in the other bathroom.

Okay?‑‑‑The four - four extra tiles.

All right. So it's the case that, whilst you did an extra portion of tiling here, you omitted a portion of tiling elsewhere?‑‑‑Well, it's just - it's just what the tiler did.

• [154] I am satisfied that this exchange establishes that Mr Wright did ask Mr Currie to tile the ensuite and that entailed fixing 22m2 of tiling. Another bathroom may have had less tiling, but the ensuite took 22m2.
• [155] I also find the ensuite tiling was additional to and outside the scope of work of the contract. According to Mr Currie the request was made on 9 February 2022. That was not challenged at hearing. The tiling work under the contract had been performed in stage 3, claimed in progress claim 3 of 11 October 2021 and paid shortly after that.
• [156] I also accept Mr Currie's evidence that Mr Wright generally refused to countenance variations to the contract on the basis he claimed the extra work fell within the scope of work of the original contract.
• [157] Counsel had opportunity to challenge the claimed cost of the extra tiling work at hearing when challenging Mr Currie about the extent of the work done, but did not do so. According to Mr Currie the amounts claimed for variations, including the tiling in the ensuite, was only his cost price of performing the work without any builder's margin added.[14] He said price was not discussed.[15]
• [158] By clause 20.6 of the general conditions, if the price of a variation was not agreed the price was the reasonable price of additional work including an amount for the builder's margin. The builder's price on the evidence of Mr Currie was $2,887.50 for labour and $550 the price of tiles, with nothing added for builder's margin. In the circumstances, on the limited information to hand, I accept that the amount claimed is a reasonable cost of tiling of the entire ensuite.
• [159] I have addressed the issue of whether or not absence of a written variation document signed by the parties disqualifies the builder from claiming payment of an agreed variation elsewhere[16] and found the absence does not disqualify a party from recovery on that basis only, subject to proving the variation was agreed and outside the scope of work of the contract.
• [160] I find Mr Currie is entitled to be paid the sum of $3,437.50 as the reasonable value of the extra tiling work done as a variation to the contract.
• [161] By clause 20.7 of the general conditions the price of a variation was due and payable at the next progress payment after the work was carried out unless a different time was agreed. According to Mr Currie the variation was agreed on 9 February 2022. Accepting the extra tiling work was done prior to issue of the stage 6 payment claim, the payment for the variation was due at the same time as the stage 6 payment. As such, Mr Currie was entitled to it as an accrued right as at date of termination.
• [162] Mr Currie is not allowed the other items of claimed variation work. How those other items of work are outside the scope of work of the contract is not addressed in any substantive way. I am not persuaded that they are extra work or if extra, agreed extra work.

• [163] Mr Currie is entitled to progress claim 6 in the amount of $41,861.02 and to $3,437.50 for the tiling variation, a total of $45,298.52.
• [164] The applicant seeks interest, either pursuant to contract or the common law. Clause 33 of the general conditions provides that interest must be paid on overdue amounts at the rate stated at item 8 of the schedule. Item 8 of the schedule does not address interest rates nor does any other item in the schedule.
• [165] By s 77(3)(c) of the Queensland Building and Construction Commission Act 1991 (Qld) the Tribunal may:

(c) award damages, and interest on the damages at the rate, and calculated in the way, prescribed under a regulation;

• [166] By s 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld):

(1) For section 77(3)(c) of the Act, interest is payable on the amount of damages awarded -

(a) if the parties have entered into a contract - at the rate provided under the contract; or

(b) at the rate agreed between the parties; or

(c) otherwise - at the rate of 10%.

(2) The interest is payable on and from the day after the day the amount became payable until and including the day the amount is paid.

• [167] Where a party sues for general damages for breach of contract, interest applies only from date of judgment: Miller v Lida Build Pty Ltd [2015] QCATA 137 ('Miller'):

[37] The Tribunal has power to award interest on damages at the rate and calculated in the way, prescribed under regulation 34B of the Queensland Building and Construction Commission Regulations 2003 (Qld). Regulation 34B(2) provides that interest is payable on and from the day after the day the amount became payable. Until a decision to award damages is made no amount is payable.

• [168] Section 34B of the Queensland Building and Construction Commission Regulations 2003 referred to in Miller was in identical terms to that currently found in s 54 of the Queensland Building and Construction Commission Regulation 2018 (Qld).
• [169] Mr Currie is entitled to interest on the sum of $45,298.52 from the date hereof at the rate of 10 per cent per annum until paid.
• [170] The parties have made some submissions on costs but the submissions may have been premature given it now appears prior to hearing they exchanged written offers about resolution of the proceedings which may have a cost bearing. Additionally they have not addressed reserved costs ordered in the Magistrates Court. They should be given fresh opportunity.

[1] Neither of the invoiced progress claims (6 and 7) precisely matched the amounts set by the progress payment table to the contract (under the contract the amounts due on completion of stage 6 and 7 was $55,908.80) but the discrepancy is unexplained and apparently not in issue.

[2] Dated 6 December 2021, 30 December 2021 and 1 February 2022

[3] Hawach v A & A Building Services Pty Ltd [2025] NSWSC 1174, [76], [78].

[4] The generic general conditions matches all the named clauses to the general conditions and matches the clause numbering. The items in the schedule referred to in the generic conditions and the pagination however do not.

[6] Hardingham [15] (Kiefel CJ and Gageler J).

[10] A common law right to terminate and claim general damages for breach of contract is always available, and it has been said that there must be clear words in the contract to claim that that is not the case: Mazelow Pty Ltd v Herberton Shire Council [2002] QCA 119.

[11] [1933] HCA 25; (1933) 48 CLR 457, 476-7.

[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(a).

[16] Munro v Camdun Pty Ltd T/A Assett Carpentry & Building Supplies Pty Ltd [2024] QCAT 452, [119].