Currow v Sophocleous [2025] QCAT 174

Currow v Sophocleous [2025] QCAT 174 | Case summary | Zoe

[19]

[16] On 22 April 2021 Ms Currow contacted the Queensland Building and Construction Commission (the QBCC). She says she was informed by a Mr Steve Sargent that Mr Sophocleous had been in contact with the Commission, and that work should not resume on the roof until the QBCC had inspected it.[6]
[17] On 10 May 2021 Mr Sargent carried out that inspection. He identified work which he opined was defective.[7] In the QBCC's report of that inspection, provided to Ms Currow under cover of letter dated 17 May 2021, the following statements appear as part of Mr Sargent's findings:[8]
- Water staining is evident to ceiling sheets in Bedroom 1, Master Bedroom, Bedroom 3 and hallway.
- There is no roof void and roof pitch is flat (approximately 2O), therefore the QBCC are unable to assess the back of ceiling sheeting from tracking or recent moisture marks and possible saturation to roof insulation.
- ...
- The QBCC considers it difficult to determine if the initial water leak from the hammer being placed under the roof contributed to water spreading into the Master Bedroom and Hallway from Bedroom 1.
- ...
- Clip-lock roofing is being used on shallow pitch, however excessive creasing has occurred to sheet pan around the ridge area. Excessive oil-canning in trays of Clip-lock roof sheeting will permit water to pond in these areas. Standards Australia HB 39-2015 Paet 7.17 states that retainment of water from oil-canning in trays can lead to discolouration or deterioration of the roof sheet and contribute too (sic) thermally induced roof noise. ...
- It is difficult to ascertain if the initial leak from a hammer being left in-between [a] (sic) roof join has compromised the ceiling sheets in other rooms or barge-capping being left off has impacted on ceiling in Bedroom 3. To gauge if leaks have occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required.
[18] On or about 11 May 2021, Mr Sophocleous resumed the Contract Work.
[19] Ms Currow asserted that on 8 June 2021 Mr Sophocleous informed her he had completed the Contract Work.[9]
[20] On 19 July 2021, Mr Handley, a Building Certifier, issued a Form 21 Final Inspection Certificate for the Contract Work.[10]
[21] Ms Currow also asserted that up to 24 July 2021 she notified Mr Sophocleous of what she described as a variety of damage she believed had occurred whilst he was undertaking the works. This included not only the asserted initial leak and water staining, but what she asserts was:[11]

[25]

[28] On 3 June 2022, Ms Currow commenced this proceeding. As she expressed her claim at that time it was for an award of damages and costs totalling $45,000, but also that she sought orders from this Tribunal for rectification or what was asserted to be defective work. Mr Sophocleous defended that claim in its entirety. What then followed was the filing of a voluminous amount of documentation from the parties and many interlocutory applications.
[29] Ultimately on 15 November 2023, the contest between the parties came on for hearing before me over two days. As the hearing got underway it became readily apparent that there were challenges in going forward. Ms Currow, self-represented at the time, had not only not arranged for any witnesses to attend to give evidence, but when she opened her case the relief she informed me that she was seeking was payment to her by Mr Sophocleous of $65,000 in compensation for the costs she will incur in replacing the roof sheeting and repairing the ceilings inside her house, and she would not be seeking any orders for rectification.
[30] But this was not the case that was the subject of her application filed in this Tribunal when she commenced this proceeding, and it was not the case that Mr Sophocleous had come to the Tribunal to meet. When I explained this to Ms Currow and what her options were in going forward, she applied for an adjournment to get her case in order. Mr Sophocleous consented to the adjournment.
[31] I granted the adjournment and gave detailed directions for the filing of an amended Application and to the extent necessary an amended Response and any Counter-application; for the refiling of the parties' respective material in a correctly formatted and structured manner given the extensive, confused, and confusing nature of what had already been filed; and for the requirement that all witnesses to be presented at the hearing to give evidence proving their statements and be made available for cross-examination. I also gave the parties leave to be legally represented.
[32] What then followed was the filing of amended primary documents in January and February 2024, and the associated refiling of statements in March and April 2024.
[33] At that time Ms Currow's claim was expressed as one for payment of damages in the amount of $82,767.75 plus interest and costs. The premise for the claim was expressed as a breach by Mr Sophocleous of the Warranties. Mr Sophocleous once again defended the claim in its entirety, also raising a counterclaim in the amount of $12,000 for what he asserts was a loss of revenue when he was not permitted to continue with the work in the period 16 April 2021 to 9 June 2021 pending the QBCC's investigation.
[34] It was not until early October 2024 before the matter came back before me for hearing with a return late that month for the finalisation of the hearing by way of closing oral argument following the provision of written closing submissions.
[35] Regrettably, since then a substantial number of issues have arisen for me severely restricting my time and thus my availability to attend to considering the issues as they arise in this proceeding and in turn make my decision and write these reasons. I offer my sincere apologies to the parties for that unfortunate and unexpected delay.

[131]

[118] As I read the extensive written statement given by Ms Currow, and then listened to her and observed her during the hearing, as well as on the occasion of the first day of the hearing before it was adjourned for the purposes of her amending her claim, I perceived her to be not just charged with emotion as to her complaints about Mr Sophocleous's work but somewhat confused about it all. I concluded that she had not fully understood the ramifications of what she was asserting and thus the need for the provision of adequate evidence to support her case. I was left with the impression she accepted at face value what others had told her about the roof without understanding that they were not necessarily qualified to offer such comments.
[119] I also observed her giving what I could only described as bare assertions of fact. This was primarily in terms of what she asserted was leaks into the house after the roofing work was completed by Mr Sophocleous. As I noted it in paragraph [48] herein, whilst she stated there was further leaks she did not in any way provide any detail to support it, either by way of a statement as to when and where, or with any photographic or other evidence to show it. Given the issues the subject of her claim and the severity of that claim being one which was effectively to replace the entirety of the new roof sheeting, she could readily have, and should have, taken photos of this asserted water dripping and continued staining and moisture. Yet she did not do this. It left me with the thought that such a comment was contrived as one of convenience.
[120] On the issue of the ceiling replacement, and in particular that which I noted in paragraphs [49] and [50] herein, I did not accept Ms Currow's evidence that it was merely an 'option' to replace the ceilings. It was very evidently always her intention to do so in order to have uniformity of ceilings throughout her house. I considered her statement, and the submissions made by her advocate in closing to support it, that it was an optional issue to be opportunistic given the water penetration that she says occurred and so caused the leaks.
[121] In all respects, whilst I appreciated the emotional pressures this litigation brought with it for Ms Currow, and thus the impact such could readily have on her presentation, I did not find her to be a good witness. Her evidence lacked probative value.

[135]

[126] Whilst Mr Sargent's evidence given as a QBCC Building Inspector is such that a layperson may consider it to carry substantive weight, the mere fact that he is such an inspector does not of itself give it that weight. The probative value, and thus weight, any evidence is to be given can only be determined by reference to its content.
[127] Here, Mr Sargent's evidence lacked an essential component to give it that value. It was absent any evidence of how he concluded that the roof leaked and caused the internal damage. As I noted it earlier in terms of Mr Eldred, on Mr Sargent's own report he opined that to gauge if leaks had occurred from the recent rain events or are existing, then a more thorough examination (invasive) is required. But there was no evidence of that invasive investigation before or during his second inspection wherein his, quite surprisingly, made the leap to the conclusion that there was 'sufficient evidence' that Mr Sophocleous was requirement for what was said to be the consequential damage. He did not in any way identified what that 'sufficient evidence' was. He did not explain what that sufficient evidence was in any meaningful way which demonstrated the requisite causal connection, such being a manner of expression used by Ms Currow's advocate in her closing submissions.
[128] Nor did his evidence explain the basis upon which he concluded that the roof sheeting used by Mr Sophocleous was not fit for purpose or suitable for a sprung form roof. The mere statement of such by a QBCC Inspector does not make it so. Critically, he did not explain in any way how, on a reading of the relevant Australian Standard, could it be said that the roof sheeting was non-compliant and so not fit for purpose. At best all he could do was refer to the Standards Australia HB 39-2015 Part 7.17 wherein the reference is said to be that retainment of water from oil-canning in trays can lead to discolouration or deterioration of the roof sheet, and then he jumped to the unsubstantiated conclusion that the roof sheeting will not last its full expected life because it would deteriorate rapidly.
[129] Finally, as to the short exchange had between Mr Sophocleous and Mr Sargent under cross-examination I referred to in paragraph [60] herein, it showed up another deficiency in Mr Sargent's evidence. When it was put to him by Mr Sophocleous that a Klip-lok product was the only suitable method given the distance between the beams and also the pitch, his response was in the negative asserting that Trimdeck could be used. However as I noted it earlier, there is an absence of any evidence from Mr Sargent that he carried out any form of investigation to determine the manner of construction of the roof frame. To the contrary, he asserted that an invasive investigation would be required. In the absence of that it is questionable as to the basis he could have responded negatively to Mr Sophocleous's proposition to him.
[130] Whilst it had some probative value, I gave his evidence very little weight.

[138]

[140] In contrast to the witnesses presented for Ms Currow, I found Mr Sophocleous to be a good witness, albeit one which presented his evidence from a slightly skewed basis to the extent it was based on his own personal experience as distinct to being with reference to relevant Australian Standards. He demonstrated to me that he lacked an understanding of the need for compliance with the Standards to the extent he had given a warranty when entering into the Contract, seemingly holding the opinion that his own personal knowledge and experience was the correct basis upon which he could make the decisions he did.
[141] Other than that skewed aspect, the presentation of his evidence was helpful to me in understanding the circumstances that existed at the time he was undertaking the Contract Work. In particular, I found his evidence, given by way of photographs, of what he found when he lifted various sheets of the old roof to be compelling. I was readily able to find on the strength of this material alone, and in the absence of anything to challenge it being presented by or for Ms Currow, as a fact that there was water damage to the insulation below thus clearly indicating that the existing roof sheeting was leaking to some degree over time.
[142] I also accepted his evidence of pre-existing leaks to the solar hot water system and the use of Dek-tight seals to at least one of the penetrations to the roof sheeting, such being contrary to the argument and evidence presented by or for Ms Currow.
[143] I also accepted he had decided to use Metlok680 product based on his own experience and observations to meet the needs of that which he was contracted to do. I was also satisfied on his evidence, again in the absence of anything being presented to the contrary for Ms Currow, that such was based on his knowledge of the existing roof structure which I inferred was sourced from the fact that the roof sheeting he was removing was installed as a sprung curved roof, and his knowledge and experience in replacing roofs to houses in the area for some time in terms of that style of house. As I noted it in paragraph [76] herein, his decision to construct the roof in that way, given the existing roof he was removing was installed in that way "alleviated the need for re-organising the frame", an aspect that seemingly had been overlooked by Mr Eldred and Mr Macconnell, and whilst possibly considered by Mr Eden it was not a detailed consideration but rather more of an assumption leading to a guess as to what might be required.
[144] But this is where he went awry based on his skewed view of what was appropriate. He selected a product that had not been tested for use in construction of a sprung roof, albeit as he explained the Metlok700 which he asserts is a similar product is permissibly used for such. In my opinion, it would have been prudent for Mr Sophocleous to have addressed this issue with Metroll prior to selecting the product. Had he done so, I expect that this proceeding would never have arisen. But the question that then of course arises is this - Just because he did not do so, does it lead to the conclusion that:

[142]

[148] In my opinion allot turned on Mr Ashby's evidence. As I noted it in paragraph [83] herein he was a roofing contractor originally contacted by Ms Currow to inspect and provide a report / quotation in terms of the roofing works performed by Mr Sophocleous. That report and quotation formed part of her statement of evidence filed in this proceeding. Yet, she did not call him as a witness.
[149] Those circumstances raise the question - why was he not called as a witness for Ms Currow? Ms Currow's advocate sought to explain that as being it was simply a choice to call Mr Eden as he had given a more up to date and comprehensive quote for the work said to be required, thus effectively asserting that Mr Ashby's quote was redundant.
[150] I do not accept this as a meaningful reason. It does not explain why Mr Ashby's evidence of what he observed, and what he asserts was required to be done to remedy the allegedly defective work, was not probative in terms of the case Ms Currow was running. A comparison to the fact Mr Everett having been called must then be made. Mr Eden's quote was more up to date than Mr Everett's, yet Mr Everett was called to give evidence of what he observed on his second visit, such pertaining to what was said to be water leaks. The absence of Ms Currow having called Mr Ashby leaves open the possibility of an adverse inference being drawn that his evidence might somehow harm her case.
[151] As it unfolded in the hearing with Mr Sophocleous having called him, Mr Ashby only appearing in response to a Notice to Appear being issued by me during the course of the hearing, was that his evidence was to some degree adverse to Ms Currow. As I noted it in paragraph [88] herein, he explained that he would replace the roof with Stramit Speed Deck as a sprung curve roof, such being standard practice in Cairns, that it would be the best solution in roof replacement, and that Trimdeck was not suitable. As I had earlier noted it in paragraph [86] herein, he would use 0.48 gauge material to alleviate issues with oil-canning, from which I infer that such is in his experience an aspect of installing a sprung roof but minimised with the use of the higher gauge material.
[152] I was also conscious of what Mr Ashby had to say about the use of a ridge capping, asserting it was 'not a bad idea' noting that in a sprung curve roof "you can get ponding". In that regard I note that what Mr Sophocleous had installed was 0.48 gauge material, and accordingly I infer that on Mr Ashby's evidence the end result may not be too much different.
[153] This is directly at odds with the evidence of Mr Sargent, Mr Macconnell, and Mr Eden, and to some degree Mr Eldred. To the extent it is at odds, I prefer the evidence of Mr Ashby given his stated experience as a roofing contractor in the Cairns Region.
[154] It is also directly at odds with the closing submission for Ms Currow which I noted at paragraph [95](b) that the "integrity of the sheets" had been impacted on by the installation of a ridge cap. There was no evidence of such presented.
[155] What however Mr Ashby did say is that in his opinion the workmanship of that which Mr Sophocleous installed was "in some areas poor - not the best". But this does not make it defective such that it was required to be replaced in its entirety.
[156] Also telling was Mr Ashby's response under cross-examination to the question posed of him by Ms Currow's advocate, such being as to whether the roof needed to be replaced. As I noted it in paragraph [89] herein, his response was - need to check with an engineer. I agreed entirely with that comment as being correct and appropriately stated. It is this comment that leads to what I say next about the presentation of Ms Currow's case.

[146]

[159] Moreover, contrary to the submission her advocate made as I noted it in paragraph [100] herein, there was no evidence upon which it could be said that "non-compliance imposed a risk of safety to occupants".
[160] Ms Currow's efforts to meet the requisite standard of proof reliant on Mr Eldred, Mr Sargent, Mr Macconnell, and/or Mr Eden was either misguided or misconceived. As I have noted it earlier discussing the evidence of other witnesses, Mr Sargent noted in his first report, such which I noted in paragraph [17] herein, that to gauge if leaks have occurred then a more thorough examination (invasive) is required. But no such examination was carried out, or at the very least there was no evidence of any such examination having occurred. Ms Currow was squarely on notice of the need for it having received the first report from the QBCC, yet she chose to press her claim in this Tribunal in the absence of such.
[161] Whilst each of her witnesses expressed an opinion effectively that either or both of these circumstances had been satisfied, such opinions were hollow. Not one of them explained how they formed that opinion by reference to, and with an explanation of, the relevant provisions of an Australian Standard and as to how such was to be read and applied to the facts as established either by them independently based on their own inspections and evaluations of the work performed, or based on assumptions they were told to adopt and that had been independently verified by other evidence presented to this Tribunal.
[162] Ms Saunders engaged in an admirable effort within her written closing submissions to explain the workings of the Standards, albeit relatively briefly.[60] But that was not enough. It is not for an advocate to explain the meaning of technical data in closing submissions to explain a point in an effort to persuade the Tribunal to make a finding favourable to the advocate's client.
[163] It also seemed to me that in the presentation of Ms Currow's case it was the expectation that I would consider the relevant material handed up, namely the Standards,[61] and interpret them so as to work out that there had been non-compliance.
[164] Either way, such is a flawed approach to presentation of a case to this Tribunal, particularly when it comes to technical evidence. Such should be presented by way of an independent expert properly qualified to give such evidence and express an opinion as to the application of that technical information to the facts as otherwise proven. The Tribunal's role is to determine the dispute before it based on the evidence presented and the application of the law. Whilst the Tribunal may inform itself in any way it considers appropriate,[62] unlike a privately appointed Arbitrator or Expert Determiner it is not for the Tribunal to use its own independent expertise, which its Members may hold, to determine an issue of fact.
[165] The presentation of Ms Currow's case was also flawed in terms of the issue of damage to the internal ceiling panels. At its highest, her evidence was that water damage occurred to the panels during the installation of the roof sheeting. She did not however present any evidence to show that the water damage arose as a consequence of the performance of the Contract Work by Mr Sophocleous. Contrary to the submissions made for Ms Currow as I noted it in paragraphs [96] and [97] herein, the evidence as it was presented did not support the argument that due to defective roofing works water leaks and damage had occurred internally, and that the need for internal remedial works was a consequence of Mr Sophocleous's failure to comply with the statutory warranties. There was no 'clear causal link' between the alleged breaches, even if made out, and the water penetration resulting in internal damage.
[166] At best, Ms Currow's case was one reliant on the maxim 'res ipsa loquitur', that is because there were water leaks during the roof installation work it must have been as a result of those work being performed. Such is a leap not open to be taken. As I noted it earlier, I accepted on the evidence of Mr Sophocleous that leaks through the old roof sheeting had occurred resulting in damage to the insulation below. It is open to be inferred that such leaks continued at the time Mr Sophocleous was working on other areas of the roof, those leaks manifesting as damage to the ceilings below. This was not discounted by Ms Currow's evidence in any way, rather it was that leap straight to being it must have been something Mr Sophocleous did or did not do. That seems to have been the leap Mr Sargent made as I noted it earlier. In my opinion it was a leap inappropriately made in each instance.
[167] Finally, whilst I have not specifically discussed it earlier within these reasons when discussing the evidence from her witnesses, for completeness I should also make these two short observations in terms of her allegations regarding defective work concerning the solar hot water system.[63]
[168] Her evidence does not support a finding that Mr Sophocleous breached the Contract in terms of his work in this regard. To the extent she argued the hot water system developed leaks after he dealt with it in carrying out the reroofing work, I accept Mr Sophocleous's evidence that leaks were evident in the system before he touched it. Such is also consistent with the statement given by a representative of Solarhart Cairns as I noted it in paragraph [47] herein, the system had multiple leaks fixed by replacing seals. I failed to see nor accept how it might be said that somehow Mr Sophocleous should be held responsible for failed seals simply because he lifted the system to install new roof sheeting.
[169] As to the allegations concerning the manner in which he placed the system back on to the new roof sheeting using timber blocks, I accept that this is not good workmanship practice. It was the subject of a finding by the QBCC as to it being defective work that should be rectified by Mr Sophocleous.[64] However, as Ms Currow's evidence showed me, as I noted it in paragraph [26] herein she refused him access to rectify the said defects. I do not see any reason why in such circumstances Mr Sophocleous should thus be held accountable to her for damages for failure to have rectified this work.
[170] For these reasons, these parts of her claims must also fail.
[171] All this being said, Ms Currow's claim must fail, the substantive reason being on the basis that her evidence does not support a finding that Mr Sophocleous breached the relevant warranties.
[172] If however I am wrong on any of that, there was one other aspect of the presentation of Ms Currow's case that was flawed, or at the very least risky to her. She effectively put all her proverbial eggs in the one basket, running a case of defective work only without any regard to the possible alternative of diminished value. Her case was entirely devoid of any evidence of the value of her house having been diminished as a consequence of the work having been performed by Mr Sophocleous defectively but in circumstances were the rectification of that work by replacement of the roof was found to be unreasonable.
[173] There is an overriding legal principle that applies in cases such as these, namely the question of cost of cure vs diminution in value. As it was expressed by the learned author of Hudsons - Building and Engineering Contracts: [65]

[153]

[179] It may readily be accepted on the strength of the evidence that was before me that the performance of the Contract Works by Mr Sophocleous was not the best. It was poor in terms of his choice of material and general workmanship. But that does not make it defective to the extent it was necessary to replace it in its entirety.
[180] Whilst the material selected for use in the construction of a sprung formed roof had not been tested, nor was expressly recommended, by its manufacturer for such use, importantly and critically the evidence was not that the manufacturer's specification was that it must not be used in the construction of a such a roof. Yet, that was the case as presented by Ms Currow. Once again, that aspect of the manufacturer's specification does not make it defective requiring entire replacement.
[181] Nor did Ms Currow's evidence support a finding that the material used and the method of construction engaged in by Mr Sophocleous was not consistent with the requirements of the relevant Australian Standards. The presentation of her case was framed in that way but the evidence did not show it to be so, nor was their evidence from Mr Sophocleous to show it was compliant. Overall the evidence presented did not go sufficiently far enough to show me one way or the other.
[182] Having asserted that the work was defective, Ms Currow bore the onus of proving it to be so.[70] She failed in that regard and accordingly she failed in the presentation of her case. Equally, Mr Sophocleous failed in pursuit of his counterclaim in the absence of any evidence to support it.
[183] For all of these reasons, the appropriate outcome in this proceeding is that each claim be dismissed. My orders reflect this.
[184] Subject any submissions the parties wish to make to the contrary, in my opinion it should follow that an order be made that each party bear their own costs of the proceeding, however I will give the parties the opportunity to make any contrary submissions should they consider it appropriate within a specified period of time, failing which it will follow that an order is triggered that each party bears their own costs.

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