Head v Bishop [2026] QCAT 76

[4] The full particulars of the job specified in Quote #106 are as follows:

Construction of a Hardwood sleeper wall to create a level pad for pavers

Area of 3m x 4.8m in 400 x 400 pavers charcoal

1.2m wide paving down RHS of house

Edges of pavers to be concreted in and paving bond spread over the top

Site left clean and tidy

Quote covers materials/deliveries/labour

Total AUD $6,880.00

[5] The Applicant accepted Quote #106, and paid $3,880 to the Respondent for materials on 17 July 2023. The agreed works were thereafter performed by the Respondent over the period 29-31 July 2023.

[6] In the process of undertaking the agreed works some additional work was also performed by the Respondent, requiring additional materials. A further tax invoice (INV-1913) dated 6 August 2023 reveals these extras to be:

2 x 75mm Hardwood Rails $50.27

3 x 3m Hardwood sleepers $95.45

1 x 2.4m Hardwood sleeper $32.73

2 x Star Pickets 1.8m $16.36

Labour $210.00

GST $40.49

Total $445.30

[7] The $3,000 balance owing on Quote #106 was paid by the Applicant on 2 August 2023. The final $445.30 owing, as specified in invoice INV-1913, was then paid by the Applicant on 6 August 2023.

[8] On 29 August 2023 the Applicant lodged a complaint with the Queensland Building and Construction Commission ("the QBCC") in relation to seven defects claimed in the work that had been performed by the Respondent.

[9] The description of the defects set out in the Applicant's QBCC complaint was as follows:

1. Pavers not cut to correct size, [not] laid properly or with concreting to edge pavers to stabilise pavers. There are gaps and cuts everywhere.
2. Inadequate foundation to pavers. Subgrade has not been compacted sufficiently, resulting in sinking pavers.
3. Timber trims on patio/retaining wall cut in odd sizes and installed sloping back towards the house, [this] makes water flow towards the house.
4. Timber trims on walkways cut in odd sizes and installed in a non-professional manner.
5. Retaining walls not constructed correctly. Inadequate supports to the racked side walls to retain the subgrade. Used star pickets to support pathway side retaining wall, where posts and concrete should have been used.
6. Gaps and inadequate or no geofabric - the dirt is washing away, leaving the pavers uneven and sinking.
7. Drainage issues - inadequate drainage to the subgrade is washing away & water flows towards the house.

[10] The Applicant contends that a problem with water flowing across the pavers towards (rather than away from) her house had already become apparent on 2 August 2023, notwithstanding her paying the balance of Quote #106 on 2 August 2023, and her later paying INV-1913 on 6 August 2023.

[11] Fearing water flowing into the foundation of her home, the Applicant says that she made the decision to lift all the pavers, on 17 August 2023.

[12] As part of her claim the Applicant has obtained a building inspection report, prepared by a Mr Jason Walk of Jim's Building Inspections (River Heads). Mr Walk's (undated) report relates to an inspection said to have been undertaken by him on 25 August 2023. In that report, Mr Walk concluded that:

At the time of inspection, it was noted that the retaining wall/timber trims/ sub grade and pavers were all installed to a poor standard. The contractor had not completed the works as per their quote.

The lack of geo fabric and drainage will help deteriorate the paved area quickly.

The lack of compaction to the subgrade will cause the paved area to subside and become uneven very quickly.

The lack of sufficient supports to the retaining wall could lead to the sides of the paved areas blow[ing] out allowing the sub grade to subside.

The lack of concreting to the edge pavers will allow the [sic] the pavers move and cause gaps between the pavers and potential trip hazards.

Overall, the works completed by this contractor were not as per their quote and to a poor standard. It is recommended the works be removed and redone.

[13] Mr Walk has not descended into any detail and has not specified how the work performed by the Respondent has not complied with Quote #106. Nor were arrangements made by the Applicant for Mr Walk to be available to give further oral evidence before the Tribunal in relation to the contents of his report; such that the conclusions expressed therein were unable to be tested by the Tribunal by means of questions directed at Mr Walk. Mr Walk's expressed conclusions are very perfunctory, and he does not set out, in any detail, the basis for his conclusions. The Tribunal also notes that Mr Walk conducted his inspection after the Applicant had already lifted and removed the pavers. In these circumstances, little weight can be attached by the Tribunal to any of Mr Walk's conclusions.

[14] A QBCC inspection in response to the Applicant's complaint was not able to be undertaken until 9 January 2024, being nearly five months after the Applicant had removed all the pavers.

[15] In his report dated 19 February 2024, the QBCC inspector - a Mr Andrew Garcina - noted the fact that the Applicant had already removed the pavers made it effectively impossible for the QBCC to assess and consider complaints 1 and 2.[2]

[16] As to complaint number 4 ('Timber trims on walkways cut in odd sizes and installed in a non-professional manner'), the QBCC noted this complaint referred to hardwood sleeper timbers adjacent to a walkway down the right-hand side of the Applicant's house, that had been affixed to the ground by means of star pickets, in order to form a line of delineation between the walkway and an adjacent area of river rocks, previously installed on the property as a garden landscaping element. Complaint item 4 was assessed by the QBCC as not constituting 'building works', such that it was not investigated any further by the QBCC.

[17] As to the remaining complaint items raised by the Applicant with the QBCC (items 3, 5, 6, and 7, at paragraph [9] above), the QBCC assessed each of these to be instances of 'defective building work', noting the following:

[3] This section of hardwood timber retaining was installed without the provision of adequate drainage behind the wales,[3] as required by Timber Queensland Technical Data Sheet 8.[4]

[5] The intermediate hardwood timber retaining post is undersized, and requires replacement with a 200mm x 50mm post, set to a depth of 600mm. The hardwood timber returns fixed to the end posts [also] require upgraded fixings.

[6] No geotextile fabric had been installed behind the hardwood posts and wales, as required by Timber Queensland Technical Data Sheet 8.

[7] No drainage line was installed at the bottom of the retaining wall system to assist with the removal of ground water from the retained area, as specified in Timber Queensland Technical Data Sheet 8.

[18] On 20 February 2024 - and in consequence of Mr Garcina's inspection findings - a 'Direction to Rectify' was issued by the QBCC to the Respondent.

[19] The Respondent thereafter arranged for a licensed contractor to undertake the rectification works ordered by the QBCC. These were undertaken on 28 February 2024. These were also accepted as being satisfactory by the Applicant on 28 February 2024, with her signing an acknowledgement to that effect on the same day.

[20] In relation to the seven complaints raised by the Applicant, the Tribunal observes the following:

[1] Pavers not cut to correct size, [not] laid properly or with concreting to edge pavers to stabilise pavers. There are gaps and cuts everywhere.

[21] The Respondent contends that he did lay the pavers appropriately.

[22] No evidence has been produced before the Tribunal to show how the pavers were allegedly laid inappropriately, or that these had been cut to the wrong size, and no evidence has been produced in support of the Applicant's contention that there were "gaps and cuts everywhere".

[23] Although the Applicant contends that concrete was not used to edge and stabilise the pavers, there is now no evidence of that given that the Applicant had already fully removed all the pavers prior to any opportunity for independent inspection and assessment by either the Applicant's expert (Mr Walk), or by the QBCC. In these circumstances there is simply insufficient evidence before the Tribunal for it to be able to assess this aspect of the Applicant's claim.

[2] Inadequate foundation to pavers. Subgrade has not been compacted sufficiently, resulting in sinking pavers.

[24] The Respondent gave evidence at the hearing that he did compact the crusher dust sub-base for the pavers appropriately, by means of a vibrating plate compactor ("wacker packer").

[25] The QBCC Inspector Mr Garcina concluded that the Applicant's removal of the pavers had caused the sub-base below the paved surface to become 'unstable and pitted',[5] thus making it impossible for the QBCC to attribute this complaint item to defective workmanship by the Respondent.

[26] In his report, Mr Walk states that "it was observed that the sub-grade had not been compacted sufficiently". The Tribunal is however not prepared to rely on that evidence, in those circumstances wherein Mr Walk was not made available to be cross examined on his report to test the basis for his conclusions; and circumstance of the pavers having been removed prior to Mr Walk's inspection, and in the further circumstance that Mr Walk has not explained the basis for any of his conclusions in his report. The Tribunal also prefers the QBCC inspection report, on grounds that Mr Garcina came to the task of assessing the disputed works from a position of greater neutrality, given the statutory role of the QBCC as a building industry regulator. In all these circumstances there is insufficient evidence available before the Tribunal to establish this aspect of the Applicant's claim.

[3] Timber trims on patio/retaining wall cut in odd sizes and installed sloping back towards the house, [this] makes water flow towards the house.

[28] The Tribunal notes that the QBCC assessed this issue as arising in consequence of an initial failure by the Respondent to install a drainage line at the base of the retaining walls, such that rectification works to install the required drainage line was ordered by the QBCC.

[29] As indicated already, the Tribunal prefers the assessment given by Mr Garcina over that provided by Mr Walk. The QBCC report does not support a finding that the timber trims on patio/retaining wall had been 'cut in odd sizes and installed sloping back towards the house', as the QBCC report does not make any comment in support of that conclusion, attributing the problem to a different issue, which the QBCC ordered be rectified.

[4] Timber trims on walkways cut in odd sizes and installed in a non-professional manner.

[31] The Applicant has not provided specific evidence of the manner in which these elements ought to have been installed. Nor indeed is there any evidence showing odd-sized timbers. Nor is there any detailed contract specification that could now be considered by the Tribunal as an appropriate yardstick when attempting to assess the adequacy of the installation. In these circumstances, there is just insufficient evidence to support this aspect of the Applicant's claim.

[5] Retaining walls not constructed correctly. Inadequate supports to the racked side walls to retain the subgrade. Used star pickets to support pathway side retaining wall, where posts and concrete should have been used.

[32] The QBCC determined that the intermediate hardwood timber retaining post in this part of the patio pad construction were undersized, and required replacement with a 200 mm x 50 mm post, set (in concrete) to a depth of 600 mm, and that the hardwood timber returns fixed to the end posts also require upgraded fixings. The QBCC ordered rectification works in those terms at the expense of the Respondent. Once undertaken, these rectification works were accepted by the Applicant as having been undertaken to her satisfaction.

[33] The Applicant particularly complains that the Respondent had used star pickets to support the side pathway edge timbers, in lieu of hardwood posts set in concrete. The Tribunal notes however that there was no agreed contract specification requiring the use of concrete and hardwood posts to support the side pathway; and that this element had been assessed by the QBCC as not entailing building work, such that there is no specific industry standard that becomes applicable. The Tribunal further notes that INV-1913 sent to the Applicant on 6 August 2023 included a component for star pickets, and this had was subsequently paid, without query by the Applicant, and on the same day as that invoice had been received by her.

[34] Given the nature of the side pathway timber as delineation between the path and an adjoining landscape element (river rocks); and in the absence of any clear evidence of an agreed written specification requiring that the Respondent specifically affix the timber edging to the ground by means of hardwood posts set in concrete, the Tribunal concludes that the Respondent was at liberty to use star pickets for this task.

[6] Gaps and inadequate or no geofabric - the dirt is washing away, leaving the pavers uneven and sinking.

[7] Drainage issues - inadequate drainage to the subgrade is washing away & water flows towards the house.

[35] The QBCC determined that geotextile fabric had not been installed behind the wales, such that the QBCC ordered the Respondent to arrange for the installation of the required geotextile fabric, at his expense. This rectification work was performed on 28 February 2024 by licensed contractors organised by the Respondent, to the satisfaction of both the QBCC and the Applicant.

[36] In her material, the Applicant contends that the agreed size for the patio construction was meant to be 3.2 metres by 4.8 metres, with the adjoining pathway to be 1.2 metres wide, yet claims that the Respondent did not build to these dimensions.

[37] The Respondent contends that he did build to these dimensions, and now says that the Applicant has either measured on a different[6] basis to his own measurements; or that there has been natural timber movement and weathering effects beyond his reasonable control in the intervening period.

[38] The Tribunal notes that the only documentary specification of the dimensions of the works is that as contained in the original Quote #106, which specifies dimensions for the patio pad area as 3.0 metres by 4.8 metres (rather than the 3.2 metres by 4.8 metres as now claimed by the Applicant), together with the pathway at 1.2 metres wide. In these circumstances the Tribunal is not prepared to find that the Respondent was required to construct the pad to be 3.2 metres by 4.8 metres.

[39] Unfortunately, the photographs provided by the Applicant, and which are now claimed by her to portray the allegedly incorrect dimensions of the constructed works, are of insufficient quality for the Tribunal to be able to repose any confidence in them. The measurements on the tape shown in the photographs are difficult to read, and it is not clear precisely what is being measured, in terms of the start and end point for each measurement. Nor are any of the photographs in Mr Walk's report of sufficient fidelity - or accompanied by sufficient explanatory commentary - that the Tribunal could rely on any of these either.

[40] Meanwhile, the QBCC report describes only "a flat retained area of land approx. 3150 x 4900 mm" and that the "section adjoining the rear brick wall of the residence is 4900mm post to post", although the QBCC report does not specify whether that is an internal or external measurement. Given a post thickness of 50 mm - and in the event that the QBCC measurement was taken from the external edge of the posts - this may afford a basis to infer a deck measurement of 4.8 metres, as quoted. Ultimately however, this is pure speculation, as the available evidence emanating from within the QBCC report on this issue is also insufficient for the Tribunal to make any confident determination on the point. The Tribunal particularly notes that the QBCC have not concluded that the construction was built by the Respondent to incorrect dimensions.

[41] Assessed wholistically, the Tribunal is prepared to consider that there is probably at least some dimensional discrepancy from the dimensions specified in Quote #106, however there is insufficient evidence of the extent of any discrepancy for the Tribunal to be able to conclude that this should now give rise to an order from the Tribunal for the Respondent to compensate the Applicant.

[42] Ultimately, any Applicant who is seeking compensation from the Tribunal must adduce sufficiently reliable and persuasive evidence in support of their claim, as compensatory orders cannot reasonably be based on indeterminate evidence. In this instance the Applicant has not managed to adduce sufficient reliable and persuasive evidence.

[1] Quote 1328. The maker of the quote was not called by the Applicant to give any evidence.

[2] Being the Applicant's complaints regarding the Respondent's allegedly defective paving and inadequate preparation of the paver sub-grade.

[3] Wales are the horizontal elements of a retaining wall system, affixed to vertical posts.

[4] "Typical retaining wall construction for timber garden walls up to one metre in height".

[6] The Respondent says that the agreed dimensions for the patio were to be 'outside' measurements, taken to the external edge of the 200 mm x 50 mm hardwood sleeper wale. Quote #106 does not specify either way.